SZTDQ v Minister for Immigration & Anor
[2014] FCCA 537
•19 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 537 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | SZTDQ |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1786 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2014 |
REPRESENTATION
| Applicant appeared in person. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
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.
The applicant pay the costs of the application.
The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1786 of 2013
| SZTDQ |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 August 2013 the applicant filed an application with this Court for judicial review of a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.
The Tribunal made its decision on 4 June 2013. That means the applicant filed his application outside the 35 day period allowed under s.477(1) of the Migration Act1958 (Cth) (Act). That, in turn, means that this Court cannot entertain the applicant’s claim for judicial review unless the Court first extends the 35 day period by making an order under s.477(2) of the Act.
Accordingly, these reasons deal with the applicant’s claim for an order under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act.
Principles governing exercise of power under s.477(2)
The power conferred by s.477(2) to extend the 35 day period prescribed by s.477(1) is discretionary; and the factors the Court should usually consider when exercising that discretion were identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[1] Although his Honour there identified five separate factors, the determining factor in an application for an extension of time will usually be whether the applicant has a meritorious claim.
[1] [2009] FMCA 771 at [44]
I will therefore first consider whether the application raises a meritorious claim. That, in turn, requires me to set out the claims for protection the applicant made before the Tribunal, and the Tribunal’s reasons for rejecting those claims.
Applicant’s claim for a protection visa
The applicant is a citizen of Sri Lanka and a Tamil. Before the delegate, the applicant claimed he left Sri Lanka because he feared mistreatment by the Sri Lankan Army because of his Tamil ethnicity. He claimed that before he left the area in which he lived, the Sri Lankan Army suspected every Tamil male to be a member or sympathiser of the Liberation Tigers of Tamil Eelam (LTTE). He claimed that the Sri Lankan Army and paramilitary groups like the Karuna Group were working with the Sri Lankan Government to rid Sri Lanka of Tamil people, especially those suspected of being involved with the LTTE.[2]
[2] CB60-61
The applicant repeated his claims before the Tribunal. He claimed fear of persecution because he was a member of a particular social group, namely, a failed asylum seeker from a Western country and a young Tamil male.[3] He gave evidence about three incidents. The first was his having been approached when he was 14 years of age and when in the company of other children by police, who asked them whether they were Tamils and whether they had reformed the LTTE. The second was the applicant and his cousin, when walking to a video shop, having been approached by several men and taken into a jeep where the applicant and his cousin were accused of being part of the LTTE. The applicant could not say whether the men were members of the Sri Lankan Army or the police. Third, the applicant gave evidence that in 2007 a “grease devil”[4] came to his neighbour’s house. The applicant also gave evidence about his claim that two of his friends had been kidnapped; that the authorities had visited his home in Sri Lanka after he travelled to Australia, and this was followed up by other people looking for him.
[3] CB251, [9]
[4] The applicant mentions a “grease man incident” in his Irregular Maritime Arrival Entry Interview at CB18. In the delegate’s decision at CB135, the delegate noted the following: “Country information advises that there were widespread reports of ‘grease yakas’ sightings in rural areas of Sri Lanka from early 2011 until about September 2011. Reports indicated that the ‘yakas’ were men who smeared grease on their body to frighten women in rural villages. … There were allegations that the ‘grease yakas’ were associated with the SLA but these allegations have not been substantiated.”
Tribunal’s reasons
Despite some doubts, the Tribunal accepted the applicant’s evidence that the Sri Lankan authorities had approached him and the children he was playing with and asked whether they were Tamil and whether they had reformed the LTTE. The Tribunal, however, was not satisfied that this would lead to serious harm or persecution for a Convention reason in the reasonably foreseeable future. The Tribunal also accepted that, during the civil war, the applicant may have been stopped and questioned by members of the Sri Lankan authorities as he was approaching the video store. The Tribunal found, however, that that incident did not lead to any ongoing consequences for the applicant. The Tribunal was also prepared to accept the applicant’s evidence about his interaction with a “grease devil” although, again, it was not satisfied that gave rise to any well-founded fear of persecution, given the applicant’s evidence that no further encounters occurred after the one incident in 2007. The Tribunal did not accept the applicant’s evidence about his two friends not returning.
On its consideration of the application as a whole, the Tribunal did not accept that:[5]
the applicant has a well-founded fear of serious harm or persecution due to his race or ethnicity, either on its own or combined with other factors such [as] actual or imputed political opinion, membership of particular social groups, including factors such as area of origin, having been approached by Sri Lanka [sic] authorities on two occasions during the Civil War (once at school and once with his cousin), and/or his interaction with the grease devil. The Tribunal has made this finding based partly on the most recent UNHCR Guidelines which states that neither ethnicity nor area of origin are sufficient on their own to establish protection is required; and also on the fact that the applicant was granted a passport after his interaction with the grease devil and the authorities (once at the school and once with his cousin), and this indicates the applicant was of no interest to any of the Sri Lanka [sic] authorities.
[5] CB257, [42]
Proposed ground of review
In his amended application the applicant, who is not legally represented, proposes to rely on the following ground of review.
