SZSQG v Minister for Immigration
[2013] FCCA 612
•25 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 612 |
| Catchwords: MIGRATION – Application for an extension of time to seek review of a decision of the Refugee Review Tribunal – whether satisfactory explanation for delay – merits of substantive application. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 477 |
| BZABK v Minister for Immigration and Citizenship and Another (2012) 205 FCR 83; [2012] FCA 774 Minister for Immigration and Citizenship v SZQRB (2013) 296 ALR 525; [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 |
| Applicant: | SZSQG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 421 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 4 June 2013 |
| Date of Last Submission: | 5 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 421 of 2013
| SZSQG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 5 March 2013 the Applicant seeks review of a decision of the Refugee Review Tribunal dated 1 November 2012 affirming a decision of a delegate of the First Respondent not to grant him a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the Court within 35 days of the date of the migration decision. However under s.477(2) the Court may by order extend the 35-day period as it considers appropriate if:
a)An application for that order has been made in writing to the Court “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”; and
b)the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
The Applicant did not apply to the Court for review within 35 days of the date of the Tribunal decision. His application was not filed until some 89 days after the 35-day time limit. In his application he sought an order extending time pursuant to s.477(2) of the Act.
It is not in dispute that the Applicant satisfied s.477(2)(a) of the Act. He did so by ticking the relevant box seeking an extension of time in his application for judicial review and stating, under the heading “Grounds of application for extension of time”,:
I am in Immigration Detention, I do not speak English. It has been very difficult to find legal advice and representation.
The Applicant did not address the extension of time application in the affidavit accompanying his application. At the directions hearing conducted on 20 March 2013 orders were made to enable the Applicant to file further affidavit evidence. It was also ordered by consent that his application for an extension of time and the substantive application (if time was extended) be set down for hearing on the same date.
The Applicant did not file any affidavit evidence elaborating on why he considered that it would be necessary in the interests of the administration of justice for an extension of time to be granted.
Approximately four weeks before the hearing date a notice of address for service was filed indicating that a solicitor was acting for the Applicant. Written submissions prepared by counsel were filed for the Applicant two weeks prior to the hearing. They did not address the application for an extension of time. However at the start of the hearing, Mr Bodisco, counsel for the Applicant, acknowledged that an extension of time was sought. The Applicant was given leave to file and rely on an affidavit affirmed on 4 June 2013 by his solicitor, Michaela Byers (mis-described in the affidavit as Michaels Byers), in relation to the application for an extension of time.
Ms Byers’ evidence is that she was not acting for the Applicant prior to being contacted on 7 May 2013 by a representative of the Edmund Rice Centre. She stated that she understood from discussions with this person that he had “arranged for the filing of the application” as the Applicant was unrepresented by a lawyer. She attested that she “understood from the application” that the Applicant was in immigration detention, did not speak English and had “great difficulties” in finding legal advice and/or representation but gave no other relevant evidence that could adequately explain the Applicant’s delay of nearly three months beyond the prescribed time limit before commencing the present proceedings.
In considering whether it is necessary in the interests of the administration of justice to make an order extending time under s.477(2) of the Act, I have had regard to all of the circumstances insofar as I am able to do so on the evidence before the Court. A number of factors are commonly referred to as relevant to s.477(2)(b), including the extent of and reason for the delay; the merits of the substantive application; any prejudice to the respondents; the impact on the applicant; the interests of the public at large, and the exercise of the Court's discretion generally (see SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44]).
As Stone J suggested in Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35], the concept “in the interests of the administration of justice” in s.477(2)(b) would involve consideration not only of the reasons for not meeting the original time limit, but also whether the application would have any prospect of success were the extension of time to be granted,.
Smith FM pointed in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11], that the considerations that might bear on the exercise of the Court's discretion under such a provision are "unconfined". However, as his Honour also suggested, two “critical” considerations are “that an explanation, reasonable to the circumstances, is provided for the parties' absence or other default” and “that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order”. As his Honour observed, other considerations, such as “the implications of the appeals structure and alternative judicial review avenues”, are also relevant and while none of the posited considerations are necessary considerations in all cases, the Court should “weight all of the relevant circumstances together by reference to the statutory criterion” provided for in s.477(2)(b) of the Migration Act.
As indicated, the Applicant did not address the issue of an extension of time in his written submissions. Apart from relying on Ms Byer’s affidavit in relation to the delay, in oral submissions Mr Bodisco submitted that it was in the interests of justice to allow the Applicant to have his matter heard as the grounds raised were meritorious and the issues were of some importance. They were said to relate to a “novel yet important area” of the law, that is, the complementary protection criterion for a protection visa. There was said to be no prejudice to the Respondents. It was contended that the “vulnerable position” of the Applicant as a non-English speaker in detention who had “particular barriers” in respect of obtaining legal advice had to be taken into account as well as the consequences for him if his case was not heard on its merits.
The Minister opposed the grant of an extension of time having regard, in particular, to what was said to be an unsatisfactory explanation for the delay and the absence of merit in the substantive grounds.
Delay
The delay in this case is some 89 days beyond the 35-day time limit applicable under s.477(1) of the Act. This is a delay of some significance. The “extent of delay must be balanced against the reason for the delay” (WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29]).
The Applicant has put very little evidence before the Court in explanation for his delay in seeking judicial review. Beyond claiming that he was in detention, and did not speak English, and making an untested assertion that it had been very difficult to find legal advice and representation, he has not explained why he considers it necessary in the interests of the administration of justice for the Court to grant an extension of time. In particular, he has not explained what steps, if any, he took to commence proceedings or to obtain legal advice after being informed of the Tribunal's decision, or how his circumstances (including the asserted lack of representation) prevented him from filing an application for judicial review within the prescribed time limit or at least shortly thereafter. Insofar as it might be seen as implicit in the submissions for the Applicant that legal advice and/or representation was a necessary prerequisite to commencing judicial review proceedings, that is not the case. I note that while his matter was before the Tribunal the Applicant had the assistance of a migration agent/solicitor who was sent the Tribunal decision of 1 November 2012 as the authorised recipient of the Applicant. There is no suggestion from the Applicant that he was not notified of the Tribunal decision or of his review rights in a timely manner.
