FEDERAL COURT OF AUSTRALIA

MZZMQ v Minister for Immigration and Border Protection [2015] FCA 557

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    On 19 December 2014 the applicant applied for an extension of time to seek leave to appeal from a decision of the Federal Circuit Court published over 12 months earlier, based, in substance, on a point of law which was never raised in that court and which a Full Court of this Court has held in no fewer than three decisions this year is without merit. The application is made on the hypothesis that the High Court will likely decide in an appeal in an unrelated matter that the point is a good one.

Background

2    The applicant is an ethnic Tamil who claims to fear harm in Sri Lanka, his country of nationality. He applied to the Minister for Immigration and Border Protection for a protection visa but his application was refused by the Minister’s delegate. The Refugee Review Tribunal conducted a review of his application on the merits but affirmed the delegate’s decision. The applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

3    That application was listed for hearing at 9.30 am on 19 September 2013. The applicant did not appear when the matter was called on some 15 minutes later and the primary judge acceded to the Minister’s request that his Honour make orders dismissing the application for non-attendance and requiring the applicant to pay the Minister’s costs.

4    The applicant turned up at about 10:10 am and the court was reconvened. The primary judge treated him as having applied for the orders to be set aside under r 16.05 of the Federal Circuit Court Rules 2001 (Cth). After hearing from the applicant his Honour reserved his decision. On 8 November he dismissed the application with reasons.

The application in this Court

5    The primary judge’s decision was interlocutory: Federal Court of Australia Act 1976 (Cth), s 24(1A). This means that if the applicant wished to appeal it he needed leave. He had 14 days within which to file an application for leave: Federal Court Rules 2011 (Cth), r 35.13. He made no such application. Over a year later, however, on 19 December 2014, he applied for an extension of time to seek leave to appeal. On the day that application was listed for hearing before me, he requested an adjournment. The reason for the adjournment application was that the High Court has reserved its judgment in an appeal from the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) upon which his proposed appeal rests. The applicant’s position is that if the Minister’s appeal is unsuccessful, that will enhance his prospects of success in the appeal he wishes to bring.

6    The adjournment application was opposed but ultimately only faintly pressed, as the applicant acknowledged that, in order to consider whether it was in the interests of justice to grant his adjournment application, the Court would need to hear argument on his substantive application. In these circumstances he appeared to be content to have the Court hear the case but reserve its judgment until after the High Court published its decision. I indicated that I would decide whether that was appropriate after I heard the argument.

7    Having heard the argument, I am not persuaded that there is any utility in reserving judgment until after the High Court decision is known. To some extent, that is because the applicant’s explanation for the delay is barely acceptable. For the most part, however, it is because I am satisfied that there is an independent basis for the Tribunal’s decision, which is not the subject of the proposed appeal, so that the decision in the High Court appeal would not affect the outcome of the application in this case.

The relevant legislative provisions

8    Under the Migration Act 1958 (Cth) the Minister is required to grant a visa if the visa applicant satisfies certain criteria imposed by the Act and Regulations. Otherwise, the Minister must refuse to do so. See s 65. The Minister may delegate any of his powers under the Act: Migration Act, s 496.

9    The principal criteria for the grant of a protection visa are set out in s 36 of the Act. For present purposes it is sufficient to refer to the criterion in s 36(2)(a), commonly referred to as the refugee criterion. At the time the Tribunal made its decision, s 36(2) provided that a criterion for a protection visa is that the applicant for the visa is:

a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

10    The Refugees Convention is the abbreviated term for the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 289 UTS 150 (entered into force 22 April 1954) and the Refugees Protocol refers to the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UTS 267 (entered into force 4 October 1967). I will refer to them together as “the Convention”.

