FEDERAL COURT OF AUSTRALIA

MZZLL v Minister for Immigration and Border Protection [2015] FCA 1367

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant is a 36-year-old Sri Lankan citizen of Tamil ethnicity and Christian faith. He arrived in Australia by boat to Christmas Island, without a visa, on 17 May 2012. He applies for an extension of time within which to file a notice of appeal against a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) which refused to grant him a Protection (Class XA) visa (“protection visa”).

The procedural background

2    On 6 August 2012 the applicant applied for a protection visa. He claimed that he had a well-founded fear of persecution in Sri Lanka and that Australia owed him protection obligations under the 1951 Convention Relating to the Status of Refugees (“the Convention”) and complementary protection obligations, pursuant to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (“the Act”).

3    On 10 September 2012 a delegate of the first respondent, the Minister for Immigration and Border Protection (“Minister”), refused to grant him a protection visa. On 10 October 2012 the applicant applied to the Tribunal to review the delegate’s decision, but on 29 April 2013 the Tribunal affirmed the decision. On 28 May 2013 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The Court dismissed the application on 10 December 2014 (MZZLL v Minister for Immigration & Border Protection & Anor [2014] FCCA 2958).

4    The applicant did not appeal to this Court at that point. Instead he requested the Minister to intervene pursuant to s 417 and 48B of the Act. Under those provisions the Minister (or any Minister appointed as a portfolio minister under s 64 of the Constitution) has a discretionary, non-compellable power to substitute a decision of the Tribunal with a more favourable decision, if doing so is in the public interest. The Assistant Minister for Immigration and Border Protection was so appointed and by letter dated 21 August 2015 the applicant was notified that the Assistant Minister had refused to intervene in his case.

5    On 7 September 2015, his request for Ministerial intervention having been unsuccessful, the applicant filed the application for an extension of time within which to file a Notice of Appeal. Under r 36.05 of the Federal Court Rules 2011 (“the Rules”) the applicant had 21 days from the decision of the Federal Circuit Court to file a Notice of Appeal and his application to do so was more than eight months out of time.

6    For the reasons I set out below I have refused the application for an extension of time, essentially because the appeal lacks merit.

The APPLICATION FOR EXTENSION OF TIME

The principles

7    As I said in MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [23]-[24] the relevant considerations in an application for extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) at 348-9; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (Murphy J) at [18]; Singh v Minister for Immigration and Border Protection [2015] FCA 483 (Kenny J) at [20]. The factors set out in those authorities are not exhaustive and the outcome of an application to extend time depends on the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J; Edmonds J agreeing).

8    The merits of the proposed appeal are central. I respectfully agree with Jessup J’s observation (with whom Gyles and Besanko JJ agreed) in Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 (“Vu”) at [14], where his Honour said:

…it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time.

9    The salient considerations in the present case are whether there is:

(a)    an acceptable explanation for the delay;

(b)    undue prejudice to the respondent arising from a grant of extension of time; and

(c)    sufficient merit in the proposed appeal to justify an extension of time.

I now deal with these three factors.

Is there an acceptable explanation for the delay?

10    In an affidavit sworn 3 September 2015 the applicant sought to explain his delay in commencing the appeal by reference to his request for Ministerial intervention. The gist of his contention is that he delayed filing an appeal pending the outcome of his request for Ministerial intervention.

11    The Minister submitted that the request for Ministerial intervention was not a satisfactory explanation of the delay and cited Vu at [29]-[30]. In that case Jessup J (with Gyles and Besanko JJ agreeing) said:

I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time.  Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.

This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors.  The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits.  Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I would draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time. 

12    The same can be said in the present case. The applicant submitted, and I accept, that he could not find a lawyer to act for him but he did not suggest that he was unaware of the right of appeal to this Court. The fact that he appreciated that Ministerial intervention was available suggests that it is likely that he appreciated that he had a right of appeal.

13    Having said this, the Court in Vu did not suggest that a request for Ministerial intervention can never be an acceptable explanation for delay in filing an appeal, and the applicant in that case had the benefit of legal representation. In the desperate circumstances in which protection visa applicants often find themselves, they can be expected to try all available avenues to escape persecution. In my view it would be wrong to treat the applicant’s request for Ministerial intervention as meaning that he is time barred from mounting an appeal if the request is unsuccessful. I accept that the better course for the applicant would have been to file a Notice of Appeal and seek to stay the appeal pending resolution of his request for Ministerial intervention, but the applicant did not have the benefit of legal advice.