The Applicant is now represented in these proceedings. Notwithstanding that the need for evidence to explain the delay was highlighted in the First Respondent’s written submissions, the Applicant did not seek to rely on any affidavit evidence in relation to the delay other than that of Ms Byers. Leave was granted to the Applicant to file the affidavit sworn by Ms Byers in court. However her evidence is of no assistance. She was not acting for the Applicant prior to or at the time his application was filed. She simply referred to the statements he made in his application in relation to the explanation for delay.
I have had regard to the fact that the Applicant is a non-English speaker in detention but also to the length of the delay and the limited explanation provided. In the particular circumstances of this case I am not satisfied that the Applicant has provided a satisfactory explanation for the extent of the delay in commencing these proceedings.
Merits of the Application
It is also relevant to have regard to the merits of the present application. In assessing merit in the context of an application for an extension of time, I have borne in mind the fact that s.477(2) is concerned with circumstances justifying a departure from the ordinary rule in s.477(1) that an application must be lodged within 35 days of the date of the Tribunal decision. The “longer the delay without reasonable explanation, the stronger would need to be the argument on the substantive merits” (see VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 at [23] per Heerey J, albeit in relation to the exercise of the discretion to refuse relief.)
In this case the grounds relied on by the Applicant were argued in full. While I accept that grounds such as those formulated for the Applicant are not entirely lacking in merit on their face, for the reasons outlined below, in the particular circumstances of this case the Applicant's substantive application is not such as to provide support for his application to extend time.
Grounds relied on by the Applicant
The Applicant was represented by a solicitor and counsel. He had an opportunity to put his case at its highest. In pre-hearing written submissions counsel for the Applicant indicated that he would seek leave to file an amended application in court pleading two fresh grounds addressed in his written submissions. At the start of the hearing he sought to file an amended application. It emerged that the grounds as expressed in the proposed amended application were not in the same terms or to exactly the same effect as those contained in the Applicant’s written submissions. In the course of oral submissions, counsel for the Applicant indicated that he did not seek to press the proposed amended application, but rather sought to rely only on the grounds as stated in his written submissions.
The Applicant subsequently filed a further amended application, with leave, incorporating the grounds as expressed in the pre-hearing written submissions. These grounds (omitting obvious typographical errors) are as follows:
1. The Tribunal has failed to apply the correct test at law under the complementary protection provisions.
Particulars
a. The Tribunal rejected the applicant's claims under the complementary protection provisions at paragraphs [111] and [112] of the decision, having "regard to [the Tribunal's] findings of fact above".
b. The Tribunal's findings of fact "above", at paragraphs [105] and [100] of the decision, are "bound up" in Refugee Convention-related reasoning.
2. That the Tribunal has failed to assess the full integers of the applicant's claim.
Particulars
a. The applicant's claims squarely raised, under the complementary protection provisions, a claim to face significant harm from non-state actors;
b. This claim was not dealt with by the Tribunal in their (sic) Findings and Reasons relating to complementary protection at paragraphs [111] and [112] of the decision.
Background
It is relevant to both grounds to have regard to the claims made by the Applicant at various stages and the content of the Tribunal reasons for decision.
The Applicant, a citizen of Sri Lanka, arrived in Australia in April 2012 as an irregular maritime arrival. In his biodata form he indicated that he was seeking Australia's protection because “he was in fear of [his] life”. He elaborated on his reasons for leaving Sri Lanka in an interview conducted on 11 May 2012. According to the record of interview he again claimed he was “in fear of [his] life”. In explanation, he claimed that in 2010 elections he had supported General Fonseka (a United National Presidential Party (UNP) candidate) by preparing cut-outs, sticking up posters and canvassing. He claimed that after the opposition United People’s Freedom Alliance (the UPFA) won the election they “became very angry with us” and that in the first week of May 2011 “some guys came in a white van and threaten[ed] us saying that we won’t be spared you were against us”. The Applicant claimed he “came to know” that these persons were members of the UPFA. He also claimed that later in May, when he was by himself welding a gate one evening, “these guys came there”, but he escaped by running away. He claimed he injured himself trying to climb over a wall. He claimed these men told him not to run and that they would shoot him and that he had “identified them by the white van”.
The Applicant stated that the police, security or intelligence organisations had not impacted on his day-to-day life and that there were no armed groups, political groups or religious groups operating in the area where he lived. However he thought that if he returned to Sri Lanka he would “have to face a lot of big problems which will affect [his] life”. When asked what problems, he claimed, “The threats that I had earlier will come”.
On 5 July 2012 the Minister exercised his discretion under s.46A(2) of the Act permitting the Applicant to make an application for a protection visa. He lodged such an application. In support of the application he provided the Department with a statutory declaration dated 5 July 2012 in which he claimed that he had joined the UNP and had supported Mr Fonseka in the 2010 elections in ways he detailed. He claimed that supporters of Mr Fonseka were targeted by opposing political parties. He also claimed that subsequently he had been involved in spreading the message to villagers that Mr Fonseka had been wrongfully arrested and detained, and that he had received two separate threats from persons he suspected were members of the UPFA and/or political “fractions” (sic) supporting President Rajapaksa.
The Applicant claimed that he realised his life was in danger such that he could not remain in Sri Lanka and that later he had learned he was still being threatened by those he suspected were members of the UPFA and/or political factions supporting President Rajapaksa. He claimed he had begun to receive threatening telephone calls in January to March 2012.
Under the heading “What I fear may happen if I return to that country” the Applicant claimed:
I fear that I will be killed or otherwise seriously harmed in the event I am returned to Sri Lanka.
