FEDERAL COURT OF AUSTRALIA

MZZTJ v Minister for Immigration and Border Protection [2014] FCA 920

THE COURT ORDERS THAT:

1.    The notice of objection to competency filed 23 June 2014 be upheld.

2.    The application for an extension of time and leave to appeal filed 11 June 2014 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant is seeking an extension of time to appeal and leave to appeal from a decision of the Federal Circuit Court of Australia which itself dismissed an application filed by the applicant in that Court to extend time to apply for review of a decision of the Refugee Review Tribunal. The Refugee Review Tribunal had upheld a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a protection (class XA) visa.

2    The respondents have filed an objection to the competency of the applicant’s application pursuant to O 36 r 72 of the Federal Court Rules 2011 (Cth).

3    The first respondent applied for the question of competency to be heard and determined before the hearing of the application for an extension of time and leave to appeal.

4    Yesterday I heard the parties in relation to the objection to competency.

PROCEDURAL HISTORY

5    On 22 August 2012 the applicant applied for a class XA protection visa. By letter dated 26 March 2013 a representative of the Department of Immigration and Citizenship (as it was then called) advised the applicant that his application for a protection visa had been denied and the applicant was provided with reasons for the decision.

6    On 3 April 2013 the applicant lodged an appeal to the Refugee Review Tribunal, which appeal was heard on 6 June 2013. On 30 July 2013 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

7    On 24 September 2013 the applicant filed an application in the Federal Circuit Court of Australia seeking an extension of time to file an application for review of the Tribunal’s decision. The application was at that point 22 days out of time. On 4 July 2014 a Judge of the Federal Circuit Court of Australia dismissed the application for an extension of time on the basis that there was no merit to the applicant’s substantive application.

8    On 11 June 2014 the applicant filed an application for an extension of time to seek leave to appeal and leave to appeal from the decision of the Federal Circuit Court.

9    On 23 June 2014 the respondents filed a notice of objection to competency.

BACKGROUND

10    The applicant is a citizen of Sri Lanka and is of Tamil ethnicity and Hindu faith. The applicant entered Australia by boat on 17 May 2012.

11    On 22 August 2012 the applicant applied for a protection visa and was interviewed by a delegate of the Minister. The applicant claimed to fear persecution on three grounds:

1.    by reason of his ethnicity.

2.    actual or imputed political opinion.

3.    membership of a particular social group, namely failed asylum seekers.

12    The applicant claimed to fear persecution from the Sri Lankan authorities and the “Karuna Group”, which is a paramilitary and political group. The bases for the applicant’s fears are that he witnessed the killing of his uncle in 2000 and that his family is relatively wealth.

13    The applicant claims that his father ran a business making and selling jewellery, was not involved in politics and was not a member or associate of the LTTE, which I understand refers to the Liberation Tigers of Tamil Eelam, a separatist group active in northern Sri Lanka during unrest in recent years. He claims that his father was working in the village of Thillyadi in Puttalam district in 2000 when there was a “round up” of Tamil residents by the Sri Lankan Army and the Sri Lankan Police. The applicant claims that these authorities were targeting displaced people and his father was one of many who were being targeted by the authorities. The applicant said he was about ten years old at the time of these events and could not recall further details.

14    The applicant said that after his father was taken by the authorities, his family never heard from him again. The applicant also said that the Sri Lankan Army suspected his father of being an associate of the LTTE because of his profile as a young Tamil male who spent time in the north of Sri Lanka.

Shooting of the applicant’s uncle in 2000

15    After his father’s disappearance, the applicant claimed to have lived with a close relative named Manoharaipillai who he referred to as his uncle, although he may in fact be more akin to a “cousin” of the applicant. In any event, the applicant’s uncle was involved in politics. The applicant was young at the time of going to live with this uncle, however, and knew little about his uncle’s politics apart from being able to describe his uncle as being a member of the United People’s Front.

16    In 2000 when the applicant was approximately 10 years of age, two men came to his uncle’s house and shot him and a politician named Chelyan. Other people who were claimed to be present were his uncle’s wife and three of his sons. The applicant claimed that he was able to identify the killers as was his uncle’s wife. The killers were subsequently arrested and detained. The police did not take a statement from the applicant because of his young age.

