FEDERAL COURT OF AUSTRALIA

DZAEG v Minister for Immigration and Border Protection [2016] FCA 194

ORDERS

THE COURT ORDERS THAT:

The application filed on 29 October 2015 for extension of time in which to file a notice of appeal be dismissed with costs, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for an extension of time from a decision of the Federal Circuit Court of Australia, where the learned primary Judge dismissed an application brought by the applicant for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to s 476 of the Migration Act 1976 (Cth) (the Act). In turn, the Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.

2    Both the applicant and the Minister were represented by Counsel at the hearing before me.

Background

3    The applicant is a citizen of Sri Lanka. He arrived as an irregular maritime arrival on 12 June 2012 and applied for a Protection (Class XA) visa on 10 September 2012. The applicant argued that he had a well-founded fear of persecution based upon a number of matters. He claimed that he is a Tamil, a practicing Hindu and a Sri Lankan national. He claimed further that the Sri Lankan army established a military camp in his home region of Uddapu and that they harassed Tamils frequently. He claimed that they came and took his eldest brother, who then fled, and that the authorities then threated the applicant’s father and middle brother with harm if the eldest brother did not return. The applicant, his father and middle brother hid at his uncle’s home until they were able to flee Sri Lanka. The applicant claimed that he feared so-called “greasemen” as he had seen one in 2009, and had later heard that a woman had been killed (presumably by the same “greasemen”).

4    The applicant claimed that he would face harm if forced to return to Sri Lanka because he is a Tamil, from a Tamil-dominated area, who had fled Sri Lanka illegally in the previous 18 to 24 months and claimed asylum in another country. The applicant claimed that Sri Lankan authorities would suspect him to be a supporter of the terrorist group the Liberation Tigers of Tamil Eelam (LTTE).

Decision of the Tribunal

5    The decision of the Tribunal is lengthy and detailed. After extensive consideration of the evidence before it, the Tribunal observed that it was not concerned by minor disparities in the applicant’s account of police or army interaction with him and his family. However the Tribunal informed the applicant at the hearing that it had issues with the credibility of his overall account, due to material inconsistencies in his evidence. The Tribunal reiterated this concern in its reasons for decision.

6    The Tribunal considered that nothing in the applicant’s evidence indicated that he or his family members faced past harm from greasemen at any time, and nothing in the information provided to the Tribunal indicated that the applicant personally faced any real chance of serious harm from greasemen or otherwise in Sri Lanka.

7    At the hearing in the Tribunal the Tribunal member observed to the applicant that the UNHCR 2012 risk guidelines strongly suggested that being Tamil alone was not automatically indicative or suggestive of risk in Sri Lanka. Importantly, the Tribunal observed that there was nothing in the cumulative accepted evidence which suggested that the applicant had personally experienced abuse, harassment, victimisation, pressure or limited rights as a Tamil to any extent which amounted to the types of serious harm envisaged by s 91R(2) of the Act. The Tribunal took a similar view in relation to the accepted circumstances of the applicant and his family.

8    The Tribunal accepted that the applicant would be charged under Sri Lankan law because of his unapproved departure from Sri Lanka without a passport, but found that those laws applied generally to those in breach of such laws and without apparent discrimination or selectivity. The Tribunal also noted that the available country information indicated that those convicted under such laws had received fines and not prison sentences.

9    The Tribunal further accepted that Sri Lankan authorities would assume the applicant had sought asylum in Australia, but did not accept that the authorities would be concerned by the applicant’s imputed asylum claim or that there was any real chance that he would be seriously harmed for this reason.

10    It followed that, in the view of the Tribunal, the applicant’s circumstances did not meet the criteria for grant of a protection visa under the Act.

Decision of the Federal Circuit Court

11    The Judge below summarised the relevant facts and observed:

16.    The tribunal affirmed the decision of the first respondent to refuse him a protection visa. It did so because it did not think that the applicant’s claims were credible. The tribunal did not reject the applicant’s credibility outright. Rather, on each of the major claims that he made the tribunal assessed the applicant’s evidence, sometimes against his previous claims and sometimes against independent information available to the tribunal and it concluded that it could not accept any of them.