11    In effect, s 36(2)(a) incorporated into the Act as a criterion for the grant of a protection visa the terms of Art 1A(2) of the Convention: SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 at [51]. Put another way, one of the criteria for the grant of a protection visa is that the applicant be a refugee within the meaning of the Convention. Article 1A(2) defines a “refugee” for the purposes of the Convention as “any person who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of the country …”

12    At the relevant time, s 91R of the Migration Act excluded the application of Art 1A(2) “in relation to persecution for one or more of the reasons mentioned in the Article” unless:

(a)    the reason or reasons is or are the essential and significant reason or reasons;

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

(c)    the persecution involves systematic and discriminatory conduct.

13    Section 91R(2) provided a non-exhaustive definition of “serious harm” for the purposes of s 91R(1)(b). It stated:

(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.

(Original emphasis.)

14    It is paragraph 91R(2)(a) – “a threat to the person’s life or liberty” – which is relevant to the proposed appeal.

The applicant’s claim

15    The applicant claimed to fear harm from Sri Lankan authorities and from a Sinhalese moneylender, to whom his father was indebted.

16    The applicant claimed that in September 2009, after his father had been beaten up, he disappeared, and that thereafter the moneylender pursued his mother, threatening her that if the debt were not discharged in full the applicant would have to work to clear it. The applicant said that the moneylender has since come to the family home several times looking for him. He said his mother was scared the moneylender would harm him and advised him to stay away.

17    The applicant claimed that the suspicious disappearance of his father aroused the concern of the authorities and was being investigated by the Criminal Investigation Division (CID). He said that he was approached by CID officers twice in 2009 and 2011 and that he heard he will be the subject of further interrogations if he returns to Sri Lanka, no matter where in the country he may be.

18    The applicant said that he fled the country illegally and this, too, will put him at risk of harm if he were to return.

19    His claims were characterised by his representative and treated by the Tribunal as having a well-founded fear of persecution for the reasons of:

(a)    his ethnicity as a Tamil;

(b)    his actual/imputed political opinion as a perceived sympathiser/supporter of the LTTE (the Liberation Tigers of Tamil Eelam or Tamil Tigers) or someone perceived as holding views in opposition to the current Sri Lankan government; and

(c)    his membership of a particular social group of failed asylum seekers.

20    The Tribunal made a number of adverse credit and other findings which underscored its decision to reject the first two claims. For present purposes they are irrelevant. It is the third claim only which is relevant to the application. The material parts of the Tribunal’s decision appear in [55]-[60] of its decision:

55    I accept the applicant left Sri Lankan by boat and without a passport in breach of the Immigration & Emigration Act (I & E Act). I accept that if he returns to Sri Lanka he will be charged under the I & E Act for offences relating to his illegal departure. In my view, the provisions of the Sri Lankan I&E Act that deal with irregular departure from that country, are not expressed in terms that are discriminatory on their face or disclose a discriminatory intent. As I discussed with the applicant at the hearing, the I & E Act appears to be a law of general application and there is no information before me suggesting discriminatory enforcement of these laws or particularly harsh punishment of a particular cohort of returnees.

56.    I accept that, as a consequence of breaching the I & E Act the applicant will be detained on remand on a short period of time (in the vicinity of four days) before being released on bail. I have considered independent media reports that indicate that returnees from Australia have been remanded in detention in Negombo prison for four days before being released on bail. A Sri Lankan lawyer quoted by Doherty and Hall indicates that people in the applicant’s position are likely to face a fine of between 50, 000 to 100, 000 Sri Lankan rupees. Advice from DFAT in October 2012 also indicates people intercepted on people smuggling voyages are not given a custodial sentence but issued with a fine and Magistrates are able to use their own discretion in determining the amount of the fine (for example, DFAT reported that in Negombo the Magistrate has been handing out fines between 10, 00 to 100, 000 LKR to act as a deterrent).