17    The delegate of the Minister referred to an online news article published by the Indian newspaper The Tribune on 10 September 2000 which reported the shootings of two politicians named Manoharan Pillai and Chezhivan Perembankyakam in the Ampara district of Eastern Province, Sri Lanka. The article stated that the shootings were carried out by supporters of “jihad”, an armed wing of the Sri Lankan Muslim Congress but that the police did not rule out the involvement of the LTTE.

18    The applicant gave evidence about his uncle’s murders that the Tribunal found to be vague and inconsistent. The applicant claimed that his uncle was killed by members of the “Karuna Group” but then said he was killed by LTTE political supporters who he was able to name. However, in a separate statement dated 22 August 2012 the applicant stated that he was not entirely clear who killed his uncle or the reasons behind it. Further doubt was cast on the applicant’s claim that the Karuna Group was responsible by country information available to the delegate which indicated that the Karuna Group did not exist at the time of the shootings.

19    The applicant claimed that he was in danger because he could identify the killer and was therefore a threat to the Karuna Group.

20    The delegate did not accept that the Karuna Group was responsible and the Tribunal upheld this finding. The Tribunal accepted that both Manoharaipillai and Chelyan were killed in “poll related violence” by either the SLMC or LTTE because of their political profiles.

21    The Tribunal accepted that it was possible the applicant’s uncle was the person referred to in the news article as Manoharan Pillai and that the applicant was present at his uncle’s house on the day of the shooting.

22    In a statement dated 27 May 2013, the applicant expanded on his earlier evidence and claimed that two days after the suspects were arrested for the shootings, a person telephoned the applicant’s home and said “I’m Ramana from Karuna. If you identify those who shot your uncle the same thing will happen to you.” The applicant also added that on 17 November 2003 someone from the Karuna Group tried to deliver a letter to his uncle’s family, which was given to his mother, who was living at his uncle’s home at that time. He claimed that his mother was beaten and that his uncle’s family were ordered to report to Karuna’s office. The applicant produced an untranslated letter dated 17 November 2003 with an LTTE logo at the Tribunal hearing for the first time and claimed that it had been kept by his mother and sent to him by his brother-in-law in Sri Lanka along with various other documents in support of his visa application. There was some question as to why the letter had not been mentioned previously, which the applicant claimed to be because of a disturbance at the time owing to the applicant having misread a medical letter sent to him by the department and consequently believing that he was HIV positive.

23    The Tribunal invited the applicant’s agent to provide a copy of the letter so that a translation could be arranged after the hearing however a copy of the letter was never provided.

24    The Tribunal ultimately did not accept that the applicant was at risk of persecution by the Karuna Group or any other paramilitary group as a result of witnessing the death of his uncle in 2000 and found that the applicant fabricated the letter in support of his claim.

Abduction and ransom in 2008

25    The applicant claimed he was kidnapped in 2008 while returning home from school. The applicant alleged that he was dragged into a van, threatened at gun point, beaten and detained for three nights until his mother paid a ransom to secure his release. He further claimed that he was able to recognise one of the kidnappers as the man who shot his uncle in 2000 and that the kidnappers were asking questions about his uncle’s son. He further claimed to know that the kidnappers were from the Karuna Group and considered him a threat because he was able to identify his uncle’s killer.

26    The Tribunal did not accept the evidence that the applicant was kidnapped in 2008 as claimed.

Arrest in 2009

27    The applicant claims to have been arrested by Sri Lankan police in 2009 after moving to Negombo because he failed to register his residency in the area and was released after his brother-in-law paid a bribe. The Tribunal noted that such an account was confirmed by country information which provided that police in Sri Lanka would arrest Tamils for failing to register residency in the immediate post-civil war period.

28    However, at the hearing before the Tribunal, the applicant claimed that the reason for his arrest was not related to his failure to register.

Other incidents from 2009 to 2012

29    The applicant further claimed that after his arrival in Australia people have beaten his mother and brother because he had gone to Australia and demanded that his mother pay money. He also claimed that his brother-in-law continued to pay bribes to the police on a monthly basis when he was in Sri Lanka but that after he had left the country his brother-in-law stopped paying and told the police that the applicant had gone to live in a village elsewhere.

30    The applicant said that the police asked his sister about him and told her they should not have released him. He provided the Tribunal with two letters in support of his application:

1.    a translated copy of a letter purported to be issued by the District Court of Negombo dated 25 March 2013 accusing the applicant of being connected to terrorist activities and requesting that he present himself at the Negombo police station on 30 March 2013.