Under the heading “Who I think will harm/mistreat me if I was forced to return to that country” he claimed:
I fear harm from members of the UPFA as well as other political fractions and individuals associated with and in support of President Rajapaksa.
Under the next heading: “Why I think I will be harmed/mistreated if I return to that country”, he claimed:
I fear that I will be harmed for reasons of my work for and support of Fonseka and the UNP. Further, the UPFA and other political fractions and individuals associated with and in support of President Rajapaksa are aware of my identity and my work with the UNP.
In the event I am returned to Sri Lanka I also fear harm as a failed asylum seeker as I have come to Australia to lodge an application for protection and have criticised the Sri Lankan government and the President.
The Applicant also claimed that as he feared “the authorities” they would not protect him.
On 10 August 2012 the Applicant's then migration agent provided a written submission to the Department addressing, relevantly, the mistreatment of “political dissidents” and failed Sri Lankan asylum seekers in Sri Lanka, as well as issues of documentation, relocation and credibility. This submission referred to country information said to confirm that political dissidents such as the Applicant were at risk of persecution in Sri Lanka. Reference was made to country information in relation to the risk of persecution by the State of persons perceived to be active or influential in opposition to the Sri Lankan government, restrictions on political expression; election-related violence, targeting of supporters of the UNP by the Sri Lankan regime, and harassment of supporters of the UNP (the leading opposition party) by the authorities and the government, as well as to information in relation to a specific incident of detention and charges against a named journalist.
Relevantly, having regard to the grounds relied on by the Applicant in these proceedings, the adviser then claimed:
The above country information confirms that political dissidents in Sri Lanka – especially persons supporting the UNP, Sri Lanka's largest opposition party – continue to be at significant risk of harm in Sri Lanka. The Applicant, as an individual who has publicly displayed his support for the UNP, continues to be at risk owing to his political opinion, in the event he is returned to Sri Lanka.
The Applicant's adviser also claimed that independent country information showed that failed Sri Lankan asylum seekers faced serious and/or significant harm upon return to Sri Lanka. Reference was made to evidence from Amnesty International that it believed some returnees were at risk of torture and to the suggestion that the government of Sri Lanka had “a history of arresting and detaining rejected Sri Lankan asylum seekers upon their return and we are aware of cases of people being tortured”. The adviser detailed information in relation to returnees being detained and tortured in Sri Lanka and referred to information about “the widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody” and perpetrated by state actors in detention centres. It was contended that this information indicated that “as a necessary and foreseeable consequence of the Applicant's removal from Australia, he [would] be subjected to serious harm”.
By a decision of 11 September 2012 a delegate of the First Respondent refused to grant the Applicant a protection visa. The Applicant sought review by the Tribunal. The Applicant's adviser provided a written submission dated 26 October 2012 in support of the review application setting out the Applicant's claims about his involvement in campaigning and other activities for General Fonseka and the UNP and past threats from those he suspected were associated with the UPFA and/or were supporters of the President of Sri Lanka.
The Applicant's adviser claimed that country information relied on in support of the Refugees Convention claims also indicated that there were substantial grounds for believing there was a real risk the Applicant would face significant harm if removed from Australia and that the country information and the experiences the Applicant had in Sri Lanka supported a finding that the mistreatment or harm he would face in the event he was removed from Australia would amount to arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.
The Applicant attended a Tribunal hearing on 29 October 2012. The only evidence before the Court as to what occurred in the hearing is the Tribunal's account in its reasons for decision.
The Tribunal Reasons
As indicated, on 1 November 2012 the Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa. In its reasons for decision the Tribunal summarised the relevant law. The Applicant accepts that the Tribunal’s summary of law in relation to the criteria in both s.36(2)(a) and s.36(2)(aa) (the complementary protection criterion) is accurate.
The Tribunal also summarised in detail the claims made by the Applicant in his original application, his evidence at the Departmental interview and the Tribunal hearing, as well as the submissions of his representative. In the course of its account of the Applicant's evidence at the Tribunal hearing, the Tribunal set out concerns it raised with the Applicant in some detail, including concern about implausibilities, inconsistencies and modifications in his evidence and whether he was at risk of harm.
Relevantly, the Tribunal recorded the Applicant’s evidence that on the day after the first of the May 2011 attacks he had come to learn that a Nimal Lansa had been behind the attack which had been carried out by Mr Lansa’s thugs. The Tribunal also recorded that when it asked the Applicant what he feared would happen if he returned to Sri Lanka, he said “he might experience more serious threats and that there might be a threat to his life as well”. He said “he might get the same threats from the same people”. When asked if he feared he would have problems with the government, he was recorded as stating that “the threats had been coming from the people who had been supporters of the government and the governing party”. The Applicant said that this was why he feared that he might get the same threats in the future from the supporters of the government. He also claimed that, notwithstanding that he had not had any problems with the government in the past, he feared that “his problems would start again from the same people”. He claimed that he believed the people who threatened him were thugs working for Mr Lansa and that other political parties could be involved in future threats. He claimed to fear that he would get death threats and that “they” might kill him.
In relation to the adviser’s claim that the Applicant feared harm as a failed asylum seeker, the Applicant was recorded as claiming at the Tribunal hearing that “Lansa was now a Minister and his brother was also a member of a political institution”, that their father was “very rich” and that “unknown people” worked for that family as thugs. He claimed that if he had to go back to Sri Lanka, Mr Lansa or his father would find out he had made a claim against them in Australia. The Applicant claimed that this would affect him because when he was interviewed at the airport on his return to Sri Lanka he might tell officials that these were the claims he had made in his protection visa application.
Under the heading “Findings and Reasons”, the Tribunal addressed the law in relation to credibility before indicating that it had difficulty accepting the Applicant's evidence with regard to the two incidents in May 2011 and the telephone calls he claimed to have received. In that context it had regard to the fact that by the Applicant's account his involvement in political activities had been minimal. It found that despite his original claims that he began supporting and working for the UNP in about 1988 the Applicant subsequently qualified these claims and said he only voted for the UNP and that prior to his involvement in campaigning for Mr Fonseka in the February 2010 presidential election he had only been involved in one other political campaign assisting his brother-in-law who had been campaigning for the election of a mayor. He had not experienced any problems as a result of this earlier involvement, although his brother-in-law had experienced death threats and had left Sri Lanka.
