SZWDF v Minister for Immigration
[2017] FCCA 2499
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDF v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2499 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 476, 477(1), 477(2) |
| Cases cited: Minister for Immigration & Border Protection v WZAPN [2015] HCA 22 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 WZAPN v Minster for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZWDF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 400 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2017 |
REPRESENTATION
The applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 400 of 2015
| SZWDF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act.
The remedy the applicant seeks relates to a decision of the second respondent (Tribunal) made on 22 December 2014 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). The order is required to be made under s.477(2) of the Act because the application was filed on 19 February 2015, 24 days after the day on which the applicant was required to file the application.
I first consider the principles that should guide me in determining whether to make an order under s.477(2) of the Act.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
[1] [2013] FCA 1284 at [47]-[48]
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[2] [2015] FCA 1391 at [63] (cases cited omitted)
[3] [2015] FCA 1391 at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]
[4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[5] [2015] FCA 1391 at [62]
Explanation for delay
The evidence on which the applicant relies to explain his delay is contained in an affidavit he made on 19 February 2015. According to that affidavit, the applicant did not receive the notification of decision from his legal representative because he had moved while waiting for the Tribunal’s decision. The applicant’s legal representative sent the Tribunal’s notice of decision to the applicant’s previous address on 16 January 2015. The applicant only became aware of the Tribunal’s decision on 18 February 2015 when the applicant visited the Department of Immigration and Border Protection (Department) to meet his case officer who notified the applicant that the Tribunal had rejected his application. The applicant deposes that he “took immediate steps to file the application in case without any further delay”.
The applicant’s explanation for his delay is not reasonable. The reason the applicant was not informed of the decision is because he changed his address without informing his legal representative. Given that the delay is not great, however, I would give little weight to the absence of an adequate explanation, if I were satisfied the applicant has a sufficiently arguable case that would justify an extension of time. Before I consider that question, it will be useful to first set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.
Claims for protection
The applicant arrived in Australia in July 2012 as an irregular maritime arrival. He stated his claims for protection on three occasions: first, as recorded in a BIODATA form completed on 21 July 2012 by an officer of the Department of Immigration and Citizenship (as the Department was then known)); second, at an Irregular Maritime Arrival Entry Interview conducted by an officer of the Department on 4 September 2012 (IMAEI); and third, in a written statement that formed part of his application for a Protection visa the applicant lodged on 19 February 2013.
In his written statement the applicant claimed to fear harm from the Sri Lankan Army (SLA) or the CID (Criminal Investigation Department) if he were to return to Sri Lanka because he is a Tamil, a Hindu, and he will be suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE).[6] The applicant claimed that in 1996 the applicant’s father was arrested by the SLA on suspicion of being an LTTE supporter. Weapons were hidden in a forest 50 meters from where the applicant’s father worked as a fisherman. When the weapons were discovered by the SLA, the applicant’s father was held responsible and jailed for more than one year on suspicion of supporting the LTTE.[7]
[6] CB58, [7]
[7] CB58-59, [9]
In February 2007 the applicant travelled to Colombo to obtain a passport. On his arrival he was stopped by the SLA, who demanded that he attend a nearby camp for questioning. The applicant was then interrogated for 30 minutes about the LTTE presence in his village before being allowed to leave.[8] The SLA also started visiting the applicant’s father’s home, questioning him on six or seven occasions during 2007 and 2008. The applicant claimed that three days before he completed the written statement, his father was again questioned about the applicant and asked where he is currently living. The applicant’s father informed the SLA the applicant is now living in Australia.[9]
[8] CB59, [10]
[9] CB59, [12]
The applicant left Sri Lanka in 2008 to travel to Qatar because his father believed the applicant’s life was in danger because of the war, and Sri Lanka had become a dangerous place for young Tamil men from Uduppu to live. In April 2011 the applicant’s family travelled to Mullativu where they had land. When they arrived the SLA placed the applicant’s parents in a refugee camp and only released them in early 2012 when a non-government agency built a house for the applicant’s family.
In 2011 the applicant’s parents encouraged the applicant to return to Sri Lanka. They believed it was safe for the applicant to return because they were living in Mullativu. The applicant’s family had built a new home, and life was good for a period of time. That changed when the SLA established a camp 300 meters from the applicant’s home. The SLA constantly monitored the applicant and his family, and subjected them to interrogation. The applicant and his family were also unable to work, because Sinhalese controlled the fishing in the area. The applicant and his father were threatened by Sinhalese fisherman that if they did not stop fishing in the river, their boat would be rammed and sunk.[10] The applicant also claimed he and his family were unable to speak up against the Sinhalese because they were Tamil, that the Sinhalese threatened to beat and harm them, and they were unable to report the Sinhalese fisherman to the police because they were supported by the SLA.[11]
[10] CB60, [19]
[11] CB60, [20]
The applicant also claimed he fears that he will be harmed by the SLA, the CID, and the Sri Lankan government because he left Sri Lanka illegally.
