SZWCF v Minister for Immigration

[2016] FCCA 2484

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2484

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant seeking an extension of time for his show cause application – extension of time refused.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958 (Cth), ss. 36, 430, 477

Cases cited:
Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362
SZSHK v Minister for Immigration [2013] FCAFC 125, (2013) 138 ALD 26
SZMNO v Minister for Immigration [2009] FCA 797
SZNOR v Minister for Immigration & Anor [2009] FMCA 639
SZQCZ v Minister for Immigration [2012] FCA 91

Applicant: SZWCF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 469 of 2016

Judgment of: Judge Driver

Hearing date: 26 September 2016

Delivered at: Sydney

Delivered on: 26 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S He of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 469 of 2016

SZWCF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised form transcript)

1. I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made by the Tribunal on 21 December 2015. The application was filed on 3 March 2016, about five weeks after the period prescribed under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2). Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 September 2016.

Background

1. The applicant is a male citizen of Sri Lanka born on 29 March 1988.[1] He arrived in Australia on 2 July 2012.[2]

   [1] Court Book (CB) 3

   [2] CB 34

2. The applicant applied for a Protection visa on 14 January 2013.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 8 August 2013.[5]

   [3] CB 21-49

   [4] CB 47-49

   [5] CB 89-110

3. The applicant applied for review of the Minister’s delegate's (delegate) decision to the (then) Refugee Review Tribunal (RRT) for review of the delegate's decision on 16 August 2013.[6] The applicant gave oral evidence before the RRT on 8 January 2015. On 14 January 2015, the RRT affirmed the delegate's decision.[7]

   [6] CB 112-153

   [7] CB 174-203

4. The applicant sought judicial review of the RRT decision and on 11 June 2015, this Court made orders directing that the RRT as second respondent, reconsider its decision according to law.[8]

   [8] CB 284 [3]

5. On 13 July 2015, the Tribunal invited the applicant to attend a further hearing before a newly constituted Tribunal.[9] The applicant provided the Tribunal with further written submissions setting out his claims.[10]

   [9] CB 215-218

   [10] CB 226-242

6. The applicant gave oral evidence at hearing before the Tribunal on 10 September 2015.[11] That hearing was adjourned and resumed on 10 December 2015.[12]

   [11] CB 243-246

   [12] CB 263-265

7. The Tribunal made its decision on 21 December 2015. These proceedings arise out of the Tribunal's reconsideration of the applicant's claims.

The applicant's claims

1. The applicant claimed that he had been harmed, and continued to fear harm due to his Tamil ethnic extraction, his membership in a particular social group comprised of Tamil people from East Sri Lanka, an imputed anti-government or pro-Liberation Tigers of Tamil Eelam (LTTE) opinion, and as a failed asylum seeker or illegal returnee.

2. The applicant also claimed that while working as a driver in Sri Lanka, he was once asked to pick up a parcel for a passenger (one 'Nagulesh'), who was linked to a group involved in organised crime and with links to the police (the 'Karuna group'). As a result of this event, he was wrongly implicated as an accomplice in an extortion charge. He claimed to have been harmed by authorities and supporters of Nagulesh because he had refused to confess his involvement in the extortion to obtain a reduced sentence for Nagulesh.

The decision of the Tribunal

1. The Tribunal found that the applicant was not a credible witness at [72], having regard to deficiencies identified in the applicant's evidence.[13]

   [13]Tribunal Decision (TD) [70]-[73]

2. On the basis of its earlier credibility finding and deficiencies in the applicant's evidence, the Tribunal did not accept the claim that the applicant was involved with Nagulesh, that he had been involved in the latter's arrest, or that he and his family had been harmed at the hands of Nagulesh's supporters or Sri Lankan authorities.[14]

   [14] TD [75]-[78]

3. The Tribunal did not accept that the applicant's cousin was in the LTTE or the claim that the applicant had been harmed by authorities as a result.[15] Nor did it accept that the applicant would face a real chance of harm due to an imputed political opinion of being opposed to the Sri Lankan government or pro-LTTE, finding that the applicant had not been involved in any political activities in Sri Lanka and having rejected the claim that he had a relative in the LTTE.[16]

   [15] TD [79]

   [16] TD [81]

4. Having regard to country information, the Tribunal did not accept that the applicant faced a real chance of harm as a person of Tamil ethnicity, or as a member of a particular social group comprised of Tamil people from the north-east of Sri Lanka.[17]

   [17] TD [80]

5. The Tribunal accepted that it would be highly likely that the applicant would be charged under the Immigrants and Emigrants Act (IEA) for having left Sri Lanka unlawfully.[18] On the basis of country information however, it found that the IEA was a law of general application and not enforced in a discriminatory way. It did not accept that the applicant had a risk profile such that he faced a real chance of serious harm as a failed asylum seeker who left unlawfully and sought asylum in a Western country.[19]

   [18] TD [82]

   [19] TD [83]

6. At [84], the Tribunal concluded that the applicant did not face a real chance of harm now or in the reasonably foreseeable future for the reasons he claimed.