The Tribunal also had regard to the Applicant's oral evidence that he had not had any problems as a result of campaigning for Mr Fonseka between the time of the election in November 2009 and February 2010 and to his evidence that (contrary to his original claims) he had “not in fact been putting up posters and cut-outs, distributing leaflets and talking to people about supporting” Mr Fonseka, but had only asked others to do these things and that he had not been personally involved in campaigning in the April 2010 parliamentary election or in protests after Mr Fonseka had been arrested or convicted, but had only told others to participate in such rallies and protests.
In addition, the Tribunal had regard to specified concerns about the Applicant’s claims in relation to incidents in May 2011, including the absence of an explanation for why those who were said to have attempted to abduct him had waited for over a year after the election before they did anything and the fact that if they had objected to the Applicant calling on people to go to rallies and protests about the jailing of Mr Fonseka, they could have done something about this in October 2010 rather than waiting until May 2011. The Tribunal found it difficult to accept the Applicant’s explanation that it would have taken six months to plan the two incidents in May 2011 given his evidence that Mr Lansa and his father had thugs working for them. The Tribunal also had regard to other concerns about the Applicant's account of these two incidents, including the fact that he had been able to escape by running away on both occasions and had not required medical attention.
The Tribunal also found it difficult to accept that having supposedly made two attempts to abduct the Applicant in May 2011, these people would have made no further attempts to abduct him before he left Sri Lanka in March 2012. It had regard to the fact that the Applicant had continued to work at the same place until shortly before he left Sri Lanka. It found that this did not suggest that he was in fear of these people before he left the country.
The Tribunal accepted the claims of the Applicant and his representatives that there had been a number of disappearances in Sri Lanka, some of which had involved white vans, but also had regard to country information indicating that the people targeted in this way had been politicians, journalists, human rights activists and businessmen, as well as criminals. It found that given the Applicant's description of his political activities, it was “difficult to accept that he would have been the target of an attempted abduction at all”.
For these reasons (at paragraph [99]) the Tribunal did not accept the Applicant was telling the truth with regard to the two claimed incidents in May 2011 and the telephone calls he claimed he received. The Tribunal did not accept that the Applicant “began receiving anonymous telephone calls in October 2010 checking where he was and where he was going and telling him not to participate” in campaigning activities for the release of Mr Fonseka. Nor did it accept that “in May 2011, for no apparent reason, two attempts were made to abduct him within the space of a few weeks”, or that “in January and February 2012 people came to [his workplace] asking for him on two or three occasions or that he received anonymous telephone calls saying he had managed to escape on these previous occasions but now they would not let him live”. The Tribunal did not accept that the Applicant had ever been threatened or attacked as a result of his political activities in Sri Lanka.
The Tribunal continued (at paragraph [100]):
Having regard to the applicant's description of his very limited involvement in political activities as referred to above, I do not accept that, if he returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be arrested, put in gaol, killed or otherwise persecuted by the Government of Sri Lanka for reasons of his support for the UNP or Sarath Fonseka or his involvement in campaigning for Mr Fonseka's release. I likewise do not accept that there is a real chance that the applicant will be threatened, attacked, abducted, killed or otherwise persecuted by thugs working for Nimal Lansa or his family, people from the UPFA or supporters of President Rajapaksa for reasons of his support for the UNP or Sarath Fonseka or his involvement in campaigning for Mr Fonseka's release if he returns to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal accepted that the Applicant would be able to be identified by the Sri Lankan authorities on return as a failed asylum seeker. However, as it stated (at [101]), it had regard to country information indicating that while returnees like the Applicant would be interviewed by various government departments at the airport and their names checked against various data bases to see if they were of interest to the authorities, no failed asylum seekers returning from Australia had been charged in relation to their illegal departure.
The Tribunal addressed the representative's submissions that the Applicant would be at risk if he returned because of his cumulative circumstances, including his illegal departure from Sri Lanka, his lack of any passport or travel documentation and his application for protection, and the claim that because he had criticised the Sri Lankan government in the process of his application for asylum he would have a “heightened anti-government profile” and would therefore be at risk of significant harm and mistreatment.
It referred to the adviser’s submissions in relation to evidence of systematic detention and torture of Sri Lankan returnees. However it found that the particular evidence referred to by the adviser demonstrated nothing about the general experience of people returning to Sri Lanka or the risk that such people would be tortured upon return.
The Tribunal accepted (at [105]) that the United Nations Committee Against Torture had “expressed serious concern about the continued and consistent allegations of the widespread use of torture and other cruel, inhuman or degrading treatment by both the military and the police in Sri Lanka” and that some of those tortured had been failed asylum seekers returned to Sri Lanka. However it did not accept that the evidence established that such people had been tortured because they were failed asylum-seekers or because of any political opinion imputed to them on the basis of having applied for asylum. Nor did it accept that there was a real chance that failed asylum-seekers would be tortured or otherwise persecuted for reasons of their membership of the particular social group of failed asylum-seekers or for reasons of any political opinion imputed to them on the basis of their having applied for asylum.
Relevantly, the Tribunal went on (at [106]) to find:
The information available to me indicates that returnees who (like the applicant) have left Sri Lanka illegally will be interviewed by the Department of Emigration and Immigration, the State Intelligence Service and the Police Airport Criminal Investigation Department. Their names will be checked against police and other databases, for example to ascertain if there are outstanding warrants for their arrest. If they are not of interest to the authorities they will be allowed to go on their way...
On the basis of specified country information before it the Tribunal did not accept that there was a real chance the Applicant would be charged or otherwise persecuted for reasons of his illegal departure from Sri Lanka if he returned now or in the reasonably foreseeable future.
