SZTWI v Minister for Immigration
[2014] FCCA 2038
•10 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTWI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2038 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse the grant of a Protection (Class XA) visa – Application filed out of time – Application under s.477(2) of Migration Act 1958 (Cth) seeking extension of time to file substantive application – Relevant considerations – Application seeking extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 46A(2), 476, 477(1), 477(2) Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Li v Minister for Immigration & Anor [2011] FMCA 12 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZINB v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1627 SZROV v Minister for Immigration & Anor [2012] FMCA 1091 WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452 |
| Applicant: | SZTWI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 323 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 13 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter. |
| Solicitor for the First Respondent: | Ms F Taah of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant pay the first respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 323 of 2014
| SZTWI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1220333, a decision of Tribunal Member C. Powles dated 20 August 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The application for review filed in this Court was filed out of time by a period of 141 days, pursuant to the operation of s.477(1) of the Migration Act. Section 477(1) provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made within 35 days of the date of the migration decision, in this case the decision of the Tribunal of 20 August 2013. Pursuant to s.477(2) of the Migration Act, the Court may order that such time be extended and the applicant has sought such an order.
The applicant was granted leave 7 March 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely by 21 March 2014. The applicant filed an amended application on 21 March 2014.
Background
In setting out the following background material I have quoted directly from submissions prepared by the Minister and the Tribunal’s Decision Record which is annexed to the applicant’s affidavit sworn 13 February 2014. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 28 May 2012 without travel documentation. He is of Tamil ethnicity and Hindu religion.
On 30 August 2012, the Minister exercised his power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection visa. The applicant lodged his Protection visa application on the same day.
In support of his Protection visa application, the applicant claimed he left Sri Lanka because he had been threatened by the Sri Lankan Army (“SLA”). His central claim was that he was an auto rickshaw driver in Sri Lanka and on 15 February 2012 he attended a protest in Chillaw against an increase in petrol prices. He was arrested, along with three other protestors, and detained overnight. Upon his release he sought to have his auto rickshaw, which had been taken away by the SLA, returned to him which did not occur. As a result of this the SLA searched for the applicant. His mother arranged for him to depart Sri Lanka.
The applicant was interviewed by a delegate of the Minister on 4 September 2012. Thereafter the applicant’s representative provided written submissions in support of the applicant’s Protection visa application. These submissions stated that the applicant faced a real chance of persecution in Sri Lanka due to:
a)His Tamil ethnicity;
b)His actual and imputed political opinion as he was a supporter of the Liberation Tigers of Tamil Elam (“LTTE”); and
c)His membership of a social group being young Tamil men fearing persecution on return to Sri Lanka due to being a failed asylum seeker.
On 12 October 2012 a delegate of the Minister refused to grant the applicant a Protection visa.
On 17 October 2012 the applicant applied to the Tribunal for review of the delegate’s decision. A hearing occurred before the Tribunal by video link on 7 January 2013.
At the hearing before the Tribunal the applicant elaborated on his claimed involvement in the protest incident on 15 February 2012 and repeated that the feared he would be killed by the SLA if he returned to Sri Lanka. The Tribunal, at the hearing, put to the applicant inconsistencies in the evidence in his written statement and his oral evidence to the Tribunal, various country information which did not support his claims for protection, and its doubts about the genuineness of some of the documentary evidence provided by him.
The Tribunal received post hearing submissions from the applicant’s representative on 21 January 2013 to the effect that there were inconsistencies in the reporting of the protest incident on 15 February 2012.
The Tribunal held a second hearing with the applicant on 3 May 2013 by video link. At that hearing recent country information was put to the applicant that did not support his Protection visa claims. Copies of that information were provided to the applicant’s representative after the hearing. On 26 June 2013 the applicant’s representative provided the Tribunal with further written submissions that essentially repeated the submissions that had been made earlier.
Tribunal’s Decision
In its Decision Record (DR), the Tribunal found the applicant was not a witness of truth and rejected the central element of the applicant’s protection claims, regarding his claimed attendance of the protest in Chillaw on 15 February 2012. It found the applicant had fabricated his involvement in this event (DR at [145]-[151]).
