SZUNV v Minister for Immigration and Border Protection
[2017] FCA 877
•3 August 2017
FEDERAL COURT OF AUSTRALIA
SZUNV v Minister for Immigration and Border Protection [2017] FCA 877
Appeal from: Application for extension of time: SZUNV v Minister for Immigration & Anor [2016] FCCA 54 File number(s): NSD 646 of 2017 Judge(s): SIOPIS J Date of judgment: 3 August 2017 Date of hearing: 1 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 43 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: Mr MJ Smith Solicitor for the First Respondent: Australian Government Solicitor ORDERS
NSD 646 of 2017 BETWEEN: SZUNV
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
3 AUGUST 2017
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 3 May 2017 is dismissed.
2.The applicant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an application which has been treated as an extension of time in which to seek leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia made on 4 February 2016, declining to reinstate the applicant’s judicial review proceeding.
The applicant is a 28 year old Tamil male and a citizen of Sri Lanka, from the north of the country.
The applicant arrived in Australia in July 2012 as an unauthorised maritime arrival and in December 2012 the applicant made an application for a protection visa. In support of the application, the applicant claimed to fear persecution from the Sri Lankan authorities by reason of his Tamil ethnicity and imputed political opinion as a person associated with the Liberation Tigers of Tamil Eelam (the LTTE).
On 5 July 2013, a delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the visa sought and on 27 May 2014 the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) affirmed the decision of the delegate.
On 23 June 2014, the applicant applied for judicial review of the Tribunal’s decision. On 12 March 2015, the Federal Circuit Court dismissed the applicant’s application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the applicant did not attend the hearing.
The applicant sought to appeal the orders made on 12 March 2015 to this Court; that application was misconceived and was dismissed on 21 August 2015.
The applicant then applied, pursuant to r 16.05 of the Federal Circuit Court Rules, to the Federal Circuit Court to set aside the orders made on 12 March 2015 and to reinstate the applicant’s application because they were orders made in his absence. On 4 February 2016, the Federal Circuit Court refused that application on the basis that the application did not have a reasonable prospect of success and so there would be no utility in reinstating the original judicial review application.
It is from that decision that the applicant now seeks an extension of time to make an application for leave to appeal to this Court.
THE TRIBUNAL
The Tribunal hearing took place on 13 May 2014. The applicant was represented by a registered migration agent. He also appeared to give evidence and make submissions with the assistance of an interpreter in the Tamil and English languages.
The applicant stated that in Sri Lanka he had been employed at service stations, including his father’s service station and then later his own.
In support of his claims before the Tribunal, the applicant stated that he believed that he came to the attention of the Sri Lankan authorities when, in 2007, a close friend of his disappeared. He said that he was questioned by the Sri Lankan authorities in relation to that incident. The applicant stated that he did not know if his friend had any involvement with the LTTE and stated that neither he nor his family members had any involvement or association with the LTTE. The applicant did not claim that any of his family members were imputed by the authorities to be associated with the LTTE.
The applicant also referred to an incident in which he said he was attacked by an unknown person and another incident in which he said he was interrogated and mistreated at his house by armed men. The applicant also said that following a bomb blast near his father’s business, in which Sri Lankan army personnel were killed, he was rounded up along with other Tamil males and questioned and mistreated.
The applicant said that in 2008 he married and moved to a nearby village where his wife’s family resided. He said that he was questioned by the authorities about his change of residence and believed that the authorities were suspicious of him.
In 2010, the applicant applied for and was granted a Sri Lankan passport.
The applicant said that in December 2011, whilst he was being questioned by the authorities, he was threatened by them to tell the truth about his association with the LTTE within a nominated deadline or be killed. He was then released by the authorities. This threat, said the applicant, was the catalyst for his decision to leave Sri Lanka.
The applicant stated that shortly after receiving that threat, he left Sri Lanka for Malaysia using his passport and then travelled to Indonesia and from there took a boat to Australia without his passport.
The Tribunal considered that the basis on which the applicant claimed to have been imputed to be an LTTE associate was tenuous as the applicant did not know whether his friend who disappeared had any actual or suspected association with the LTTE. The Tribunal accepted that the applicant had been attacked by an unknown assailant and that the applicant may have been questioned by the authorities following the alleged bomb blast and after he moved from his home to his wife’s village. However, the Tribunal considered that the incidents described by the applicant were “unrelated events specific to the circumstances of each event and not part of ongoing harassment” by the authorities by reason of perceived association with the LTTE.
The Tribunal did not accept that the authorities gave the applicant an ultimatum in December 2011, as described at [15] above, and considered that claim to be “far-fetched”.
THE FEDERAL CIRCUIT COURT
The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.
That application was set down for hearing on 12 March 2015 and, as mentioned above, the application was dismissed on that day on the basis that the applicant did not attend the hearing.
