SZSRH v Minister for Immigration

[2014] FCCA 33

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 33

Catchwords:
MIGRATION – Application for the extension of time of an application for review of a decision of the Refugee Review Tribunal – extent of delay negligible and reasons for delay satisfactory – extension of time not in the interests of the administration of justice as the application has no prospect of success – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 477.

SZQPA v Minister for Immigration & Anor [2012] FMCA 123
Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NABE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No 2) [2004] FCAFC 263
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Applicant: SZSRH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 544 of 2013

Judgment of: Judge Nicholls

Hearing date: 13 November 2013

Date of Last Submission: 13 November 2013

Delivered at: Sydney

Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitor for the Applicant Ms M Byers, Solicitor

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 20 March 2013 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 544 of 2013

SZSRH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 20 March 2013 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of the time provided in s.477(1) of the Act to make a competent application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 February 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. At the hearing for the extension of time, the applicant was represented by Mr P Bodisco of counsel. Ms R Francois of counsel appeared for the first respondent.

The Extension of Time

1. The substantive application to the Court was made on 20 March 2013. Section 477(1) of the Act requires that such applications be made within 35 days of the date of the Tribunal’s decision. This meant that the applicant was required to make his application on or before 19 March 2013. He did not do so.

2. Section 477(2) provides that where an applicant makes an application, in writing, for an order to extend time, the Court may do so if it is in the interests of the administration of justice

3. The applicant has made such an application pursuant to s.477(2)(a) of the Act. The issue before the Court now is whether it is in the interests of the administration of justice to so extend time. Some of the elements relevant to this consideration have been noted in a number of cases in this Court (See, for example, SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FCA 771 at [44]; see also SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] per Judge Barnes). Although plainly the “list” of elements in these cases is not exhaustive.

The Evidence Before the Court

1. A bundle of relevant documents was in evidence before the Court. (The Court Book – “CB”). The applicant sought leave to read his affidavit of 1 November 2013. The Minister objected to this. Some background is necessary to understand this objection.

2. The applicant first appeared before the Court for “first” directions on 24 April 2013. He was unrepresented at that time. He was assisted by an interpreter in the Tamil language. A number of orders were made on that date, all by consent of the parties. Relevantly, the application for an extension of time was set down for hearing. The applicant was required to file any evidence in support of his application by 29 May 2013. Amongst other matters, the parties were given the opportunity to file written submissions.

3. I understood from the Minister’s representative on that day that, in effect, the Minister did not take issue with the applicant’s delay, itself, in making his application to the Court. The question was whether the grounds of the substantive application had such merit as to call for the extension of time. The ground of the substantive application was in the following terms:

   “That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.”

4. The Minister filed his written submissions on 15 October 2013. In those submissions the Minister noted that the “length” of the delay was “only one day” and that the applicant’s explanation for the delay, as set out in his application to the Court, was “plausible” (see [29] to [31] of the Minister’s written submissions of 15 October 2013). It was made clear that the Minister accepted the applicant’s explanation, and that the length of delay and whether a satisfactory explanation had been offered were not at issue in the consideration for the extension of time.

5. The applicant’s explanation for the delay, at the time of making his application to the Court, was:

   “Although my case was decided on 12 February 2013, I was informed of the decision on 28 February 2013. I did not have much time to consult with anyone about making this application.

   I am not assisted by any lawyer at present and my English proficiency is poor, hence, I had difficulties with getting assistance to file this case. I also had difficulties in finding an appropriate person to witness my signature. I tried to send this before the deadline but it was delayed due to the above factors. I would very much appreciate accepting my application, which may reach you delayed by a week.”

6. At some time in, or about, October 2013, the applicant obtained legal representation. He filed written submissions on 18 October 2013. Attached to those submissions was a proposed “new” ground for the substantive application. No application was made by the applicant prior to the hearing before the Court for any extension of time for filing of these submissions. In any event, the Minister took no issue with this.

7. What the Minister did object to was the leave the applicant sought at the hearing of the application for the extension of time to read his affidavit of 1 November 2013. This affidavit comprised of the applicant’s evidence as to the explanation for the delay in making his substantive application to the Court. The Minister pressed two matters.