Having regard to its findings of fact the Tribunal concluded at [108] that it did not accept that the Applicant had ever been of any interest to the Sri Lankan authorities as a result of his political activities. Nor did it accept, on the evidence, that there was a real chance he would be detained for further questioning at the airport on his return to Sri Lanka. Having regard to specified country information with regard to the treatment of returnees at the airport, the Tribunal did “not accept there [wa]s a real chance that the applicant [would] be tortured or mistreated or otherwise persecuted at the airport if he return[ed] to Sri Lanka now or in the reasonably foreseeable future”.
The Tribunal did not accept the Applicant's claim that he “might tell the officials about the claims he had made in support of his application for protection” when interviewed at the airport on his return to Sri Lanka, having regard to its finding that he was not a person who was unable to tell lies. It did not accept (at [109]) that there was “a real chance that the applicant [would] tell the officials about the claims he ha[d] made in support of his application for protection” when interviewed at the airport on return, or that there was a real chance he would be persecuted by Mr Lansa, his father, or thugs working for them because of the claims he had made in support of his application for protection in Australia. The Tribunal continued that having regard to its findings of fact it did not accept there was a real chance the Applicant would be tortured or otherwise persecuted for reasons of membership of a particular social group of failed asylum-seekers, or for reasons of any imputed political opinion as a result of his having applied for protection.
The Tribunal concluded (at [110]) that having considered the totality of the Applicant's circumstances it accepted that he had voted for the UNP in the past, supported Mr Fonseka in the February 2010 presidential election, campaigned for his release after conviction, departed Sri Lanka illegally, did not have a valid passport, had been outside Sri Lanka since March 2012 and had applied for protection in Australia. However, even taking into account the cumulative effect of these circumstances the Tribunal did not accept that there was a real chance the Applicant would be persecuted for one or more of the Convention reasons if he returned to Sri Lanka now or in the reasonably foreseeable future.
Under the subheading “Complementary Protection” within the general heading Findings and Reasons, the Tribunal stated (at [111] – [112]):
In her submission to the Department dated 10 August 2012 the applicant's representative submitted that the comments made by the United Nations Committee Against Torture with regard to allegations of the use of torture and other cruel, inhuman or degrading treatment by both the military and the police in Sri Lanka indicated that the applicant would be subjected to serious harm as a necessary and foreseeable consequence of his removal from Australia. Having regard to my findings of fact above, I do not accept that there is a real risk that the applicant will be killed, put in gaol or kidnapped or that he will otherwise suffer significant harm because of his support for the UNP or Sarath Fonseka or his involvement in campaigning for Mr Fonseka's release if he returns to Sri Lanka. Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to above (DFAT, ‘Sri Lanka: RRT Country Information Request – LKA40999’, 19 October 2012, CX297471), I likewise do not accept that there is a real risk that the applicant will suffer significant harm as a result of his illegal departure from Sri Lanka.
Having regard to my findings of fact above, I do not accept that the applicant has ever been of any interest to the Sri Lankan authorities as a result of his political activities and I do not accept, therefore, that there is a real risk that he will be detained for further questioning at the airport on his return to Sri Lanka. I do not accept that, as submitted by his then representative, the fact that the applicant departed Sri Lanka illegally and came to Australia to lodge an application for protection will place him at heightened risk of significant harm if he returns to Sri Lanka. Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him; that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
The Tribunal concluded that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations.
The Law
The two grounds relied on by the Applicant both relate to the Tribunal’s consideration of the complementary protection criterion for a protection visa in s.36(2)(aa) of the Act which came into effect on 24 March 2012.
Relevantly, s.36 of the Migration Act provides that a criterion for a protection visa is either that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s.36(2)(a)), or, under s.36(2)(aa), that the applicant is:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…
The concept of significant harm is elaborated on in subsections (2A) and (2B) of s.36 of the Migration Act as follows:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The claim that the Tribunal failed to consider an integer of the Applicant’s claims
In relation to Ground two in the Further Amended Application the Applicant submitted that a claim clearly arose on the material before the Tribunal that he faced significant harm from non-state actors and that the Tribunal failed to consider this integer of his claims in the context of the complementary protection criterion.
It is convenient to consider the merits of this ground first. It is apparent from the Applicant's written and oral submissions that in relation to harm from non-state actors he intended to assert in the alternative that the Tribunal had failed to address a claim to face significant harm from non-state actors in its consideration of the complementary protection provisions of the Migration Act or, if the Tribunal did address such claim, that it had failed to apply the correct test at law in doing so.
The short answer to this ground is that the Tribunal made findings rejecting the factual premises underlying such claim and referred to such findings in the context of its consideration of complementary protection.
In written submissions the Applicant contended that in circumstances where an issue was “raised as a material issue by the evidence” a failure by the Tribunal to deal with it amounted to a constructive failure to exercise jurisdiction (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.)
As the Full Court pointed out in NABE at [55], “[w]here the Tribunal fails to make a finding on ‘...a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction” in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24], per Gummow and Callinan JJ. Their Honours expressed the view that this may also be seen as a failure to carry out the review required by the Act.
The Full Court went on to point out (NABE at [58]) that the Tribunal is required to deal with the case raised by the material or evidence before it and that there is authority to the effect that “the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated” where such unarticulated claim is raised “squarely” on the material available to the Tribunal.
However the Federal Court stated in NABE at [58] that “[s]uch a claim will not depend for its exposure on constructive or creative activity by the Tribunal”. The Tribunal is “not required to consider a case that is not expressly made or does not arise clearly on the materials before it” (at [61]). As their Honours pointed out at [68]:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is...not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
The First Respondent did not dispute that the Applicant had claimed that owing to what had happened to him in the past there was a risk that he would be harmed in the future by non-state actors.
