FEDERAL COURT OF AUSTRALIA

SZTEI v Minister for Immigration and Border Protection (No 2) [2016] FCA 397

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant to 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:

introduction

1    The applicant arrived on Christmas Island by boat on 17 February 2012. On 15 June 2012 the first respondent (the Minister) made a decision pursuant to s 46A(2) of the Migration Act 1958 (Cth) (the Act) to permit the applicant to lodge an application for a Protection (Class XA) visa which he did on the same day (Protection Visa Application).

2    On 3 September 2012 a delegate of the Minister refused to grant the applicant a Protection (Class XA) visa. The applicant then applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) for review of that decision. On 9 July 2013 the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. The applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (Federal Circuit Court). On 29 July 2015 the primary judge dismissed the applicant’s application: SZTEI v Minister for Immigration and Border Protection & Anor [2015] FCCA 2020 (SZTEI).

3    The applicant then attempted to appeal the judgment of the primary judge. However, for reasons that are set out below, the notice of appeal was not filed within time. Accordingly, pursuant to r 36.05 of the Federal Court Rules 2011 (the Rules) the applicant requires an extension of time within which to file his notice of appeal. On 12 February 2016, the applicant filed an application together with a draft notice of appeal seeking an order for an extension of time.

THe Applicant’s claims

4    The applicant is a Sri Lankan citizen of Tamil ethnicity from the Batticoloa area of Eastern Sri Lanka.

5    Upon the applicant’s arrival in Australia, as an irregular maritime arrival, he attended an interview at which he said that he left Sri Lanka because he was doing contracting work in the Batticoloa area and there were several groups operating there: the Karuna group and the Pillaian group. The applicant described the tensions and competition for construction contracts that arose between the two groups and said that a person competing for contracts would have problems if not aligned to one of these groups because they wanted work for their own people. The applicant said that in 2008 he applied for a job by tender and won the contract for the job. He said there were continuous threats from the groups, he was not sure which of the two groups it was, and that one group would demand money and the other would take you and beat you. The applicant finished the job he won by tender in 2008 and could not get any other jobs because of the harassment from these groups and was only able to do maintenance work.

6    In that interview the applicant also described an incident where a “grease man” attacked a Tamil woman and was chased by villagers through the applicant’s land and back to a police station. The next day CID officers came to the applicant’s house asking him to identify the people who had created the problems, he was taken to the police station by those officers and was beaten up, detained overnight and released the next day.

7    As noted above, the applicant subsequently applied for a Protection (Class XA) visa. In the statement accompanying his application, the applicant made the following claims:

(1)    he grew up in Batticoloa in Sri Lanka and is married with three children and has a dependent nephew;

(2)    as Tamils, his family has always been targeted by the Sri Lankan government and army. His father and one of his brothers were shot by the Sri Lankan authorities on the same day in about 1987. During the civil war in 2009 another brother was killed by Sri Lankan army shelling;

(3)    after about 2005 the applicant experienced threats and harm from two paramilitary groups: the Pillaian and Karuna groups. The applicant was a well known contractor in his area with numerous contracts including for the government. However the paramilitary groups would not allow him to work peacefully. They both wanted him to stop working on the construction contracts he had and wanted people they knew to be doing the work. As the work was his livelihood he did not stop as they demanded;

(4)    in about 2008 a member of the Karuna group demanded that the applicant go to their camp. They detained the applicant for a day and beat him threatening him to stop;

(5)    after that the applicant continued work on a couple of contracts. However, due to the level of threats he reduced his work and in about 2010 he was forced to stop his contracting work. At that time he began working in a small stall at his family home mainly selling ice cream;

(6)    even after he stopped his contracting work the paramilitary continued to harass the applicant because he had refused to comply with their demands in the past;

(7)    in late 2011 a Tamil women was attacked by a man belonging to a group known as the “grease men”. Villagers who became aware of the attack chased the grease man who ran into the nearby police/army camp. The villagers followed the grease man into the army camp, demanded that he be released and, when their demands were not met, began to throw stones and burn tyres. The applicant was not involved but could see what was happening from his home. There was a fire and a huge explosion;

