WZASQ v Minister for Immigration & Anor
[2013] FCCA 1726
•1 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASQ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1726 |
| Catchwords: MIGRATION – Judicial review – protection visa – whether denial of procedural fairness. PRACTICE AND PROCEDURE – Extension of time in which to file judicial review application – legislative requirements for application to be in writing specifying why extension of time necessary in the interests of the administration of justice. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Migration Act 1958 (Cth), ss.36, 476, 477(1) and (2) Migration Regulations1994 (Cth), Schedule 2, cl.866.221 |
| ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142; [2011] FCA 639 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335; [2010] FMCA 932 Comcare v A’Hearn (1993) 45 FCR 441 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kioa & Ors v West& Anor (1985) 159 CLR 550 Li v Minister for Immigration & Anor [2011] FMCA 12 SZQDZ & Ors v Minister for Immigration & Citizenship& Anor (2012) 200 FCR 207; [2012] FCAFC 26 SZQGA v Minister for Immigration & Citizenship & Anor (2012) 204 FCR 557; [2012] FCA 593 WZASC v Minister for Immigration & Border Protection & Anor [2013] FCCA 1452 |
| Applicant: | WZASQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 129 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 25 October 2013 |
| Date of Last Submission: | 25 October 2013 |
| Delivered at: | Perth |
| Delivered on: | 1 November 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P R Macliver |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
The affidavit filed by the applicant on 28 October 2013 be removed from the Court file and returned to the applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 129 of 2013
| WZASQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks to make an application[1] under s.476 of the Migration Act 1958 (Cth)[2] in relation to a migration decision made on 28 February 2013 by the Refugee Review Tribunal,[3] and makes a further application under s.477(2) of the Migration Act 1958 for an extension of time within which to make the Substantive Application.[4]
[1] “Substantive Application”.
[2] “Migration Act”.
[3] Court Book (“CB”) 138-152; “Tribunal Decision” and “Tribunal” respectively.
[4] “Extension of Time Application”.
The Substantive Application and Extension of Time Application were filed on 17 June 2013. Any application in relation to the Tribunal Decision should have been made within the 35 day period specified by s.477(1) of the Migration Act 1958, that is, by 3 April 2013. The applicant is therefore 74 days out of time. Section 477(2) of the Migration Act 1958 provides, however, that the Court may order that the 35 day period be extended.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity born on 26 July 1979 in Udappu, in the Puttalum District of Sri Lanka;[5]
b)from 2000 to 2007 the applicant travelled to the United Arab Emirates[6] for work, returning to stay in Sri Lanka in 2007;[7]
c)the applicant travelled to the UAE in early 2012 and returned to Sri Lanka at the end of February 2012;[8]
d)in March 2012 the applicant travelled directly to Australia by boat arriving as an unlawful non-citizen on 11 April 2012;[9]
e)on 20 June 2012 the applicant submitted an application for a Protection (Class XA) visa.[10] The applicant provided a written statement in support of his Protection Visa Application;[11]
f)in his written statement the applicant stated that he:
i)feared he would be subjected to significant serious harm if he was forced to return to Sri Lanka;
ii)desires a change of government in Sri Lanka, but that if he was to express this opinion in Sri Lanka, he believed he would be subjected to serious and significant harm by the government authorities;
iii)feared that he would be subjected to serious and significant harm as a consequence of his previous political activities, his illegal departure from Sri Lanka, his absence from Sri Lanka, his application for asylum in Australia, and his lack of proper documentation;[12]
[5] CB 15.
[6] “UAE”.
[7] CB 84.
[8] CB 84.
[9] CB 84.
[10] “Protection Visa Application” and “Protection Visa” respectively.
[11] CB 3-51.
[12] CB 4.