Before the delegate the applicant raised two new claims. First, he claimed that on 15 February 2012, while waiting at a bus stop returning from a computer class, he was approached by a member of the SLA. The SLA member took the applicant behind a nearby wall and sexually assaulted him. He told the applicant that if he sees him on the same street again, he would assault him again. The applicant was deeply ashamed, did not tell his parents or anyone else about the assault, and discontinued attending the computer classes.
Second, the applicant claimed that in 1996 his father was arrested with eight other people suspected of assisting the LTTE. The applicant confirmed neither he nor any other member of his family were harmed or harassed because of his father’s adverse profile with the Sri Lankan authorities. The applicant also confirmed that he had never been interrogated or harmed at the time of his father’s arrest, during the period his father was in prison, or after the applicant’s father’s release in 1997. The applicant nevertheless claimed he feared harm in Sri Lanka because of his father’s adverse profile, and because the authorities continue to check regularly on his father, who may be arrested and harmed “someday” as a consequence.
In support of his application for review, the applicant’s agent provided to the Tribunal written submissions, and a draft statutory declaration.[12] The submissions referred to country information in support of the applicant’s claims. The draft statutory declaration asserted the following:
a)The applicant reiterated his previous claims that his father was of adverse interest to the authorities; and that his father had been beaten and arrested by the authorities.
b)The applicant was harmed as a suspected supporter of the LTTE, and the CID had visited the applicant’s family home.
c)The applicant did tell the Department he had not experienced trouble at the hands of the authorities when he was a child, but he did experience trouble in his later years.
d)The applicant was previously sexually assaulted. He did not disclose that fact to the Department because he was shy, and the applicant’s case officer was female. The applicant was sexually assaulted “in about 2009” and did not “recall telling the Department I said 2012”.
e)Tamil people were being targeted because of their ethnicity, and the applicant will be harmed by authorities because he is a Tamil and a Hindu, and that he will be prevented from fishing and, thus, will not be able to sustain a livelihood.
f)The applicant will be imputed with the political opinion of having supported the LTTE.
g)The applicant will be unable to return to Sri Lanka because he is an asylum seeker, and he knows people who have returned as failed asylum seekers who were detained.
[12] CB162-163
Tribunal’s decision
The Tribunal was satisfied the applicant faced no real chance or real risk of serious or significant harm because he would be unable to fish or earn a livelihood. The Tribunal noted the applicant had made it clear that he did not rely on his claim in relation to fishing, but also noted that the applicant told the delegate that the applicant’s father and brother continue to be self-employed as fishermen, and that the applicant said at his entry interview that he had not encountered any trouble in the course of his fishing employment at the hands of other fishermen, the Navy, or the SLA. [13]
[13] CB194, [64]
The Tribunal found that “prior to [the applicant’s] departure from Sri Lanka in 2012 the applicant did not have any profile as an LTTE supporter or suspect, and was not imputed with a pro-LTTE or anti Sri Lankan Government opinion”.[14] The Tribunal so found because the matter that led to suspicion of the applicant’s father was circumstantial and occurred 18 years ago during the armed struggle with the LTTE;[15] and the applicant himself was not targeted or harmed, or questioned other than in the course of one brief routine questioning at a checkpoint in Colombo in 2007, before the war had ended.[16]
[14] CB194, [67]
[15] CB194, [66]
[16] CB194, [66]
The Tribunal appears to have accepted that after the applicant’s departure from Sri Lanka, authorities have been enquiring about the applicant, but the Tribunal found these enquiries were consistent with the applicant’s having departed Sri Lanka illegally. The Tribunal found that enquiries “logically arising from the applicant’s illegal departure are not of themselves evidence of persecutory intent”.[17]
[17] CB194, [68]
Although the Tribunal had difficulties with the applicant’s evidence about having been sexually assaulted, the Tribunal accepted the applicant was assaulted. The Tribunal, however, had “serious doubts” about whether the incident amounted to anything more than the applicant being “aggressively propositioned or harassed”.[18] Taking the applicant’s claims at face value, the Tribunal concluded that the incident was a single criminal incident by an individual soldier that did not form part of a systematic course of conduct directed towards the applicant. Nor was the Tribunal satisfied that the assault occurred essentially and significantly because of the applicant’s ethnicity or for any other Convention reason.[19]
[18] CB194, [70]
[19] CB194-195, [70]
The Tribunal did not accept that Hindus are generally persecuted in Sri Lanka.[20] Nor did the Tribunal accept the applicant’s claim that as a Tamil from the north who departed Sri Lanka illegally and applied for refugee status in Australia he would be imputed with a pro-LTTE opinion.[21] Although the Tribunal accepted there was evidence of some continuing suspicions by authorities and some degree of societal discrimination, the Tribunal was not persuaded that Tamils generally are persecuted in Sri Lanka.[22] Finally, the Tribunal was satisfied that failed Tamil asylum seekers are not imputed with a pro-LTTE or an anti-government political opinion.[23]
[20] CB195, [71]