What is in issue is whether there is merit in the Applicant’s contention that the Tribunal failed to consider this integer of the Applicant’s claim in the context of the complementary protection criteria. The Applicant submitted that the Tribunal failed to deal with such claims in relation to the complementary protection criterion because it made no express finding in relation to harm emanating from non-state actors in paragraphs [111] and [112] under the heading of Complementary Protection. It was contended that the Tribunal’s general reference to “having regard to [its] findings of fact above” did not suffice, as the findings the Tribunal made in respect of harm feared from non-state actors in paragraphs [100] and [105] of its Findings and Reasons dealt with and were “bound up” in what was described as “Convention-related reasoning”. It was pointed out that the Tribunal had had regard to the existence of a Convention nexus and had addressed the motivation of the persons said to be feared. Such an approach was said to incorporate notions not applicable to the complementary protection criterion.
The Applicant submitted that in the earlier part of its findings and reasons the Tribunal had rejected the Applicant's claim to fear non-state agents on the basis that there was insufficient Convention nexus and hence that this left open the possibility that the persons feared may attack him for reasons other than those which he claimed.
At the hearing, it also appeared to be submitted that the Applicant had made a general claim to fear significant harm at the hands of non-state agents, insofar as in his original statutory declaration he had claimed generally to fear he would be killed or otherwise seriously harmed by members of the UPFA, as well as other political “fractions” and individuals associated with and in support of President Rajapaksa and his adviser had claimed in a written submission that as a political dissident he was at significant risk of harm in Sri Lanka.
The First Respondent submitted that there was no substance in the contention that the Tribunal’s findings in respect of complementary protection did not include the findings it had made in relation to this aspect of the Applicant’s claims.
I am not satisfied that there is such merit in this ground as to support the application for an Extension of Time. It is the case that there is no specific reference to non-state agents in the Tribunal findings under the heading Complementary Protection in paragraphs [111] and [112] of the Tribunal's reasons for decision. However the reasons for decision should be read as a whole and not “construed minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 at [30]).
In circumstances where it is clear that the Applicant claimed to fear harm from non-state actors and that the Tribunal was aware of such claims and had addressed the underlying factual premises, the findings under the heading Complementary Protection (such as the generally expressed finding rejecting the claim that there was a real risk the Applicant would be killed, put in jail, kidnapped or would otherwise suffer significant harm because of his support for the UNP or Mr Fonseka or his involvement in campaigning for Mr Fonseka’s release) should not be read as limited to harm emanating from the government. They must be seen in light of the basis for such claims as well as the Tribunal’s earlier findings.
The Tribunal was clearly aware of the correct test to be applied under s.36(2)(aa), as distinct from under s.36(2)(a), of the Act. The Applicant did not make a claim to fear harm at the hands of non-state actors for reasons other than what can be described as his claimed political involvement or profile and/or his position as a failed asylum seeker who had departed illegally and came to Australia to lodge a protection visa application. Insofar as there appeared to be any such contention, the Applicant’s claim in his statutory declaration that he would be killed or otherwise seriously harmed by members of the UPFA, other political “fractions” and those associated with and supporting the President did not “squarely” raise a claim to fear harm for some other reason that the Tribunal failed to consider in the context of complementary protection (see NABE). That is clear from the reasons for his fear that were given by the Applicant in his statutory declaration. Similarly, the adviser had claimed that the Applicant was at significant risk of harm as a political dissident who had publicly displayed his support for the UNP.
It is apparent that, as the Tribunal understood, the basis on which the Applicant made these claims was that he feared such harm as a prominent political operative and because of his political activities in support of the UNP and Mr Fonseka and in essence this was why he had been harmed in the past and would suffer significant harm in the future. In addition he made a limited but specific claim to fear harm from Mr Lansa and his “thugs” on the basis that Mr Lansa would become aware of claims he had made about the Lansa family in support of his application for protection. He did not claim to fear harm on some other general basis (apart from the claim as a failed asylum seeker which was not a claim to fear harm from non-state actors, but rather a claim to fear the military and the police).
Moreover, reading the Tribunal reasons for decision fairly and as a whole, it is clear that the Tribunal considered, but rejected, the factual premises underlying the Applicant's claim that he was at risk of suffering significant harm at the hands of non-state actors.
As counsel for the First Respondent pointed out, the Tribunal referred to the Applicant’s claimed fear of harm by non-state actors, in particular by members of the UPFA, supporters of the president, or a group of thugs belonging to the UPFA or thugs associated with a Mr Lansa. It was clearly aware of his claim that owing to what happened in the past there was a risk of harm in the future by non-state actors.
As outlined above, the Tribunal findings were not limited to those in paragraphs [100] and [105] focused on by Counsel for the Applicant. The Tribunal rejected the Applicant's claims of past harm, including that he had been beaten and attacked by UPFA thugs in May 2011 or that he had been subsequently approached by UPFA members in a white van or threatened by telephone. The Tribunal did not accept that such claimed events had occurred. These findings were general findings rejecting the claims that these events occurred, not simply findings of an absence of Convention nexus. Nor did the Tribunal accept that the Applicant had ever been threatened or attacked as a result of his political activities in Sri Lanka (the basis on which he claimed he had been harmed).
Having regard to the limited involvement of the Applicant in political activities, the Tribunal found not only that the Applicant would not be at risk of harm from the government of Sri Lanka for reason of such political activities (the basis for his claimed fear) but also did not accept that there was a real chance the Applicant would be threatened, abducted, attacked, killed or otherwise persecuted by thugs working for Mr Lansa or his family, people from the UPFA or supporters of the President, for reason of his support for the UNP or Mr Fonseka or his involvement in campaigning for Mr Fonseka's release if he returned to Sri Lanka now or in the reasonably foreseeable future.
Such a rejection of the specific claims of past harm or the risk of future harm, including not only persecution but also other kinds of harm that the Applicant claimed to fear, from both state and non-state actors, involved a rejection of the underlying factual basis for both the Refugees Convention claims and the complementary protection claim (including the claimed fear of non-state actors).
