SZTDL v Minister for Immigration

[2015] FCCA 1944

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1944

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R(2)(a), 476, 477(1), 477(2)

Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZTDL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1775 of 2013

Judgment of: Judge Manousaridis

Hearing date: 29 April 2014

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Mr D. McLaren
Sparke Helmore Lawyers

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1775 of 2013

SZTDL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). The need for the application arises because the applicant filed his application fourteen days out of time.

2. To obtain the order the applicant seeks, he must satisfy the Court that it is necessary in the interests of the administration of justice that the time for filing the application be extended. That at the very least requires an applicant to present evidence that explains the delay, and to demonstrate that the application the applicant proposes to make if an order extending time is made has merit.

3. The reasons the applicant has given for not filing his application within time are that his English is poor, he could not within the time available obtain assistance from the Tamil community, he could not obtain the services of a lawyer, and he was “worried about too many things in isolation”. I accept this explanation and, if the applicant can establish he would have a reasonably arguable case if I were to extend time, I would make an order extending the time.

4. The question I must consider, therefore, is whether there is any merit in the grounds on which the applicant proposes to rely. That requires me to identify the grounds on which the applicant relied for protection, and the Tribunal’s reasons for not accepting those claims.

The applicant’s claims for protection

1. The applicant is a citizen of Sri Lanka, and a Tamil. He claimed[1] that in late 2006 he was arrested by the army on suspicion of belonging to the Liberation Tigers of Tamil Eelam (LTTE) and, during his arrest, he was questioned about his knowledge of the LTTE, and was blindfolded, tied to a chair, pushed, kicked and forbidden to use a toilet. In 2008 one of the applicant’s sister’s was kidnapped, and has not been found. In the meantime, shortly after he was released from arrest, the applicant went to Dubai for work and, having heard things had improved, in 2011 he returned to Sri Lanka. Although the applicant did not encounter any difficulties at the airport, about two weeks after his return, and after the police told the applicant he had to register on his family’s registration card, he was questioned for approximately two hours about where he had been, and whether he was connected with the LTTE. Later, he travelled to India on a five day pilgrimage, and he did not encounter any difficulties.

   [1] CB259, [9]

2. The applicant claimed, on the basis of these asserted facts, that he fears that if he were to return to Sri Lanka, he will be mistreated and eventually killed by the army and the paramilitary Karuna Group because he will be suspected of being involved with the LTTE. He fears that he will be kidnapped because he has travelled to a foreign country. He also claimed the authorities will not protect him.

3. At a hearing before the Tribunal, the applicant was questioned about, among other things,[2] his knowledge of the reasons for the abduction of the applicant’s sister, his fear of the Karuna Group, his work in Dubai, the passport on which he travelled to and from Dubai, the applicant’s arrest, where the applicant lived after his return from Dubai, whether he suffered any harm after he returned, and about various items of country information.

   [2] CB260-264, [12]

Tribunal’s reasons

1. The Tribunal accepted[3] the applicant is a citizen of Sri Lanka and a Tamil; that he was arrested and detained in late 2006 on suspicion of involvement with the LTTE; that he obtained a passport in his own name and, one month after his release, travelled to Dubai; that one of the applicant’s sisters was abducted in 2008 and has not been seen since; that he returned to Sri Lanka in March 2011 and began work as a self-employed auto rickshaw driver; and that he left Sri Lanka again in June 2012 for a five day visit to India. With some hesitation, the Tribunal also found that the Karuna Group may have been involved in the applicant’s arrest and detention in late 2006.[4] The Tribunal did not accept the claim the applicant made at the hearing that, in the month between his release from detention and his departure for Dubai, the authorities were searching for the applicant.[5]

   [3] CB 265, [16]

   [4] CB265-266, [17]

   [5] CB266, [18]