The Tribunal noted, in particular, various inconsistencies in the applicant’s evidence regarding how he learnt of the protest, what happened after he was arrested by the police and when he last saw his auto rickshaw (DR at [146]). The Tribunal did not accept the applicant’s explanations for those inconsistencies, noting the inconsistencies would not have arisen if the applicant had in fact attended the protest as he claimed.
The Tribunal found aspects of the applicant’s evidence to be highly implausible, namely that he attended the protest as a nominated representative of the auto rickshaw owners association after only 18 days working as an auto rickshaw driver, and that the applicant did not seek help from the chairman of the auto rickshaw owners association, who had allegedly organised for the applicant to attend the protest, after the applicant’s auto rickshaw was not returned to him (DR at [148]-[149]). The Tribunal rejected all of the applicant’s claims relating to the protest and alleged risk of harm if he returned to Sri Lanka.
The Tribunal considered the claims relating to persecution made by the applicant’s representative and rejected those claims. The Tribunal found that the applicant would not suffer persecution solely on account of his Tamil ethnicity, given country information that indicated only Tamils who actively support, who have been involved with the LTTE, or who are actively opposed to the current Sri Lankan government face a risk of harm (DT at [157]-[160]).
The Tribunal also did not accept the applicant would suffer harm due to being imputed with an LTTE or anti-government political opinion because he is a young Tamil man from the northern Sri Lanka (DR at [161]), noting that the applicant had neither worked for nor expressed support for the LTTE or for opponents of the current Sri Lankan government. It did not accept, therefore, that the applicant would face harm due to an actual or imputed anti-government political opinion (DR at [166]).
The Tribunal considered the risk of harm to the applicant in returning to Sri Lanka as a failed asylum seeker who had departed the country illegally, but did not accept the applicant would face a real chance of serious harm whilst being questioned upon his return to Sri Lanka and being imprisoned for a few days (DR at [174]-[175]).
The Tribunal concluded there was not a real chance the applicant would suffer serious harm if returned to Sri Lanka and found he did not have a well-founded fear of persecution for a Convention reason (DR at [177]-[178]).
The Tribunal then considered the alternative criteria in s.36(2)(aa) of the Migration Act (the “complementary protection provisions”), but found there was no real risk the applicant would suffer significant harm in Sri Lanka. The Tribunal considered the risk of significant harm to the applicant upon his immediate arrival in Sri Lanka, however, did not accept the applicant would be subjected to any interrogation or detention that would amount to significant harm, as such harm, according to country information, is only suffered by Tamil returnees who are regarded by the Sri Lankan authorities as LTTE supporters or opponents of the government (DR at [184]). The Tribunal further did not accept that any questioning of the applicant on his return (DR at [184]) or being held in overcrowded prisons (DR at [185]) would amount to significant harm. The Tribunal found it was not satisfied the applicant met the complementary protection criterion.
On 20 August 2013 the Tribunal affirmed the decision under review to the refuse to grant the applicant a Protection visa.
Current Proceedings
The application for judicial review filed in this Court was filed on 13 February 2014, which included the application for an extension of time. The applicant then filed an amended application on 21 March 2014, which pleads different substantive grounds, but the same grounds in respect of the extension of time.
The two substantive grounds pleaded in the original application do not identify any specific error in the Tribunal’s decision, only that the decision was affected by error and more details would be provided by the applicant’s legal representative. I note the applicant has not engaged legal representation and, accordingly, I propose to only consider the grounds pleaded in the amended application. Any reference in these reasons below to the application should be taken to refer to the amended application filed on 21 March 2014.
The grounds of the application for an extension of time state:
Following the decision of the Refugee Review Tribunal in August 2013, I received legal advice. I was told that I would be eligible to apply to live in Australia as Australia was looking for workers in the meat industry and I was working in the meat industry in Queensland. This application was made in September 2013. I did not want to have multiple applications in process, but wanted to wait for a decision on my industry application. Now that a decision had been made, I am applying for a judicial review of the decision made by the second respondent.