g)the applicant attended a Protection Visa interview with a delegate of the Minister[13] on 21 June 2012;[14]
h)on 20 August 2012 the Delegate made a decision[15] that she was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36 of the Migration Act 1958 (Cth)[16] and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth),[17] and the Delegate accordingly refused to grant the applicant a Protection Visa;[18]
i)the applicant was advised of the Delegate’s Decision by letter dated 22 August 2012 which also advised him of his entitlement to apply to the Tribunal for review of the Delegate’s Decision;[19]
j)on 30 August 2012 the applicant made an application to the Tribunal for review of the Delegate’s Decision;
k)the applicant attended a hearing before the Tribunal on 30 November 2012 by video, and his representative, Ms Kate McCrossin, from Refugee Advice & Casework Services (Aust) Inc in Sydney, personally attended at the Tribunal in Sydney for the hearing;[20]
l)the Tribunal provided the applicant with a copy of the recording of the Tribunal hearing held on 30 November 2012. By letter dated 14 December 2012, the applicant’s representative wrote to the Tribunal advising that the applicant had instructed them to inform the Tribunal that the applicant feared that if he returned to Sri Lanka he would be caught by the Sri Lankan authorities, and that he feared that he will be detained in Negombo Prison as has occurred in relation to the 50 Sri Lankan asylum seekers recently returned to Sri Lanka by the Australian government;[21]
m)on 28 February 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[22] In arriving at the Tribunal Decision the Tribunal concluded that it was not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention and therefore does not satisfy the criteria set out in s.36(2)(a) of the Migration Act. The Tribunal further concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa), and also does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa);[23]
n)the applicant was notified of the Tribunal Decision by letter dated 1 March 2013 which was faxed to his representative as the applicant’s authorised recipient;[24] and
o)on 17 June 2013 the applicant lodged the Substantive Application in this Court seeking review of the Tribunal Decision on the following grounds:
[13] “Delegate”.
[14] CB 86.
[15] “Delegate’s Decision”.
[16] “Migration Act”.
[17] “Migration Regulations”.
[18] CB 83 and 96.
[19] CB 79-81.
[20] CB 97-102 and 131.
[21] CB 135 and 136.
[22] CB 140 and 152 at para.52.
[23] CB 152 at paras.49-51.
[24] CB 138-139.
1. Jurisdictional error.
2. Not following the required standards of natural justice.
3. Requesting the court to examine the Grounds of the denial of natural justice procedure.[25]
[25] Transcribed without amendment from the Substantive Application.
Although the Substantive Application was not made within the 35 days specified by s.477(1) of the Migration Act 1958, the applicant did not seek an extension of time within which to make his application when the application was filed. The Court notes, however, that an order for extension of time was made at the directions hearing before a Registrar on 24 July 2013 in the following terms:
The application, and the application for an extension of time, be listed for final hearing at 10.15am on 25 October 2013 before a Judge.[26]
The Extension of Time Application
[26] Registrar’s Orders, 24 July 2013, order 7.
Statutory framework
Section 477(1) of the Migration Act 1958 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 1958 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 1958 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)[27] provides that:
[27] “FCC Rules”.
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 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; and
(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 interests of the administration of justice for the Court to grant an extension.
An application for an extension of time is incompetent unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act 1958. An extension of time will only be granted if:
a)an application for an order for an extension of time has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
b)the Court considers it necessary, in the interests of the administration of justice, to make an order for an extension of time.[28]
[28] Mpunzwana v Minister for Immigration & Anor [2009] FMCA 901 at paras.19 and 21 per Cameron FM; Tang v Minister for Immigration & Citizenship [2013] FCA 824 at para.12 per Jagot J.
In relation to the second requirement, 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)the reasons for it;
c)any prejudice to the respondent;
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.[29]
Section 477(2) of the Migration Act – requirements
[29] Li v Minister for Immigration & Anor [2011] FMCA 12 at para.35 per Nicholls FM; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at para.7 per Judge Lucev (“WZASC”).
Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a)there has to be an application for an order to extend time;
b)the application for an order to extend time must be in writing; and
c)the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
The order made by the Registrar on 24 July 2013 setting down the Substantive Application and the Extension of Time Application for final hearing appears to have been made on the basis of a minute of proposed order submitted by the Minister (a copy of which is attached to the signed order on file), and not on the basis of an application by the applicant, in writing, with the necessary specification. There is no other evidence indicating that an application, meeting the requirements of s.477(2) of the Migration Act 1958 was made by the applicant. It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s.477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor:[30]
[28] In my view the language of s 477(2) is plain. The relationship between its constituent parts, s 477(2)(a) and s 477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the court to consider the matter in s 477(2)(b) without an application pursuant to s 477(2)(a). This is not a matter as elsewhere in the Act where the court may act on its own motion (see for example s 486F(3)(a)).
[29] The application to the court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the court to extend time is contained in s 477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s 477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s 477(2)(a) of the Act.
[30] The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent.[31]
[30] [2012] FMCA 384 (“SZRBN”).
[31] SZRBN at paras.28-30 per Nicholls FM; a judgment upheld on appeal in SZRBN v Minister for Immigration & Citizenship [2012] FCA 984.