The second respondent (the Tribunal) constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant’s claims as a refugee and for complementary protection, namely the claim made by the applicant of fear of paramilitary groups like the Karuna Group.
Particulars
a.The applicant made the claim in his Statutory Declaration supporting his application for a Protection Visa, at CB 61.
b.The claim was supported by country information provided by the applicant’s advisors including a Wikileaks cable from the US Embassy in Colombo reporting secret Sri Lankan Government collusion with paramilitary groups including the Karuna Group, at CB 226-227.
c.Other country information of the activities of paramilitary groups was provided by the applicant’s advisor at CB 184 and CB 221.
d.The applicant’s claims in respect of the paramilitary groups was not addressed by the Tribunal nor could it be said the claim was subsumed in broader findings by the Tribunal of the applicant’s interest to the Sri Lankan “authorities”, given the US Embassy cable information that the Government of Sri Lanka denied any links to the paramilitary groups.
This proposed ground raises two issues. The first is whether it is reasonably arguable that the applicant articulated before the Tribunal a claim based on fear of persecution or harm by paramilitary groups like the Karuna Group, or whether such a claim clearly arose from the material before the Tribunal. The second issue is, if it is reasonably arguable that the applicant did raise such claim, or the claim clearly arose on the material before the Tribunal, whether the Tribunal considered the claim.
Did the applicant claim fear of paramilitary groups?
The formulation of the first issue is based on the principles discussed by the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2).[6] Those principles are as follows:
a)Where 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.[7]
b)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[8]
c)However, that does not mean that an application for a protection visa “is to be treated as an exercise in 19th Century pleading”; the Tribunal must “deal with the case raised by the material and evidence before it”,[9] and the “question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[10]
d)This does not mean, however, that the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[11] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[12]
[6] (2004) 144 FCR 1 (Black CJ, French and Selway JJ)
[7] (2004) 144 FCR 1 at page 17 ([55]), relying on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]
[8] (2004) 144 FCR 1 at page 19 ([60]). The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 405 and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural Affairs [2003] 548 also quoted by Selway J in SGBB at [16]
[9] (2004) 144 FCR 1 at page 19 ([60]) quoting Selway J in SGBB at [17]
[10] (2004) 144 FCR 1 at page 19 ([60]) quoting Selway J in SGBB at [18]
[11] (2004) 144 FCR 1 at page 19 ([60])
[12] (2004) 144 FCR 1 at page 20, [61]
In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs, Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[13]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[13] [2004] FCA 1695 at [15]
On the basis of these principles, I must first consider whether the applicant expressly claimed fear of persecution or harm based on the activities of paramilitary groups such as the Karuna Group. First, there is the statutory declaration the applicant included in his claim for protection. Danger from paramilitary groups is mentioned only in the following paragraph of the statutory declaration:[14]
The Sri Lankan Army and paramilitary groups like the Karuna Group are working together with the Sri Lankan Government to rid Sri Lanka of Tamil people, especially those they suspect of being involved with the LTTE. This, together with the treatment and mass slaughter of Tamil people in Sri Lanka is a clear example of what my fate will be should I be forced to return.
[14] CB61
Next, there is the submission the applicant’s agent submitted to the Tribunal in response to the Tribunal’s hearing invitation (Agent’s Submission). The applicant’s claims were stated as follows:[15]
The claims put forward by the Applicant are contained in his statement in support of his application for Refugee Status Assessment and as set out in the body of this submission, in which it is indicated that his fear of persecution is based on his ethnicity, imputed political opinion and membership of particular social groups.
The Applicant believes that he will be harmed, mistreated or killed in Sri Lanka at the hands of the Sri Lankan Army (SLA) as well as other organisations affiliated with the SLA. The Applicant’s fear stems from his ethnicity as a young Tamil male. He instructs that given his particular circumstances, he will be seen as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) movement.
[15] CB159
In my opinion, neither the statutory declaration nor the statement of the applicant’s case in the Agent’s Submission contains an expressly articulated claim that the applicant fears persecution or harm from paramilitary groups on their own; the articulated claim is fear of persecution from the Sri Lankan Army acting in concert with paramilitary groups on account of the applicant’s Tamil ethnicity, and consequent imputed political opinion or membership of a particular social group or groups.
I next consider whether the materials identified by the applicant in the particulars to the ground of review clearly give rise to such a claim, each of which were included in the Agent’s Submission.
The first item, that mentioned in paragraph (b) of the particulars, is the article published in the TamilNet on 17 December 2010 under the heading “Wikileaks: Gotabaya sanctioned extra-judicial killings by Para-militaries”.[16] This article refers to a cable sent on 18 May 2007 from the United States Embassy in Colombo which accuses the Sri Lankan Defence Secretary of giving orders to the Sri Lankan Army “not to interfere with Tamil paramilitaries who are “doing work” that the military cannot do because of international scrutiny”.