(8)    the following morning a group of men came to the applicant’s house and interrogated him about the identity of the people involved in the demonstration and accused him of being involved. The applicant told them that he did not know anything. The men told him to sign some documents which he refused to do. Those men left but then other Sinhalese men came to the applicant’s house and took the applicant to an army camp where he was interrogated. The applicant recognised some of these men as belonging to the Karuna group, some of whom were the same men who had been harassing and threatening him about his contracting work. The men interrogated him and accused him of being involved in the demonstration but he denied that he was involved. The applicant was released the next evening after his family came to the camp to ask for his release;

(9)    a few days later the applicant heard noises on the roof of his house. He saw that tiles were broken and falling off the roof. He put the lights on and heard people running away. The applicant does not know why those people came to his house but, given the timing, he thought it was related to his recent interrogation;

(10)    as the applicant was of adverse interest to the army and paramilitary groups he was fearful for his family and so he decided to stay home with them and not go out much;

(11)    the applicant did not want to leave his family but realised that they could not continue to live in fear for their safety. The applicant left Sri Lanka to go to India with the aim of working out his options for seeking protection in a third country. He then returned to Sri Lanka and began making arrangements to leave Sri Lanka but kept a very low profile as he feared for his safety. He moved with his family to his sibling’s house where he stayed until he left for Australia by boat;

(12)    the applicant’s mother in law and her sister remain in the family home. They have informed the applicant that the authorities have continued to come to the house in search of him;

(13)    the applicant fears that if he is forced to return to Sri Lanka he will be detained, harmed or even killed. He says he is well recognised in his area and he is still of adverse interest to the authorities and paramilitary. He fears the situation will be aggravated by the fact that he left Sri Lanka, particularly if they realise or assume that he left to seek protection. The applicant says that as he fears the authorities and groups connected to the authorities there is no one to protect him in Sri Lanka and there is nowhere that is safe for him in Sri Lanka.

8    On 22 August 2012 the Refugee Advice and Casework Service, acting on behalf of the applicant, wrote to the Minister’s department after the applicant had attended his interview with a delegate of the Minister. In that letter under the heading “Summary of claims” it was noted that:

Due to the level of the threats [the applicant] began to reduce his work in about 2010. However, the paramilitary continued to harass [the applicant].

9    On 3 September 2012 a delegate of the Minister refused the applicant’s application for a Protection (Class XA) visa. The applicant applied to the Tribunal for review of the decision of the delegate.

10    On 5 November 2012 the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case. On 13 December 2012, a day before the scheduled hearing, Rasan T. Selliah & Associates, solicitors and registered migration agents, acting on behalf of the applicant, wrote to the Tribunal. In that letter they raised an additional claim on behalf of the applicant which they explained the applicant had not made on his arrival in Australia as he was concerned that to do so would result in a negative assessment by ASIO. The additional claim related to the applicant’s links to the Liberation Tigers of Tamil Eelam (LTTE). The applicant’s representatives said that the applicant had to flee Sri Lanka in fear of his life as a result of his links to the LTTE and made the following submissions on behalf of the applicant:

(1)    one of the applicant’s brothers was killed in a shelling operation by the Sri Lankan army in 2009. Another brother then joined the LTTE and was a committed LTTE cadre. The applicant was a well known contractor in the construction field in the area and managed to acquire government contracts as well. The contracts were mainly given to the applicant by the Road Development Authority and the Road Development Department. During the period that the LTTE controlled the area even government officials (including those in the Road Development Authority and Road Development Department) had to obey the orders of the LTTE;

(2)    as the LTTE knew of the relationship between the applicant and his brother, and because the applicant was paying money to the LTTE, he was able to get the LTTE to coerce the officials to grant many contracts to him. As well as the monies paid to assist in obtaining the contracts the applicant made significant contributions to the LTTE’s special funds so that he would be in their “good books”;

(3)    in 2005 the applicant was harassed with threats of harm by the Karuna group and the Pillaian group who wanted him to stop working on government contracts so as to make way for contractors of their choice. By that time the LTTE were much weakened and the orders of the Karuna group and the Pillaian group had more weight with officials than those of the LTTE. The applicant may have been able to curry favour with these groups but that was impractical as he would have had to pay them, in addition to the LTTE, to avoid hindrance and harassment.

the Tribunal DECISION

11    The Tribunal made its decision on 9 July 2013 affirming the decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.

