SZSZW v Minister for Immigration

[2017] FCCA 1710

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZW v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1710

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – extension of time application – where extension of time not found to be in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476, 477

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365

Applicant: SZSZW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 500 of 2016

Judgment of: Judge Street

Hearing date: 24 July 2017

Date of Last Submission: 24 July 2017

Delivered at: Sydney

Delivered on: 24 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

On a direct access basis

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application provided in the applicant’s submissions filed 13 July 2017 and the Court dispenses with the need for the electronic filing of the amended application.

2. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 500 of 2016

SZSZW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 January 2016, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

Extension of time

1. The applicant’s application in these proceedings was filed 13 days out of time as required under s.477, and accordingly the applicant requires an extension of time under s.477. I take into account the principles identified by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, relevantly at [58] to [63]. I also take into account the principles in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

2. Mr Karp of counsel on behalf of the applicant has identified the applicant’s explanation for the delay, which in the present case is particularly candid in that the applicant identified moving to temporary accommodation, and that at the time he did not think he would stay there long, and relevantly he says,

   “I knew that I should tell the AAT about my changes of address, but I thought that as we would not be there long, I could tell them when we moved to a more permanent place.”

3. Whilst the applicant is to be commended for his candour, it does not give rise to a satisfactory explanation for the failure to notify the Tribunal of the change of address in respect to an obligation that the applicant patently appreciated he had.

4. In relation to an extension of time under s.477, the relevant issues are, in substance, whether there is an adequate explanation for the delay; whether there is any prejudice to the respondents; and the merits of the substantive application.

5. No prejudice is suggested by the first respondent; however, the first respondent does submit that the explanation was inadequate. I accept that submission. The explanation on its face, whilst frank and candid, is not an explanation that is adequate in relation to that failure.

6. Mr Karp skilfully submitted that the applicant had limited facility with English and limited education. None of that goes to the heart of the acknowledgement candidly made by the applicant that he was aware of his obligation, to which he failed to attend. It is in those circumstances I do not regard the explanation as adequate.

7. However, the more important issue in the present case are the merits.

Substantive application

1. In that regard, Mr Karp has advanced a single ground in an amended application, which was the subject of leave to the applicant to be relied upon, which is as follows.:

   1. The second respondent failed to consider substantial, clearly articulated submissions on the issue of whether the applicant faces a well founded fear of persecution, or a real risk of serious harm on return to Sri Lanka because he would be a returned asylum seeker.

2. Mr Karp of counsel took the Court to the Court Book and in particular submissions that had earlier been made on behalf of the applicant by a migration agent amongst the material before the Tribunal that the applicant feared harm by reason of being a failed asylum seeker, as well as a reference to the potential for extortion in relation to the payment of a fine in consequence of being an unlawful departee. Mr Karp submitted that there was no express reference to the submissions by the Tribunal, and therefore no active intellectual engagement with those submissions.

3. Mr Karp submitted that albeit there was a reference in the Tribunal’s reasons to the applicant being someone who had been the subject of findings by the Tribunal referring to extortion and the applicant being a failed asylum seeker in Australia, there was a reference in the applicant’s statement in support of his application concerning his fears of being suspected of being involved with the LTTE upon return to Sri Lanka, and that this could be inferred as raising the applicant’s claim as a failed asylum seeker. From that proposition, Mr Karp argued that there had been a failure by the Tribunal to engage with a material submission and relied upon what was said by Griffiths J in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, relevantly at [75] – [82].

4. The Tribunal’s reasons are not to be read with a keen eye for error. This is a case where the applicant was invited to attend a hearing by the Tribunal and failed to attend. The Tribunal identified steps taken in sending 2 SMS hearing reminders, none of which gave rise to the applicant’s attendance, and the Tribunal made a decision to proceed to determine the application for review.

The Tribunal’s decision

1. The Tribunal correctly identified the relevant law. The Tribunal correctly identified the applicant’s claims in that he feared harassment by the Sri Lankan authorities because of his ethnicity as a Tamil man and that he would be harmed by them on return to Sri Lanka because he did not continue to report his presence to them, and the applicant instead came to Australia.

2. The Tribunal made reference to the history of the proceedings and the adverse determination by an earlier Tribunal that was set aside by a Court and the review in this case being before a differently constituted Tribunal. The Tribunal identified that in the absence of an oral hearing, the Tribunal could not be satisfied that the account of the events on which the protection claims are based is true, because it did not have the opportunity to assess the applicant’s credibility. The Tribunal observed that, in addition, an important phase of the account of events on which the applicant’s protection claims are based is the period he lived in Jaffna after being released from camps for those displaced by the conflicts.

3. The Tribunal explained that it needed to question the applicant in detail about what difficulties he had with Sri Lankan authorities in this period, and what interest they had shown in him since he left Sri Lanka. The Tribunal had send the applicant a letter in compliance with its obligations under s.425, inviting the applicant to attend the hearing, and conveying to the applicant that the Tribunal was unable to make a favourable decision to the applicant on the material before it.

4. The Tribunal explained that in the absence of an oral hearing, it was unable to discuss with the applicant relevant country information as to whether or not he is at risk of serious harm in Sri Lanka, and materially, for the purposes of the present case, made reference to including the alleged extortion, his ethnicity, his former residence in areas confronted by the LTTE, his failed asylum application in Australia, and on any other ground he seeks to raise. The reference to extortion and failed asylum application is clearly a reference to the submission to which Mr Karp referred, and reflects a genuine active intellectual engagement by the Tribunal in the determination of the application for review of the claim of being a failed asylum seeker.

5. The Tribunal found it was unsatisfied that the applicant holds a well-founded fear of persecution based on any Convention reason. For the same reasons, the Tribunal was unable to be satisfied that there 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 the applicant would suffer significant harm. It was in those circumstances the Tribunal found that the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.

6. On the face of the Tribunal’s decision, there was no failure by the Tribunal to take into account the applicant’s submissions, and the Tribunal made dispositive findings in relation to the whole of the applicant’s claims that were open to the Tribunal on the material before the Tribunal. There was no failure by the second respondent to consider a clearly articulated submission in relation to the applicant fearing persecution or risk of harm by reason of being a returned asylum seeker. No sufficiently arguable jurisdictional error is disclosed by the amended application to warrant an extension of time in the interests of the administration of justice.

7. In the circumstances of the present case, the Court is not satisfied that it is necessary in the interests of the administration of justice to order an extension of time under s.477 of the Act.

Conclusion

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  12 September 2017