In the absence of an application meeting the requirements of s.477(2) of the Migration Act 1958 an application for an extension of time under s.477(1) of the Migration Act 1958 is incompetent.
This case was argued on the basis that there was an application for an extension of time by the applicant, but it would appear that that assumption, based on the order of the Registrar, was erroneous, or at least, there is no evidence of such an application by the applicant. Ordinarily, therefore, the Court would be entitled to simply dismiss the application on the basis that there was no application meeting the requirements of s.477(2) of the Migration Act 1958. In this case, for reasons which follow, those reasons being such that the Court would not have granted an extension of time in any event, it is unnecessary to determine this matter on the basis of non-compliance with this aspect of s.477(2) of the Migration Act 1958.
Extent of delay
The 35 day period for making an application to the Court pursuant to s.477(1) of the Migration Act 1958 ended on 3 April 2013. The applicant is 74 days late in filing his application in this Court. This is a substantial delay.
Explanation for delay
The applicant has not filed any affidavit explaining the reasons for the delay as required by r.44.05(2)(c) of the FCC Rules. In Comcare v A’Hearn[32] the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”.[33] In this case there is, however, a rule, and the requirements of r.44.05(2) of the FCC Rules are mandatory (and, therefore, an essential pre-condition) because of the use of the word “must”.[34] Therefore, the FCC Rules prescribe that there must be an explanation provided on affidavit as to the delay, and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. That mandatory requirement follows from the legislative requirement of s.477(2) of the Migration Act 1958 which requires that the applicant specify why it is necessary in the interests of the administration of justice to make an order extending time. For the Court then to determine whether it is necessary, in the interests of the administration of justice, to make an order for an extension of time requires consideration of evidence as to why that was so. Hence, the mandatory requirement for an affidavit explaining the delay. In this case there is no such explanation on affidavit. The applicant has, therefore, failed to satisfy the legislatively prescribed criteria for the Court to grant an extension of time. On this basis alone the Extension of Time Application must fail.
[32] (1993) 45 FCR 441 (“A’Hearn”).
[33] A’Hearn at 444 per Black CJ, Gray and Burchett JJ.
[34] Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335 at 346-347 per Lucev FM; [2010] FMCA 932 at paras.35-40 per Lucev FM, and cases there cited, applied in WZASC at para.9 per Judge Lucev.
Even without the mandatory requirements of r.44.05(2) of the FCC Rules, there is no satisfactory explanation for the delay. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay.[35] As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay….[36]
[35] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at para.38 per Foster J (“SZSDA”).
[36] SZSDA at para.38 per Foster J.
In this case there is no evidence as to the reason for the delay, and no evidence that the applicant is in any different a position to all of the other persons applying for visas around Australia, the vast majority of whom file any judicial review application under s.476 of the Migration Act 1958 with this Court within time. At hearing, the applicant asserted that the reason for the delay was his lack of language skills. Accepting that the applicant does not speak, read or write English (he had the assistance of an interpreter at hearing), that does not constitute a satisfactory explanation for the delay. It does not explain how it was that the applicant came to make the application, notwithstanding his lack of language skills, but positively decided that he did not need an order for an extension of time. It also does not satisfactorily explain how it is that the applicant set out in some detail the final orders sought by him, and was able to specify grounds of application, albeit inadequate and unparticularised, given his lack of language skills, but failed to make an application for an extension of time when the form specifies that the extension is required if the application is not made within 35 days of the date of the migration decision. In any event, a lack of language skills of itself it not a proper explanation for the delay, and were it to be accepted, almost every applicant for judicial review of a migration decision under s.476 of the Migration Act 1958 would have an acceptable explanation for delay on the basis of a lack of language skills, and that cannot have been the parliamentary intention when requiring an explanation of the reason for delay.
In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation for the delay.
Prejudice to first respondent
The Minister does not assert that he has suffered any prejudice as a result of the applicant’s delay. The mere absence of prejudice is not, however, enough to justify the grant of an extension of time.[37]
[37] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 per Wilcox J; ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at 163 per Katzmann J; [2011] FCA 639 at para.88 per Katzmann J.
Merits of Substantive Application
Notwithstanding any absence of prejudice or explanation for the delay, it is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success.[38] This principle is equally applicable to an application under s.477(2) of the Migration Act 1958 for an extension of time to make an application in relation to a migration decision.[39]
[38] SZQGO v Minister for Immigration & Citizenship (2012) 125 ALD 449 at 454 per Murphy J; [2012] FCA 177 at para.29 per Murphy J, and the authorities there cited.
