SZVVQ v Minister for Immigration
[2017] FCCA 1645
•17 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVVQ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1645 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time in which to make a competent application to the Court – consideration of factors going to the exercise of the discretion to extend time – no arguable case raised by the proposed substantive application – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 424A, 424AA, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442 |
| Applicant: | SZVVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3483 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 March 2017 |
| Date of Last Submission: | 19 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper Australia |
ORDERS
The application for an extension of time made on 16 December 2014 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3483 of 2014
| SZVVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 16 December 2014 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to bring a substantive application to the Court pursuant to s.476 of the Act, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which on 11 June 2014, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”, “RE1”).
Section 477(1) of the Act provides that applications made to this Court pursuant to s.476 of the Act must be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application to the Court was made 188 days after the relevant Tribunal decision, and 153 days or some five months, out of time. As such, the application to the Court is not competent.
Section 477(2) of the Act provides that, where an applicant applies in writing for an extension of time, the Court may grant such an extension, if it is in the interests of the administration of justice to do so. The applicant has made such an application to the Court, in writing, on 16 December 2014.
I note that in a document subsequently filed by the applicant on 13 April 2015, and headed “Amended Application”, the applicant indicates that he does not seek an extension of time. If that is the case, then the proposed substantive application is not competent, and in the absence of an application to extend time in writing, as required by s.477(2) of the Act, the Court cannot grant an extension.
However, I have taken the view that the applicant’s purpose in filing the “Amended Application” was to seek to amend the grounds of the proposed substantive application, and not to withdraw his application to extend time.
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. There are a large number of authorities which provide guidance to this Court as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).
The particular factors arising from the circumstances presented in the current case in considering the exercise of the discretion, appear to be, the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the amended proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the amended proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
At the hearing of this matter, the applicant appeared in person. He was assisted by an interpreter in the Sinhalese language. The Minister agreed that there is no prejudice to him if time were to be extended.
The length of the delay in making his application to the Court in the current case is about five months after the expiration of the 35 day period. The applicant’s ground in support of his application to extend time is simply that he made a request for Ministerial intervention and was waiting for the outcome of that request.
On its own, this may not be a satisfactory explanation for the delay (see WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [82] and the cases cited therein and SZOCH v Minister for Immigration & Anor [2010] FMCA 300 at [38] and the cases cited therein).
There are authorities involving circumstances where a request for Ministerial intervention was held to be a reasonable explanation for the delay in coming to the Court (see SZUYC v Minister for Immigration & Anor [2017] FCCA 336, SZUMY v Minister for Immigration & Anor [2015] FCCA 1482 and SZOLM v Minister for Immigration & Anor [2011] FMCA 305; (2015) 296 FLR 85). In the current case, the explanation provided in the application to extend time, does not come within any of the circumstances contemplated in those cases.
Given the applicant’s unrepresented status, and by orders made on 8 March 2017, I gave the parties the opportunity to make written submissions on the matter of the length of the delay, and the explanation proffered for it. I took the view that it would be fair for the Minister to make his submissions first, so that the applicant was clear as to what was being put against him. The orders made were that the Minister was to file written submissions on or before 22 March 2017, and the applicant was to file written submissions on or before 5 April 2017. I also took this view because the Minister’s initial position was that the applicant had not alleged that he sought Ministerial intervention, as opposed to making an application to the Court, through poor advice or not being properly informed.
The Minister subsequently referred the Court to Sidhu v Minister for Immigration & Anor [2015] FCCA 2162 (per Judge Smith) at [11] as follows (see [7] of the Minister’s supplementary written submissions filed on 22 March 2017):
“That said, I am not satisfied that there has been a reasonable excuse given for the delay in bringing the proceedings. The applicant has not suggested that he was unaware of the availability of judicial review but only that he was ‘expecting justice’ from the Minister. While there may be circumstances in which such an application will present a reasonable excuse, they are not present here. For example, it may be that an applicant is strongly advised to choose one path over the other and takes that advice intending to achieve the same outcome as would result from a judicial review application. In those circumstances, the applicant might be said not to have appreciated the difference between a ministerial intervention and court proceedings and the effect of applying to the Minister upon the extension of time required for judicial review.”