12    In its reasons for decision the Tribunal set out the claims made by the applicant and his evidence including that:

(1)    the applicant described harassment and threats by the Pillaian and Karuna groups after 2005 because those groups wanted to stop him working on the construction contracts that he had procured as they wanted people they knew to do the work;

(2)    the applicant did not stop working on those contracts and in about 2008 he was taken by members of the Karuna group to their camp, beaten and threatened;

(3)    the applicant continued his work on the contracts but had to reduce his work in about 2010 due to the level of harassment he was receiving;

(4)    the applicant began working at a small stall at his home mainly selling ice cream. He was still harassed by the paramilitary groups even after he stopped his construction work because he had refused to comply with their demands in the past;

(5)    the applicant said that he fears to return to Sri Lanka because he is of adverse interest to authorities and paramilitaries. He feels his situation will be aggravated because he left Sri Lanka to seek protection. He cannot get protection in Sri Lanka and he cannot relocate safely because as a Tamil he has to register when he moves to different areas;

(6)    the applicant’s advisors made a submission dated 22 August 2012 to the delegate in support of the applicant’s claims. That submission addresses the applicant’s claims that he was threatened by paramilitary groups in his area in 2005 because they did not want a Tamil man not aligned with them carrying out construction work which their associates could perform. The groups continued to harass the applicant after he reduced his work in 2010. He was also detained, interrogated and ill treated by authorities in 2011 on suspicion of being involved in a demonstration but released with a warning that he would be targeted until he admitted his involvement in the demonstration; and

(7)    he left his country by boat and came to Australia because he feared for his safety in Sri Lanka.

13    Under the heading “Findings and reasons” the Tribunal summarised the applicant’s claims including his claims that he was harassed and ill treated by members of the Karuna group on two occasions, in late 2008 and in late 2011, and was harassed and threatened at other times by members of the paramilitary groups even after he reduced his construction work in 2010.

14    The Tribunal made the following findings:

(1)    it accepted that the country information consulted by the Tribunal supported in a general way the claims that the applicant made about his fears of returning to his country. The Tribunal accepted that those having or suspected of having LTTE ties or of being opposed to the Sri Lankan government continued to be at some risk of serious ill treatment from the authorities, the army and other government aligned groups in Sri Lanka although hostilities formally ended in May 2009;

(2)    the Tribunal accepted that the applicant is who he says: a Sri Lankan national of Tamil ethnicity. The Tribunal also accepted that the applicant was born in Batticoloa in the eastern province of Sri Lanka and grew up and lived with his family around that area;

(3)    the Tribunal found that the applicant worked in his own construction business around Batticoloa from about 1997 until 2010 and that he was registered to carry out work for government agencies as well as private agencies. The Tribunal also found that from early 2010, when he stopped his construction work until he travelled to Australia, the applicant ran a business from a shop front at his family home in Batticoloa with his wife selling ice cream;

(4)    the Tribunal accepted that the applicant’s father and one brother were shot by the Sri Lankan army in 1987 and that another brother was killed by shelling by the army in 2009. Not without some doubt, given the late stage at which it was raised, it also accepted that the applicant had a brother who had some involvement with the LTTE and that he assisted that brother with “minor paperwork”. The Tribunal, again not without some doubt, accepted that the LTTE was instrumental in securing certain construction work contracts for him before he left his construction business around the beginning of 2010 and that the applicant suffered some discrimination and harassment from paramilitary groups because he obtained the contracts for the work;

(5)    the Tribunal accepted that the applicant travelled to Singapore and Malaysia in 2008 or 2009 and then returned to Sri Lanka and to India in 2010 for about one month and then again in November 2011 returning to Sri Lanka in December 2011. The Tribunal found that the applicant used his own Sri Lankan passport to leave and enter Sri Lanka on those occasions. The Tribunal went on to say at [53] of its decision record:

… The applicant told the Tribunal that ‘they were searching for him’ from 2010 but in the Tribunal’s view if the applicant were of the interest that he claims to be to the Sri Lankan authorities/those associated with the Sri Lankan authorities he could not have left Sri Lanka on the occasions that he did so in 2008/9, 2010 and in 2011, and re entered Sri Lanka using a passport in his own name, without coming to the attention of authorities on exiting and/or re entering Sri Lanka.