2. The Tribunal concluded the applicant did not have a well-founded fear of persecution because of his ethnicity, or for any political opinion he holds or may be imputed to hold, or because of membership of any particular social group.[6]  That is so because, among other things, the Tribunal could not view the applicant’s having moved in and out of Sri Lanka as casting any suspicion over him;[7] country information indicated a person would not be viewed as holding a pro-LTTE opinion simply because the person was a Tamil,[8] or because the person came from an area previously occupied by the LTTE,[9] or because the person was a returnee from the West.[10] Based on country information, the Tribunal was not satisfied there was a real chance that persons would suffer serious harm only because they were young Tamil males.[11] Although the Tribunal accepted that, on his return to Sri Lanka, the applicant would be interviewed at the airport by the Sri Lankan Immigration and Emigration Department, the State Intelligence Service, and the airport Criminal Investigation Department, these processes apply to all returnees regardless of ethnicity, and that the processes would not amount to serious harm.[12] And, although the Tribunal accepted that Sri Lankan Law imposed penalties on persons who left Sri Lanka in breach of Sri Lanka’s Immigrants and Emigrants Act, the Tribunal was not satisfied that, in practice, imprisonment is imposed in such cases, or that courts do not have a discretion in sentencing.[13]

   [6] CB271, [36]-[37]

   [7] CB267, [21], first bullet point

   [8] CB267, [21], second bullet point

   [9] CB267, [21], third bullet point

   [10] CB267-268, [21], fourth bullet point

   [11] CB269, [28]

   [12] CB270, [30]-[31]

   [13] CB271, [34]

Proposed grounds of review

1. The application contains one ground of review. The ground is that the Tribunal’s decision “was affected by legal error”. The application states that “[m]ore details will be provided by the legal representative”.

2. At the hearing, the applicant, who is not legally represented, made no submission to the Court in relation to this ground, other than to say that the details the applicant expected his lawyer would provide related to the applicant’s detention and “my sister’s detention”.[14]

   [14] T6.10

3. The ground on which the applicant proposes to rely is a bald assertion of legal error, without the support of any particulars. It, therefore, does not state any reasonably arguable ground of review. And details of the applicant’s detention – a matter the Tribunal accepted – and details of the applicant’s sister’s detention would be irrelevant to whether the Tribunal made any jurisdictional error. Further, there is nothing in the Tribunal’s decision that suggests it made any jurisdictional or other legal error.

Additional matters

1. On 5 November 2014, the solicitor for the Minister sent an email to my associate which stated as follows:

   We bring to the Court’s attention a decision of North J in WZAPN v Minister of Immigration and Border Protection [2014] FCA 947 (WZAPN), a copy of which is attached. The judgment concerns, amongst other things, the meaning of the expression “a threat to life or liberty” as it appears in s 91R(2)(a) of the Migration Act 1958.

   The judgment in WZAPN is the subject of an application by the Minister for Immigration and Border Protection for special leave to appeal to the High Court. The Minister’s application . . . was filed on 1 October 2014 and no date has yet been fixed for the hearing of the application.

2. The email does not state why the sender considers North J’s reasons in WZAPN to be relevant to these proceedings. It is reasonably apparent, however, that the Minister did so because of North J’s consideration of the meaning of “a threat to a person’s life and liberty” as used in s.91R(2)(a) of the Act and, in particular, to his Honour’s opinion that this expression did not allow “for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right”.[15] His Honour’s opinion was potentially relevant to this case because the Tribunal considered whether the applicant might be at risk of harm for having left Sri Lanka in breach of that country’s immigration laws, and, in the course of considering that question referred to country information that indicated that returnees, “are arrested at the airport and brought before a court to apply for bail”.[16] The Tribunal was not satisfied that being questioned at the airport on arrival, detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined could reasonably be seen as constituting serious harm.[17]

   [15] [2014] FCA 947 at [44]

   [16] CB270, [33]

   [17] CB271, [35]

3. The Minister obtained special leave to appeal to the High Court, and the High Court delivered its decision on 17 June 2015.[18] The High Court overruled North J’s construction of s.91R(2)(a) of the Act. That means that North J’s decision in WZAPN can have no bearing on the matters that arise on the application that is before me.

   [18] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22

Conclusion and disposition

1. The applicant has not demonstrated there would be any merit in his application if I were to make an order under s.477(2) of the Act extending the time for the applicant to file his application.

2. I propose to dismiss the application for an extension of time, and order that the applicant pay the first respondent’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 July 2015