The substantive grounds of the application plead:
1. The Tribunal committed jurisdictional error when it failed to take into account the applicant’s involvement in the protest which may be discovered at the airport upon return to Sri Lanka.
Particulars:
The applicant had claimed risk of harm owing to his involvement in the protest against the Government and the shooting incidents. There was an uncle who involved in LTTE. The Tribunal found, based on the media reports that the authorities did not have adverse interest. The Tribunal has not considered whether he would be of interest to the authorities if the authorities consider his involvement in the protest upon being returned to Sri Lanka (CB 13 at [82]-[84]), simply considering position of the others who witnessed the shooting incidents (at [81]) and rejecting it. The Tribunal has not considered the position if the Applicant to be returned.
2. The Tribunal misdirected inquiries as to the source of persecution and thereby committed jurisdictional error.
Particulars:
The applicant claimed risk of harm due to his involvement in the protest associated with the hiding of the Fisherman leader. The Tribunal misdirected inquiries as to the “hiding” source of persecution (CB 44 at [107]).
3. The Tribunal fell into error in its consideration of complementary protection.
Particulars:
The Tribunal conflated the complementary protection claim with the protection visa claim under the Convention. The applicant claimed that the Applicant would have to return to Sri Lanka (CB 40), whether there would be arbitrary deprivation of life and risk of harm. The Tribunal’s failure to consider this constitutes jurisdictional error.
At the first directions hearing, the application for an extension of time was set down for hearing on 13 May 2014. The applicant did not file written submissions in support of the application for extension of time to bring the proceedings, despite leave being granted.
Hearing 13 May 2014
Applicant’s Submissions
The applicant confirmed at the hearing that he had not prepared written submissions, but had filed the amended application.
The applicant stated that after the RRT handed down its decision refusing to grant him a Protection visa he did not know what to do. Shortly after, a Tamil person helped him find a lawyer who made a request on the applicant’s behalf for Ministerial intervention under s.417 of the Migration Act. The applicant stated he was unaware of the procedures in this country.
In respect of the amended application the applicant indicated someone from the “society” helped him prepare it. He stated that at the hearing before the Tribunal he was feeling tense and misstated the “police” as the “army”. He also made incorrect statements about the union leader, however, his submissions were unclear as to exactly what that statement was.
The applicant further stated that in Sri Lanka, there are checks being done on Tamil asylum seekers who have been returned to Sri Lanka. Tamil people are being arrested and kept in jail. He is scared to go back because of that.
Minister’s Oral Submissions
Ms Taah, appearing for the Minister, indicated she wished to rely on her written submissions, except in relation to the s.417 ministerial intervention application made by the applicant.
The s.417 application was made on behalf of the applicant on 30 October 2013 and refused on 23 January 2014. The s.417 application was made 61 days after the Tribunal’s decision and, in any case, such an application is not a reason not to pursue the avenue of judicial review. The applicant’s delay in lodging these proceedings has been lengthy and the applicant has failed to explain why he waited that long. Moreover, there is no merit in the application itself.
In respect of the applicant’s oral submissions, Ms Taah contends neither reference by the applicant to the misstating of the police/army or in respect of the union leader takes the Court anywhere towards constituting jurisdictional error. Further, in respect of the submission relating to the treatment of returnees, the Tribunal adequately dealt with these in its Decision Record.
Minister’s Written Submissions
Ms Taah, in her written submissions, contends the application for review has been filed 141 days out if time. This is a substantial delay.
Further, r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) requires an affidavit explaining the reasons for delay. The requirement under r.44.05(2)(c) is a mandatory one, following from the legislative requirement of s.477(2) of the Migration Act. The applicant has not filed any such affidavit.
Although the applicant provides an explanation for the delay, the Minister contends that explanation is not persuasive. In the affidavit in support of the application for review, the applicant states a copy of the decision on his “industrial migration application” is attached, however, it is not. In any event, it is difficult to see how any such application prevented him from seeking judicial review of the Tribunal’s decision in a timely manner.