8. First, the affidavit was filed some time after the time allowed by the orders of the Court (that is, over 3 months later). No attempt was made to seek any extension of time, even when the applicant had legal representation.

9. Second, and of far greater weight, is that the Minister submitted that the affidavit was not relevant to any live issue in the proceedings. The Minister’s “concession” as to the extent of the delay, and the prior acceptance of the applicant’s explanation, meant that whatever other elements in the exercise of the Court’s discretion were extant, there was nothing left to which this evidence could be directed to assist the Court.

10. The applicant submitted that the explanation for the delay arising from the affidavit contained matters “over and above” what was conceded by the Minister. I understood this to be a reference to what the applicant had initially said in his written application, and that the Minister’s “acceptance” related to this explanation.

11. The difficulty for the applicant now is that, other than for some matters of detail, it is not apparent that the two sets of explanations (that in the application, and that in the affidavit) are, in substance, of such difference as to assist him further in relation to the matter of the exercise of the Court’s discretion.

12. The applicant said, through his counsel to the Court, that he wanted to “put on the record” that, at some time after the Tribunal’s decision was made, he had “gone to a lawyer, that the lawyer told him “they” would provide a translator”, that he was left with no information as to how to lodge an application for review to the Court and that he was told he would have to find (another) lawyer or represent himself in Court. The applicant’s submission was that this was further to what he had put initially. That is, his difficulties with the English language.

13. The applicant was unable to satisfactorily explain the reason for his insistence that this “latter explanation” be “put on the record”. When asked as to what the objective was in seeking to put the affidavit into evidence the explanation was that it was one of the factors that may weigh in favour of the applicant.

The Delay in Making the Application to the Court

1. There are three elements of note here. The first is that the applicant had already (without the affidavit) succeeded in persuading the Minister (and the Court) that the length of the delay was not such as to be weighed against him in the consideration of the exercise of the Court’s discretion.

2. As I put to counsel, the applicant had already “won” that point. The questions of whether the extent of the delay and whether the explanation (of whatever detail) was satisfactory were conceded by the Minister in the applicant’s favour. In that sense, the Minister’s objection, that the evidence did not go further to any fact in issue, was well put.

3. Second, the “explanation” given by the applicant to the Court does give further detail than that in the original explanation given in the application. But that detail goes no further, in substance, than what was initially put (see above at [10] and [17]).

4. In essence, the applicant faced difficulties in obtaining assistance in the making of his application and, despite his efforts to meet the “deadline”, could not do so because of the nature of the difficulties. The affidavit evidence adds nothing of substance to this.

5. Third, I did consider whether there was some nuance, or implication, in what was contained within the affidavit that may have further assisted the applicant in the exercise of the Court’s discretion.

6. However, I could not see any such element in the affidavit evidence. There was no suggestion of any wrongdoing (let alone any allegation of fraud or the like) on the part of any migration agent, lawyer or any departmental officer. Simply, the applicant could not obtain the help that he needed such as to be able to submit the application within time. That is accepted.

7. At the hearing, I admitted the affidavit evidence “provisionally”, to allow the applicant to make his arguments. Ultimately, I agree with the Minister that the affidavit should not be admitted as the affidavit evidence did not go to any “live” fact in issue in these proceedings.

8. I agree with the Minister that, in the circumstances, the extent of the delay is negligible. I also agree that the applicant’s explanation (in substance as set out at [22] above) is plausible and, on its own, provides a satisfactory basis for not denying the applicant the outcome he seeks from the application made pursuant to s.477(2).

The Ground of the Substantive Application

1. The matter of the extent of the delay, and the satisfactory explanation for it, must be weighed as against the only other matter the applicant pressed in support of his application for the extension of time. Namely, that the sole ground of the substantive application, (as amended) was of such merit to not only cause the time to be extended but to justify the relief the applicant seeks in that substantive application.

2. That ground is in the following terms:

   “1. The Tribunal has failed to consider the full integers of the applicant’s claims under complementary protection.

   Particular:

   1. Issues relating to the applicant’s exposure to being remanded for a lengthy period and to penalties under the Immigrants and Emigrants Act of up to 18 months imprisonment were squarely raised by the applicant [CB 177-186].