7. At [85], the Tribunal relied on its earlier findings to conclude that the applicant did not face a real risk of significant harm for the reasons he claimed.

8. The Tribunal assessed the treatment to which the applicant might be subject if he were prosecuted under the IEA and remanded in custody and found that it did not amount to 'significant harm'.[20]

   [20] TD [83]

Application before the Court

1. The applicant states in support of his extension of time applicaiton:

   1. The Applicant is clinically depressed person who has attempted self-harm.

   2. The Applicant does not have financial resources to seek legal advice.

   3. The applicant took time to find legal assistance.

2. The substantive application raises two grounds:

   1) The RRT has failed to apply section 430(1) of the Migration Act to the Applicant’s claims pursuant to section 36(2)(aa) of the Migration Act.

   Particulars

   a)The RRT has failed to deal with the full integers of the Applicant’s claims pursuant to section 36(2)(aa) of the Migration Act 1958.

   b)The reasons fail to set out the reasons for the decision, the findings on any material question of fact or refer to the findings on any material questions of fact upon which the decision was based.

   c)Section 430(1) of the Migration Act imposes mandatory requirements on the decision maker.

   d)A failure to comply with the requirements of section 430(1) of the Migration Act may amount to jurisdictional error: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108.

   2)The RRT has applied the incorrect test pursuant to section 36(2)(aa) of the Migration Act 1958.

   Particulars

   a)The reasons for refusing the applicant’s claims under section 36(2)(aa) of the Migration Act are confined to paragraph [88] of the decision;

   b)The Applicant claimed that he was of interest to the Karuna Group in Sri Lanka.

   c)The failure to deal with the squarely raised claim under the complementary protection provision amounts to a failure to exercise jurisdiction.

3. The application is supported by a short affidavit filed with it which I received.  That affidavit, however, does not advance any factual issues bearing on the extension of time question.  I also have before me as evidence the court book filed on 7 April 2016.

4. Pursuant to s.477(2) of the Migration Act, the Court has the power to allow the extension of time if satisfied that it is necessary in the interests of the administration of justice for time to be extended. In determining whether to exercise its discretion to extend time, the Court will generally have regard to factors including:[21]

   a)The length of the delay and the reason for the delay, including whether there is an acceptable explanation for the delay;

   b)The merits of the substantive application; and

   c)Any prejudice to the respondents.

   [21] SZMNO v Minister for Immigration [2009] FCA 797 at [14]; SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14]-[16].

5. In the present case the delay was not insignificant but relatively short. I asked the applicant to explain why he was unable to file his show cause application within the prescribed period.  He appeared confused.  He referred to the non-receipt of documents due to him working in the country, but it transpired that he was referring to the Minister’s outline of legal submissions.  I explained to the applicant when the decision was made and when it was sent to his migration agent. 

6. The applicant conceded that he had spoken to his agent about the decision.  He says that he forgets things.  He said the same to the Tribunal.  I had the interpreter read to the applicant [42] of the Tribunal’s decision record.  I invited the applicant to comment on it.  He confirmed that this was an accurate statement of what he had said to the Tribunal.  I asked him if he had seen a doctor since the Tribunal decision.  He said that he had not.  He said that he did not have a Medicare card.  He then added that his Medicare card had expired.  He said that he has no rights for work.  At one point he denied that he holds a bridging visa, although I noted that he attended Court without any escort. 

7. In his show cause application, the applicant asserts that he suffers from clinical depression.  That is a medical diagnosis, but there is no evidence before the Court to indicate that any medical practitioner has made that diagnosis.  Before me the applicant appeared disorganised.  He had some difficulty organising his thoughts and making oral submissions.  There is, however, nothing before me to satisfy me that the applicant suffers from any medical condition that explains his delay in coming to Court.  He may be disorganised and forgetful, but that is not a sufficient explanation for the delay.  There is no other persuasive explanation proffered by the applicant.

8. The delay is not adequately explained by the applicant's claims that he could not afford legal assistance and required time to find legal representation. The applicant did not require legal assistance to bring these proceedings and I note that he made his application without the assistance of a legal representative.

9. Even if an extension of time were to be granted, in my view, the application would almost certainly fail.  The grounds of review advanced take issue with the adequacy of the Tribunal’s reasons.  Whatever else may be said about the Tribunal’s decision, the Tribunal’s reasons are adequate.  The applicant takes issue with the Tribunal’s considerations of his claims against the complementary protection criterion.  I note that the earlier decision of the RRT in his case had been set aside on the basis of the Tribunal overlooking an integer of his claims bearing upon complementary protection. It is plain, however, that the Tribunal did not repeat that error.  The Tribunal clearly considered what might happen to the applicant as a failed asylum seeker on return to Sri Lanka.

10. I otherwise agree with the Minister’s submissions bearing upon the grounds of review raised.

Ground 1: failure to comply with section 430(1) of the Act

1. Ground 1, read with its particulars, contends that the Tribunal failed to comply with s.430(1) of the Migration Act in assessing whether the applicant was owed complementary protection.