The Minister submits a court should not exercise its discretion to extend time to appeal, or in this case apply for review, even for a short period if that appeal or application has no prospect of success. None of the applicant’s grounds reveal jurisdictional error. The Minister submits the Tribunal’s decision is not affected by error.
Further, although the amended grounds appear to relate to the applicant’s protection claims, it appears that he has transcribed them from another application for review, as the particulars to the grounds have been drafted as though a Court Book has been filed in these proceedings. No Court Book has been filed or served in this matter.
The particulars of ground 1 of the amended application state that the applicant had an uncle who was involved in the LTTE and alleges that the Tribunal failed to consider harm that he would suffer if returned to Sri Lanka due to his involvement in the protest. The claim with respect to the uncle directly contradicts the applicant’s evidence to the Tribunal that he had no family members with connections to the LTTE (DR at [79]). His claim that the Tribunal did not consider his involvement in the protest also fails at the factual level given the Tribunal’s detailed findings regarding this issue and the findings regarding the claims made by the applicant’s representative. Ground 1 should be rejected.
The particulars of ground 2 refer to the applicant’s “claimed risk of harm due to his involvement in the protest associated with the hiding of the Fisherman leader” and accuse the Tribunal of misdirecting enquiries as to the “hiding” source of persecution. The ground and the particulars are meaningless as they are not relevant to the applicant’s claims, and therefore should be rejected.
The particulars of ground 3 are that the Tribunal conflated the applicant’s Convention claims for protection with his complementary claims. This ground must also fail at the factual level given the Tribunal’s separate consideration of the applicant’s claims under both criteria, finding that he did not satisfy either.
The Minister contends that while there may be no prejudice suffered by it as a result of the applicant’s delay in commencing these proceedings, given the lengthy delay and the lack of a satisfactory explanation for the delay, any argument in respect of the impact on the applicant if time is not extended must be given very little weight. Further, it would not be in the public interest to grant an extension of time given the substantive application has no prospect of success.
The Minister submits the application for extension of time should be refused with costs.
Statutory Framework
Section 477(1) of the Migration Act provides that an application to the Federal Circuit Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if:
a)An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”) provides that:
1. An application for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
2.An application must be supported by an affidavit including:
a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision.
b) any document or other evidence the applicant seeks to rely on; and
c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the administration of justice for the Court to grant an extension.
The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is in the interests of the administration of justice include:
a)The extent of the delay;
b)Any reason for the delay;
c)Any prejudice to the respondent(s);
d)The impact on the applicant if time is not extended;
e)The interests of the public at large;
f)Any exercise of the Court’s discretion; and
g)The merits of the proposed substantive application (see Li v Minister for Immigration & Anor [2011] FMCA 12; WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452).
Consequently, before the Court can make an order extending time:
a)There has to be an application for an order to extend time;
b)The applicant for an order to extend time must be made in writing; and
c)The application must specify why it is that the applicant considers it is necessary in the interests of the administration of justice to make that order (see WZASC (supra) at [10]).
Consideration
The delay in the filing of the application for review in this Court is significant. The applicant filed his application 141 days out of time.
The applicant submits this occurred because he received legal advice to the effect that an application could be made on his behalf to remain in Australia as Australia was looking for workers in the meat industry in which he was working at the time. The applicant did not want to have multiple proceedings on foot and decided to wait until a decision had been made in respect of his s.417 ministerial intervention application before pursuing judicial review.
At the hearing, however, the applicant stated he was unaware of the procedures in this country. However, this submission is not in keeping with the written ground in support of the application for an extension of time noted directly above.
His Honour Nicholls FM (as he then was) in SZROV v Minister for Immigration & Anor [2012] FMCA 1091 at [46]-[50] stated:
46. It can be said that there are two lines of authority as to the question of whether a decision to seek Ministerial intervention pursuant to s 417 of the Act before commencing an action for judicial review provides a reasonable explanation for any delay.
47. The Minister says it does not and relies on (at [25] of the respondent’s written submissions): Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364.
48. To these may be added: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 (“Daniel”) at [15] per Goldberg J and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16]–[24] and [36] per Black CJ, Sackville and Sundberg JJ. See also my discussion in SZOCH v Minister for Immigration [2010] FMCA 300 at [38] and [53]–[54].