   2. The Tribunal failed to address and deal with this claim as put by the applicant, instead dealing with the limited issue relating to the harm he any experience at the airport [CD 245 at 92 and 246 at 96]; and

   3. Because the Tribunal failed to consider all the integers of the claim advanced by the applicant, it failed to complete the exercise of jurisdiction embarked upon.”

3. For the reasons that follow, I do not agree with the applicant that his ground, as particularised, and as explained before the Court, has merit, or such prospect of success that the time should be extended to allow it to be further heard. In any event, the applicant made plain at the hearing of the extension of time that he would utilise that opportunity to fully explain his ground.

4. The background to the ground is as follows. The applicant is a national of Sri Lanka (CB 13). He arrived in Australia on 11 April 2012 as an “Irregular Maritime Arrival” (CB 15). The Minister exercised his power pursuant to s.46A(2) of the Act and the applicant subsequently applied for a protection visa (CB 26, CB 2 to CB 25).

5. The applicant’s claims to protection were initially set out in a Statutory Declaration attached to his application (CB 27 to CB 31). The applicant claimed to fear harm from the Sri Lankan army and paramilitary groups because of his Tamil ethnicity and suspected links to the LTTE ([38] at CB 30). He referred to a number of incidents where he claimed to have been detained and mistreated. He claimed that if he were to return to Sri Lanka he would be abducted, detained and/or killed or would be forced to join paramilitary groups ([36] and [37] at CB 30). He also feared harm as a returned “failed” asylum seeker.

6. The delegate refused the application on 10 October 2012 (CB 84 to CB 112). The delegate had concerns about the applicant’s credibility (CB 98 to CB 99). The delegate refused the grant of the protection visa even after taking into account “any vulnerabilities arising from his Tamil ethnicity and its impact on his returning as a failed asylum seeker…” (CB 108.5).

7. The applicant applied for review to the Tribunal on 17 October 2012. He was assisted by a solicitor who was also a registered migration agent (CB 113 to CB 119). The Tribunal affirmed the delegate’s decision (CB 225 to CB 247)

8. The sole ground of the substantive amended application asserts that the Tribunal failed to consider integers of the applicant’s claims in considering the complementary protection criterion for the protection visa (with reference to s.36(2)aa of the Act). It asserts jurisdictional error on the part of the Tribunal because of this.

The Applicant’s Complaint

1. The ground, as particularised, explains that the Tribunal failed to deal with the full scope of the applicant’s claims to fear significant harm, if he were to return to Sri Lanka, arising from the “exposure” to being remanded for a lengthy period, and penalties, under the Sri Lankan “Immigrants and Emigrants Act”. Such penalties included up to 18 months imprisonment. The particulars assert that the Tribunal dealt with a narrower issue, being any significant harm arising at the airport on his return.

2. The applicant points to the following to submit that the “wider” or “full integers” of his claim were expressly made:

   a)The Tribunal’s summary of what was relevantly stated in the applicant’s Statutory Declaration: [21] at CB 230.5:

   “…The applicant fears that he will be abducted and killed if returned to Sri Lanka, the applicant also fears he will be forced to join a paramilitary groups and harm others. The applicant fears the Sri Lankan Army and paramilitary groups. The applicant fears he will be abducted and killed because he is a young Tamil male, and that he will be forced to join paramilitary groups or otherwise detained indefinitely.

   The applicant is more susceptible to suspected involvement with the LTTE because he has scars on his legs, obtained from bomb shrapnel during the Civil War period. The authorities and paramilitary groups believe that the reason for the scars is due to his involvement with the LTTE.”

   [Emphasis Added.]

   b)The Tribunal’s account of the hearing: [24] at CB 230:

   “The Tribunal asked the applicant if he feared persecution or significant harm. The applicant said he did. The Tribunal asked the applicant from whom he feared persecution or significant harm. The applicant said from paramilitary groups searching for him. The Tribunal asked for the name of the group. The applicant said he is not sure, it could be the TMVP (Tamil Makkal Viduthalai Puligal) or those working with the Sri Lankan army.”

   c)The Tribunal’s account of the hearing at [26] at CB 231:

   “The Tribunal asked the applicant about his injury. The applicant said he had a wound in his leg from an injury he sustained when he was very small in a shell attack. The Tribunal asked what age he was. The applicant said he cannot remember the injury, he was very young. The Tribunal asked whether it had any impact on him such as affecting his ability to run or walk. The applicant said no. The applicant showed the injury to the Tribunal. It was on his left leg at the ankle, there seemed to be a skin burn approximately 10cm x 10cm and his toes were directed to one side.”

