SZTDF & Minister for Immigration & Border Protection

[2013] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDF & MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1916

Catchwords:

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether an extension of time should be granted pursuant to s.477 of the Migration Act 1958 (Cth) – whether it is necessary in the interests of justice to extend time – whether applicant’s explanation is satisfactory – whether the grounds of the applicant’s application have sufficient prospect of success – unsatisfactory explanation – insufficient prospects of success – application refused.

Legislation:
Migration Act 1958 (Cth) ss.36, 65, 477, 488
Federal Circuit Court Rules 2001 (Cth) r.44.12

Applicant: SZTDF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1754 of 2013

Judgment of: Judge Emmett

Hearing date: 15 November 2013

Date of Last Submission: 15 November 2013

Delivered at: Sydney

Delivered on: 15 November 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Mr Andras Markus (Australian Government Solicitor)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1754 of 2013

SZTDF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time by the applicant to seek judicial review of a decision of the Refugee Review Tribunal (“RRT”) dated 30 May 2013, affirming a decision by a delegate of the first respondent (“the Delegate”) to refuse the applicant a protection visa dated 21 March 2013.

2. The RRT’s decision is dated 30 May 2013. Pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), an application to this Court must be made to the court within 35 days of the date of the migration decision. The applicant’s application was filed on 29 July 2013, plainly more than 35 days after the date of the migration decision.

3. Pursuant to s.477(2) of the Act, this Court has power to extend the thirty-five day period as it considers appropriate, if an application for that order has been made in writing, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order, and that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. The applicant identified in his substantive application, filed on 29 July 2013, that the grounds of his application for an extension of time are as follows:

   “1. My English proficiency is poor. With the limited support in terms of brining the case to Judicial Review was very difficult. I could not locate Tamil community and the refugee support groups in time to prepare this application package in time.

   2. I could not get a lawyer to fill this set of forms for me. I am filing this case with the help of some community volunteers in Sydney.

   3. I am aware that I am late by a few weeks, and I am extremely sorry about this. I am worried about too many things in isolation. Please accept this application.”

5. The applicant was unrepresented before the Court this morning, although he had the assistance of an interpreter. I explained to the applicant that the Court would need to consider the reasonableness of his explanation for his extension of time and whether the Court regarded that as an adequate explanation. Further, the Court would need to consider whether there was utility in granting an extension of time because the applicant’s grounds of judicial review of the adverse RRT decision have sufficient prospects of success that the interests of justice would demand that time be extended to the applicant.

6. The first respondent concedes that there is no prejudice to the first respondent in time being extended to the applicant, nor does the first respondent submit that the delay is excessive. However, the first respondent opposes an extension of time on the grounds that there is no adequate explanation for the delay, and that the substantive application has insufficient prospects of success, such that it would be in the interests of justice to extend time.

7. The applicant was given leave to give oral evidence in support of his application.

8. In relation to the applicant’s explanation for his delay in seeking judicial review of the RRT’s decision, the applicant gave evidence that he was not aware of the procedures as to how to make an application to this court, and that he had applied to Legal Aid and he was waiting for their response.

9. In cross-examination, the applicant agreed that he had been legally assisted both in his protection visa application and his application for review of the delegate’s decision by the RRT. The applicant also agreed that his lawyers had told him that he had an opportunity to challenge the decision of the RRT in this Court. At that time, the applicant agreed that he had been in the community in New South Wales for 10 months.

10. On the applicant’s own evidence, he had been able to approach Legal Aid and make an application to that organisation. In addition, he was able to effect representation before the Delegate and the RRT and was able to approach Legal Aid. In the circumstances, I do not accept his evidence that he did not know how to make an application either for judicial review of the RRT’s decision or to seek an extension of time to do so. He was plainly able to avail himself of assistance in lodging applications when necessary.

11. Accordingly, I find that the various explanations provided by the applicant for the delay in seeking judicial review of the RRT’s decision to be inadequate.

12. In relation to the prospects of success of the applicant’s substantive application, the grounds relied upon by the applicant in his application filed on 29 July 2013 are as follows:

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

    2. More details will be provided by the legal representative.”

13. Plainly, the complaint in paragraph 1 makes a bare assertion that does not disclose any error capable of review by this Court. Paragraph 2 clearly does not make any complaint. Based on the complaint in paragraph 1, the applicant has not raised an arguable case for the relief claimed. If time was extended to the applicant, based on the grounds of the application alone, there is every chance that the applicant’s proceeding would be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001(Cth), on the basis that the Court would not be satisfied that the application has raised an arguable case for the relief claimed.

14. In considering the overall interests of justice, I invited the applicant to expand on the complaint that he had about the RRT’s decision. I explained to him that the role of this Court was very different to that of the RRT, and that it was not for this Court to reconsider his claims and reach different conclusions or make different factual findings. I also explained to him that this Court has no power to interfere with the decision of the RRT, unless this Court is satisfied that the decision is affected by an error that goes to the RRT’s jurisdiction.

15. I asked the applicant what he meant by the ground of his application, and the applicant commenced to restate his claims. I interrupted the applicant and asked him what was mistake that he asserts the RRT made in its decision. The applicant responded that the RRT’s decision stated that he could return to Sri Lanka and live safely, but that there is no evidence for that decision.

16. To the extent that the complaint asserts that there is no evidence for the decision, such a complaint is not borne out on the face of the RRT’s decision.