2.    a translated copy and original copy of a letter purportedly issued by Thamil Makkal Viduthalai Pulikal (TMVP) (part of the Karuna Group) dated 16 May 2013 demanding that the applicant present himself at the TMVP office on 29 May 2013.

31    The Tribunal found the applicant’s evidence of a threat from the Karuna Group implausible, noting that country information provided that document fraud is prevalent in Sri Lanka and that there was no plausible explanation for why the Karuna Group would be threatened by the applicant when the witnessing of the shooting happened thirteen years ago and the killers were arrested and detained.

32    In his statement dated 22 August 2012, the applicant also claimed that he returned to his home village in April 2012 and two men attempted to abduct him. The Tribunal found the applicant’s account of events to be vague. The applicant claimed that he recognised one of the attempted kidnappers as one of the men involved in the shooting of his uncle. The Tribunal found the applicant’s account of events to be implausible and rejected the occurrence of the alleged incidents between 2009 and 2012.

FINDINGS OF THE REFUGEE REVIEW TRIBUNAL

33    The Tribunal accepted parts of the applicant’s account, including that:

    his father disappeared at the hands of the Sri Lankan authorities in 2000;

    his father was not an LTTE member;

    in September 2000 the applicant’s uncle was shot during poll related violence;

    he saw the face of one of the men he suspects killed his uncle and that other people witnessed the shooting;

    the killer was arrested and detained by Sri Lankan authorities;

    the applicant may have been arrested by the Sri Lankan police in Negombo for failing to register his residency and that his brother in law may have had to pay a bribe.

34    However, in summary, the Tribunal did not accept that:

    the Karuna Group was responsible for the shooting of the applicant’s uncle as the applicant’s account was vague, inconsistent and not supported by country information;

    the applicant’s family received threatening letters or telephone calls;

    he was abducted in 2008 or that an attempt was made to deduct him in 2012;

    his family were extorted by the police or members of the Karuna Group;

    the applicant would be imputed with a political opinion opposed to the government of Sri Lanka or be seen as a threat to the Karuna Group or the TMVP;

    the applicant has an adverse profile with state actors, paramilitary groups or any other groups which would attract an immediate attempt to harm or extort him if he were to return to Sri Lanka;

    there was a general risk of harm due to the applicant’s status as a young Tamil from the east of Sri Lanka;

    the applicant would face persecution by reason of the fact that he illegally departed Sri Lanka;

    the legal penalties that could be faced for departing Sri Lanka illegally amount to “serious harm” or persecution under the Refugee Convention.

35    Having rejected the applicant’s claims of recent threats of harm, the Tribunal went on to find that the applicant did not face a real chance of serious harm if he were to return to Sri Lanka and rejected the applicant’s claim to have a well-founded fear of persecution. The Tribunal therefore found that the applicant was not a person to whom Australia owes protection obligations under the Refugee Convention and did not satisfy the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

PROCEEDINGS IN FEDERAL CIRCUIT COURT

36    The applicant filed an application in the Federal Circuit Court on 24 September 2013, outside the 35 day period for bringing an application for review of the Tribunal’s decision. The applicant sough an extension of time accordingly.

37    The applicant’s substantive grounds of review were:

1.    The Decision Maker and the Refugee Review Tribunal ignored relevant considerations in making their decision:

-    The Refugee Review Tribunal incorrectly concluded that UNHCR Guidelines of December 2012 does not include those in the Applicant’s circumstances. Under Risk Profiles, the UNHCR Guidelines indicates that ‘all persons living in [northern and eastern provinces] … necessarily had contact with the LTTE and its civilian administration in their daily lives’. Although this itself is not sufficient to seek refugee status ‘depending on the individual circumstances of the case, [persons from this region are] likely to be in need of international refugee protection on account of their (perceived) political opinion’. The Refugee Review Tribunal did not adequately consider that:

a.    Although the Applicant’s father was not politically involved, he disappeared as he was suspected of being politically involved. A similar imputation can be placed on the Applicant given his relationship to his father.

b.    Applicant’s relative that he was living with was murdered due to his political involvement. It is not necessary that the Applicant himself was politically involved. His relationship to his ‘uncle’ is sufficient for an imputed political opinion.

c.    The Applicant has sought asylum elsewhere. Combined with his relationships to those who were imputed to be politically involved, his asylum claim could be used by the authorities as evidence of political involvement.