The Applicant’s Oral Submissions to the Court

1. The applicant’s submission before the Court was that these aspects of his claim (as set out above) must be read in context of his Tamil ethnicity, fears of harm from the Sri Lankan army and paramilitary groups, their perception of him as “being involved with the LTTE, including because of scarring on his leg” and his return as a failed asylum seeker. The applicant emphasised that, in the context of the complementary protection criterion, his fear of significant harm did not just relate to the time of his immediate arrival in Sri Lanka (at the airport) but continued beyond this point. That is, the claimed fear of abduction and detention, beatings and even loss of life was ongoing.

2. The applicant referred to the Tribunal’s consideration of his claims as against the complementary protection criterion at [96] (at CB 246):

   “As noted above, the tribunal found that the applicant is Tamil, was born in Negombo, moved to Batticaloa in the east with his family as a child, and then spent consideration time in Negombo, both with his father and as an adult. The tribunal has also found that the applicant was not detained overnight by the Sri Lankan army, he was not approached by unknown people in October 2011 and that he was not kidnapped by a paramilitary group who tried to force him to join them. The tribunal has found that the applicant may be delayed due to the authorities carrying-out conducting checks and processing him upon return to Sri Lanka,  and that he may be issued a fine. The tribunal considers that such checks, delay and/or fine does not constitute significant harm as per the legislation. The tribunal is not satisfied that the applicant is of interest to Sri Lankan authorities. As such, based on the evidence before it, the tribunal finds that the applicant does not meet the complementary protection criterion (s.36(2)(aa)).”

3. The applicant’s argument was that the Tribunal focused on the question of what would happen at the airport. It found that he may be delayed while the authorities carried out “checks” and “processing”, and that he may be issued with a fine. The Tribunal concluded that this would not rise to “significant harm”. The applicant emphasised that the while this was one integer of his claim, the Tribunal did not deal with the “quite different” integer of the claim, that he would be abducted, killed or recruited, particularly by paramilitary groups, after he had left the airport.

1. The applicant referred the Court to SZQPA v Minister for Immigration & Anor [2012] FMCA 123 per Driver FM, as he then was (“SZQPA (FMCA)”) and Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 (“SZQPA (FCA)”) per Gilmour J). The applicant noted what Federal Magistrate Driver, as he then was, said at [29], and submitted that the circumstances in the current case were the “mirror image” of what was found there:

   “In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.”

2. By this argument, I understood that in SZQPA (FMCA) the decision maker focused on the outcome of the interrogation at the airport, rather than the process of detention and interrogation at the airport itself. In the current case, the “mirror” was said to be that there was a focus on the “issues at the airport” which led the Tribunal to “miss the full integers of the claim”. That is, what would happen once the applicant had passed out of the airport.

Understanding the Applicant’s Complaint in the Substantive Application

1. It must be said that there was some difference in the explanation of the applicant’s ground, as explained before the Court, to what is found in the particulars to the ground in the substantive application, and as explained in written submissions.

2. The particulars focus on a far narrower point. The assertion there is that the applicant claimed that on return to Sri Lanka he feared harm originating from the consequences of the Sri Lankan “Immigrants and Emigrants Act”. Namely, remand for up to 18 months and imprisonment.

3. The particulars assert this claim was squarely raised by the applicant as reproduced at CB 177 to CB 187. This is part of the applicant’s representative’s submissions to the Tribunal, and is directed to the matter of complementary protection. (See in particular, “Emigration Legislation and Powers to Detain” at CB 179, and following, and in particular [71] at CB 180, [78] at CB 182 and [96] at CB 187).