[39] SZSDA at ara.39 per Foster J; SZRUG v Minister for Immigration & Anor [2013] FCCA 142 per Judge Nicholls, and the discussion of the merits of the grounds at paras.32-87 per Judge Nicholls and the conclusion at para.88 per Judge Nicholls; WZASC at para.15 per Judge Lucev.
Ground 1 of the Substantive Application is a bare assertion of jurisdictional error. That is clearly an insufficient basis for granting an extension of time, as that ground has no prospects of success.
Ground 2 of the Substantive Application refers to the Tribunal not having followed the required standards of natural justice. This ground does not demonstrate any merit, as no particulars have been provided of the required standards, or any breach of them, or any other alleged breach of natural justice or procedural fairness by the Tribunal.
Ground 3 of the Substantive Application requests that the Court “examine the grounds of the denial of natural justice procedure.” This ground does not demonstrate any merit, as there are no proper grounds set out in the Substantive Application, and no particulars of any alleged denial of natural justice or procedural fairness, and the ground amounts to no more than a “request” that the Court examine an unspecified and unparticularised alleged denial of natural justice or procedural fairness.
The grounds of the Substantive Application remain unamended notwithstanding the terms of one of the Registrar’s Orders of 24 July 2013 (order 5) which provided that the applicant file and serve on or before 11 September 2013 an amended application giving particulars of the grounds of review and any affidavits that he intended to rely upon at the hearing. No affidavits were filed in accordance with this order.
The relevant principles in relation to procedural fairness are to the following effect:
a)procedural fairness requires a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed;[40]
[40] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
b)in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006)[41] the High Court approved of what was said in the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone,[42] that:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[43]
c)in Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors[44] the High Court said in respect of the requirement to provide procedural fairness in relation to country information:
Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information " that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal.[45]
[41] (2006) 228 CLR 152 at 161-162 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ; [2006] HCA 63 at para.29 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ.
[42] (1994) 49 FCR 576 (“Alphaone”).
[43] Alphaone at 591-592 per Northrop, Miles & French JJ.
[45] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
The Tribunal Decision does not demonstrate any breach of natural justice or procedural fairness by the Tribunal. To the contrary, the Tribunal Decision demonstrates that the Tribunal did accord procedural fairness to the applicant. In particular:
a)the applicant’s alleged previous political activities, particularly in 2008, 2010, 2011 and 2012, were set out in the Tribunal Decision, where the applicant says that in 2008 he was a supporter of the United National Party[46] and handed out brochures at voting stations, put up posters and encouraged other young men to attend meetings, and that in 2010 when General Fonseka contested elections he did likewise in support of General Fonseka’s candidacy. The applicant says that when General Fonseka was arrested after the election, and imprisoned, he collected signatures and attended a protest, following which the CID detained him and his friends. The applicant claimed to have been assaulted in detention, but following his release he travelled both within and out of Sri Lanka for work, before returning from overseas to attend another protest in support of General Fonseka, following which he fled to Australia having been informed that the CID was searching for him. The applicant also said that he attended a protest in May 2011, was detained, and that one of his knees was bruised. The applicant gave evidence that he went to work as a fisherman in Udappu in 2011, following his participation in a protest for General Fonseka, and as a consequence of him having a fear relating to the protests. The applicant also claims that following his return from the UAE in early 2012 he attended another protest in support of General Fonseka’s release, and that that night the authorities came and searched his village, but that he had been warned about that, and had fled. The applicant said that he believed General Fonseka was a member of the UNP;[47]
b)the applicant was asked about a protest that he had claimed to be involved in during February 2012, which he said was a protest for the release of General Fonseka, but which the Tribunal put to him was in fact a protest by fishermen over the price of fuel, as was indicated by various country information;[48]
c)the applicant was also questioned about his claim of being a supporter of General Fonseka, and was asked what party General Fonseka belonged to, and in particular the applicant was questioned about the party to which General Fonseka belonged, to which the applicant indicated that General Fonseka was supported by the UNP, but that he did not know what party General Fonseka belonged to. The Tribunal indicated that it had serious doubt as to whether the applicant had ever supported the UNP apart from possibly voting for them, and put to the applicant that it did not believe that he had ever been arrested, or was of any interest to the authorities. The applicant said that his reasons for leaving Sri Lanka were associated with his political activities;[49] and
d)the Tribunal gave consideration to the political activities of the applicant, as set out above, and found that:
i)the applicant’s claim that General Fonseka was running for the UNP was incorrect as he belonged to a different party, the New Democratic Front, a party which was supported by the UNP;[50]
ii)the applicant had not been involved in a protest in support of General Fonseka in 2012 as the protest reported at that time was one by thousands of fishermen protesting the announcement of an increase in fuel prices, and the Tribunal was not satisfied that there was a protest against the government in support of General Fonseka;[51]
iii)although claiming to be of adverse interest to the authorities the Tribunal noted that the applicant was able to leave Sri Lanka in January 2012 and re-enter in February 2012, which indicated that he was of no adverse interest to the authorities at that time;[52] and
iv)the applicant was not a credible witness, and fabricated his claims of being of adverse interest to the authorities as a result of being a supporter of, and campaigner for General Fonseka, and to have done so to enhance his claims for a Protection Visa. The Tribunal did not accept that the applicant had left Sri Lanka for reasons associated with his political activities or political views.[53]
[46] “UNP”.