The Minister filed his written submissions within time on 22 March 2017. The applicant did not. However, on 23 May 2017, while the matter was reserved, the applicant filed written submissions which attached a Statutory Declaration. There are a number of features of the submissions that require note.
First, the written submissions do not appear to have been written by the applicant. The submissions refer to the applicant in the third person and state that the “applicant is not an educated person”, yet make reference to a number of legal authorities and what can be derived from them (see [2], [4] and [9] of the applicant’s written submissions). The applicant’s written submissions also state (at [5]):
“The applicant is an asylum seeker with little or no fluency in the english language or with a sophistication to realise the existence of a legal system with a hierarchical review and appeal structure.”
[Errors in original.]
Ultimately, the applicant’s written submissions are unsigned, and simply state “[f]or the Applicant” at the bottom of the page. It is not clear whether the applicant’s written submissions were written with specific reference to the applicant’s circumstances, or were the product of some adjustment to a formulaic set of complaints about Tribunal decisions in general.
Second, the bulk of the written submissions actually seek to assert jurisdictional error in the Tribunal’s decision. The applicant had already been given the opportunity to file written submissions in support of the application for an extension of time, including submissions going to the grounds of the proposed substantive application by orders made by a Registrar of the Court on 19 February 2015 and on 4 November 2015. He did not do so.
The applicant has also attached a Statutory Declaration to his written submissions, where he purports to set out an explanation as to the reason for the delay in coming to this Court.
Given the nature of the applicant’s written submissions, the matter was listed for further directions to ascertain the Minister’s position with respect to these documents. The Minister’s solicitor had previously advised by email dated 29 May 2017 and sent to the Court’s Registry:
“The first respondent will not oppose the late filing of the applicant’s submission.”
At the directions on 19 June 2017, the Minister again indicated that he did not oppose the late filing of the document, I ultimately understood the Minister’s position to be that in any event, the extension of time should be refused because there is no merit in the grounds of the amended proposed substantive application to warrant the matter proceeding to a final hearing.
I had regard to the applicant’s Statutory Declaration as submissions. However, ultimately, the exercise of the Court’s discretion in the current case turns primarily on the merit or otherwise of the grounds of the applicant’s amended proposed substantive application. Those grounds are in the following terms:
“Ground one
The respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
Particulars
The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.
Ground two
The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A.
Particulars
The Respondent did not raise/or put to me in writing parts of the adverse decision for me to comment in writing.
I will put more details of the particulars in my written submission before the hearing after I have heard my RRT’s hearing audio.”
[Errors in original.]
Ground one of the amended proposed substantive application asserts the Tribunal failed to fully consider Australia’s obligations to the applicant pursuant to the complementary protection provisions in the Act (that is, s.36(2)(aa) of the Act).
The ground was explained as follows. The Tribunal made a finding that the applicant would be “held in degrading conditions in prison” on return to Sri Lanka because he left illegally. The complaint is that the Tribunal failed to make a finding that these “degrading conditions would be regarded not as [Refugee] Convention reasons but as inhumane”.
Although not entirely clear, the complaint appears to be that the Tribunal failed to “consider in full”, that the applicant’s imprisonment on return to Sri Lanka because of his illegal departure would amount to significant harm, as that term is understood in the context of the complementary protection provisions of the Act.
Relevantly, the Tribunal found that “prison conditions in Sri Lanka are poor” ([45] at CB 214). In relation to the applicant specifically, it found that on return, as a person who had left illegally, the applicant could ([46] at CB 214):
“…expect to be presented for a bail hearing and released on remand after a relatively short period of time (a matter of days, the independent information indicates), and that the consequences of a conviction for illegal departure for persons such as the applicant who have no previous criminal history and who do not otherwise have an adverse profile is the imposition of a fine.”