14    Whether delay occasioned by an application for Ministerial intervention amounts to an adequate explanation will depend on the circumstances of the case. In the circumstances of the present case I give little weight to this factor.

Would there be undue prejudice to the respondent arising from a grant of extension of time?

15    The Minister submitted that the only prejudice lay in the requirement for him to dedicate resources to respond to an appeal to this Court that has no realistic prospects of success. In my view, aside from the question of merit, there is no prejudice to the Minister arising from the applicants delay in filing the proposed appeal.

Is there sufficient merit in the proposed appeal to justify an extension of time?

The Tribunal decision

16    Before the Tribunal the applicant was represented by a migration agent and assisted by an interpreter. His claims may be summarised as follows:

(a)    he moved to the town of Negombo with his wife and two young sons and worked as a waiter in a hotel restaurant from 1996 until he left Sri Lanka in 2012;

(b)    he also operated a food stall on the street from 2010 until April 2012 so that he could earn more money, but all of his money went on rent, food and other expenses of daily living;

(c)    Tamils were a minority in Negombo and he was often racially abused by Sinhalese customers at the hotel where he worked. There was one particular incident when a Sinhalese customer demanded to be served before the Tamil customers who had arrived there earlier. The Sinhalese customer slapped him (“the slapping incident”). He felt he could not talk back to him or respond for fear of retaliation and there was no point in complaining to the police about the incident because if he did he would possibly be beaten by them;

(d)    the Sri Lankan authorities came to the hotel where he worked approximately every six months in order to check his identification papers and registration for living in that area;

(e)    on one occasion in 1999, about three years after he moved to Negombo, he was taken to the police station to undertake further checks and kept overnight, although he was not mistreated. He believed that he was taken to the police station because he was a Tamil from the East of Sri Lanka;

(f)    in February 2012 several officers from the Criminal Investigation Department (“CID”) harassed the applicant for money but he told them that he had none and they let him go. About three weeks later the men returned and threatened to kidnap him if he did not pay them some money;

(g)    he left Sri Lanka in 2012 because he was afraid the CID officers would kill him. The CID subsequently visited his home looking for him which prompted his wife and children to move to live with her mother in Trincomalee;

(h)    because he left town without giving the CID the money they asked for, he fears being killed by the CID if he is returned to Sri Lanka;

(i)    he faces a real chance of persecution by the CID and the Sri Lankan authorities because he is a Tamil from a Tamil-dominated region, that he will be imputed with anti-government political opinion, and that there is systematic discrimination against Tamils in Sri Lanka that is officially tolerated and condoned.

He claims a well-founded fear of persecution if returned to Sri Lanka such that Australia owes him protection obligations under the Convention and also that he faces a real risk of significant harm such that he is entitled to complementary protection.

17    In summary, the Tribunal accepted that:

(a)    the Sri Lankan authorities’ practice of checking identification and registration might only have been directed at Tamils and not Sinhalese, but did not consider that that practice constituted serious harm warranting protection under the Convention or significant harm under the complementary protection provisions of the Act (at [14]);

(b)    the applicant was detained overnight by the police in 1999 and released the following day. However, noting that this happened only once and was not repeated and that the applicant did not claim to have been mistreated, the Tribunal found that this treatment did not amount to serious harm for Convention purposes or significant harm for complementary protection purposes (at [15]);

(c)    the applicant was subjected to discriminatory treatment by Sinhalese customers and that he believed he would not have any means of addressing that treatment by complaining to the Sri Lankan authorities. However, the Tribunal noted that the applicant had maintained employment at the hotel restaurant for 16 years, that he ran a food stall and that he had sufficient income to meet the living costs of himself and his family. He lived in a house and his child attended school. The Tribunal did not accept that the discrimination the applicant had experienced amounted to persecution for Convention purposes or constituted significant harm for complementary protection purposes (at [16]); and

(d)    the slapping incident occurred. However, the Tribunal considered that while it constituted physical harm it did not amount to serious or significant harm. The Tribunal was also satisfied that if the applicant returned to Sri Lanka there was no real risk or chance that he would be subjected to this treatment again in the reasonably foreseeable future (at [17]).

