FEDERAL COURT OF AUSTRALIA

AZAEK v Minister for Immigration and Border Protection [2014] FCA 1415

THE COURT ORDERS THAT:

The Applicant’s application for an extension of time in which to appeal against the decision of the Federal Circuit Court on 9 May 2014 is refused.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court (the FCC) refused the applicant’s application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal (RTT) made on 15 November 2013: AZAEK v Minister for Immigration and Border Protection [2014] FCCA 1746. The applicant now seeks an extension of time in which to appeal against the decision of the FCC.

2    The FCC delivered an ex tempore judgement on 9 May 2014. Any appeal against that decision should have been commenced within 21 days: r 36.03 of the Federal Court Rules 2011 (Cth). The applicant filed his application for an extension of time on 4 August 2014, some 65 days after the expiry of the 21 day period.

3    The applicant was unrepresented on the present application as he was in the proceedings in the FCC.

4    The applicant is a citizen of Sri Lanka who arrived on Christmas Island on 21 May 2012 as an unauthorised maritime arrival. On 14 September 2012, he lodged an application for a Protection Visa. His claim for protection was based in part upon his being Tamil, in part on his fear that he would be treated like his father who had been subject to torture and ill treatment by members of the Sri Lankan Army (SLA) because of their belief that he was a supporter or sympathiser of the Liberation Tigers of Tamil Eelam (LTTE) and, in part, on the circumstance that, if his application was refused he would then be a member of a particular social group, namely failed Tamil asylum seekers.

5    The applicant referred to the ill treatment his father had suffered at the hands of members of the SLA in August 2007 and December 2007 and to the attempts which members of the SLA had made to locate his father in mid-2011 and again between September 2011 and February 2012. He also referred to another incident after he left Sri Lanka in May 2012 in which again his father had been physically beaten and enquiries had been made about his (the applicant’s) whereabouts. The applicant said that he feared being detained, tortured, abused or killed by reason of being a young male Tamil and by reason of the political opinions which are imputed to him by virtue of the perceptions of his father’s beliefs.

6    On 7 January 2013, a delegate of the Minister refused the grant of a visa and, on 15 November 2013, that decision was affirmed by the RRT.

7    The RRT accepted the applicant’s evidence that his father had been questioned and beaten on two occasions in 2007 by members of the SLA. It accepted that, on the second occasion, the applicant’s father had been taken away, questioned, tortured and both his legs damaged. The RRT found that these incidents had occurred at a time of intense activity between the LLTE and the Sri Lankan forces. It also considered, however, that the applicant had embellished his account of these events in an effort to indicate that his father was of greater interest to the authorities than was actually the case.

8    The RRT concluded (on the applicant’s own evidence) that his father had not been the subject of any further attention by the Sri Lankan forces for the four years after 2007, by which time the LTTE had been defeated, some of its members held in detention centres and some rehabilitated. It accepted that the applicant’s father had been questioned again in 2012 but considered that this was of an unexceptional and routine kind. The RRT found that the applicant himself had never been of concern to the SLA or to any other authority and concluded:

At no time, by his own account, has the applicant ever been of concern either because of his membership of a group of young Tamil males, any perceived political opinion or for reasons of association with his father.

On that basis, the RRT found that the applicant did not face a real chance of harm by reason of his Tamil ethnicity, his relationship with his father, or because of his membership of a particular social group, namely, young Tamil males.

9    A decision to grant an extension of time to appeal involves a discretionary judgment. The matters bearing on the exercise of that discretion are well established. They include the length of the extension of time which is sought, the explanation for the appeal not having been commenced in time, any prejudice to the respondent which would be occasioned by the grant of the extension, the prejudice to the applicant if the extension is refused, the apparent merits of the proposed appeal and any other relevant matter, such as other action taken by the applicant in the period of the delay.

10    The period of the extension sought by the applicant (some 65 days) is significant but not substantial. The applicant provides two reasons for not filing an appeal within the stipulated 21 day period: first, his lack of awareness of the 21 day limitation period, and secondly, the additional difficulties occasioned by his being resident in a country town (Bordertown). In his oral submissions he said that the distance from Adelaide made it difficult for him to get access to appropriate advice regarding the remedies available to him. In addition, it is pertinent to an understanding of the applicant’s delay to note that he has only limited English (he made his submissions on the present application with the assistance of an interpreter). The Minister does not allege any prejudice resulting from the lapse of time and the RRT has filed a submitting appearance.

11    There are some shortcomings in the applicant’s explanation of the circumstances, including the fact that he does not explain when and how he first became aware of the ability to appeal to this Court, nor the action, if any, which he took between the ex tempore judgment of the FCC on 9 May 2014 and lodging his application in the Court on 4 August 2014. Nevertheless, the matters I have mentioned may point in favour of the grant of an extension if it appears that the applicant would otherwise be denied the opportunity to pursue reasonably arguable grounds of appeal. That is especially so having regard to the consequences for the applicant if he is not able to pursue an arguable claim for judicial review.