4. A number of matters are immediately apparent. Given the applicant’s reference in written submissions to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (“SZQRB”) (at [23]), I sought to confirm with the applicant’s counsel whether the attack on the Tribunal’s decision included any assertion that it had applied the “wrong test” to its consideration of the complementary protection criterion. The applicant’s counsel confirmed that the assertion of legal error was focused on the Tribunal’s failure to deal with an integer of the applicant’s claim that was expressly made. The applicant’s counsel said that he relied on NABE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE No2”) for the proposition that the Tribunal, in the circumstances, fell into jurisdictional error.

5. Second, the oral submissions were different to the particulars and the written submissions at least to an extent that, in the latter, there is no reference to the claim of fear of harm from paramilitary groups which was the (albeit not exclusive) emphasis in oral submissions.

6. The written submissions focused on the harm the applicant said he feared as it emanated from the Sri Lankan “Immigration and Emigration Act”. There is nothing in the written submissions to say that the legislation gave rise to any fear emanating from paramilitary groups. In context, the source of any such fear would emanate from the Sri Lankan Government, and its instruments of state.

7. The Minister referred the Court to the applicant’s written submissions at [21] and [22]. At [21] the applicant submits:

   “Further, in dealing with the applicant's claims under the Refugee Convention, the Tribunal dealt with the discrete issue of whether the applicant would be subject to the application of the Prevention of Terrorism Act. [CB 244 at 91] However, the Tribunal has simply failed to deal with the issue raised squarely by the material and as documented in the report from the Controller of Immigration and Emigration, Chulananda Perera, as confirmation that:

   Those who return to Sri Lanka after having departed the country illegally are   arrested and detained for 90 days. This 90-day period appears to be a pre-charge detention and may be extended as necessary (to a maximum of 18 months).

   In addition to the period of pre-charge detention, charges may be laid in accordance      with art 45(1)(b) of the Immigrants and Emigrants Act, which would lengthen any      pre-trial prison time and potentially lead to a conviction and a further one to five      year prison sentence.[CB 213-214]”

8. In context, this would appear to be a reference to the written submissions made by the applicant’s representative to the Tribunal after the hearing. (See the reference to “The Controller of Immigration and Emigration” at CB 213 and following.)

9. At [22] of his written submissions, the applicant submits:

   “…that by focussing on the likely penalties as opposed to the real risk that the applicant would be exposed to penalties of the type squarely raised by the applicant's advisors, the Tribunal has effectively sidestepped an integer of the applicant's claim.”

10. While there may be some small point of intersection between what the applicant pleaded, what was submitted in writing and the much broader case expressed in oral submissions, it is preferable to deal with each separately.

Consideration of the Sole Ground of the Substantive Application

1. Any plain reading of the relevant parts of the Tribunal’s decision record reveals that the applicant’s complaint, as pleaded, has no merit such as to assist him in the exercise of the Court’s discretion pursuant to s.477(2). Further, it is an argument against exercising the discretion to extend time, as it is not in the interests of the administration of justice to extend time simply to dismiss the substantive application on the basis that it lacks any merit.

2. The ground as pleaded, and as  “explained” in particulars, claims that the Tribunal failed to deal with certain integers of the applicant’s claim to fear harm. These are said to be his fears arising from being remanded for a lengthy period, and penalties, under the Sri Lankan “Immigrants and Emigrants Act” including up to 18 months imprisonment.

3. It is the case that the applicant did put forward these matters as aspects, or integers, of his claim to fear harm (See CB 177 to CB 182 and see CB 187, CB 230 and CB 232).

4. However, the immediate answer to the applicant’s complaint, as pleaded, is that the Tribunal relied on country information to arrive at the conclusion that the applicant, on return to Sri Lanka, would not be subject to arbitrary or lengthy detention.

5. The Tribunal accepted country information that the applicant would be subject to some checking and delay on arrival in Sri Lanka and that he may even be issued with a fine. But these were found not to constitute significant harm as that term was understood pursuant to the Act (see [96] at CB 246).

6. The case as presented orally to the Court was, as referred to above, wider in context and dimension. The various elements here were that, in addition to the matters dealt with immediately above, the applicant feared harm from the Sri Lankan authorities and paramilitary groups because of his Tamil ethnicity and because of scarring on his legs that would lead to the perception that he had some LTTE connection.