(6)    at [54] the Tribunal made the following finding:

Not without some doubt about the matter the Tribunal accepts that the applicant was harassed by members of the paramilitary group/s at times because of his construction work/contracts which he ceased to do in early 2010. The Tribunal does not accept as true however that the applicant suffered serious or significant harm from members of these groups as he claims for the reasons that he claims or that there is a real chance or a real risk that the applicant will suffer serious or significant harm from members of these groups as he claims for the reasons that he claims if he returns to his country. …

(7)    the Tribunal did not accept that the applicant was moving around and keeping a low profile to avoid harm from authorities or paramilitary groups as he claims for the reason that he claims and/or that he needed assistance from his agent when he was returning to Sri Lanka after his trip to India in 2011 because authorities were searching for him;

(8)    the Tribunal found that the applicant was not of interest to the Sri Lankan authorities in Sri Lanka for the reasons that he claimed including because of his association with his brother who was affiliated with the LTTE, because he obtained business contracts through the influence of the LTTE, because he was suspected of anti-government activity, because he is a Tamil businessman who had disputes with the authorities over contracting work, because he is suspected of being involved in a demonstration involving LTTE supporters against Sri Lankan authorities, because he is a young Tamil male from the north/east province or because he is a failed Tamil asylum seeker who left his country illegally and who has been absent from his country for some time.

15    Having considered the applicant’s claims separately and cumulatively the Tribunal concluded on the evidence before it that there was not a real chance that the applicant would be targeted for and suffer harm amounting to serious harm from the Sri Lankan authorities/CID/police/military/security either now or in the reasonably foreseeable future because of his political opinion or imputed political opinion, his race or religion, because of his membership of a particular social group or for any other Convention reason or that he would be unable to get protection from harm in his country for a Convention reason if he returns. The Tribunal was also not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the complementary protection provisions in s 36(2)(aa) of the Act.

proceedings before the Federal Circuit Court

16    The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. He raised two grounds of review:

(1)    The second respondent failed to exercise its jurisdiction according to law in that it failed to consider and address an integer of the applicant's claims for protection.

Particulars:

(a)    The claim that the applicant was harassed by the Karuna Group even after he stopped his construction business and started a food stall in front of his house.

(2)    The decision was arbitrary and unreasonable in the legal sense.

Particulars

(a)    It was arbitrary and unreasonable for the Tribunal to assume that the applicant would be prevented from leaving Sri Lanka and returning using a valid passport in his own name, if he was being victimised by a paramilitary group allied to the government because of his carrying out government contracts in opposition to their wishes to have their own appointees have those contracts.

17    The primary judge rejected both grounds.

18    In relation to the first ground the primary judge found that, having regard to the claims made by the applicant and the Tribunal’s decision, it was clear that the Tribunal considered the applicant’s claim to have experienced harassment by the Karuna group even after he stopped his construction business. The primary judge found that, while the Tribunal did not explicitly set out the wording of that aspect of the applicant’s claims when making its findings at [54] of its decision record, it was “apparent that the Tribunal’s findings dealt with the substance of that aspect of the Applicant’s claim in issue under Ground 1 of the application”: at [69] of SZTEI.

19    The primary judge was satisfied that the Tribunal engaged in “real or active” consideration of all the integers of the applicant’s claims in the sense considered in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431 at [38] and Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [595]. The primary judge said at [72] of SZTEI:

When the decision is read fairly and as a whole, it is apparent that in its findings in [54] the Tribunal addressed the Applicant's claims, not only as to harassment by paramilitary groups before 2010, but also about such harassment thereafter, as well as whether there was a real chance or real risk he would suffer serious or significant harm from such groups on return to Sri Lanka having regard to all his claims of past harm.

20    In relation to the second ground the primary judge found that the part of the Tribunal’s reasons with which the applicant takes issue should not be read in isolation and that the applicant’s claims, as presented, included a claim that he was of interest to the authorities, the army, the police and pro-government paramilitaries: SZTEI at [86].