-    The Refugee Review Tribunal incorrectly concluded that the Applicant being a witness to his uncle’s murder is no longer relevant as there were other witnesses and because the incidence (sic) occurred a number of years ago. In reaching this conclusion the Tribunal failed to consider a number of factors:

a.    The leader of the Karuna Group that is suspected of killing his uncle now holds a senior position in the government albeit the number of human rights violations against him. Thus, the government is unlike (sic) to protect the Applicant as a witness.

b.    The leader of the Karuna Group faces significant opposition from the international organisations and government opposition demanding that he be tried for human rights violations. As such any witness to his alleged crimes, including the Applicant, would be in a precarious position. Although the Applicant’s uncle’s killers were allegedly identified and imprisoned, the persons higher up the chain of command has not been implicated. The alleged arrest of the killers may also be a fabrication to protect these persons.

c.    The Applicant may face death threats due to the Karuna Group’s perception of his knowledge of the killing regardless of actual knowledge,

-    The Refugee Review Tribunal failed to consider the ‘serious harms’ that may be faced by the Applicant upon return to Sri Lanka. The Tribunal conceded that the Applicant will likely be detained and questioned upon returning to Sri Lanka. However, the Tribunal failed to consider the prison system and techniques for interrogation used by authorities that amounts to torture, cruel and inhumane treatment. The Tribunal did not consider that the friend that assisted the Applicant to escape had also been killed since his departure.

-    The Refugee Review Tribunal undermined the Applicant’s credibility as a witness disregarding the fact that the Applicant did not speak English and was uneducated thus, posing difficulties for an educated interpreter of speaking the language of a different class group to translate accurately. For example, he lacked the capacity to explain that he believed that a friend who assisted to help him to escape the country was killed because of the assistance he provided to the Applicant.

-    The Refugee Review Tribunal refused to see certain documentary evidence that the Applicant wished the Tribunal to consider.

2.    Procedural fairness and apprehended bias

-    The Refugee Review Tribunal dismissed the documentary evidence provided by the Applicant for other reason than the country information stating that document forgery is common in Sri Lanka. There were no attempts to verify the authenticity of these particular documents.

-    The Refugee Review Tribunal formed an adverse view of the Applicant’s credibility based on certain inconsistencies that the Applicant was not provided with an opportunity to respond including:

a.    The reason that the Applicant believed that his uncle was murdered by the Karuna Group when the Group did not exist at that time.

b.    The reason the Applicant believed that he was HIV positive, which was in fact a misunderstanding as the Applicant did not have the necessary education or the background to understand his diagnosis.

c.    The Applicant was not given an adequate opportunity to explain why he still considered himself to be targeted by the Karuna Group.

d.    The Applicant was not given an opportunity to explain his lack of faith in the police given the corruption that is consistent with country information.

38    In an undated amended application, which appears to have been relied upon by the applicant at the hearing in the Federal Circuit Court and referred to in the reasons for decision, the applicant reduced the grounds of application to two relatively more concise points. These were:

1.    The Second Respondent failed to address the question of whether the Applicant had a well-founded fear of persecution; by virtue of the Second Respondent having not framed this question by reference to the applicable principles for determining whether a well-founded fear of persecution exists, but instead adopting principles incorporating reference to the Applicant’s father having been caught up in a general round up of Tamil men in Eastern Sri Lanka suspected of having links with the LTTE, rather than having been specifically targeted by authorities.

2.    The Second Respondent failed to address the question of whether the Applicant had a well-founded fear of persecution; by virtue of the Second Respondent having not framed this question by reference to the applicable principles for determining whether a well-founded fear of persecution exists, but instead adopting principles more narrowly confined to consideration of whether the Applicant fell into specific profile types identified by the UK Upper Tribunal (Immigration and Asylum-Seeker Chamber) Country Guidance Decision in GJ v Secretary of State for Home Department (Post-Civil War: Returnees) Sri Lanka GG [2013] UKUT 319 (IAC) dated 3rd July 2013.