Furthermore, insofar as a specific claim was made in relation to Mr Lansa and his family and thugs, the Tribunal also rejected the factual basis for that claim. It did not accept that there was a real chance the Applicant would tell officials when interviewed at the airport on his return to Sri Lanka about the claims he had made about the Lansa family in support of his application for protection.
Having rejected such underlying factual premises, it was not necessary for the Tribunal to repeat its findings in that respect under the subheading “Complementary Protection”. Notwithstanding that such findings were made in the context of paragraphs that then went on to address aspects of the Refugees Convention criterion (such as the Convention nexus or the motivation of the alleged attackers), these were general findings. They were not “bound up” in “Convention-related reasoning” in such a manner that they could not be said to be general factual findings relevant to a consideration of whether the Tribunal failed to address any of the integers of the Applicant's claim in the context of the complementary protection criterion. The Tribunal rejected the claims that the events complained of had occurred or that there was a real chance of future harm for any of the reasons claimed by the Applicant.
Thus, it is clear that the Tribunal’s reference to its earlier findings of fact in the context of its findings under the subheading of Complementary Protection must be taken to be a reference to such factual findings. These findings amounted to a rejection of the Applicant's claim not only that he had suffered particular past harm, but also a rejection of his claim that he was at risk of suffering significant harm, including at the hands of non-state actors. It did not simply find that there was no Convention nexus for past harm or feared future harm.
I have heard the arguments in full. It has not been established that there are prospects of success in the ground that the Tribunal failed to consider an integer of the Applicant's claim as contended for by the Applicant of such merit as to support the application for an extension of time.
The claim that the Tribunal failed to apply the correct test
Ground one in the Further Amended Application is that the Tribunal failed to apply the correct test in relation to the complementary protection criterion. As explained in oral submissions, this ground is put on the basis that the Tribunal improperly required that there be a Convention nexus and had regard to the motivation of those feared in its rejection of the Applicant's complementary protection claims. This was said to be so on the basis that its findings were based on factual findings that were “bound up” in “Convention-related reasoning”. It was submitted that the Tribunal had effectively conflated the tests in s.36(2)(a) and (aa) of the Act, transposing the requirement for a Refugee Convention nexus to the complementary protection test.
Reference was made to two paragraphs of the Tribunal's earlier findings and reasons ([100] and [105]), in which, after having made certain factual findings, the Tribunal did not accept that there was a real chance that the Applicant would be persecuted for a Convention reason if he returned to Sri Lanka. However, as indicated above, the Tribunal’s conclusions under the heading Complementary Protection reflected the broad factual findings already made by it. It is not correct to suggest that the Tribunal imported a Convention nexus requirement into the test for the complementary protection criterion or that the Tribunal otherwise failed to apply the correct test.
First, it is apparent from the Tribunal's reasons for decision that it understood the distinction between and the relevant application of the particular requirements of s.36(2)(a) and s.36(2)(aa) of the Act. It was aware of the test it had to apply in considering the Applicant's complementary protection claims to which it referred in its discussion of that criterion. In contrast to the position in Minister for Immigration and Citizenship v SZQRB (2013) 296 ALR 525; [2013] FCAFC 33 at [200] this is not a case in which the Tribunal applied the wrong test in relation to the standard of proof (see SZQRB at [246] – [248] and [297]).
In paragraphs [111] and [112] of its decision the Tribunal had regard to its earlier findings of fact in concluding in essence that there was not a real risk that the Applicant would suffer significant harm because of his political activities or that he would be detained for further questioning at the airport or otherwise suffer significant harm because of his political activities, illegal departure from Australia or the fact that he had sought asylum in Australia.
As stated above, the Tribunal had made broad factual findings rejecting the Applicant’s claims to fear harm. It was open to the Tribunal to refer to its earlier factual findings rejecting not only the Applicant's claims about specific instances of past harm, but also not accepting that there was a real chance he would be threatened, attacked, abducted, killed (as well as otherwise persecuted) not only by the government, but also by non-state actors, including thugs working for Mr Lansa or his family, people from the UPFA or supporters of the President, for reason of his support for the UNP or Mr Fonseka or his involvement in campaigning for Mr Fonseka's release (which was the reason he claimed to fear such harm) and to have regard to such findings in the context of the consideration of complementary protection. The Tribunal did not reject these claims based only on the absence of a Convention nexus.
As indicated above, it is appropriate to have regard to the whole of the Tribunal reasons for decision which are not to be construed with an eye too keenly attuned to the perception of error (see Wu Shan Liang).
As the First Respondent submitted, the Applicant's claim that he would suffer harm in Sri Lanka on account of his involvement in political activities rested on his claim that he was a prominent dissident who strongly promoted the candidacy of General Fonseka and attracted the ire of the Sri Lankan government and pro-government supporters as a result.
The Tribunal did not accept that the Applicant was of the prominence originally claimed. It found that he had a very low level of involvement in political activities. It also found that the Applicant had not been of interest to, or harmed by, the authorities or non-state actors owing to his political activities. It rejected his claim about past attacks and threats. On a fair reading of the Tribunal's decision its reference to having regard to its findings of fact must be taken to be a reference to the broad factual findings that undermined the Applicant's claim to fear harm.
Contrary to the Applicant's contention that the Applicant made some claim to fear harm generally, insofar as is set out in part of his statutory declaration he claimed to fear he would be killed and specified who he claimed to fear. It is clear from the Applicant's claims as a whole that his claim was a claim to fear harm for reason of his political profile and activities and his work for and support for Fonseka and the UNP (as well as as a failed asylum seeker who had left Sri Lanka illegally). He did not make a general claim to fear harm on some other basis such as to establish or support any claim that the Tribunal erred in the manner now contended for by Counsel for the Applicant.
The Tribunal's lack of satisfaction that the Applicant met the complementary protection criterion in relation to the political aspect of his claims was not based on the absence of a Convention nexus or the motivation of those the Applicant claimed to fear, but rather on the Applicant's failure to make out the underlying factual allegations in circumstances where there was no other additional or separate claim amounting to a claim within the complementary protection criterion.