The Tribunal ultimately found ([49] at CB 215):
“Therefore the Tribunal is not satisfied that the treatment which the applicant may face on return (investigation, arrest, remand, bail, a fine), individually or cumulatively, involves serious harm within the meaning of the Refugees Convention or ‘significant harm’ within the meaning of the complementary protection provisions of s.36(2A) and s.5(1) of the Act.”
The following is of note. First, contrary to the assertion in the applicant’s ground, the Tribunal did not find that the prison conditions in Sri Lanka were “degrading”, but rather, that they were “poor” ([45] at CB 214).
Second, the Tribunal also found that notwithstanding the Sri Lankan government’s “poor human rights record”, there were “no reports to indicate that the Sri Lankan authorities or others have tortured or otherwise targeted returnees for mistreatment” ([45] at CB 214).
Third, it is to be remembered that the applicant is of Sinhalese ethnicity. The Tribunal also found that “there is no evidence that Sinhalese returnees are singled out for mistreatment” ([45] at CB 214).
The Tribunal did consider the applicant’s claim to fear harm on the basis of an expected brief detention in poor prison conditions on return to Sri Lanka, as a person who had left Sri Lanka illegally. To the extent that the ground may be read as a complaint the Tribunal did not consider this claim, the ground lacks merit.
However, it is important to note that the applicant’s ground does not appear to actually assert that the Tribunal failed to consider his claim to fear significant harm on the basis of poor prison conditions, but rather, that it did not consider his claims “in full”. The applicant did not explain to the Court what aspects of this claim were not considered “in full”.
In the circumstances presented, this complaint can only be properly understood as a complaint that the Tribunal did not accept that he would face significant harm as a result of being detained in poor prison conditions on return to Sri Lanka after departing illegally. In this light, the ground seeks to challenge a finding made by the Tribunal that was reasonably open to it on what was before it. The ground therefore does not raise any argument of legal merit as it seeks impermissible merits review.
Although not entirely clear, it may be that the applicant’s ground, through the use of the phrase “degrading conditions”, seeks to allege error by drawing, in part, on what had been considered in SZTAL v Minister for Immigration & Anor [2015] FCCA 64 (“SZTAL”).
In that case, the Court found that the terms “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as found in s.5(1) of the Act, and with reference to “significant harm” (s.36(2A) and s.36(2)(aa) of the Act), included the existence of an actual, subjective intention on the part of some person to bring about the claimed suffering (see SZTAL at [49]).
In that case, the Court concluded that the Tribunal had not misapplied s.5(1) and s.36(2A) of the Act, in asking whether the Sri Lankan authorities had the requisite intention to inflict cruel, inhuman or degrading treatment or punishment. On appeal, the Full Federal Court generally endorsed the conclusions reached by this Court in that regard (SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 at [68]).
I agree with the Minister in the current case, that on a fair, if not a plain reading of its decision, the Tribunal did not base its findings, relevant to whether the applicant’s illegal departure would amount to significant harm, on any lack of intention on the part of the Sri Lankan authorities to inflict such harm on the applicant.
Rather, the current circumstances can be distinguished from those in SZTAL. In the current case, the question of the intention to inflict significant harm did not arise. That is because the Tribunal found that the applicant did not have an “adverse political profile or previous convictions” ([47] at CB 214). In this light, it found that given “independent information before it”, the applicant’s circumstances did not come within “the reported instances of persons who ha[d] been mistreated in prison” because of illegal departure, or persons who faced the prospect of a lengthy period in prison (see [46] at CB 214 to [49] at CB 215).
In short, the Tribunal’s conclusion on the likelihood of the applicant being subjected to significant harm on return to Sri Lanka by reason of his illegal departure was not based on any assessment that the applicant would not suffer significant harm, because of a lack of intention by the Sri Lankan authorities to inflict such harm. It was based on a distinct and separate line of reasoning. SZTAL therefore, in these circumstances, is not available to assist the applicant’s case.