[47] CB 144-146 at paras.25-26, 28-30.
[48] CB 145-147 and 149 at paras.29 and 34 and 36.
[49] CB 145-146 at para.30.
[50] CB 149 at para.36.
[51] CB 149 at para.36.
[52] CB 149 at para.36.
[53] CB 149 at para.37.
The Tribunal accepted that the applicant may be concerned about his return to Sri Lanka as a consequence of his illegal departure, and also accepted that the killing of his father in December 2003 was a possible consequence of his father being suspected of belonging to the LTTE. The Tribunal did not, however, accept that the applicant’s illegal departure from Sri Lanka, his absence from Sri Lanka and return without proper documentation, having been an applicant for asylum in Australia, would result in him being persecuted for a Convention reason by way of suffering serious and significant harm for a Convention reason. In making that finding the Tribunal observed that:
a)the applicant had made no claim that he was associated with the LTTE, and there was nothing in his profile that would suggest that the authorities would consider that he had such an association, notwithstanding that his father’s killing ten years ago might have been because he was suspected of being a member of the LTTE,[54] but that at that time the applicant was living in the UAE, and did not return until 2007;[55]
b)since the applicant’s return from the UAE the civil war in Sri Lanka had finished, and the authorities had been rigorously arresting and detaining those who were suspected of being involved with the LTTE, but the applicant had not been arrested or detained on any such suspicion, and had been allowed to depart from and re-enter Sri Lanka early in 2012 through an international airport, and the fact that he was able to do so without incident indicated that he was of no adverse interest to the Sri Lankan authorities;[56]
c)the Tribunal accepted that on return to Sri Lanka as a failed asylum seeker the applicant would be questioned, and it would be reasonable to accept that he would be arrested and held on remand for a few days while awaiting a court appearance, on a charge of illegally departing Sri Lanka, for which it was likely that he would be fined. That punishment, however, was not for a Convention reason, but the implementation of a law of general application relating to illegal departure from Sri Lanka, not being a law directed to any particular social group, but rather a legitimate action by the authorities applying the law without discrimination to those who had illegally departed Sri Lanka;[57] and
d)detention for a few days, together with a fine for illegal departure, was not serious harm amounting to persecution of such a seriousness as to constitute, or provide grounds for constituting, a well-founded fear of persecution by reason of a Convention ground.[58]
[54] CB 150 at para.41.
[55] CB 150 at para.41.
[56] CB 150 at para.41.
[57] CB 150 at paras.42-43.
[58] CB 150-151 at paras.44-45.
The Tribunal also considered whether or not the treatment of the applicant on his return to Sri Lanka following his illegal departure and application for asylum in Australia would constitute significant harm for the purposes of the complementary protection provisions, but found that whilst there were adverse consequences, they were not such as to constitute significant harm for the purposes of the complimentary protection provisions.[59]
[59] CB 151 at paras.46-48.
It is evident from the foregoing that the applicant’s claims with respect to his political activities in Sri Lanka, and the circumstances of his departure from Sri Lanka, seeking asylum in Australia, and returning to Sri Lanka, were all the subject of:
a)an opportunity to be put to the Tribunal by the applicant, who was represented at the Tribunal hearing, and who made post Tribunal hearing submissions on the basis of the recording of the Tribunal hearing;[60] and
b)detailed and proper questioning and consideration by the Tribunal in a manner which leaves no room for any suggestion that there was a denial of procedural fairness, and particularly so in relation to broad and unparticularised grounds of review.