12    This makes the merit of the proposed appeal the prominent matter to be considered on the application. Most of the submissions made on the Minister’s behalf were directed to this issue.

13    The grounds of the applicant’s application under s 476 to the FCC were as follows:

1.    That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

2.    More details will be provided by the legal representative.

However, the applicant was not represented in the FCC and no further grounds were provided. The FCC Judge noted that, in those circumstances, it was for that Court to examine the matter generally with a view to identifying any arguably available ground for judicial review. The Judge said that he had made such an examination. He concluded that there was no jurisdictional error and accordingly dismissed the application.

14    The application for the extension of time does not identify any ground of judicial review. In his supporting affidavit, the applicant says (relevantly):

9.    I rely on [the] facts and grounds of review stated in my draft Notice of Appeal.

10.    I still fear persecution in my home country and I do not want [to] lose this appeal right given by law.

11.    I seek justice and mercy. I want an opportunity to make oral submissions. I offer my apologies as I could not lodge my appeal within the time as my circumstance were beyond my control.

15    The proposed Notice of Appeal contains the following ground:

The RRT did not consider my potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm. The RRT has accepted that I will be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(a). Therefore, the RRT did not exercise its jurisdiction.

16    Prima facie this seems to be a complaint that the RRT did not consider the applicant’s claim for complementary protection. Understood in that way, the reference to s 36(2)(a) should in fact be a reference to s 36(2)(aa) of the Migration Act. Counsel for the Minister submitted that this is how the ground should be understood.

17    However, it is also possible to understand the formulated ground as intending to raise two distinct grounds: a failure by the RRT to consider the claim for complementary protection (s 36(2)(aa)) and a failure by the RRT to apply the correct test in relation to his claim for protection under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively the Refugee Convention). A complaint of that kind would invoke s 36(2)(a), so that the applicant has given the correct statutory reference.

18    Given the uncertainty and the fact that the applicant was self-represented, it is appropriate to consider both alternatives.

The claim for protection under the Refugees Convention

19    In relation to the claim to protection under the Refugee Convention, the applicant’s written submission said:

The RRT has not considered one of the integral aspects of my Convention claim for a protection visa …The RRT accepted Tamils like me were at risk of persecution due to my ethnicity in the past but not now. There is evidence before the RRT to accept that Tamils like me are still at risk and (sic) discrimination in Sri Lanka.

Neither this written submission, nor the applicant’s oral submissions particularised any failure by the RRT to apply the correct test under s 36(2)(a). Further, a review of the RRT’s reasons does not support that claim. The RRT member identified, correctly, the four key elements of the Refugee Convention definition of a “refugee”. The member also referred, appropriately, to s 91R of the Migration Act and to the definition of “serious harm” contained in that section. I will refer again to s 91R shortly. After reviewing the evidence, the RRT concluded:

[79]    The Tribunal does not accept that the applicant’s profile places him in any of these categories of risk. … The Tribunal finds he was not of concern to the authorities prior to his departure and finds the only interest in the applicant on return would be to identify him and ensure he is of no security risk and the Tribunal … finds that the applicant’s profile is not enhanced because of his relationship to his father.

[80]    The Tribunal finds that any chance of serious harm facing the applicant either because of his own profile or as a consequence of his links with his father is both remote and insubstantial.

20    The RRT then considered separately the claim that the applicant faced a risk of persecution because, on return, he would be a failed asylum seeker and because he had left Sri Lanka illegally. As will be seen, the RRT considered that any detriment which the applicant might face for these reasons did not constitute serious harm or persecution.

21    I have reviewed the RRT’s approach to these determinations. I have not been able to identify a basis upon which it could be said that it did not apply the correct test.

22    Counsel for the Minister drew attention, quite fairly, to the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. In relation to a claim for a Protection Visa under s 36(2)(a) of the Migration Act, North J held that s 91R(2)(a) of the Act does not contemplate a qualitative assessment of an identified threat to an applicant’s life or liberty. North J then concluded at [45]:

[45]    By making 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.

23    Counsel noted that the finding of the RRT in the present case in relation to the applicant’s claim for protection under s 36(2)(a) arguably contained the same error identified in WZAPN, namely:

[88]    The Tribunal finds the applicant would be interviewed and released within a matter of several hours and, at worst, he may face detention for two or three days while these checks are undertaken and before he can appear before a Magistrate. While this would cause him some embarrassment and inconvenience and discomfort, the Tribunal does not find it is at a level, having considered section 91R of the Act, to constitute serious harm or persecution. Neither is the Tribunal satisfied that the treatment is disproportionate, rather, that it is consistently applied to all illegal departees.