39    In respect of ground 1 of the amended application, the primary judge found that the findings in relation to the disappearance of the applicant’s father were findings of fact by the Tribunal, and not an instance of the Tribunal applying any particular test. Further, it was held that the finding formed part of the factual foundation for applying the test of whether or not the applicant would suffer serious harm in the reasonably foreseeable future.

40    The Judge below similarly found that ground of appeal 2 was an attempt to categorise what was in effect fact-finding by the Tribunal as an error of law. The Judge concluded:

20.    Having rejected the Applicant’s claims to fear harm on the general basis that he was a young Tamil man from an eastern province (at paragraph 73, set out above), the Tribunal went on to consider the Upper Tribunal decision as another source of country information. This indicated that various categories of people may be at risk, and therefore addressed whether or not the Applicant fell within those categories.

21.    For the same reason that the Applicant cannot succeed on the first ground, I am of the view that the Applicant cannot succeed on the second ground.

41    His Honour went on to consider whether the Tribunal’s consideration of whether the applicant “would attract an immediate attempted harm or extortion” followed by the conclusion that “the tribunal does not accept there is a real chance the applicant will suffer harm in the reasonably foreseeable future…” led the tribunal to consider the incorrect test, despite this not being raised by the applicant. His Honour accepted that the decision read as a whole did not reveal any such error.

42    Having considered the substantive merits of the applicant’s case, his Honour concluded that an extension of time was not merited.

PROCEEDINGS IN THIS COURT

Application for an extension of time and leave to appeal

43    The application in this Court for an extension of time and leave to appeal listed two grounds of application:

1.    The appellant appeals against the decision of the Federal Circuit Court given on 23rd May 2014 at Melbourne

2.    The appellant contends that the learned judge and the Tribunal erred by framing the wrong questions without realising the nexus between the appellant’s father’s disappearance and the appellant’s fear of persecution which stems from his father’s perceived links with LTTE which resulted in his father’s presumed death at the hands of the Sri lankanauthorities (sic).

Notice of objection to competency

44    The respondents’ notice of objection to competency relies on the following grounds:

(a)    on 23 May 2014 Judge Riethmuller made a decision not to extend time under s 477(2) of the Migration Act 1958 (Cth) (“the Act”).

(b)    under s 476A(3)(a) of the Act an appeal may not be brought to the Federal Court from a decision of the Federal Circuit Court under s 477(2) of the Act; and as a result.

(c)    the Federal Court does not have jurisdiction in relation to the decision sought to be appealed.

CONSIDERATION

45    Section 476A of the Act provides:

476A    Limited jurisdiction of the Federal Court

…

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

(b)    a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

46    Section 477 of the Act provides:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit 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.

(3)    In this section:

date of the migration decision means:

(a)    in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975–the date of the written decision under that subsection; or

(b)    in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal–the date of the written statement under subsection 368(1) or 430(1); or

(c)    in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal–the date of the oral decision; or

(d)    in any other case–the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

47    The applicant’s application to the Federal Circuit Court sought, inter alia, that the time for making an application be extended under s 477 of the Act. In dismissing the application to extend time the primary judge stated:

… I have heard the substantive argument and I am not persuaded that he has an arguable case on the grounds that he has raised, nor on the issue related to paragraph 72. For these reasons there is no utility in granting an extension of time.

Should I be wrong with respect to the extension of time, I am nonetheless of the view that the Applicant has not shown grounds that would entitle him to relief on the basis of jurisdictional error and I would have dismissed his application in any event.

48    In Court yesterday the applicant appeared in person, while the Minister was represented by Counsel.

49    The applicant is an articulate young man, eloquent and genuine in his desire to remain in Australia. However at the end of the day this Court cannot make orders which it has no power to make.

50    I am satisfied that the decision of the Federal Circuit Court was a refusal to make an order under s 477(2) of the Act. As I explained in Singh v Minister for Immigration and Citizenship [2013] FCA 57 at [13]:

The operation of this section of the Act is unambiguous. The terms of s 476A(3)(a) were noted and accepted as unambiguous in BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30]; SZQYP v Hannigan [2012] FCA 723 at [9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7].

51    It is clear that, in this case, s 476A(3)(a) of the Act applies. There is therefore no jurisdiction to bring an appeal from the decision of the Federal Circuit Court and this Court.

52    The appropriate orders are to uphold the Minister’s objection to competency and dismiss the application with costs.

Associate:

Dated:    26 August 2014