I did consider whether what was said in SZUOL v Minister for Immigration and Border Protection [2017] FCA 179 (“SZUOL”) per White J, was relevant to the current consideration. In that case, the applicant sought an extension of time to file a Notice of Appeal from a judgment of this Court.
In considering the question of the exercise of the discretion to extend time, the Federal Court had regard to one of the grounds of the proposed appeal, which in part, engaged the issue in SZTAL (see SZUOL at [9] – [10]).
In SZUOL, before the Tribunal, the applicant had made claims to fear significant harm because of illegal departure from Sri Lanka. The Tribunal addressed that claim. The question for the Federal Court included consideration as to whether the disposition of the appeal should await the High Court’s consideration, given it had granted leave to appeal from the Full Federal Court judgment in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.
Before the Federal Court, in SZUOL, the Minister submitted that the High Court decision would not affect the applicant’s proposed appeal because of the existence of a relevant, alternative basis for the Tribunal’s conclusion on significant harm which did not involve the matter of intention (SZUOL at [14]).
The Federal Court found that notwithstanding the “force” of those submissions, there “may” be an arguable case, stating that (at [16]):
“However, it may (I emphasise that I am saying no more than ‘may’) be arguable that the effect of conduct on a person is in part determined by whether or not that effect was inflicted intentionally, with foresight that the effect might result but choosing to proceed regardless, or perhaps with no intention at all. That is to say, the clear distinction between these two concepts, on which the submission of counsel for the Minister depends, may not be appropriate. Given that issues concerning the proper construction of the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are presently before the High Court, I consider it undesirable and inappropriate to explore those issues presently.”
As set out above, in the current case, the question of the Sri Lankan authorities’ intention to inflict harm on the applicant (unlike SZUOL), did not arise in the circumstances presented. Unlike as in SZUOL, the Tribunal did not base its conclusion in relation to significant harm on any such alternative basis. In all therefore, ground one of the amended proposed substantive application does not raise an arguable case for the relief the applicant seeks.
As set out above, the applicant did file, albeit late, an outline of written submissions which appear to raise a further complaint which makes some reference to the matter of the conditions in prisons in Sri Lanka. The submissions appear to assert that the Tribunal failed to take into account certain policy guidelines prepared by the Minister’s department, and that the Tribunal did not sufficiently engage with the question of the treatment of the applicant in prison by the Sri Lankan authorities.
As to the first matter, it is not made clear how those guidelines applied to the applicant’s circumstances, nor how the Tribunal can be said to have ignored them. Further, it is clear that the Tribunal did have regard to relevant country information. As to the second matter, as set out above, the question of intention did not arise.
Ground two of the amended proposed substantive application alleges a breach of s.424AA, or s.424A of the Act. The particulars assert that the Tribunal did not put to the applicant in writing parts of the “adverse decision”, so as to allow him the opportunity to comment.
It is the case that s.424A(1) obliges the Tribunal to give to an applicant, in writing for comment or response, “information”, which it considers “would be the reason or a part of the reason” for affirming the delegate’s decision. Section 424AA of the Act provides a mechanism by which the Tribunal may discharge this obligation orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
The applicant has not identified with any clarity what “information” can be said to have been caught by the obligation in s.424A(1) of the Act.
At best it appears that the applicant wanted the opportunity to comment on the Tribunal’s evaluation of his evidence, its thought processes, and reasoning. If so, this is not “information” for the purposes of s.424A(1) of the Act (VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2009) 235 ALR 609). The Tribunal is not obliged to give to an applicant a draft of its reasons for comment prior to finalising its decision.
There is no merit in either grounds of the amended proposed substantive application. It is therefore not in the interests of the administration of justice to extend time simply to dismiss the amended proposed substantive application at a final hearing. It is therefore appropriate to refuse the extension of time sought by the applicant. I will make that order.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 July 2017
0
21
2