17. A summary of the applicant’s claims, and a summary of the RRT’s decision, is provided by the first respondent in written submissions as follows:

    “Applicant’s Claims

    6. The applicant is a 31 year old national of Sri Lanka, of Tamil ethnicity. The applicant and his family left their home town of Mallaitvu because of the war between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Army (SLA) in 1990 (when the applicant was 8) and lived in a refugee camp in Nadu, India until June 2012, when he travelled to Australia by boat. The applicant claims to dear that he will be mistreated, abducted and/or killed in Sri Lanka because he is a Tamil, because he might be imputed with a political opinion as a supporter of the LTTE, or because of his membership of a particular social group “failed asylum seekers from the west”: RD 261 [7]. He also claimed he would face hardship if returned to Sri Lanka because he lacks connections, owns no property there, has been away for 22 years and has only 1 family member who he has previously met in Sri Lanka: RD 268 [40]. The applicant also claimed to be Catholic and claimed he had heard there were problems for Christians in Sri Lanka: RD 266 [29].

    The Tribunal’s Decision

    7. The Tribunal accepted it was not in dispute the applicant is ethnically Tamil, and that the applicant had no existing right to enter and reside in India: RD 261 [5]. It also found that the applicant had provided consistent information regarding his claims on all crucial points – his credibility was not in doubt: RD 261 [4].

    8. The Tribunal was not satisfied the applicant would be subjected to serious harm by agents of the state or anyone else because of political opinion imputed to him: RD 264 [22]-[23]. It noted country information that indicated merely being a Tamil from an area previously controlled by the LTTE no longer gives rises to a well-founded fear of being persecuted, rather it was Tamils with suspected LTTE links who appeared to have serious problems with the Sri Lankan authorities: RD 262 [15], RD 263 [17]. In reaching this conclusion the Tribunal noted that the applicant did not provide any evidence that he, or his family, had a connection to the LTTE, and that aside from being a Tamil from Mallaitvu there was no reason why the Sri Lankan authorities or paramilitary groups might suspect him of supporting the LTTE: RD 262 [14], 263 [18]. The Tribunal did not accept the applicant would be imputed with anti-government and pro-LTTE views as a Tamil returning from India, on the basis of country information and also because the applicant left Sri Lanka as a child: RD 264 [22] – [23]. It accepted the applicant would be questioned on arrival at the airport, as was routine for all deportees from Australia to Sri Lanka, it was satisfied that the applicant would not be subjected to serious harm by agents of the state or anyone else because of a political opinion imputed to him: RD 264 [23].

    9. The Tribunal was not satisfied the applicant had a well-founded fear of being persecuted for reason of his race if returned to Sri Lanka. It noted country information that indicated various types of Sri Lankan people may be in need of international protection, however noted this did not include Tamils, or young Tamil men from the North or East, or  Sri Lankan Tamils returned from India. It accepted the applicant may be subjected to some discrimination or harassment from time to time but did not believe this amounted to persecution: RD 264 [25] – [26].

    10. The Tribunal accepted the applicant did not have a national identity card (NIC) but was satisfied the applicant would be able to get one within a reasonable period and would not be denied one because of perceptions regarding his political opinion or race: RD 265 [28].

    11. The Tribunal also assessed the chance the applicant would face treatment amounting to persecution on the basis of his Christian beliefs as remote, based on country information which indicated religiously-motivated problems for Christians are relatively rare and minor in Sri Lanka: RD 266 [29] – [30].

    12. In respect of the applicant’s claim in relation to being a ‘failed asylum seeker from the west’ the Tribunal accepted that the applicant will be questioned at the airport on return, may be charged with leaving the country illegally, could be held in remand for a brief period while awaiting a bail hearing, and that he might later be fined, however found that this treatment was administered under a general law of application and did not believe this harm could be characterised as ‘serious harm amounting to persecution: RD 266 [31] – 268 [36].

    13. Having considered the evidence and the applicant’s claims singly and cumulatively the Tribunal found he did not have a well-founded fear of persecution for any reason under the Refugees Convention, and did not satisfy s.36(2)(a) of the Act: RD 268 [37].

    14. The Tribunal also considered whether he satisfied the complementary protection criteria, and determined there were no substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant’s removal he would face a real risk of significant harm in the terms of s.36(2)(aa): RD 268 [38] – 269 [43]. There was no suggested the applicant satisfied s.36(2) of the Act: RD 269 [44]. Therefore, the Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations: RD 269 [44].”

18. I accept that the first respondent’s summary of the RRT’s decision as accurate. The RRT’s decision makes clear, and identifies in great detail the country information that it considered, and upon which it relied in affirming the decision under review.

19. Pursuant to s.65 of the Act, it is for an applicant to satisfy the relevant decision-maker, in this case the RRT, that he meets the criteria for the visa for which he has applied. Section 65(1)(b) states that if a decision maker, in this case the RRT, is not satisfied that the applicant meets that criteria, the application is to be refused.

20. The relevant criteria set out in s.36 of the Act, and it is that criteria that an applicant is required to address in seeking to satisfy the relevant decision-maker, in this case the RRT, that he has a well-founded fear of persecution for a Convention related reason or is entitled to complementary protection. The RRT, in this case, was not so satisfied.

21. The manner in which the RRT considered whether the applicant met the refugee criteria in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act appears to be orthodox and without error.

22. It was not necessary for the RRT to have rebutting evidence in relation to its consideration of the level of satisfaction that it has reached.

23. Whilst I make no final finding as to whether or not the decision of the RRT is affected by jurisdictional error, the applicant has not identified any error with any prospect of success, and none is apparent on the face of the RRT decision.

24. In the circumstances, I am satisfied that there would be no utility in the Court granting the extension of time, and accordingly, for the reasons I’ve referred to above, the applicant’s application for an extension of time is refused.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date: 19 November 2013