57.    I consider that the weight of country information indicates that the ultimate punishment for a person such as the applicant who has breached the I & E Act by departing Sri Lanka illegally (by boat and without a passport), notwithstanding that the law itself expresses the punishment to be a prison sentence from 1 to 5 years and a fine of 50,000 to 200,000 Sri Lankan Rupees, is most likely to be a fine and not a custodial sentence. After considering all the information before me, I accept that it is likely the applicant will face a fine of between 50 000 and 100 000 Sri Lankan rupees. On the country information before me, I am not satisfied that there is a real chance that the applicant will be detained in the Sri Lanka prison system for a prolonged period of time.

58.    I am not satisfied that the information available reveals the law or processes regarding returnees who are considered to have departed Sri Lanka illegally to be anything other than laws of general application. There is no information before me suggesting discriminatory enforcement of these laws or particularly harsh punishment of a particular cohort of returnees.

59.     On the evidence before me, I am satisfied that any penalty or fine that the applicant may be given for illegally departing Sri Lanka, would be for a breach of a law of general application and would not operate in a discriminatory way for a Convention reason or be enforced selectively for a Convention reason. Further, having accepted that the applicant will be subject to a brief period of detention as a result of the application of law of general application, I am not satisfied on the evidence and information before me that, as a consequence of the imposition of penalties for illegal departure, the applicant will face serious harm as a consequence of having departed Sri Lanka illegally.

60.    I conclude that on the applicant’s return to Sri Lanka, even if he experienced short-term imprisonment on remand prior to applying for bail or a fine as a result of being charged and/or being found guilty under the I&E Act, this does not amount to persecution for a Convention reason because it is the result of enforcement of a generally applicable law. Based on the country information before me and my assessment of the applicant’s evidence, I do not accept there is a real chance he will be subjected to harsher punishment for a Convention reason or otherwise seriously harmed whilst detained on remand.

(Emphasis added.)

21    The emphasised passages indicate that the Tribunal considered that there was no real chance that the applicant would suffer serious harm within the meaning of s 91R(2) if he were taken into custody because there was no real chance that he would be detained for any prolonged period of time (perhaps four days). The Tribunal did not find that there was no real chance of imprisonment. Indeed, the Tribunal accepted that the appellant would be “subject to a brief period of detention”.

22    For completeness I would add that the Tribunal also considered whether or not the applicant met the complementary protection criterion contained in s 36(2)(aa) of the Act and found that he did not.

The application to the Federal Circuit Court

23    The application for judicial review filed in the Federal Circuit Court contained two grounds, pleading that the Tribunal’s decision:

a.    is affected by an error of law; and

b.    takes into account irrelevant considerations.

24    No particulars were given and no submissions filed. It seems that up until around the time the application was made to this Court, the applicant had not instructed a lawyer.

25    When the applicant appeared before the primary judge he was asked to identify the error of law referred to in the first ground and the irrelevant considerations raised by the second. According to the primary judge’s reasons, the error of law was that “the Tribunal had found that if he was returned home, there would be no problems and this was not true”. Again, according to the primary judge’s reasons, the applicant said that he was unaware of any irrelevant considerations. In these circumstances, it is scarcely surprising that his Honour dismissed the application. The error the applicant identified was not an error of law. If it was an error, it was an error in fact-finding which on no account could amount to a jurisdictional error, the only basis upon which the primary judge was able to grant relief: Migration Act 1958 (Cth), s 474; Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476.

26    The primary judge considered the applicant’s explanation for his late arrival in court and appears to have accepted it, albeit with some reservations. His Honour then turned to consider the substantive application. He noted that the Tribunal’s reasons were “essentially entirely against the applicant”, that all possible bases on which the applicant’s case might be put were considered, that the Tribunal’s findings were made in part in the light of country information, and that the Tribunal had made “serious adverse credit findings against the applicant”. He said that on a fair reading of the Tribunal’s reasons he could discern no error which would give rise to a likely successful application for judicial review and the supposed error of law amounted in essence to an assertion that the Tribunal reached the wrong conclusion. His Honour continued:

Findings of fact and conclusions of this sort are quintessentially matters for the Tribunal and while it is understandable that the applicant does not like the decision, this does not mean that it gives rise to jurisdictional error. In the light of the apparent weakness of the applicant’s case and the articulation of any grounds that might give rise to any likelihood of success I decline to exercise my discretion to set aside the judgment and orders made. Accordingly, the oral application will be dismissed.