7. It is important to note that the applicant’s attack was focused on the Tribunal’s findings as against the complementary protection criterion (s.36(2)(aa) of the Act). It is here that the applicant sought to draw on SZQPA (FMCA). In essence, I understand the argument to be that, while the Tribunal may have made certain factual findings touching on some of these matters, the findings were so “bound up” with its analysis of the Refugees Convention that a similar question as was in SZQPA (FMCA) arises as to whether the Tribunal asked the “wrong” question in its consideration of the complementary protection criterion.

8. A number of points need to be made. First, the structure of s.36(2) and the wording of s.36(2)(aa) is such that, in effect, the Tribunal is only required to consider s.36(2)(aa) where the person does not meet s.36(2)(a) (SZQRB per Lander and Gordon JJ at [71]).

9. Second, it was available to the Tribunal to apply findings of fact made in the Refugees Convention assessment to the complementary protection assessment. Those factual findings were not “bound up in Refugees Convention thinking” (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] – [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).

10. Third, it must be remembered that the Tribunal’s obligation is to deal with claims expressly made, or clearly arising from the circumstances presented (NABE No2). To engage the obligation the claim must be substantially articulated in the Dranichnikov sense (Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 at [24]).

11. Fourth, the applicant’s claims to fear harm were, in my view, clearly expressed in written submissions by his representative before the Tribunal and can also be discerned from the Tribunal’s account of the hearing. (No transcript has been provided, by the parties, to the Court.) Some care must be taken in the disposition of the applicant’s case now to note the context in which each of the integers of his claims  relied on by the applicant were put to the Tribunal.

12. In relation to the complementary protection criterion, the “range” of integers of the claims were a fear of significant harm emanating from the Sri Lankan authorities for reason of the detention of failed asylum seekers (CB 177), the Sri Lankan “Immigrants and Emigrants Act” (CB 179) and pre-charge and pre-trial detention (CB 180).

13. The Tribunal addressed each of these. It noted country information ([69] at CB 238 to [76] at CB 241). It made various factual findings, for example and including, that the applicant “[did] not have any outstanding criminal matters with the Sri Lankan authorities” ([92] at CB 245) nor that he would come to the attention of the Sri Lankan army or any other Sri Lankan authorities because of his Tamil ethnicity ([94] at CB 245) to conclude that he was not “of interest to the Sri Lankan authorities” ([96] at CB 246).

14. The applicant has not now complained about the Tribunal’s use of the country information. In any event, the weight accorded to this information was for the Tribunal to assign. Further, the Tribunal’s various factual findings, including the rejection of some of the applicant’s claims as to past events, were all reasonably open to the Tribunal to make in the circumstances presented.

15. Ultimately, in terms of the complaint relating to the fear of significant harm emanating from the Sri Lankan authorities because of his Tamil ethnicity, and his return as a failed asylum seeker, the Tribunal dealt with each of the aspects of those claims.

16. In relation to the applicant’s fear of harm from paramilitary groups, while the applicant made general references to fear such harm in his initial written statement, and made reference to fear of unknown “armed groups”, and claimed certain incidents involving them at the interview with the delegate (CB 96 to CB 97), it was not until the hearing with the Tribunal that the applicant explained that he feared “persecution” (a Refugees Convention concept) and, relevantly, feared significant harm from “paramilitary groups” whom he said had been “searching for him” ([24] at CB 230).

17. Previously in his written statement, the applicant recounted an incident in October 2011 where “four men” who were armed, came to his house and threatened him (CB 28 to CB 29, and at CB 229). He also made reference to a claimed incident in March 2012 where he claimed to have been abducted, again by “four men” ([28] to [29] at CB 29). At the hearing with the Tribunal, the applicant claimed to have been abducted by unknown people, who “asked him to join them” ([30] at CB 231). The Tribunal understood the applicant to claim that this was some “paramilitary group” ([32] at CB 231).

18. The Tribunal did not accept that either of these events occurred ([81] at CB 242 to [82] at CB 243). These findings were reasonably open to the Tribunal on what was before it. Relevantly, the Tribunal applied both these factual findings, specifically, to its analysis of the complementary protection criterion (see [96] at CB 246).

