SZTLU v Minister for Immigration and Border Protection
[2017] FCA 147
•24 February 2017
FEDERAL COURT OF AUSTRALIA
SZTLU v Minister for Immigration and Border Protection [2017] FCA 147
Appeal from: Application for an extension of time: SZTLU v Minister for Immigration & Anor [2016] FCCA 2261 File number: NSD 1718 of 2016 Judge: WHITE J Date of judgment: 24 February 2017 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to commence an appeal – applicant did not point to any reasonably arguable error in the reasons of the Federal Circuit Court Judge and accordingly did not show prejudice if extension of time refused.
Held: application refused.
Legislation: Migration Act 1958 (Cth) s 36(2)(aa)
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Date of hearing: 21 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr MJ Smith Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1718 of 2016 BETWEEN: SZTLU
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
21 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal is refused.
2.The Applicant is to pay the costs of the First Respondent fixed in the sum of $2000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
The applicant, a national of Sri Lanka, arrived in Australia by boat on 1 July 2012. On 16 November 2012, he made an application for a protection visa but this was refused by the Minister’s delegate. That refusal was affirmed by the Refugee Review Tribunal (the Tribunal) on 2 October 2013.
Subsequently, the applicant sought judicial review of the Tribunal’s decision. By a judgment delivered on 31 August 2016, the FCC dismissed that application: SZTLU v Minister for Immigration & Anor [2016] FCCA 2261.
The applicant wishes to appeal against the decision of the FCC. However, he did not file a notice of appeal in this Court within the 21 day period prescribed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR) for such appeals.
On 6 October 2016, the applicant filed an application for an extension of time in which to appeal. This was some 15 days after the expiry of the prescribed 21 day period.
The applicant represented himself on the hearing of the present application, as he did in the FCC. He had the assistance of an interpreter.
At the conclusion of the hearing of the application for the extension, I announced my decision that the application was dismissed and said that I would publish reasons later. The following are my reasons.
The affidavit filed by the applicant in support of the application for the extension of time is uninformative. After reciting in [1] that he is the appellant, the applicant continues:
2. I have not received a judgment or reasons for the order.
3. I have attached the original order.
The grounds of appeal stated in the applicant’s draft Notice of Appeal are scant. In fact, only one ground is given, namely:
The Judge has failed to provide reasons for the order.
The Minister opposed the grant of an extension of time, principally on the basis that the proposed appeal does not have any merit.
The Court does have power to grant an extension of time. The discretion to do so must be exercised having regard to the circumstances of the individual case and the interests of justice. Limitation periods such as that fixed by r 36.03 play an important role in the promotion of the efficient administration of justice. The consideration of an application for an extension of time has to take account of those purposes. It is for those seeking an extension to show that it is appropriate.
The principal matters to which courts have regard on applications for extensions of time are the length of the extension required, the explanation for the delay which has occurred, the prejudice to the respondent if the extension is allowed, the prejudice to the applicant if the extension is refused, and the conduct of the parties in the litigation generally.
In the present case, the period of 15 days is not long in absolute terms but is significant when compared with the 21 day limitation period.
The applicant’s affidavit does not really articulate any reason for his delay but I am willing to accept his submission that the delay is attributable to his not having had a copy of the published reasons of the FCC Judge, to being unaware that he had a right of appeal and to being unaware of the 21 day limitation period. In relation to the first of these matters, I note that the written form of the FCC Judge’s ex tempore reasons were not provided until 13 October 2016.
The Minister does not assert any relevant prejudice. There is nothing in the conduct of the applicant in the proceedings which would operate adversely to him in relation to the extension of time.
The critical matter therefore is whether the applicant will be prejudiced, in a material way, by the refusal of an extension. This turns on whether the applicant would lose the opportunity to advance a reasonably arguable case on appeal. This requires consideration of the underlying merits of the applicant’s proposed appeal. In this respect, the Court is not assisted by the applicant’s draft Notice of Appeal. Instead, I have considered the grounds of review which the applicant advanced in the FCC and the way in which the FCC Judge determined those grounds.
By way of background, I note that the Tribunal member accepted that the applicant is of Tamil ethnicity. He claimed to have a well‑founded fear of persecution involving serious harm by reason of that ethnicity, his membership of particular social groups and for having left Sri Lanka for Australia illegally. In support of that claim, the applicant referred to a number of incidents and other circumstances in Sri Lanka. He also claimed, in the event that he was found not to be a refugee, to be entitled to complementary protection pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth).
The material before the Court on the present application did not indicate his date of birth. He appears, however, to have been born in about 1993. His family home is in the Eastern Province of Sri Lanka, an area which had been controlled by the Liberation Tigers of Tamil Eelam (LTTE) during (and before) the armed conflict in Sri Lanka which ended May 2009. However, from 2006 until 2009, the applicant had lived in the Western Province, visiting the family home only three or four times a year.
The Tribunal member accepted that incidents had occurred involving the applicant, his father and his cousin on separate occasions before 2009. In particular, the Tribunal member accepted that the applicant and about 10 other Tamil boys had been assaulted by five or six officers of the Sri Lankan Army (the SLA) in mid‑2007. However, the Tribunal did not accept the applicant’s account of having been assaulted by members of the Karuna Group in late 2007 and did not accept his account of having been forced to carry rocks and stones for the Karuna Group in connection with their building work. The Tribunal member did not accept as reliable the applicant’s account of attempts by members of the SLA to extort money from him in his jewellery shop and did not accept his account of the circumstances said to give rise to a fear of violence at the hands of a person named Viji if returned to Sri Lanka. On their face, the Tribunal member’s reasons indicate close attention to the applicant’s claims and the evidence bearing on them. The Tribunal member described some of those claims as “highly lacking in credibility”.