17.    Having considered the tribunal’s reasons for decision, it is not apparent that the tribunal has made any errors, let alone jurisdictional errors in its hearing or determination of the applicant’s review. In my view, the tribunal correctly identified the relevant legislative provisions that it had to consider. It assessed the applicant for his eligibility for the grant of a protection visa against both ss.36(2)(a) and 36(2)(aa) of the Act.

18.    In accordance with his duty as a model litigant, in his written submissions, the first respondent has raised a number of matters which might be thought to lead to the conclusion that the tribunal has fallen into jurisdictional error. However, I accept the first respondent’s submissions that none of those matters amount to jurisdictional error on the part of the tribunal.

12    In particular, the primary Judge said:

    there was nothing in the Tribunal’s reasons for decision which would indicate that the delay in the delivery of the Tribunal’s decision led to the applicant being denied the opportunity to present his case or to have his case considered;

    the Tribunal did not base its credibility findings on its observations of the applicant’s demeanour or behaviour;

    any harm that would befall the applicant by reason of his arrest and detention upon return to Sri Lanka would not be serious harm for a Convention reason.

13    The application for judicial review of the Tribunal’s decision was dismissed.

Application to this Court

14    The applicant sought to appeal the decision of the Federal Circuit Court but did not do so within the time stipulated by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth). Accordingly the applicant filed an application for an extension of time to appeal the decision.

15    The application for extension of time was accompanied by an affidavit and a draft notice of appeal. The draft notice of appeal raised numerous grounds however at the hearing before me Counsel for the applicant only pressed the following arguments:

    the view taken by both the Tribunal and the primary Judge as to the credibility of the applicant was flawed; and

    the Tribunal did not take into account evidence adduced by the applicant concerning the potential harm to which he could be subject in Sri Lanka, and in particular gave credence to evidence which the applicant either did not give or disputed concerning the applicant’s alleged detention in Sri Lanka.

16    Mr Gordon for the applicant submitted that the flawed approach taken by the Tribunal to the credibility of the applicant was the principal reason why the decision of the Tribunal was affected by jurisdictional error. In particular the applicant relied on the following passage at [21] of the Tribunal’s decision, namely:

I do not accept the applicant was detained for two days in 2008 (or at any time) for failure to carry his ID card. At the hearing, he said he was never detained, and when I noted the apparent inconsistency with his written claims to the Department, he did not recollect this claim. I find this a material inconsistency on a core claim, and accordingly, this matter degrades the applicant’s credibility as a truthful witness to his actual circumstances in Sri Lanka, and leaves me in doubt about the reliability of other aspects of his evidence (as noted elsewhere).

17    Mr Gordon submitted, in summary, that:

    The applicant never claimed that he was detained for failure to carry his ID card. The applicant’s written statement of claim was, in fact, inaccurately translated to that effect.

    The Tribunal recognised at [17] of its reasons that the interpreter at the entry interview was not very good and did not rely on the evidence at the entry interview, however the Tribunal nonetheless took a stance against the applicant because of evidence he was alleged to have given in respect of “his detention”.

    The view taken by the Tribunal of the applicant’s credibility concerning his alleged detention based on this inaccurately presented evidence improperly infected the Tribunal’s overall view of the applicant’s credibility.

Consideration

18    It is relatively well settled that, in considering an application for an extension of time in which to appeal, the Court will take into account factors including:

    the length of delay in filing the notice of appeal;

    any explanation for the delay in filing the notice of appeal;

    any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted; and

    the merits of the substantive appeal if an extension of time were granted.

(Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348-349.)

19    In this case the Minister takes no issue with the length of delay or the applicant’s explanation for the delay, and makes no claim that he would experience prejudice should an extension of time be granted to the applicant. However the Minister contends that were an extension of time to be granted, the applicant has no prospects of success, and it follows that the application should be refused.

20    While Counsel for the applicant did not specifically make this submission, it is clear that the tenor of the applicant’s contention was that the view taken by the Tribunal concerning the alleged inconsistency in the applicant’s evidence showed pre-judgment by the Tribunal of the applicant’s credibility in respect of all of his claims. In my view the applicant’s submissions concerning the Tribunal’s approach to his credibility, in particular the comment of the Tribunal at [21], do not disclose jurisdictional error in the Tribunal’s decision. I make these observations for the following reasons.