18    The Tribunal found the applicant’s evidence that members of the CID in Negombo made demands for money and that they threatened his life “unconvincing and inconsistent”. In the Tribunal’s view the applicant’s statements regarding the alleged incidents lacked detail, there were significant differences between the evidence the applicant provided prior to and at the Tribunal hearing, and the Tribunal did not consider that the applicant had a level of income that was likely to have attracted an extortion demand as claimed (at [31]).

19    The Tribunal did not accept the applicant’s claims in this regard (at [32]). Accordingly it did not accept that if he was returned to Sri Lanka the applicant would be at risk of serious or significant harm because he failed to pay the CID the money allegedly demanded (at [37]). The Tribunal said there was no evidence to indicate there is a real chance that the applicant will be subjected to extortion demands or threats by the CID in the reasonably foreseeable future (at [37]).

20    On the basis of country information regarding the treatment of people, including Tamils, returning to Sri Lanka as failed asylum seekers, the Tribunal did not accept the applicant’s claim that a decision would be made at the airport to kill him (at [37]). The Tribunal accepted (at [56]) that the applicant would be detained and questioned on return to Sri Lanka, and that he would be remanded and charged with an offence in relation to departing Sri Lanka illegally. It considered it likely that he would be released on bail and fined after appearing in court at a later date.

21    The Tribunal noted that the applicant did not claim to have been a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) (at [49]) and did not expressly state that he feared being perceived as a supporter of the LTTE. The Tribunal stated that, after assessing all the evidence, it did not accept that there was a real chance or risk that the applicant would be imputed with anti-government or pro LTTE political opinions as a failed Tamil asylum seeker. After assessing country information the Tribunal said that it was satisfied that the applicant does not face a real chance of serious harm for a Convention reason or a real risk of significant harm for complementary protection purposes when being processed in Sri Lanka as a returned failed Tamil asylum seeker (at [49]).

22    The Tribunal referred to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 2012 (“UNHCR Guidelines”) (at [57]). The guidelines specified a number of categories of persons who may be at risk in Sri Lanka including persons suspected of links with the LTTE, certain opposition politicians and political activists, certain journalists and other media professionals, certain human rights activists, certain witnesses of human rights violations and victims of human rights violations, women in certain circumstances, children in certain circumstances and lesbian, gay, bisexual, transgender and intersex individuals in certain circumstances. It found that the applicant did not fall into any of those categories of persons.

23    The Tribunal stated its conclusions (at [59 and [68] respectively) that after assessing all the claims and evidence, including on a cumulative basis, the applicant did not have a well-founded fear of persecution for a Convention reason if returned to Sri Lanka and did not face a real risk that he will suffer significant harm.

The application for judicial review to the Federal Circuit Court

24    The application for judicial review contained only one ground, in the following terms:

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

25    The applicant was assisted by a migration agent at the hearing before the Federal Circuit Court. He did not particularise the alleged error of law by the Tribunal and the only matter to which he referred in the hearing was an alleged failure by the Tribunal to consider the slapping incident (at [19]). The learned Federal Circuit Court judge was unable to discern any error in the Tribunal’s approach to that issue. The primary judge said, correctly in my view, that the Tribunal accepted that the applicant had been subject to a certain level of discrimination because of his Tamil ethnicity but that this did not amount to persecution for a Convention reason or significant harm for the purposes of complementary protection.

26    The applicant did not otherwise specify the alleged “legal error” but her Honour considered the Tribunal’s decision overall and found no error of law (at [20]-[22]). Her Honour dismissed the application.

The proposed appeal to this Court

27    The draft Notice of Appeal filed by the applicant does not illuminate the grounds of the proposed appeal to this Court. It alleges only that:

1.     The proceeding in the order which the application relates was pronounced     [sic] involves a question of law.

2.     There is jurisdictional error occurs [sic] in the order.

Although the applicant again failed to particularise the alleged jurisdictional error, in the hearing he relied on the slapping incident, as he had in the Federal Circuit Court.

28    The applicant submitted that the Tribunal fell into error because it did not consider his claim that he was assaulted by a Sinhalese person, that he reported this assault to the police, but that the police did not take action and did not offer him any protection. Instead, he said, the authorities harassed, him so he left the country and came to Australia seeking refuge. He alleged that the fact he was not given protection by Sri Lankan authorities was not considered by the Tribunal or by the primary judge.

29    There were, however, some important differences in the way the applicant described the slapping incident, namely the assertions that the applicant complained to the police about the slapping incident, that they took no action, and that instead they harassed him.

