FEDERAL COURT OF AUSTRALIA

AUF15 v Minister for Immigration and Border Protection [2016] FCA 115

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal from the judgment of the Federal Circuit Court of Australia filed on 1 October 2015 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

MARKOVIC J:

1    This is an application pursuant to r 36.05 of the Federal Court Rules 2011 (the Rules) seeking an order for an extension of time to file a notice of appeal from a judgment and orders of a Judge of the Federal Circuit Court of Australia (Federal Circuit Court) given and made on 4 September 2015: AUF15 v Minister for Immigration & Anor [2015] FCCA 2438 (AUF15).

2    By those orders the Federal Circuit Court dismissed the applicant’s application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (then the Refugee Review Tribunal) (the Tribunal) and ordered the applicant to pay the first respondent’s (the Minister) costs. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.

3    Pursuant to r 36.03(a)(i) of the Rules a notice of appeal must be filed within 21 days from which the judgment appealed from was pronounced or the order was made. In the present case, the last day on which the applicant could file a notice of appeal was 25 September 2015. The application for an extension of time to file a notice of appeal now before the Court was filed on 1 October 2015, six days late.

4    The applicant therefore requires an order extending the time within which he can file his notice of appeal.

background facts

5    The applicant is a citizen of Sri Lanka who arrived in Australia as an illegal maritime arrival on 1 July 2012.

6    On 16 November 2012, the applicant applied for a Protection (Class XA) visa. The applicant claims to fear harm from the Sri Lankan authorities due to his Tamil ethnicity, because he had worked in the north of the country and because of his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE). He also claims to fear harm because of his illegal departure from Sri Lanka and his claim for asylum in Australia. In summary, the applicant made the following claims as summarised in the Minister’s submissions and set out below:

(1)    the applicant claimed that he had faced difficulties from both the army and the Karuna group due to his Tamil ethnicity. This included incidents in 2009 during which he was verbally abused and beaten by soldiers. These problems caused him to move to Qatar, where he stayed until the end of the war. The applicant claimed that during the war his father was held in an army camp and his brother was killed by army shelling;

(2)    after returning to Sri Lanka, the applicant moved to Mallavi. He claimed that he was rounded up by the army on two occasions for questioning and that he was questioned about why he had travelled to the North of Sri Lanka. He claimed that the army also suspected that his brother was associated with the LTTE, because he had been killed by army shelling, and did not believe that his brother was a civilian casualty, and that he had been questioned about his brother as a result;

(3)    at the Departmental interview the applicant claimed that he had been detained on three occasions between January and March 2012 and this was because his ID showed that he was from Batticaloa district and therefore he was under suspicion. He was beaten and accused of having LTTE links.

7    On 1 October 2013, a delegate of the Minister refused the applicant’s application for a Protection (Class XA) visa.

8    On 16 October 2013, the applicant applied to the Tribunal for review of the delegate’s decision. On 16 February 2015, he attended a hearing and gave evidence before the Tribunal. On 21 April 2015 the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

the Tribunal decision

9    Overall, the Tribunal found that the applicant gave mostly consistent evidence and thus it accepted the applicant’s factual claims. However, the Tribunal did not consider that there was a real chance that the applicant would suffer persecution in Sri Lanka if he returns now or in the reasonably foreseeable future. In particular, the Tribunal:

(1)    did not accept there was any record of the applicant’s brother or father being associated with the LTTE;

(2)    accepted that the applicant had come to the attention of men associated with the Karuna group prior to March 2009, who made him undertake unpaid work for two days, and that he had come to the attention of the SLA, who interrogated him on suspicion of his possible involvement in two security incidents in 2009 and 2012 respectively. However, it found that the reason he came to the attention of the Karuna group and the SLA was because he was a Tamil person “in the wrong place at the wrong time” rather than because of anti-government or illegal activities;

(3)    did not accept that the applicant was a person the police, CID or military or security agents had an adverse interest in for any reason prior to his departure;

(4)    found there was no evidence to suggest the applicant or any member of his family had any involvement with the LTTE or was ever suspected of having any such involvement;

(5)    did not accept that being a Tamil from Batticaloa who departed Sri Lanka illegally and claimed asylum in Australia would cause him to be perceived as having an adverse political opinion or being associated with the LTTE;

(6)    considered the chance of the applicant being imputed with a LTTE association because he is a Tamil from Batticaloa whose family members lived and worked in Mullaitivu during the conflict, whose brother died in Mullaitivu in 2009, whose father was detained for 6 months after the end of the conflict and who travelled to Australia by boat and claimed asylum to be remote;

(7)    in relation to the applicant’s claims as a failed asylum seeker the Tribunal found that the applicant would be questioned by immigration authorities, the CID and potentially the SIS on his return. However, as the applicant has not previously been and is not currently a person of interest to the authorities, the Tribunal did not accept there was a real chance those inquiries would lead to him suffering harm either, during the interview process at the airport or, in follow up questioning on his return to Batticaloa.

10    The Tribunal accepted that upon return to Sri Lanka the applicant would be charged under the Immigrants and Emigrants Act but found that this was a law of general application that was not selectively enforced. In being prosecuted under the law it did not accept the applicant would suffer persecution. The Tribunal also found that there was a chance that the applicant would be detained for up to four days, after being charged, in conditions that were cramped, overcrowded, dark and unclean. However, there was no evidence that returnees who had been detained in these circumstances had been subjected to any physical harm or threats.