21    The primary judge found that the relevant finding by the Tribunal should not be read as a finding that the paramilitaries would have the power to stop or have the applicant stopped by the authorities at the airport because of his carrying out of government contracts in opposition to the wishes of the paramilitary groups. Rather, the finding reflected that the applicant had made a general claim to fear the authorities, the army, security groups and paramilitary groups and had claimed that this fear of harm caused him to leave the country, particularly after the incidents in 2011. Given the claims made, it was open to the Tribunal to be of the view that, if the applicant was of the level of interest claimed for the reasons he claimed, he would have come to the attention of the authorities as he left the country using a passport in his own name: SZTEI at [90]. The primary judge found that the applicant had not established that the Tribunal’s finding in this respect was legally unreasonable or illogical: SZTEI at [91].

application for extension of time

22    In his application for an extension of time, which was amended without opposition from the Minister on the morning of the hearing of the application, the applicant seeks an order extending the time within which to file his draft notice of appeal.

23    In support of his application for an extension of time the applicant relies on his affidavit affirmed 12 February 2016 and three affidavits affirmed by his solicitor, Mr Rasan T. Selliah on 12 February 2016, 17 March 2016 and 31 March 2016.

24    A draft notice of appeal has also been filed by the applicant with his application which contains two grounds of appeal as follows:

Ground 1

1.1    The Court erred in finding that the Second Respondent did not consider the applicant’s claim or integer of claim that arose on the information and evidence before it.

Particulars:

(a)    The claim that the Applicant was harassed by the Karuna Group even after he stopped his construction business and started a food stall in front of his house.

Ground 2

1.2    The Court erred in finding the Second Respondent’s decision was not arbitrary and unreasonable in the legal sense that, the Tribunal’s conclusion that the Applicant would have come to the attention of authorities if he had been of the interest claimed and if he had travelled in the way that he did was finding of fact that cannot be said to be so unreasonable that no person could have come to it.

Legal principles

25    Rule 36.03(a)(i) of the Rules requires a notice of appeal to be filed within 21 days of the date on which judgment was pronounced or the order was made. Rule 36.05 of the Rules sets out what an applicant who wishes to apply for an extension of time within which to file a notice of appeal must do. However, it does not prescribe any particular factors to be taken into account by a Court before exercising its discretion.

26    It is now accepted that the considerations relevant to an the exercise of the Court’s discretion to extend time within which to file a notice of appeal include, but are not limited to, the length of the delay, whether the Court is satisfied that there is an acceptable explanation for the delay, any prejudice to the respondent if the Court were to grant an extension of time and the merits of the appeal: Singh v Minister for Immigration and Border Protection [2014] FCA 538 at [7]; SZUVX v Minister for Immigration and Border Protection [2016] FCA 301 at [35].

Explanation for the delay

27    Pursuant to r 36.03(a)(i) of the Rules the applicant had to file his notice of appeal by 19 August 2015. The evidence is that, at that time, the applicant was in Perth. He arrived at the Court’s registry on 19 August 2015 after it had closed. He was delayed because he could not find a justice of the peace to witness his fee waiver form. The applicant returned to the registry of the Court in Perth the following day, 20 August 2015, by which time he was out of time to file his notice of appeal and thus had to file an application for an extension of time in which to file his notice of appeal. The applicant completed the relevant form but, as the judgment from which the applicant sought to appeal was a judgment of the Federal Circuit Court in Sydney, the application had to be sent to the Sydney registry of the Court for filing, which the Perth registry arranged.

28    The applicant says that thereafter he did not hear anything further from the Perth or Sydney registries of the Court regarding his appeal. He says that he made a number of phone calls to the Sydney registry and was informed “that they would send the reply soon”.

29    What seems to have happened once the applicant lodged his application for an extension of time in which to appeal is set out in the affidavits of the applicant’s solicitor. The applicant’s documents lodged with the Perth registry were despatched by overnight bag on 20 August 2015, the date that they were received by the Perth registry. A document headed “Toll Track and Trace” shows that on Friday, 21 August 2015 at 10.03 am there was “successful delivery” at Sydney of a shipment despatched from Perth the previous day at 4.15 pm.