30    In his written statement of 6 August 2012 the applicant referred to the slapping incident but he did not state that he had reported it to the police or that the police had harassed him. The statement tends to indicate that the applicant took no action in response to the slapping incident, because he stated:

I served the Sinhalese customer and he slapped me. I couldn’t talk back to this man as he was Sinhalese and I knew that he would retaliate. The man would most likely come back to the hotel with the gang of other Sinhalese men and beat me if I had tried to do anything back to him.

One would think that making a complaint to the police would amount to doing something “back” to the Sinhalese customer, and that if the applicant had been harassed by police following this incident he would have mentioned it.

31    I reminded the applicant that, in his written statement, he did not mention making a report to the police about being slapped. He responded that he had forgotten to include it. I also asked him whether he had mentioned any complaint to the police at his interview with the delegate. He said that he was not sure. The delegate’s decision does not mention the slapping incident.

32    It is significant that the Tribunal’s decision records the applicant as expressly stating that he did not report the slapping incident to the police. The Tribunal said (at [16]):

… The Sinhalese customer slapped the applicant. The applicant felt he could not talk back to him or respond for fear of retaliation. His manager is also a Tamil so he was also afraid to do anything about this incident. There was no point in complaining to the police about the incident. If he did he would possibly be beaten by the police.

33    The judgment of the Federal Circuit Court contains no mention of any assertion by the applicant that he reported the incident to police. Having regard to the primary judge’s summary of the applicant’s claims I would expect her Honour to have recorded such an assertion, if the applicant made it.

34    In my view there is no basis for concluding that the Tribunal fell into error in its approach to the slapping incident. Other than the applicant’s assertion (apparently for the first time before me) there is nothing to indicate that the applicant told the Tribunal that he had reported the slapping incident to the police, there is nothing to show that the police took no steps to deal with any complaint he made, and there is nothing to show that the police then harassed him.

35    The Tribunal was required to correctly identify, construe and consider each claim made by the applicant, give proper consideration to the evidence before it and to each claim that is “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ). It cannot be said that the Tribunal fell into error by not dealing with a claim that the applicant complained to police and they took no steps to protect him when his evidence to the Tribunal was that he did not complain to the police.

36    The Tribunal accepted that the applicant was slapped by a Sinhalese customer on one occasion, but did not consider the incident constituted serious harm for Convention purposes or significant harm for complementary protection purposes. It was satisfied that there is no real chance or real risk that the applicant would be subjected to similar treatment in the reasonably foreseeable future if he returned to Sri Lanka. Given the relatively minor nature of the assault, and that it was the only physical harm to which the applicant pointed in his 16 years of employment at the hotel restaurant, that conclusion was well open to the Tribunal.

37    Other than the ground relating to the slapping incident, the applicant disavowed any other proposed ground of appeal. Even so, because the applicant did not have the benefit of legal representation, before deciding whether to grant an extension of time it is appropriate that I consider the balance of the Tribunal’s decision.

38    Having done so, I can discern no jurisdictional error in the Tribunal having found:

(a)    that the Sri Lankan authorities’ practice of checking identification and registration did not constitute serious or significant harm;

(b)    that detaining the applicant overnight, without mistreating him, did not constitute serious or significant harm;

(c)    that the applicant suffered a level of racial discrimination because he is a Tamil, including in the slapping incident, but that it did not rise to the level of persecution or constitute a real risk of serious or significant harm;

(d)    that his account of having been subjected to extortion demands by officers of the CID should be rejected. The assessment of the applicant’s evidence was a matter for the Tribunal and, given the contradictions in his evidence, it was open to the Tribunal to reject his account;

(e)    on the basis of country information that the applicant did not face a risk of serious or significant harm because of his status as a failed Tamil asylum seeker, and that there was no real chance or risk that the applicant would be imputed with the anti-government or pro-LTTE political opinion;

(f)    on the basis of country information, particularly the UNHCR Guidelines, that the applicant did not have the profile of a person who faced a real risk of serious or significant harm if returned to Sri Lanka; and

(g)    that the applicant did not have a well-founded fear of persecution for a Convention reason if returned to Sri Lanka and did not face a real risk that he will suffer significant harm.

39    I respectfully agree with the decision of the learned primary judge. In my view the proposed appeal has no reasonable prospect of success and I refuse the application to extend the time within which to bring the appeal.

Conclusion

40    I have made orders dismissing the application and requiring the applicant to pay the Minister’s costs.

Associate:

Dated:    4 December 2015