The application to this Court

27    The sole ground upon which the applicant seeks an extension of time to seek leave to appeal is that his application to the Federal Circuit Court and the primary judge’s decision pre-dated the decision of this Court in WZAPN in which North J held that, in contrast to the other paragraphs of s 91R(2) of the Act, the threat to a person’s life or liberty with which subpara (a) of the Act was concerned did not call for any qualitative assessment, so that a threat to deprive a person of his or her liberty, no matter how transitory or inconsequential the deprivation of liberty might be, will suffice for that purpose.

28    Filed with the application was a draft notice of appeal. It contained one ground:

His Honour erred in failing to discern legal error in circumstances where the second respondent applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.

Particulars

By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of His Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].

29    The affidavit supporting the application was affirmed, not by the applicant, but by his solicitor, Thomas McLoughlin, on the applicant’s behalf. It was not read.

30    On the eve of the hearing, the applicant filed another affidavit. This affidavit was affirmed by Ian Rintoul, a community worker and refugee advocate, who described himself as the applicant’s agent, although he did not purport to be a registered migration agent.

31    Most of this affidavit was inadmissible, replete as it was with both unsourced and therefore inadmissible first- and second-hand hearsay (see Evidence Act 1995 (Cth), s 75) and opinion which offended the opinion rule in s 76 of the Evidence Act and which did not fall within any of the exceptions. Although I invited the applicant’s counsel, Mr Bodisco, to call Mr Rintoul, as he was present in court, he declined to do so and did not press most of the affidavit. What remained were the following paragraphs:

2.    My occupation is community worker / refugee advocate. I have worked full time in this role for 16 years mainly with a group called Refugee Action Coalition based in Sydney with contacts throughout Australia. This work involves close liaison with refugee and asylum seekers and their supporters here and in other cities around Australia, including visiting detainees and advocating for them to government and the Australian community in various media.

3.    I first became aware of the [applicant] about 4 December 2014 through a Tamil speaking community worked called Arasa Kanthan who is in his mid 50ies and a trusted refugee advocate based in Melbourne.

5.    …

    (k)    I reviewed the RRT Decision in December 2014 and contacted barrister Shane Prince in Sydney as co-convenor for Labor for Refugees, and expert in refugee law, for advice as to whether there was a legal basis for [the applicant] seeking an appeal to the Federal Court of Australia;

    (l)    Shane Prince referred me to solicitor Thomas McLoughlin and counsel Paul Bodisco who are known by me to act pro bono in refugee matters in Sydney;

    …

    (n)    I gave instruction to solicitor Thomas McLoughlin for [the applicant] in late December 2014 to file an appeal for [the applicant] in this FCA Case pursuant to the ground of appeal raised by North J in the WZAPN Decision; and

    (o)    I understand that the appeal was filed a short time later.

32    The parties also agreed on the following facts:

1.    The applicant speaks very limited English and communicates in the Tamil language.

2.    The applicant has no family and few supports he can turn to for help in obtaining advice.

3.    The applicant had a registered migration agent during his RRT hearing in January 2013 through the government sponsored IAAAS scheme but that stopped after the hearing that January.

4.    The applicant has been held by the Department of Immigration & Border in Melbourne and most recently Perth since November 2014.