There is no merit in the contention that the Tribunal failed to apply the correct test under the complementary protection provisions on the basis that its findings of fact at [100] were “bound up” in Refugee Convention-related reasoning.
The Applicant also contended that the Tribunal’s findings of fact at paragraph [105] were “bound up” in Refugee Convention-related reasoning. At [105] the Tribunal accepted that there was evidence that the United Nations Committee Against Torture had “expressed serious concern about the continued and consistent allegations of the widespread use of torture and other cruel, inhuman or degrading treatment by both the military and the police in Sri Lanka”. The Tribunal accepted that some of those who had been tortured had been failed asylum seekers returned to Sri Lanka.
The Applicant took issue with the fact that in addition in paragraph [105] the Tribunal did not accept that the evidence established that such people had been tortured because they were failed asylum seekers or because of any political opinion, or that there was a real chance that failed asylum seekers would be tortured or otherwise persecuted for reasons of their membership of the particular social group of failed asylum seekers or for reason of any political opinion imputed to them on the basis of their having applied for asylum. It was said that this illustrated that the Tribunal's reasoning in relation to complementary protection was “bound up” with its reasoning in relation to the need for a Convention nexus in the context of the Refugees Convention criterion.
However it is also necessary to have regard to what the Tribunal said thereafter, including its findings about the risk of torture and other cruel, inhuman or degrading treatment. While it accepted that there were continued and consistent allegations of such harm by the military and the police in Sri Lanka, in paragraph [106] of its reasoning the Tribunal also had regard to country information which it accepted indicated that returnees, who like the Applicant had left Sri Lanka illegally, would be interviewed at the airport by various authorities, their names checked against databases to ascertain if they were of interest to the authorities, and importantly, if not, that they would be allowed to go on their way.
The Applicant’s claim to fear such harm was put on the basis of his circumstances as a person who departed Sri Lanka illegally, came to Australia to lodge an application for protection and was a failed asylum seeker. It is clear from the Tribunal's reference at [111] to the same country information referred to at [100], being DFAT advice, that it was on the basis of this advice that in the context of the complementary protection criterion the Tribunal did not accept there was a real risk that the Applicant would suffer significant harm as a result of his illegal departure from Sri Lanka.
The Tribunal had found, at paragraph [105] to [108], that the relevant country information did not establish that asylum seekers would be tortured simply because they were asylum seekers (a basis for Applicant's claimed fear) or because a political opinion would be imputed to them as they had sought asylum. Further, the Tribunal was of the view that only persons of interest to the authorities (and the Applicant was found not to be such a person) would be detained. It also had regard to information and advice from the Department of Foreign Affairs and Trade that to date no failed asylum seeker returning from Australia had been charged in relation to his or her illegal departure from Sri Lanka.
As the First Respondent submitted, such findings were general factual findings that undermined the Applicant's claim that he would suffer harm as a result of his circumstances and status as a returned asylum seeker. These findings were not “bound up” in Convention-related reasoning such that it can be said that the Tribunal required there to be a Convention nexus or consideration of the motivation of those the Applicant claimed to fear in the context of the complementary protection test. Such general findings could be imported into the Tribunal's reasoning about the Applicant's complementary protection claims.
Insofar as in oral submissions Mr Bodisco appeared to suggest that the Applicant claimed to fear torture generally, this is not a claim that arose clearly on the material before the Tribunal. Rather, it is apparent from the material before the Tribunal, including the claims made by the Applicant's adviser, that the claim he made was a claim to fear torture by the police and/or the military as a returning asylum seeker who would be detained on return to Sri Lanka. The evidence did not go so far as to establish that the military or police tortured or mistreated people at random who were not of interest to the authorities. The Tribunal made findings rejecting the Applicant’s claim to be a person of interest to the authorities.
It has not been established that the Tribunal applied the wrong test in not accepting that there were substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm. The Tribunal addressed the various bases on which such claim was put. It was open to it to have regard to its earlier general findings of fact in not accepting that such claims were made out on any asserted basis.
The Tribunal’s findings in relation to complementary protection were not based on a misunderstanding or misapplication of the relevant test. Nor was its conclusion based on the absence of a Convention nexus for the harm feared, but rather on the Applicant’s failure to satisfy it of his factual claims. Ground one lacks merit. It is not such as to support the Applicant’s application for an extension of time under s.477(2) of the Act.
The merits of the grounds relied on by the Applicant were addressed in full in these proceedings. They are not made out. Moreover I do not consider that the grounds were strongly arguable or of any general importance.
Insofar as the Applicant submitted that this case related to an important and novel area, grounds of the same nature (that the Tribunal failed to consider a claim and applied the wrong test in relation to complementary protection in that it had conflated the Convention test and the complementary protection test) were considered, but rejected, in SZSGA v Minister for Immigration & Anor [2013] FMCA 162.
Other Factors
In addition to the extent of delay, the lack of a satisfactory explanation and the very limited merit of the substantive application, I have had regard to the absence of any prejudice to the Respondents, to the position of and impact on the Applicant if time is not extended (including the possibility of a lack of appeal rights, and removal from Australia) and the interests of the public at large and the exercise of the Court's discretion. However these factors do not, in this particular case, outweigh the factors against the grant of an extension of time, in particular the absence of merit in the grounds relied on by the applicant and the absence of explanation for the extent of the delay.
Conclusion
On balance, having considered all of the circumstances I am not persuaded that in this particular case it would be in the interests of the administration of justice to extend the time for making the application under s.477(2) of the Act. The application for an extension of time should be refused. It is unnecessary to make a further order dismissing the application as incompetent (see BZABK v Minister for Immigration and Citizenship and Another (2012) 205 FCR 83; [2012] FCA 774 at [43]).
I certify that the preceding one-hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 25 June 2013
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