[16] CB226-227
The second item, the information referred to in paragraph (c) of the particulars, is in two pieces of information: information contained in a section appearing under the heading “The role of paramilitary groups/rival political factions” appearing in the UNHCR Eligibility Guidelines;[17] and information contained in a section appearing under the heading “Violations by Government-allied armed groups” appearing in the Amnesty International Annual Report 2011 for Sri Lanka.[18] The UNHCR report refers to a number of reports of paramilitary groups, and in particular the EPDP and the TMVP continuing to be active in Sri Lanka. The EPDP are primarily active in Jaffna in the north and the TMVP are primarily active in the east, although they, and other paramilitary groups are active in other areas. It is further reported that the activities of these groups appears to stem primarily from political and criminal motives. The section concludes that “[s]everal reports indicated that there are still close links between these groups and government security forces”. The section from the Amnesty International Report said that “[a]rmed Tamil groups aligned with the government continued to operate in Sri Lanka and commit abuses and violations, including attacks on critics, abduction for ransom, enforced disappearances and killings”.
[17] CB184
[18] CB221
In my opinion, it is not reasonably arguable that a claim based on fear of persecution or harm on account of paramilitary groups clearly arises from these items of information. It does not arise at all. First, the information, contained in no more than three pages, is but a small proportion of the information contained in the 80 page Agent’s Submission. The Tribunal could not reasonably have regarded the information as having been included in the Agent’s Submission for a purpose other than to support the applicant’s claim as expressly made in the Agent’s Submission.
Secondly, even if each item of information is considered by itself, it is not reasonably arguable that a distinct claim based on paramilitary groups like the Karuna Group clearly arises from that item. The TamilNet article refers to a cable that was sent when the civil war was still in progress. And, in any event, what it reports is the government’s use of paramilitary groups, which the Tribunal could only reasonably have understood as having been included in the Agent’s Submission to support the applicant’s express claim. As for the UNHCR and Amnesty International reports, although they refer to paramilitary groups, they do not refer to the Karuna group; and the abuses these groups are reported to be committing are not said to be committed against Tamils or at least not against Tamils alone. Further, both the UNHCR and Amnesty International reports refer to the links between the government and paramilitary groups which, again, the Tribunal could only reasonably have understood as having been included in the Agent’s Submission to support the applicant’s claim as expressly made in the Agent’s Submission.
Whether Tribunal considered claim of fear of paramilitary groups
Assuming there was a distinct claim based on fear of persecution or harm by paramilitary groups, could it be said it is reasonably arguable that the Tribunal did not consider the claim? The answer to that question depends on the application of the principles contained in the following passage from the reasons for judgment of the Full Federal Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:[19]
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[19] [2003] FCAFC 184 at [47] (French, Sackville and Hely JJ)
The Tribunal correctly identified the applicant’s claims as including the claim that he fears “the Government, the Sri Lankan Army, the CID, Karuna, breakaway groups from the LTTE . . . and Sinhalese people generally”.[20] And, in the passage from the Tribunal’s reasons which I have set out in paragraph 9 of these reasons, the Tribunal considered that claim. In my opinion, there can be no doubt that by considering that claim, the Tribunal also dealt with any claim which may be considered to have been made based on the applicant’s fear of persecution by paramilitary groups like the Karuna Group. It is beyond argument that the Tribunal’s conclusion made it unnecessary to make a separate finding of any claimed fear of paramilitary groups because the conclusion subsumed such claim.
[20] CB251, [9]
For these reasons, therefore, I am of the opinion that the claimant’s proposed ground of review does not raise a meritorious claim. Even if the ground raises a meritorious claim, that claim is bound to fail. I feel at liberty to make this finding because in determining whether the applicant has a meritorious claim, I have in fact considered his claim as I would have considered the claim as on a final hearing.
In my opinion, it is not reasonably arguable that the Tribunal, in the passage which I have set out in paragraph 9 of these reasons, did not consider the applicant’s claims. I accept the Ministers submission, and find it is beyond reasonable argument, that the conclusions set out in that passage of the Tribunal’s reasons were of such generality
Other factors relevant to s.477(2)
The applicant’s explanation for his delay in filing the application within the time prescribed by s.477(1) of the Act is that he was expecting, but did not obtain legal aid, and he lacked proficiency in English and lacked legal assistance. If the applicant had a meritorious claim, I would have accepted this as a reasonable explanation and would not have regarded the delay by itself as a factor against making an order under s.477(2) of the Act.
On the other hand, given my finding that the applicant’s substantive claim lacks merit, not to extend the time for filing the application will not have an adverse impact on the applicant because his application is bound to fail; and to extend the time will prejudice the Minister to the extent the Minister will incur additional costs to defend a claim that is bound to fail. Further, the interests of the public at large will be served if time were not extended to file an application for a claim that is bound to fail; it is not in the interests of the public to devote public resources to the determination of a claim that is bound to fail.
Disposition
I am not prepared to extend the 35 day period prescribed by s.477(1) of the Act for the making of an application for a remedy in exercise of the Court’s original jurisdiction under s.476 of the Act.
I propose, therefore, to dismiss the application to extend the 35 day period and order that the applicant pay the Minister’s costs of that application. In addition, as requested by the Minister, I propose to order that the Minister’s title as it appears in the application be amended to reflect his current title.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 March 2014
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