11    The Tribunal observed, based on the available information, that the offence which the applicant was likely to be charged with was “bail-able” and that bail is ultimately granted on a personal guarantee and surety from a family member. The Tribunal found that the chance of the applicant not being granted bail was remote and it did not accept that he would be denied bail. Finally, the Tribunal found that the applicant would not suffer persecution through the application of either the bail or sentencing aspects of the prosecution process, that the likely sentence for someone in the applicant’s position would be a fine of between 50,000 to 100,000 rupees and that the chance of the applicant receiving a custodial sentence was remote.

proceedings before the federal circuit court

12    On 19 May 2015 the applicant filed an application for judicial review of the Tribunal’s decision. The grounds relied on by the applicant are recorded at [6] of the primary judge’s judgment:

…

“GROUND ONE:

That the Tribunal erred in failing to apply the reasoning of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947- namely that having found that the Applicant would be processed at the airport, questioned, and being held on remand for a few days, the Tribunal failed to find that this would amount to serious harm under section 91R (2) of the Migration Act..

GROUND TWO:

The Tribunal misconstrued or misapplied ss 5 and 36(2A) of the Act.

Particulars

a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka[79]

b. The Tribunal found that prison conditions in Sri Lanka that ‘conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation’.

b. The Tribunal erred in holding that poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.”

13    The primary judge rejected both grounds. The primary judge found that the first ground could not succeed in light of the decision in Minister for Immigration and Border Protection v WZAPN [2005] HCA 22: AUF15 at [7].

14    In relation to the second ground, the primary judge found that the matters particularised in support of this ground did not identify any misconstruction or misapplication of s 5 or s 36(2A) of the Act. The primary judge found that the Tribunal complied with Ministerial Direction 56 and took into account PAM 3 and that there was a “real intellectual engagement” with PAM 3. The primary judge found that this ground was an impermissible challenge to the Tribunal’s adverse findings of fact which were open to it on the material before it: AUF15 at [8].

consideration

15    Rule 36.05 of the Rules does not prescribe any particular factors to be taken into account by a court before exercising its discretion to extend the time within which to file a notice of appeal. As observed by Murphy J in SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (SZQCZ) at [18], the Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Hunter Valley Developments) as the guiding principles for determining an application for an extension of time. At [19] of SZQCZ, Murphy J set out the following as factors to be considered in such an application:

(a)    satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

(b)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

(c)    the merits of the appeal.

16    As observed by Edelman J in AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 at [19], none of the principles identified in Hunter Valley Developments is a precondition to a grant of leave and r 36.05 involves “an exercise of discretion having regard to all relevant factors” (emphasis in original).

17    The applicant has not filed any written submissions in support of his application. He relies on his affidavit affirmed 1 October 2015 filed in support of his application. When invited to make submissions at the hearing of his application, both in support of the application and in reply to those made on behalf of the Minister, he declined to do so.

18    The period of delay is relatively short. However, the applicant’s affidavit affirmed on 1 October 2015 in support of his application does not include any explanation, let alone an acceptable reason, for the delay in filing the notice of appeal.

19    The Minister submitted that he can point to no prejudice should an extension of time be granted. I accept that submission and will deal no further with that factor.

20    I turn then to consider the merits of the proposed appeal. The draft notice of appeal annexed to the application for an extension of time raises the following two grounds (as written):

1.    Her Honour Judge Street erred by not acting in accordance with rule of the Federal Court Circuit Rules 2001 (Cth) by not taking the Applicant’s application at its highest for the purposes of dismissing the proceedings.

2.    His Honour Judge Street erred by dismissing the proceedings in circumstances where the appellant was unrepresented.

21    As noted, the applicant has not filed any written submissions nor did he take up the invitation to make oral submissions. However, it is relevant to note the terms of his affidavit affirmed 1 October 2015 in which he says:

1.    I am the appellant.

2.    I hereby state the details to my rejection at the Federal Circuit Court to the best of my knowledge.

3.    I appeared on the 4 September 2015 at the Federal Circuit Court hearing.

4.    I personally represented myself as I was unable to have any legal practitioner.

5.    Since I am not represented by a legal practitioner to represent my cause for the hearing at the Federal Circuit Court the Judge at the FCCA should have adjourned for me to have a legal representatives.

6.    Had an adjournment been granted I would seek proper advice the way in which I should be having the carriage of my matter.

22    Ground 1 of the draft notice of appeal alleges that the primary judge erred because “he did not take the applicant’s application at its highest”. It seems that the applicant cavils with the findings of the primary judge. However, the primary judge can only set aside a decision of the Tribunal if it is affected by jurisdictional error: see ss 474 and 476 of the Act; Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Having considered the applicant’s grounds of review, the primary judge found that the Tribunal’s decision was not affected by jurisdictional error. I can discern no error in the approach of the primary judge to his consideration of the applicant’s grounds before him and his findings in relation to those grounds.

23    Ground 2, in combination with the evidence given by the applicant in his affidavit, alleges that the primary judge should have adjourned the proceedings to allow the applicant to obtain legal representation. There is no evidence before me that the applicant sought an adjournment at the hearing in the Federal Circuit Court which was denied. The Minister submits that he did not. Further at [9] of AUF15 the primary judge notes:

This is a case where the Court made an order on 2 July 2015 providing an opportunity for the applicant to amend the application, file further affidavit evidence or put on submissions. No such documents were filed…

24    The matter was heard on 4 September 2015, two months after the date on which the orders entitling the applicant to file further material were made. In the absence of having made an adjournment application, there can be no finding that the primary judge, in failing to consider or grant such a request, erred. Further, as submitted by the Minister, given the opportunity afforded to the applicant to amend his application, file further evidence and written submissions, which was not taken up, it cannot be said that there was a denial of procedural fairness.

25    In all of the circumstances of this application, I decline to make the order sought by the applicant. Accordingly, I will make orders that the application for an extension of time to file a notice of appeal be dismissed and that the applicant pay the first respondent’s costs.

Associate:

Dated:    19 February 2016