The principles applying to an application for extension of time for leave to appeal

33    In Grabovsky v Secretary, Department of Social Services [2015] FCA 244 at [21]-[23], I summarised the principles that apply to an application for extension of time. While the context is different, the principles are not. It is convenient to reproduce that summary here:

21    A discretion to extend time is conferred on a court in order to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. The Court’s discretion to grant an extension of time to file a notice of appeal is very broad. There are no conditions upon its exercise contained in the Rules but, as with any power of the Court, the power to order whether or not an extension of time should be granted must be exercised in the way which best promotes the overarching purpose of its civil procedure provisions, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see Federal Court of Australia Act 1976 (Cth) (“FCA Act”), subs 37M(1) and (3). That purpose includes a number of objectives set out in s 37M(2) of the Act. As Mortimer J explained in Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [26]:

To extend time in an appeal which has no realistic prospects is to involve the court and the parties, and many public resources, in a process which is not quick, inexpensive or efficient. Unless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow matter, not commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success.

22    There are also a number of considerations developed by the case law which guide the exercise of any discretion to extend time to appeal or review a decision. They were summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9…

23    On the question of the merits, it is inappropriate to carry out a detailed analysis, although an obvious weakness in the applicant’s case tells against the exercise of the discretion: see ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111] and the authorities referred to there.

34    The matters guiding the exercise of the discretion to extend time to appeal to which Wilcox J referred in Hunter Valley Developments Pty Ltd v Cohen include the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. The extent of the delay is also a relevant consideration.

35    In general, leave to appeal will not be granted unless the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal and substantial injustice would result if leave were refused, supposing the decision below to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

The application for extension of time

36    It is not suggested that the Minister is prejudiced by the delay. The real problem, as I indicated earlier, relates to the merits of the proposed appeal, to which I will come shortly. But it is not the applicant’s only problem.

37    First, the delay is lengthy. And this not a case where the time limit has been missed through oversight.

38    Second, the applicant’s explanation is unsatisfactory. He, himself, has chosen to remain silent. His case depends entirely on the limited evidence given by Mr Rintoul and the agreed facts.

39    There is no evidence about when the applicant became aware of the primary judge’s decision and what he did at that time. I accept, of course, that he speaks very limited English, has no family and few supports to whom he could have turned for help. But there is no evidence about what approaches, if any, he made to those few supports. It is not an explanation that he is currently in immigration detention, because he was not detained until a year after the decision was published. Indeed, it was only after he was taken into detention that he received legal advice and, then, only because the lawyers found him, not because he sought them out.

40    Nevertheless, until the publication of the judgment in WZAPN, there would have been no apparent reason why he might have thought he had any prospect of overturning the decision of the primary judge. For this reason the delay until 3 September 2014 may be put to one side. It is, in effect, explained. But the three-month delay between then and 4 December 2014 when Mr Rintoul became involved is entirely unexplained. While I would not regard it as fatal to the application, this is a circumstance which weighs against the making of the order.

The applicant’s argument

41    The applicant’s written submissions were directed only to his foreshadowed adjournment application. The oral argument was based on North J’s reasoning in WZAPN and ignored three Full Court judgments published on 24 March 2015: SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 (“SZTEQ”), SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 (“SZTIB”) and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 (“BZAFM”).

42    As Mr Bodisco conceded, the argument the applicant wishes to put if his application is granted is substantially the same as the argument which was put and rejected in those three judgments.

43    In SZTEQ at [46], SZTIB at [44] and BZAFM at [41] the Full Court (Robertson, Griffiths and Mortimer JJ) said:

In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

44    Mr Bodisco declined the Court’s invitation to point to any error in their Honours’ reasons. Rather, he submitted that there were conflicting Full Court decisions and this was a matter which weighed in his favour on his application.

45    Two points should be made here. First, it is disingenuous to categorise the decision of North J on the one hand and those of the three Full Courts on the other as conflicting Full Court decisions. In the three judgments published in March this year, the Full Court held that WZAPN was wrongly decided. Secondly, in the absence of any argument to suggest that the Full Court might have erred, I am unable to discern any basis upon which it could be said that the applicant would have an arguable case on appeal.