2. Section 430(1) states:

   (1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   (a) sets out the decision of the Tribunal on the review; and

   (b)   sets out the reasons for the decision; and

   (c) sets out the findings on any material questions of fact; and

   (d) refers to the evidence or any other material on which the findings of fact were based; and

   (e)   in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application--indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

   (f)    records the day and time the statement is made.

3. The Tribunal's written statement complied with the applicable requirements under s.430(1) of the Migration Act, in particular those set out at paragraphs (a)-(d) and (f).[22]

   [22] Paragraph 430(1)(e) does not apply as the decision was not one made under ss.426A(1C)(b) or 426A(1E) of the Migration Act.

4. The Tribunal decision record[23] clearly sets out sets out its decision to affirm the delegate's decision to refuse a Protection visa.[24] As summarised at [11] to [18] of this judgment, the decision record sets out the Tribunal's findings on material questions of fact and the evidence upon which it relied, including the evidentiary basis and reasons for the finding that the applicant did not meet the complementary protection criterion.[25] The date of the decision, 21 December 2015, is clearly stated on the front cover to the decision record.[26]

   [23] CB 283-306

   [24] CB 283, 306 [90]

   [25] CB 305-306 [85]-[86], [88]

   [26] CB 283

5. Even if the applicant were to demonstrate that the Tribunal decision record has not complied with a requirement under s.430(1) of the Migration Act, it is well established that a breach of s.430(1) in itself does not amount to a jurisdictional error.

6. In Minister for Immigration v Yusuf,[27] McHugh, Gummow and Hayne JJ, held in a joint judgment that the purpose of s.430 is to ensure that an aggrieved party can identify with 'certainty' why the Tribunal decided as it did. As the provision entitles a Court to infer that any matter not mentioned in the s.430 statement was not considered by the Tribunal to be material, the statement may reveal for instance, that the Tribunal incorrectly applied the law to the facts, took into account an irrelevant consideration, or committed some other jurisdictional error.[28]

   [27] [2001] HCA 30; (2001) 206 CLR 323 at 346 [68]-[69]

   [28] see also Minister for Immigration v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at 379 [52]-[55] per Kenny J; 390 [96] per Rares J

7. The particulars refer to the Full Federal Court decision in Minister for Immigration vSZLSP,[29] (SZLSP) in which it was held (by majority) that the Tribunal's decision record revealed that its finding that the applicant knew 'almost nothing' about Falun Gong was reached without reference to any particular evidence, and had therefore breached s.430(1) of the Migration Act. It was held that in the circumstances of that case, the Tribunal's finding had not been based on logical or probative grounds and consequently an inference arose that the decision was arbitrary and irrational so as to give rise to a jurisdictional error[30] or that the Tribunal constructively failed to exercise its function of review.[31]

   [29] [2010] FCAFC 108; (2010) 187 FCR 362.

   [30]at [72] per Kenny J

   [31] at [98]-[99] per Rares J

8. There is no indication that the Tribunal has committed a jurisdictional error on the basis that it reached its findings absent probative material and logical grounds in a manner comparable to that of SZLSP. As evident from the summary of the Tribunal's reasons in these submissions, the Tribunal clearly considered the evidence upon which it relied to reach its material findings of fact. The Tribunal decision record reveals no other relevant jurisdictional error.

Ground 2

1. Ground 2 asserts that the Tribunal made a number of errors in assessing the applicant's claims against the complementary protection criterion. None of these allegations can be made out.

2. Contrary to what is stated, the Tribunal applied the correct statutory test required by under s.36(2)(aa) of the Migration Act in its consideration of the applicant's claims against the complementary protection criteria. So much is evident from its reasons, which appear at [85]-[86] of the decision record.

3. The applicant appears to take issue with the brevity with which the Tribunal dealt with the applicant's claims under complementary protection. However, no error can be identified for this reason.

4. In reaching the finding that the applicant did not meet the complementary protection criterion, the Tribunal relied on its earlier findings rejecting the applicant's claims, see at [85]. The Tribunal was entitled to consider complementary protection by reference to its previous findings and no jurisdictional error arises for this reason.[32]

   [32] SZSHK v Minister for Immigration [2013] FCAFC 125, (2013) 138 ALD 26 at [32], [34] per Robertson, Griffiths and Perry JJ.

5. To the extent that the applicant alleges that the Tribunal failed to consider the claim that the applicant feared harm because he was of interest to the 'Karuna Group' in Sri Lanka, the Tribunal did in fact consider the claim.

6. The Tribunal expressly considered and rejected that claim in the course of assessing the applicant's claims against the Refugees Convention criterion, at [75]-[78]. The Tribunal referred to these findings when it later found that the applicant did not face a real risk of harm for this reason, at [85].

7. Nothing the written material or in what the applicant has been able to put to me in oral submissions this afternoon supports a proposition that the interests of the administration of justice require that an extension of time be granted. 

8. I will order, pursuant to s.477(2) of the Migration Act, that the application for an extension of time be refused. It follows that the application is incompetent.

9. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant claims impecuniosity and sought the opportunity to pay by instalments.  I will not require payment by any particular time.  As has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,416.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 29 September 2016