49. Contrary to this may be put the following authorities which range from the proposition that it does, to the position that it may when regard is had to the circumstances of each case: SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17]–[21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29]–[30] per Smith FM, Kaur v Minister for Immigration [2010] FMCA 634 at [58]–[72] per Barnes FM and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM.
50. Although, other than for, respectfully, Applicants M160/2003 v Minister for Immigration, Multicultural & Indigenous Affairs [2005] FCA 195 (per Finkelstein J) the distinction may be one of emphasis, rather than substance. It is not necessary in the current case to consider this seeming distinction any further.
I am of the view that this issue need not be addressed in respect of these proceedings, for the reasons stated below.
I now turn to the merits of the applicant’s substantive grounds in the amended application.
Amended Application
Ground 1
Ground 1 pleads that the Tribunal committed jurisdictional error when it failed to take into account the applicant’s involvement in the protest and this may be discovered when he is questioned on his return. The applicant was unable to elaborate on this ground at the hearing.
In respect of this ground, I have read the Tribunal’s Decision Record as a whole. At DR [79] the Tribunal states it asked the applicant if he had any family members who had ever had any connection with the LTTE. The applicant stated he did not. The applicant gave the same answer when he was asked if any of his family had been involved in political activity in Sri Lanka.
The applicant did not expressly seek to tender new evidence at the hearing, however, I note the statement of his Honour Cowdroy J in SZINB v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1627 in any case. Accordingly, any claim the Tribunal failed to take into account the applicant’s family’s political involvement or LTTE involvement cannot be sustained.
I now turn to the second aspect of the ground. This, in my view, alleges the Tribunal failed to take into account the applicant’s involvement in the protest and that this would be of interest to the Sri Lankan authorities if he returned. I have also had regard to the paragraphs of the Decision Record the applicant has referred to (DR [81]-[84]). These paragraphs relate to the questioning of the applicant at the hearing in respect of independent country information, document fraud, treatment of Tamils as failed asylum seekers on their return to Sri Lanka and the applicant’s credibility. There is a reference to the protest in Chillaw and subsequent shooting at [80], however, this related to country information put to the applicant relating thereto.
The relevant findings by the Tribunal in respect of the applicant and his claimed attendance at the protest in Chillaw are contained at DR [145]-[150]. The Tribunal did not accept the applicant had attended the protests on the basis of the implausibility of aspects of the applicant’s claims (DR [145], [148]-[149]), and the inconsistencies in the applicant’s evidence relating to these claims (DR [146]-[147]).
At DR [151]-[152] the Tribunal stated:
151. As a result, the Tribunal finds that the applicant has deliberately fabricated his claims and does not accept the applicant as a witness of truth in relation to his claims to be owed protection.
152. In light of the above, the Tribunal does not accept that:
a. the applicant was asked to attend the protest which took place in Chillaw in February 2012 by the chairman of the auto rickshaw drivers association;
b. the applicant attended the protest which took place in Chillaw in February 2012;
c. the applicant witnessed the shooting of a protest (sic) at the protest;
d. the applicant was arrested by the Sri Lankan army or police at that protest;
e. the applicant was held in a police or army camp, questioned or threatened with a gun;
f. the applicant’s auto rickshaw was confiscated by the Sri Lankan army or police or any other person;
g. the applicant approached the “regional chairman” or any other person in relation to the confiscation of his auto rickshaw for any other reason;
h. the applicant reported witnessing a shooting at the protest to anyone;
i. the applicant’s home was visited by men in civilian clothing, the Sri Lankan army or the Sri Lankan police at any time after the protest; or
j. the applicant left his family home to live with relatives because he feared being targeted by the Sri Lankan authorities.
The Tribunal rejected all of the applicant’s claims relating to his attendance at the protest and subsequent events. The Tribunal’s findings relating to the applicant’s credibility and consequent rejections of his claims were a matter for the Tribunal par excellence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 his Honour McHugh J stated at [67]:
67. … [A] finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
To the extent this ground invites merits review of the Tribunal’s decision, it is not for this Court to review the merits of the Tribunal’s decision; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.