46    In any event, I am not persuaded that, if the Minister’s appeal in WZAPN is dismissed and the High Court were to uphold North J’s interpretation of s 91R(2)(a), it would make any material difference in this case. That is because, even if the period of detention the Tribunal considered the applicant would face on his return to Sri Lanka amounted to serious harm for the purpose of s 91R(1)(b), the Tribunal would still have affirmed the delegate’s decision, for the requirements in s 91R are cumulative and the Tribunal was not satisfied that the persecution the applicant feared involved discriminatory conduct as required by s 91R(1)(c). That conclusion necessarily follows from the Tribunal’s findings at [55]-[60] (extracted above at [20]) and also from the paragraphs of the Tribunal’s reasons that followed. It is most clearly evident from the Tribunal’s statement at [60] to the effect that short-term imprisonment on remand (or a fine) would not amount to persecution for a Convention reason “because it is the result of enforcement of a generally applicable law”. Earlier, at [58] the Tribunal referred to the absence of information to suggest the discriminatory enforcement of the laws.

47    Mr Bodisco submitted, however, that there was an “intermingling of the issues” – in effect, that the Tribunal had allowed the question of whether the persecution might involve serious harm to intrude into its consideration of whether the persecution also involves systematic and discriminatory conduct. This submission was based on the Tribunal’s statement at [58] that “[t]here is no information before me suggesting discriminatory enforcement of these laws or particularly harsh punishment of a particular cohort of returnees”.

48    I am not persuaded that the Tribunal’s view of what may constitute serious harm affected its conclusion that the persecution the applicant feared did not involve discriminatory conduct. To reach that conclusion it would be necessary, at the very least, to engage in the kind of analysis forbidden by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that is to say, to scrutinise the reasons of an administrative decision-maker in order “to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. On an application for judicial review, “looseness of language” or “unhappy phrasing” are not matters for concern.

49    Mr Bodisco also submitted that “the Tribunal misdirected itself on whether the different treatment involved offends the standards of civil societies which seek to meet the calls of common humanity”. This contention picked up on what Gleeson CJ, Gaudron, Gummow and Hayne JJ said in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 (“Chen”) at [29]:

Whether the different treatment of different individuals or groups is appropriate or adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.

50    North J referred to this test in WZAPN at [48] in the context of some obiter remarks about High Court authorities which hold that conduct undertaken pursuant to a law of general application do not amount to persecution if the law is “appropriate and adapted to achieving some legitimate object of the country concerned”: see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [43] (Gleeson CJ, Gummow and Kirby JJ) and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 (McHugh J).

51    The Tribunal’s conclusion that the punishment the applicant would face on his return to Sri Lanka would result from a law of general application necessarily involves the consequence that the punishment would not be discriminatory and so would not constitute persecution: Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 (heard together with Minister for Immigration and Multicultural Affairs v Yusuf) at [55] (Gaudron J), at [97] (McHugh, Gummow and Hayne JJ). In Applicant S Gleeson CJ, Gummow and Kirby JJ accepted that a law of general application can result in discriminatory treatment, for example, because of the way it is implemented or enforced. Here, however, the Tribunal did not find that the relevant law would or could result in discriminatory treatment, whether by reason of its implementation or enforcement or in some other way. More importantly, perhaps, save for the submission that the Tribunal’s consideration of “serious harm” infected it, the applicant did not challenge the Tribunal’s finding that the punishment the applicant would face on his return to Sri Lanka would result from a law of general application (for example, on the basis that the Tribunal failed to consider whether the treatment in question is “appropriate and adapted to achieving some legitimate object of [Sri Lanka]”: see Applicant S at [43] per Gaudron J). It is true that Mr Bodisco did seem to be getting close when he picked up some of the language in Chen. It was not entirely clear, however, what his point was. But even if this were the purport of the submissions, albeit that they fell short, the proposed ground of appeal does not raise this as an issue.

Conclusion

52    For these reasons, notwithstanding the pending appeal in WZAPN, the application for an extension of time to seek leave to appeal the decision of the Federal Circuit Court should be dismissed. The applicant should pay the Minister’s costs.

Associate:

Dated:    5 June 2015