30    There is sufficient evidence before the Court to infer that the applicant did, as he says, lodge his application for an extension of time within which to appeal the judgment and orders of the primary judge on 20 August 2015, one day after expiration of the appeal period, and that those documents were despatched by the Perth registry on 20 August 2015 to the Sydney registry of this Court. What happened after that is not known. However, the applicant was not subsequently contacted and his application for an extension of time lodged on 20 August 2015 was not filed or listed for hearing.

31    Having been given notice of the first respondent’s intention to remove him from Australia on 14 February 2016, the applicant filed another application for an extension of time. On 14 February 2016 the matter first came before me for hearing of an interlocutory application to restrain the applicant’s removal and I made orders restraining the first respondent from removing the applicant until the hearing of the applicant’s application for extension of time: see SZTEI v Minister for Immigration and Border Protection [2016] FCA 205.

32    The Minister does not challenge the evidence provided by the applicant about the reasons for delay and in oral submissions accepted that there had been a proper explanation for the delay. In my view, the applicant has provided an acceptable explanation for the delay. He made an attempt to file an application for an extension of time on the 22nd day after the judgment and orders of the primary judge had been pronounced. It was through no fault of his own that that application was not filed and heard by the Court.

Any prejudice to the Minister

33    The Minister quite properly submits that he does not suggest any prejudice flowing to him from the delay. I accept that submission.

Merits of the proposed appeal

Ground 1

34    By the first ground of appeal the applicant claims that the primary judge erred in finding that the Tribunal did consider the applicant’s claim that he “was harassed by the Karuna group even after he stopped his construction business and started a food stall in front of his house”.

35    The applicant submits that an important part of his claim was that, despite ceasing his construction work, the harassment which he had been experiencing continued. The applicant claimed that this harassment was a result of his having procured construction contracts in the past in preference to members and supporters of the paramilitaries and for failing to obey their past orders. The applicant submits that the clear inference is that the paramilitaries’ resentment continued. He submits that was important in the context of his case, not only because of the continuation of the harassment after his contract work ceased, but also because of the possible nature of the harassment and because the cumulative effect of events causing harm were required to be considered in the context of whether a person had a well founded fear of persecution relying on Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48] per Finklestein J.

36    The applicant submits that one would expect a finding about whether the applicant suffered continued harassment after he ceased his construction business but that does not appear in the Tribunal’s decision. The only passages at which the Tribunal makes findings in relation to this issue are at [54] and [58]. In neither of these passages does the Tribunal deal with the claim of continued harassment by the paramilitary groups after the applicant ceased his construction business.

37    The applicant relies on Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) where a Full Court found that on a “fair and straightforward reading” of the tribunal’s reasons it did not deal with a particular claim made by the applicant in his application for review and supported by the objective evidence: at [41] per Allsop J (as he then was) with whom Spender J agreed. The applicant notes that the Court found that this was not merely one aspect of evidence not being touched or a failure to find a relevant fact but that the Tribunal “failed to address and deal with how the claim was put to it, at least in part” and that the requirement to review the decision under s 414 of the Act requires the “the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”: at [42].

38    The applicant submits that “consideration” requires the relevant person to have regard to what is said, to bring his or her mind to bear upon the facts stated in the claims or representations made and the arguments or opinions put forward and to appreciate who was making them: Tickner v Chapman (1995) 57 FCR 451 at 495 per Kiefel J.

39    Finally, the applicant relies on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (Applicant WAEE) where a Full Court of this Court said at [45]:

… If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

40    And at [47] where the Court said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

41    The applicant submits that the Tribunal in his case failed to address the ground of continued harassment after he stopped his construction business and that the finding at [54] of the Tribunal’s decision record where the Tribunal did not accept as true that the applicant suffered serious or significant harm from members of the paramilitary groups for the reasons that he claims does not come near addressing that particular claim. The applicant contends that his view is supported by the Tribunal’s findings at [42] of the decision record.

42    At [70] of her judgment, the primary judge referred to [54] of the Tribunal’s decision record. In that part of its decision the Tribunal accepted that the “applicant was harassed by members of the paramilitary group/s at times because of his construction work contracts which he ceased to do in early 2010”. The primary judge found that, seen in light of the Tribunal’s earlier description of the applicant’s claims, that finding involved an acceptance by the Tribunal of the applicant’s claims about occasional harassment after 2010. I agree.