21    First, it is not clear to me whether the applicant had actively raised concerns with the Tribunal that his evidence had been inaccurately translated. (I note again that the only point raised in this context by the applicant was his alleged evidence – which he denied giving – that he had been detained in Sri Lanka.) Certainly [21] of the Tribunal’s decision suggests that the applicant raised no such concerns. Rather, [21] indicates that, so far as the Tribunal was aware even following lengthy questioning of the applicant, at the time of its decision the Tribunal continued to hold the view that the applicant had claimed detention in Sri Lanka (and that it had not been disabused of this notion by the applicant).

22    Importantly in this case, the applicant’s submissions to this Court concerning the accuracy or otherwise of his evidence concerning detention (or non-detention) of him in Sri Lanka raise issues of fact. The Tribunal is clearly the arbiter of fact in cases under the Act, and it is for the Tribunal to consider the facts and weigh the evidence before it: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63]. Even a wrong finding of fact by the Tribunal, such as that the applicant claimed detention when he had not, does not necessarily go to the jurisdiction of the Tribunal to hear the case: Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at [35-36]; Abebe v Commonwealth (1999) 197 CLR 510 at [137].

23    Second, I also note the comment at [37] of the Tribunal’s reasons that:

As I said at the hearing, I am not concerned by minor disparities in the applicant’s account of police or army interaction with him and his family in 2012 (such as the number of officers or what uniforms they wore) given the passing of time. However, as I noted to the applicant at the hearing, the credibility of his overall account of this matter is in issue due to material inconsistencies in his evidence to the Department and Tribunal.

(Emphasis added.)

24    In this respect it appears that the Tribunal did raise with the applicant at the hearing concerns it had with inconsistencies in his evidence. Again, however, there is no suggestion that the applicant sought to identify at the Tribunal hearing any errors in his evidence which was before the Tribunal.

25    Third, and in any event, I am satisfied that the Tribunal gave thoughtful and detailed consideration to all claims of the applicant, and in no way pre-judged the applicant’s case as the applicant appears to be suggesting. Clear examples of instances in the Tribunal’s decision where the Tribunal accepted the evidence of the applicant include:

    [22] where the Tribunal gave the benefit of the doubt to the applicant’s evidence concerning the detention of his brother in 2008;

    [23] where the Tribunal accepted the applicant’s evidence that his family home had been searched for weapons or bombs in 2008;

    [26] where the Tribunal gave the benefit of the doubt to the applicant’s evidence that he was once on a bus which was required to slow down in a neighbouring village;

    [29] where the Tribunal accepted that fishermen in the applicant’s home region are required to have fishing permits which regulate fishing activities, and Tamil fishermen could be the subject of harassment.

26    Otherwise it is apparent that the Tribunal did not accept many of the applicant’s contentions, however it formed these views following careful examination of those contentions. There is no indication that the Tribunal took a “blanket” approach to the claims of the applicant, based on any early misconception as to the overall credibility of the applicant.

27    Fourth, notwithstanding the applicant’s claim that the Tribunal did not take into account evidence adduced by him, it is difficult to see that this contention can be substantiated. The Tribunal carefully examined evidence and claims of the applicant, but also clearly gave consideration to country information relevant to the political situation in Sri Lanka. The Tribunal is not required to refer to every piece of evidence and every contention made by the applicant in its written reasons: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]. The use of country information and the weight given to such information is a factual matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; VWFW at [63]. Indeed, ascribing weight to evidence which is not in the appellant’s favour is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang.

28    Finally, the applicant refers to [16] of the decision of the primary Judge, set out above, as being infected by the jurisdictional error of the Tribunal. In my view this is simply not the case.

Conclusion

29    In my view the grounds of appeal proposed by the applicant, in the form in which the applicant pressed them before me, have no prospects of success.

30    The appropriate order is to dismiss the application for extension of time with costs to be taxed if not otherwise agreed.

Associate:

Dated:    3 March 2016