[89]    The fine imposed, and the process taken is a consequence of a law of general application and, without more, does not amount to persecution or come within the ambit of the Convention.

24    Counsel for the Minister submitted that the decision in WZAPN is wrong and should not be followed. However, he did not develop that submission. Instead, Counsel submitted that WZAPN should, in any event, be distinguished. He drew attention to the terms of s 91R:

91R    Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person's life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person's capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

…

25    Counsel noted that subs (1) refers to the reasons mentioned in the Article 1A(2) of the Refugee Convention, that is, a well-founded fear of being persecuted for reasons of “race, religion, nationality, membership of a particular social group or political opinion”. He submitted that the detriment to which the RRT had referred in [88] and [89] would not be a detriment imposed for a Convention reason. Instead, it is the detriment imposed on all illegal departees from Sri Lanka and, as found by the RRT, “a consequence of a law of general application”. This distinguishes the case from WZAPN.

26    Counsel referred in this respect to SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183. That case involved circumstances which are analogous to the present. Robertson J considered that WZAPN should be distinguished because of the RRT finding that any harm the applicant would suffer was not Convention related harm and was not systematic and discriminatory conduct within the meaning of s 91R.

27    In my opinion, Counsel’s submission concerning the decision in WZAPN should be accepted. WZAPN is distinguishable from the present case for the reason which Counsel gave and which was applied by Robertson J in SZSXY. Accordingly it does not provide a basis for a reasonably arguable ground of appeal to this Court.

The claim for complementary protection

28    Section 36(2)(aa) of the Migration Act provides:

A criterion for a protection visa is that the applicant for the visa is:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

As can be seen, under subpara (aa) Australia has protection obligations to persons in respect of whom the Minister believes on reasonable grounds that there is a real risk of them suffering “significant harm” as a necessary and foreseeable consequence of being removed from Australia to a receiving country. The concept of significant harm is elaborated in s 36(2A):

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

29    The applicant’s complaint that the RRT failed to consider his claim for complementary protection does not have a reasonable foundation. The RRT referred specifically to the complementary protection provision in paras [15] and [16] of its reasons, including by summarising the definition of “significant harm”. Later, in paras [94]-[107], the RRT considered the application of this criterion in the applicant’s case. The RRT noted that the applicant’s departure from Sri Lanka other than through an official port of entry/exit and without a passport was a contravention of the Immigrants and Emigrants Act of Sri Lanka. It accepted that this made it likely that, on his return, he would be arrested, questioned and detained for perhaps for two or three days while identity checks were made. The RRT found that this would cause the applicant some embarrassment, inconvenience and discomfort but not such as to constitute “significant harm” as defined in s 36(2A). It considered that the applicant was not otherwise at risk of suffering significant harm if returned to Sri Lanka. In relation to that risk, the RRT concluded:

[103]    For the same reasons as discussed above the Tribunal does not accept that he faces a real risk of harm beyond that of being detained for any period more than two or three days while waiting to appear before a magistrate for illegal departure and, while it accepts that this would be of inconvenience and disturbing to him, the Tribunal does not accept that this is of such a level as to be degrading to the extent of causing significant harm.

[104]    The RRT accepts that Sri Lanka does have serious human rights issues but does not accept that the applicant faces torture, prolonged detention, degrading treatment or any other treatment amount to significant harm. Accordingly there is no real risk of significant harm to the applicant.

[105]    The Tribunal has considered his claims individually and cumulatively and is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Sri Lanka, that there is a real risk that he will suffer significant harm.

30    In these circumstances, the applicant’s contention that the RRT did not consider his claim for complementary protection does not have reasonable prospects of success.

31    Any claim that the RRT did not apply the correct test in relation to s 36(2)(aa) was not articulated in the applicant’s submissions and no error of that kind has been identified.

Conclusion

32    Given that the applicant is unrepresented, I have reviewed the RRT’s reasons more generally. I have not identified any other reasonable arguable basis on which it could be said that the RRT’s decision is affected by jurisdictional error.

33    The applicant made a number of submissions to the effect that the RRT’s conclusion was wrong as a matter of fact and experience, but these submissions went to the merits of the RRT decision rather than to judicial review of it. As I explained to the applicant during the hearing, it was not the function of the FCC, and it is not the function of this Court, to review the decision of the RRT on its merits.

34    In summary, the applicant does not establish that his proposed appeal has any reasonably arguable grounds. This means that he does not establish a proper basis for the grant of an extension of time.

35    The application for the extension of time must be refused.

Associate:

Dated:    22 December 2014