43    As the primary judge found, while the finding that the Tribunal did not accept as true that the applicant suffered serious or significant harm from members of the paramilitary groups as he claims for the reasons that he claims or that there is a real risk that the applicant will suffer serious or significant harm from members of those groups as he claims for the reasons that he claims if he returns to his country is general, that finding could only relate to the earlier description of the applicant’s claims. That earlier description included reference to his claims that he continued to be harassed both after he reduced his construction work in 2010 and after he stopped his construction work.

44    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 a majority of the Court (Brennan CJ, Toohey, McHugh and Gummow JJ) observed that the reasons of an administrative decision maker are “meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. The Court recognised that the reasons of an administrative decision maker under review ought not be construed “minutely and finely” with an eye keenly attuned to the perception of error.

45    Adopting that approach to the review of the reasons of the Tribunal, in my view, there is no error in the approach of the primary judge. As the primary judge found at [70] of her judgment, read fairly the findings by the Tribunal acknowledged the claim about continuing harassment by the Karuna group after the applicant stopped his construction business. That inference is supported by the Tribunal’s earlier reference to the claims made by the applicant including the claim of continued harassment after the applicant stopped his construction business at [27] of the decision record. While the applicant draws support for his position from [42] of the decision record where the Tribunal summarises the applicant’s claims and refers to the applicant being harassed “at other times” by members of the paramilitary groups “even after he reduced his construction work in 2010” that summary cannot be taken in isolation and must be read in the context of the Tribunal’s more fulsome description of the applicant’s claims.

46    In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38] a Full Court of this Court found that the task that was to be undertaken by the tribunal in that matter could “not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”. In my view the Tribunal engaged in such a task here and considered the submissions, evidence and material advanced by the applicant. It did, as required by the Court in Tickner, bring its mind to bear on what was said, on the claims made and the arguments put forward.

47    At [46] in Applicant WAEE the Court said that it is not necessary for a tribunal to refer to:

… every piece of evidence and every contention made by an applicant in its reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well founded fear of persecution for a Convention reason.

(citations omitted)

In addition as noted by the Court in Applicant WAEE at [47] an inference that a tribunal has failed to consider an issue is not readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. That is what occurred here.

48    The Tribunal identified the issue and, while its findings are expressed generally, it did, as the primary judge recognised, take into account the applicant’s evidence and claims about what had happened to him in Sri Lanka including in the period after he stopped his contract work. In my view ground 1 is without merit.

Ground 2

49    By the second ground the applicant alleges that the primary judge erred in finding that the Tribunal’s decision was not arbitrary and unreasonable where it concluded that the applicant would have come to the attention of the authorities if he had been of the interest claimed and if he had travelled in the way that he did. The relevant finding with which the applicant takes issue is at [53] of the Tribunal’s decision record.

50    While the applicant agrees with the primary judge’s finding at [86] of her judgment that the Tribunal’s reasons cannot be read in isolation, he submits that in a case such as this the question of illogicality should take into account the findings that the Tribunal actually made. In the applicant’s submission those findings included:

(1)    at [54] of its decision record, a rejection of claims about the “grease man” in which the army were allegedly complicit;

(2)    at [58] and [59] of its decision record, a finding that the applicant was not of interest to the Sri Lankan authorities for the reasons that he claims because of his association with his brother who was affiliated with the LTTE, because he obtained business contracts through the influence of the LTTE, because he was suspected of anti-government activity, because he was a Tamil businessman who had disputes with the authorities over contracting work, because he is suspected of being involved in a demonstration involving LTTE supporters, because he is a young Tamil male from the north/east province or because he is a failed Tamil asylum seeker who left the country illegally. The Tribunal did not accept that the applicant has been or will be identified or perceived to be an LTTE member or supporter for the reasons that he claimed or be identified as otherwise of interest to Sri Lankan authorities because he left his country illegally and/or has claimed asylum in Australia;

(3)    at [56] and [57] of its decision record, a rejection by the Tribunal of the applicant’s claims based on his being a failed asylum seeker;

(4)    at [52] and [54] of its decision record, an acceptance by the Tribunal that the applicant experienced some discrimination and harassment from paramilitary groups because he secured construction contracts by reason of his association with the LTTE.