[21] CB195, [72]-[73]
[22] CB195, [74]
[23] CB195, [75]
In relation to the applicant’s claims based on his having left Sri Lanka illegally, the Tribunal referred to advice from the Department of Foreign Affairs and Trade to the following effect:
a)penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 rupees;[24]
b)Sri Lankan returnees are treated according to standard procedures, regardless of their ethnicity and religion;[25]
c)most Sri Lankan returnees from Australia are questioned by police on return, and where an illegal departure from Sri Lanka is suspected, returnees are charged under the Immigration and Emigration Act;[26]
d)persons who are charged are detained at the airport and can remain in police custody at the airport for up to 24 hours, but are not subjected to mistreatment during their processing;[27]
e)no returnee who was only a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, but fines have been imposed as a deterrent;[28] and
f)in most cases, returnees are granted bail immediately by the magistrate, with the requirement that a family member act as guarantor.[29]
[24] CB196, [79]
[25] CB196, [79]
[26] CB196, [80]
[27] CB196, [80]
[28] CB196, [81]
[29] CB196, [81]
The Tribunal accepted that conditions in Sri Lanka’s prisons are reliably reported to be poor with severe overcrowding, lack of adequate facilities, and mistreatment.[30] The Tribunal noted reports of mistreatment of LTTE suspects and “ill-treatment of persons in custody by the security forces”, but found that the applicant would not be imputed with LTTE membership or support. The Tribunal also noted that country information did not show that Tamils generally are particularly targeted and treated differentially in Sri Lankan prisons. The conditions or treatment in Sri Lanka’s prisons are “a risk faced by the population generally if they break the law”.[31] The Tribunal concluded:[32]
The Tribunal is satisfied that any punishment the applicant would face would be under a law of general application and is not disproportionate or arbitrary and does not amount to persecution for a Convention reason.
[30] CB196, [82]
[31] CB196-197, [82]
[32] CB197, [83]
Finally, the Tribunal accepted that, on return to his village after his case is disposed of, the applicant may be questioned and monitored by local police, and given a conviction for illegal departure. The Tribunal was not satisfied that this “of itself would amount to serious or significant harm”.[33]
[33] CB197, [84]
For these reasons, the Tribunal concluded it was satisfied the applicant does not face a real chance of serious harm amounting to persecution on return to Sri Lanka now or in the reasonably foreseeable future, for a Convention reason.[34]
[34] CB197, [85]
The Tribunal also addressed, although briefly, whether the applicant was entitled to protection under the complementary protection criterion specified in s.36(2)(aa) of the Act. The Tribunal said:[35]
Relevant law is set out at Attachment A. The Tribunal has carefully considered whether the applicant’s circumstances as set out and discussed in this decision amount to, or give rise to, substantial grounds for believing that he would face a real risk of significant harm should he return to Sri Lanka. Findings of fact already set out above are relevant.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
[35] CB197, [86]; [90]
Grounds of application
The applicant’s application for review contains one ground which is as follows:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act
Particulars
a. At paragraph [79] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally;
Clearly, the Tribunal has engaged in a qualitative assessment of the circumstances of the Applicant’s detention whilst on remand rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the applicant’s liberty.
b. The RRT accepted that the applicant had committed offences under Sri Lanka’s Immigrants and Emigrants Act;
c. At paragraph [82] of the decision, the RRT accept [sic] based available media reports that the conditions of detention applicant will face whilst detained will be overcrowded, cramped and unpleasant”.
By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minster for Immigration and Border Protect & Another [2014] FCA 947 at (30) and (45)
The applicant, who was not legally represented at the hearing, made no submissions in support of this ground.
The ground relies on the reasoning of North J in WZAPN v Minster for Immigration and Border Protection.[36] In Minister for Immigration and Border Protection v WZAPN, however, the High Court allowed an appeal from his Honour’s orders and disapproved his Honour’s reasoning. [37] The ground, therefore, has no prospects of success.
[36] [2014] FCA 947
[37] Minister for Immigration & Border Protection v WZAPN [2015] HCA 22
Conclusion and disposition
Given that the ground on which the applicant relies is bound to fail, I am not satisfied it is necessary in the interests of the administration of justice that I should make an order under s.477(2) of the Act.
I should note here that I delayed giving judgment on the application for an extension of time because I had been informed in another case that there had been listed for hearing on 16 November 2016 an application for special leave from the orders of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection.[38] I did so because the issues in that case were potentially relevant to the issues in the case before me. The High Court granted special leave but, on 6 September 2017, the High Court dismissed the appeal.[39]
[38] [2016] FCAFC 69
[39] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
I propose, therefore, to order that the application for an extension of time be dismissed. Before I make that order I will order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 October 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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