In respect of any claim taking issue with the Tribunal’s reliance on country information relating to the applicant’s claims, no error is apparent. On a fair reading of the Decision Record I can see no failure to comply with the requirements of the Migration Act in this respect. Their Honours Gray, Tamberlin and Lander JJ stated at [13] in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10:
13. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
Accordingly, in my view the applicant has no reasonable prospect of success on this proposed ground of review.
Ground 2
Ground 2, though again not elaborated on by the applicant at the hearing, appears to complain that the Tribunal misdirected its inquiries when assessing the applicant’s involvement in the protest and its discussion at [107] of the Decision Record relating to country information about a senior figure in the Sri Lankan branch of the World Forum of Fisher People going into hiding and receiving death threats after the protest in Chillaw.
The Tribunal, as outlined above in respect of ground 1, did not accept the applicant participated in the protest in Chillaw or was forced to go into hiding thereafter. I have had regard to the Decision Record as a whole and can find no other relationship between this ground and any purported error on the part of the Tribunal.
In Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25] their Honours French CJ, Gummow, Hayne, Kiefel, Crennan and Bell JJ stated:
25. … The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. …
On a fair reading of the Decision Record there has been no failure by the Tribunal to inquire about such a fact.
Accordingly, for the same reasons stated in respect of ground 1(at [60]-[64] above), in my view the applicant has no reasonable prospect of success on this proposed ground of review.
Ground 3
Ground 3 of the amended application complains about the Tribunal’s findings in respect of the complementary protection provisions, specifically that the Tribunal conflated this with the Protection visa claim and that the Tribunal failed to consider that the applicant claimed on his arrival there would (may) be arbitrary deprivation of life and risk of harm. The applicant again failed to elaborate any further in this respect.
The Tribunal made its findings in respect of the complementary protection provisions of the Migration Act at [179]-[187] of the Decision Record. I am satisfied, on a fair reading of this section and the Tribunal’s decision as a whole, there has been no conflation of any claims as pleaded. It is clear on a fair reading the Tribunal separately considered the applicant’s complementary protection claims, however, it found he was not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act. Accordingly, this limb of ground 3 has no reasonable prospect of success.
In respect of the second limb of ground 3, this claim, to the extent it relates to his treatment on his immediate arrival in Sri Lanka, has been addressed in the Decision Record at [183]-[186]. The Tribunal did not accept his substantive claims, relating to the protest in Chillaw and subsequent events and, accordingly, there was no requirement for these to be considered against the complementary protection criterion. The Tribunal also made findings in respect of the applicant’s claims relating to his Tamil ethnicity, political opinion or imputed political opinion and membership of particular social group, the applicant being a returnee, and his illegal departure from Sri Lanka at [155]-[175] of the Decision Record. On a fair reading I can see no failure to address a claim, or an integer of a claim, made by the applicant before the Tribunal. The applicant has further failed to address this when given the chance at the hearing. Accordingly, I am of the view this limb of the ground has no reasonable prospect of success.
Oral Submissions
In respect of the oral submissions made by the applicant at the hearing, I am satisfied that none of these can be sustained. They either seek to engage the Court in impermissible merits review or dispute findings of fact by the Tribunal.
Other Relevant Factors and General Discretion to Extend Time
I accept the submissions put forward by Ms Taah in respect of the Court’s exercise of its discretion to extend time. I accept there is little or no prejudice to the respondents, however, in my view there is no reasonable prospect of success of any of the grounds in the amended application.
Conclusion
I have had regard to the relevant considerations in respect of the Court’s discretion to grant an extension of time under s.477(2) of the Migration Act. I have also undertaken a fair reading of the Tribunal’s Decision Record and no error of law is apparent. On that basis, for these reasons and the reasons stated above, I am of the view that it is not in the interests of the administration of justice to extend time for the application for review to the date of its filing in this Court. Accordingly, the application for an extension of time should be refused with costs awarded to the Minister.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 10 September 2014
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