51    The applicant submits that the reason the Tribunal rejected the claim of serious harm and interest at the hands of the paramilitaries was because of his ability to travel outside Sri Lanka and return using his own passport. The particular finding at [53] is as follows:

… the Tribunal finds that the applicant used his own Sri Lankan passport to leave and re enter Sri Lanka on the occasions that he did so; this was the applicant’s oral evidence to the Tribunal. The applicant told the Tribunal that “they were searching for him” from 2010 but in the Tribunal’s view if the applicant were of the interest that he claims to be to the Sri Lankan authorities/those associated with the Sri Lankan authorities he could not have left Sri Lanka on the occasions that he did so…and re enter Sri Lanka using a passport in his own name, without coming to the attention of the authorities on exiting and/or re entering Sri Lanka.

52    The applicant submits that reading the Tribunal’s decision in context there is nothing in the evidence to suggest that the paramilitary groups would have had the power to stop the applicant at the airport. The finding at [53] is thus illogical or unreasonable because it was made in the absence of evidence. The applicant relies on the test for legal unreasonableness set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) by Crennan and Bell JJ at [131]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

53    And at [133] where their Honours said:

However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

54    Essentially, the applicant claimed to fear harm from two distinct groups. He feared harm from the Sri Lankan authorities/those associated with the Sri Lankan authorities as he was/will be imputed as a member or supporter of the LTTE and engaged in anti-government activities because of his association with his brother who was affiliated with the LTTE and because of other events which took place. The applicant also claimed that he left Sri Lanka and could not return because he was threatened and harmed and feared harm from two paramilitary groups: the Karuna and Pillaian groups: Tribunal decision record at [40] and [41].

55    At [88] of her judgment, the primary judge found that the Tribunal’s account of the applicant’s claims and his fears that he was being “searched for” had to be seen in light of its earlier account of what the applicant had said had occurred, including harassment by the paramilitary groups in relation to his construction contracts, his claims about the events of 2011 and that he had become of adverse interest to the army, paramilitary groups and the Sri Lankan authorities because of a perceived link to the LTTE. As the primary judge found at [89] the applicant’s claims did not distinguish between his fear of the authorities and those associated with the authorities in the manner in which he now contends. The applicant presented his claim that the authorities generally and the paramilitary groups had become aware of his links with the LTTE and that he feared harm from the Sri Lankan authorities/government, security and the paramilitary groups. In those circumstances it seems, as the primary judge found at [89] of her judgment, that the Tribunal’s finding was essentially a finding that if the applicant was of the interest he claimed because of his profile he would not have been able to leave and return to Sri Lanka as he did without coming to the attention of the authorities. This finding reflects the applicant’s general claim to fear the authorities, the army, the security groups and the paramilitary groups and his claim that this fear of harm caused him to leave the country.

56    On that basis, as the primary judge found at [90], the finding by the Tribunal at [53] should not be read as a finding that the paramilitaries would have the power to stop or have the applicant intercepted by the authorities at the airport because of his carrying out of government contracts in opposition to the wishes of the paramilitary groups. The applicant claimed that his profile was such that he was seen to have links with the LTTE. That claim was linked to a fear of the authorities.

57    The finding that the Tribunal made was open on the evidence before it and there is no error in the approach of the primary judge. It cannot in my view be said that the Tribunal’s finding at [53] was illogical or irrational or unreasonable in the sense described in SZMDS by Crennan and Bell JJ. It was open to the Tribunal to engage in the process of reasoning that it did and to make the finding it did on the material before it.

58    In my view, ground 2 does not have merit.

conclusion

59    In light of findings I have made, while the applicant has provided a reasonable explanation for the delay in filing his application for an extension of time to appeal and there is no prejudice suffered by the Minister, given the lack of merit of the grounds set out in the draft notice of appeal, the application for an extension of time should be dismissed and the applicant should be ordered to pay the first respondent’s costs. I will make orders accordingly.

Associate:

Dated:    21 April 2016