The hearing of the application to reinstate the judicial review application took place on 7 October 2015. The applicant was represented at that hearing by a lawyer.
The Federal Circuit Court accepted that there was a reasonable basis for the applicant’s failure to attend the hearing in March 2015 and that no prejudice would be caused to the Minister if the proceeding was reinstated.
However, in deciding whether to reinstate the application, the Federal Circuit Court had regard to the applicant’s single proposed ground of review, which stated:
The AAT failed to accord procedural fairness to the applicant and further failed to consider the claims made by the applicant in response to a question asked by the AAT. (Particulars omitted.)
The arguments in support of the single ground of review were based upon an extract from the transcript of the Tribunal hearing in which the Tribunal member asked the applicant questions as to why the applicant left Sri Lanka and what would happen to him if he went back and the applicant replied. The transcript showed that it was during this exchange between the applicant and the Tribunal, that the applicant said that in December 2011, whilst being questioned by the authorities about his relocation, the authorities told him that they did not believe him, released him and gave him a “time frame” to come back and tell the truth.
It is also evident from that passage in the transcript, that the Tribunal member put to the applicant her doubts as to whether the authorities would have released the applicant as they had, if they thought he was in the LTTE and was not telling the truth.
The primary judge dismissed each of the applicant’s arguments and concluded that the proposed ground of review did not have any reasonable prospect of success.
The primary judge, accordingly, dismissed the application.
APPLICATION FOR AN EXTENSION OF TIME
On 3 May 2017, the applicant filed in this Court, an application which has been treated as an application for an extension of time in which to seek leave to appeal from the Federal Circuit Court’s orders of 4 February 2016.
The application for leave to appeal should have been filed within 14 days after the date of the Federal Circuit Court’s judgment, namely, by 19 February 2016 (r 35.13 of the Federal Court Rules 2011 (Cth)). Accordingly, the application for leave to appeal was filed about 14 months after the expiry of the relevant period.
In seeking to explain the reason for the delay, the applicant deposed that, although he had previously been represented, he no longer had the means to engage a lawyer and was unemployed. He said that he later found, from talking to “some people…a way to file an application myself”.
This explanation is, as the first respondent contended, inadequate to explain the delay which is more than one year.
The applicant has identified two proposed grounds of appeal in his draft notice of appeal, which comprise materially the single proposed ground he pursued before the Federal Circuit Court. The proposed grounds are:
1.His Honour erred in not finding that the AAT failed to accord the applicant procedural fairness.
2.His Honour erred in not finding that the AAT failed to consider a claim made by the applicant in response to a direct question put to him by the Tribunal.
The primary judge’s decision was correct for the reasons which his Honour gave. However, I set out below a summary of the findings made by the primary judge.
Before the primary judge, the applicant had contended in support of his proposed ground of review, that he had been denied procedural fairness because the questioning by the Tribunal was unfair. The applicant complained specifically about the fact that, during the questioning, the Tribunal had put to the applicant its concern as to the plausibility of his evidence that the Sri Lankan authorities had released the applicant so that he could come back and tell them the truth, if, as the applicant had said, the authorities disbelieved his denials that he was associated with the LTTE. This, contended the applicant, disclosed that the Tribunal had already formed a view adverse to the applicant.
The primary judge dismissed this contention on the basis that it was open to the Tribunal to have a view and to put that view to the applicant, and this did not, in itself, render the process unfair, nor did it manifest bias by way of prejudgment. The primary judge referred to the following observations of Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 in support of that finding:
[38]…A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic. As Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554:
Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.
[39]And, in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at 533 [72] Gleeson CJ and Gummow J said:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
The primary judge also dismissed the complaint that the Tribunal had not placed any weight on the answer given by the applicant to the concern put to him by the Tribunal.
The applicant’s answer was that the Sri Lankan authorities killed persons who had been given such an ultimatum.
The primary judge found that it was not incumbent on the Tribunal to give specific reasons for not accepting any specific part of an applicant’s evidence. The primary judge went on to say at [36]:
In this case, the Tribunal rejected the applicant’s evidence concerning the ultimatum he claims to have been given by the authorities in Sri Lanka and gave its reasons for that rejection: [54]. It was not required to give its reasons for rejecting each and every aspect of the applicant’s evidence in this respect and the fact that it did not do so does not give rise to an inference that it failed to consider that evidence.
In my view, the primary judge did not err in making the finding that he did.
It is plain from the Tribunal’s reasons that it considered the applicant’s claim as to the ultimatum and rejected it on the ground that it was implausible. It followed that the Tribunal did not have to address the position founded on an assumption that an ultimatum had been given.
There is no reasonable prospect of success for the proposed application for leave to appeal from the primary judge’s orders. It would, accordingly, be futile to extend the time within which to apply for leave to appeal.
The application filed on 3 May 2017 is dismissed.
The applicant is to pay the first respondent’s costs.
I certify that the preceding forty‑three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 3 August 2017
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