19. Both these findings were not made in any context of, or reliant upon, the Refugees Convention. That the Tribunal then subsequently applied these findings first to the Refugees Convention criterion ([84] at CB 243) does not give rise to any concern that it asked the wrong question in the subsequent analysis as against the complementary protection criterion.

20. In relation to complementary protection and the claims involving paramilitary groups, the Tribunal reasoned that claimed past instances of fear and harm had not occurred ([81] at CB 242). The Tribunal was given country information, which it accepted as relevant to the post-civil war situation to which the applicant would return, that he would not come to the adverse attention of paramilitary groups because of his Tamil ethnicity. The Tribunal, therefore, dealt with all of the integers of this claim.

21. The third matter was the question of the scarring on the applicant’s legs. Here, again, attention must be given to the context in which this claim arose. The applicant initially raised this in his written statement accompanying his protection visa application. The applicant claimed at [41] (at CB 31):

    “I am more susceptible to being suspected of being involved with the Liberation Tigers of Tamil Eelam because I have scars on my leg, obtained from bomb shrapnels during the civil war period. The authorities and paramilitary groups believed that the reason I have scars is due to my involvement with the LTTE.”

22. Before the delegate the applicant claimed that the “issue of scarring” “elevated his profile of risk”. Again this was in the context of being perceived to have links to the LTTE (CB 141 to CB 142).

23. No reference is made to “scarring” by the applicant’s representative in written submissions made  under the heading of “Complementary Protection”. The references in those submissions (under other headings) were limited as to how the scarring occurred ([7] at CB 166), and that in October 2011 he was accused of being connected to the LTTE by two men dressed in “civilian clothes” “upon seeing the wounds on the applicant’s leg” ([16] and [17] at CB 168).

24. At the hearing, the applicant told the Tribunal about the scars on his leg ([26] at CB 231). He gave evidence that he was abducted in March 2012 by a group ([30] at CB 231), which was understood to be a paramilitary group ([32] at CB 231 to CB 232), and that “this group believes that he himself was involved in the LTTE because of his wounds…” ([32] at CB 231 to CB 232).

25. It is important to note that the matter of the scarring on the applicant’s legs was never expressly raised by the applicant, or his representative, as being relevant to the complementary protection criterion. Nor, relevantly, and importantly, was there any reference there to significant harm arising from paramilitary groups.

26. The claim was expressly made, and clearly arose, in the context of the Refugees Convention. The applicant’s claim involving the “integer” of scarring, was that he was at heightened risk of being perceived to be an LTTE supporter, or member, because of these scars. That is, amongst other things, he was at real risk, because of his scars, of being perceived to be affiliated with the LTTE by paramilitary groups aligned with the Sri Lankan government.  That is, that, as a result of the scarring, he would be perceived to be a member of a particular group, being LTTE supporters, by agents of persecution (the paramilitary groups).

27. The Tribunal dealt with this claim as it was put by the applicant and his representatives. It rejected the claimed events of 2011 and 2012. Importantly, this meant that the applicant’s claim, that the scarring led to him being targeted, was rejected.

28. The Tribunal specifically found (at [84] at CB 243):

    “…The tribunal also finds that it is not satisfied that there is a real risk that the applicant will be targeted by paramilitary group(s) for a Convention reason due to his scar or any other reason if he returned to Sri Lanka. Therefore the tribunal finds that the applicant does not have a well-founded fear of persecution or serious harm for a Convention reason due to his being abducted/targeted by paramilitary group(s) due to his scar or any other reason in the foreseeable future.”

29. This was sufficient to deal with the claim made relating to the scarring on the applicant’s leg, keeping in mind how that integer of the applicant’s claims was put before the Tribunal.

The Application for the Extension of Time

1. The sole ground of the amended substantive application as pleaded, lacks merit. The ground as explained before the Court has, in my view, no prospect of success such that it can be said to be in the interests of the administration of justice to extend time to allow the substantive application to be further considered.

2. Nothing else was put by the applicant in support of his application to extend time. While the matter of the extent of the delay is negligible, and the applicant’s reasons for the delay are acceptable and satisfactory, in all the circumstances before this Court it is not in the interests of the administration of justice to extend time simply to dismiss the substantive application. The application for an extension of time should be refused. I will make an order accordingly.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17/01/2014