The FCC Judge summarised the Tribunal’s findings in more detail than I have given above and then addressed each of the grounds of the application for judicial review in turn. In doing so, the FCC Judge had to make sense of some grounds which appeared to be copied and pasted from other applications without particular regard to the circumstances of the applicant’s case. In what follows, I will outline the applicant’s grounds in the FCC, the FCC Judge’s treatment of them and my conclusion as to whether any reasonably arguable error is disclosed.
By Ground 1, the applicant contended that the Tribunal had failed to consider his claim that members of the SLA had come to the jewellery shop of the applicant and his father and had asked him to make jewellery for them and, later, had demanded money. In substance, the claim seemed to be that the applicant had been subject to attempted extortion. In fact, the Tribunal member did address this claim in some detail at [18]‑[20]. The member regarded the applicant’s account as “evolving, internally inconsistent and unconvincing” and was not satisfied that the applicant had been targeted for extortion or otherwise targeted in connection with his claimed perceived wealth or business. There is no apparent error in the FCC Judge’s rejection of this ground.
By Ground 2, the applicant alleged that the Tribunal had failed to consider his claims of harassment by the SLA and the Karuna Group and his claims concerning the man Viji. In fact, the Tribunal member addressed the claims concerning the man Viji in some detail in [21] and [22], finding those claims to be “highly lacking in credibility”. The Tribunal member’s reasons also indicate that the applicant’s claims concerning the SLA and the Karuna Group were considered in some detail. The applicant has not pointed to any aspect of those claims which were not addressed by the Tribunal. The applicant has not shown an arguable basis upon which the FCC Judge’s rejection of this ground of review can be challenged.
Grounds 3 and 4 concern the Tribunal member’s consideration of the applicant’s claim concerning the man Viji. It is possible that Ground 4 was directed to the decision of the Minister’s delegate and not to that of the Tribunal. The FCC Judge dealt with it on that basis. These grounds alleged that the Tribunal member had considered an irrelevant matter and had failed to consider a relevant consideration. The former related to a matter to which the Tribunal had referred when considering the plausibility of the applicant’s claim. It cannot reasonably be said to have been irrelevant. The second was in some respects the converse of the first but also claimed that the delegate/Tribunal had wrongly considered whether the applicant had concocted the claimed threat from Viji in order to bolster his claim for protection. The FCC Judge considered that both were outside the scope of the judicial review application before him, and went instead to the evaluation of the underlying merits of the applicant’s claim. My impression is the same. No arguable error has been shown. If Ground 4 is confined to a challenge of the delegate’s decision, then it was for that further reason beyond the scope of the judicial review application.
By Ground 5, the applicant alleged in the FCC that the Tribunal had failed to consider the whole of his claim. The particulars of this ground indicated, however, that it concerns the applicant’s claims that he would be harmed and or mistreated by the SLA, the Karuna Group or friends of Viji on account of his Tamil ethnicity and his membership of a particular social group, identified as being wealthy Tamil businessmen. As the FCC Judge noted, the Tribunal member did address each of these claims and decided them adversely to the applicant. The applicant did not identify any aspect of the claims which had not been addressed by the Tribunal member. Again, there is no arguable error in the reasons of the FCC Judge.
By Ground 6 in the FCC, the applicant alleged that the Minister and the Tribunal member had “acted [in] bad faith, dishonestly, [in] disregard of public policy and all relevant to the question of whether the discretion was exercised reasonably”. As the FCC Judge noted, allegations of bias must be clearly alleged and properly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]. The FCC Judge noted that there was no evidence supporting the allegation of bias or bad faith. I agree with that assessment. The mere fact that the Tribunal member had decided the claims adversely to the applicant was not a matter by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal member did not bring an independent and impartial mind to the determination of the application on its merits. There is no apparent error in the FCC Judge’s decision on this ground.
By Ground 7, the applicant alleged in the FCC that the Tribunal had committed jurisdictional error “when it failed to assess the risk (Tribunal extrapolating based on past events) and/or whether there was a risk of harm in the foreseeable future in relation to the complementary claim”. The FCC Judge was correct to reject this ground because in a section of the reasons headed “Profile in the reasonably foreseeable future” and comprising some 20 paragraphs extending over five pages, the Tribunal member considered in some detail the risks for the applicant in the future. He did so by reference not only to the applicant’s own claims but by reference to country information regarding the circumstances in Sri Lanka. Later, the Tribunal considered the same matters in relation to the applicant’s claim for complementary protection. No error is apparent in the FCC Judge’s rejection of this ground.
Finally, by Ground 8 the applicant alleged that the Tribunal member had failed to consider that his “social group attributes included [matters] such as ethnicity, place of birth, residence and whether he was at risk of harm because of being [a] member of the particular social group of business (jewellers)”. Having regard to the detailed reasons of the Tribunal member in which these and the other bases for the applicant’s claims were addressed, it is understandable that the FCC Judge rejected this ground. No arguable error is apparent in the FCC’s dismissal of the applicant’s judicial review application on this ground. The applicant has not been able to point to any such error.
In short, the applicant has not pointed to any reasonably arguable error in the reasons of the FCC Judge.
This being so, I considered that the applicant did not show that he would be prejudiced if the extension of time was refused. In those circumstances, a proper exercise of the discretion was to refuse the extension of time sought by the applicant. The application was accordingly dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 24 February 2017
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