[60] See paras.3 and 26 above.
It follows that the Substantive Application has no prospect of success on the merits, there having been no denial of procedural fairness, or natural justice, and for this reason alone no extension of time should be granted.
Other criteria generally
Whilst any impact on the applicant is a consideration in relation to the Extension of Time Application, there is no evidence of any impact on the applicant, and, in any event, it would arguably be of little weight or relevance given that the Substantive Application has no prospect of success. Furthermore, it would be unfair to grant this applicant an extension of time in circumstances where other applicants have not been granted an extension of time in similar circumstances, and where future applicants in a similar position to the applicant are unlikely to be granted an extension of time based on the law as it currently stands. It would not, therefore, be in the public interest to make an exception for this applicant.
Conclusion – Extension of Time Application
The Extension of Time Application must be refused:
a)in the absence of an affidavit dealing with the matters required by r.44.05(2)(c) of the FCC Rules;
b)as there is no satisfactory explanation for the delay;
c)in any event, because the Substantive Application has no prospect of success; and
d)because it would be unfair to other applicants who have had their applications for an extension of time rejected in similar circumstances, and not in the public interest to make an exception for this applicant,
and it is not, therefore, in the interests of the administration of justice to extend time.
Post hearing filing
At the hearing of this matter on 25 October 2013 the Court reserved judgment to be delivered on 1 November 2013. There were no orders for the filing of further material. When orders were made on 24 July 2013 for the filing of further material by the applicant, allowing the applicant time to file an amended application and affidavits, including any affidavits in support of an extension of time application, no such affidavits were filed. The Court has been informed that subsequent to the hearing the applicant filed an affidavit on 28 October 2013 (which the Court has not read). There is no indication that the affidavit has been served on the respondents. No application was made by the applicant through the Registry to re-open the case. The applicant had an opportunity to file affidavit material in support of his claim, and failed to do so. Further, it is wholly inappropriate that a party conduct its case, hear the case for the other side, and reply, as occurred here, and then seek to file further material, presumably in support of its case, without orders from the Court allowing the party to do so, and seemingly without notifying the respondents. If such an affidavit were allowed to be filed, and to be considered by the Court in such circumstances, it would have the effect of re-opening the entire case. That would most likely entail a further directions hearing to deal with the procedural issues raised by the filing of further affidavits after hearing, and the opportunity for further affidavits and submissions to be made by at least the first respondent, the Minister, and a further hearing of the issues. That is simply inappropriate in circumstances where the applicant failed to file any material in accordance with the Registrar’s Orders of 24 July 2013. Furthermore, it is contrary to the objects and purposes of the Federal Circuit Court of Australia Act 1999 (Cth)[61] and the FCC Rules which require matters to be dealt with judicially and without protraction of the proceedings.[62] In all of the above circumstances, the Court considers that it would be inappropriate to have regard to the affidavit. The Court has therefore not had regard to the affidavit. The proper course is for the affidavit to be removed from the file and returned to the applicant.[63]
[61] “FCCA Act”.
[62] FCCA Act, ss.3 and 42; FCC Rules, r.1.03.
[63] See WZASC at para.22 per Judge Lucev where a supporting statement was filed after the hearing and reservation of judgment, and was ordered to be removed from the file and returned to the person who made it. See also Moss v Gorrie [2013] FCCA 1393 where, in a bankruptcy application for substituted service of a creditors petition outside of Australia, the applicant’s solicitor filed a further affidavit after hearing and reservation of judgment, and the Court ordered that the affidavit be removed from the file and returned to the applicant’s solicitors: at para.30-31 per Judge Lucev.
Conclusions and orders
The Court considers, in all the circumstances, that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act 1958, particularly given that the Substantive Application has no prospect of success, and the Extension of Time Application ought to be dismissed; and
b)the affidavit filed by the applicant on 28 October 2013 should be removed from the Court file and returned to the applicant.
There will be orders accordingly. It is unnecessary to make a further order that the Substantive Application be dismissed as incompetent.[64]
[64] BZABK v Minister for Immigration & Citizenship& Anor (2012) 205 FCR 83 at 92 per Foster J; [2012] FCA 774 at para.43 per Foster J; WZASC at para.23 per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 1 November 2013
[44] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).
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