FEDERAL COURT OF AUSTRALIA

AYM15 v Minister for Immigration and Border Protection [2016] FCA 583

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 21 December 2015 be dismissed.

2.    The applicant pay the first respondent’s costs of the application for an extension of time and leave to appeal.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant seeks an extension of time and leave to appeal from the orders made and judgment given on 23 October 2015 by a judge of the Federal Circuit Court of Australia (Federal Circuit Court) in AYM15 v Minister for Immigration & Anor [2015] FCCA 2869 (AYM15). The Federal Circuit Court dismissed the applicant’s application for judicial review of the decision of the second respondent (the Tribunal), affirming a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Protection (Class XA) visa.

2    The applicant’s application for judicial review was dismissed by the Federal Circuit Court at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (the FCC Rules). That rule permits the court, at a hearing of an application for an order to show cause, to dismiss the application if it is not satisfied that it has raised an arguable case for the relief claimed. Rule 44.12(2) provides that a dismissal under para (1)(a) is interlocutory. Accordingly, the applicant requires leave to appeal from the orders and judgment in AYM15: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: see r 35.13 of the Federal Court Rules 2011 (the Federal Court Rules). The application for leave to appeal was not filed within that 14 day period and accordingly the applicant requires an extension of time within which to file his application for leave to appeal.

BACKGROUND

4    The applicant, who is a citizen of Sri Lanka, arrived in Australia on 9 August 2012 as an unauthorised maritime arrival. He applied for a Protection (Class XA) visa on 24 December 2012. On 9 January 2014 that application was refused by a delegate of the Minister.

5    On 23 January 2014 the applicant applied to the Refugee Review Tribunal, as the Tribunal was then known, for review of the delegate’s decision.

6    On 13 May 2015 the applicant appeared before the Tribunal to give evidence and make submissions.

7    On 25 May 2015 the Tribunal made its decision affirming the decision under review not to grant the applicant a Protection (Class XA) visa.

8    On 5 June 2015 the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court and on 26 August 2015 he filed an amended application in those proceedings.

PROCEEDINGS BEFORE THE TRIBUNAL

9    The applicant’s claims, set out in two statutory declarations dated 18 December 2012 and 24 June 2013, were as follows:

(1)    the applicant fears harm because he is a young Tamil male from a former LTTE controlled area, is strongly opposed to the Rajapaksa government as anti-Tamil, supports the Tamil National Alliance (TNA), as a Hindu and as a failed asylum seeker;

(2)    the applicant’s brother was killed by the Eelam People’s Revolutionary Liberation Front (EPRLF) cadres in 1990 because he refused to join their party and they suspected him of being a Liberation Tigers Tamil Eelam (LTTE) supporter and his parents and another brother were killed in 2009 in aerial bombings. The applicant claimed that his father and elder brother supported the Tamil nationalist parties and that he was interested in seeking justice against the killing of his parents and brother;

(3)    the applicant was taken to the Anandakumarasuwamy camp in Vavuniya in 2009 where he stayed for one year. While there he was questioned by the CID about whether he was in the LTTE;

(4)    when local council elections were announced in Vavuniya, the applicant claimed that he helped Mr Sritharan MP from Jafna with his election campaign;

(5)    in June 2011, prior to the election, the TNA organised a meeting in Pallai which the applicant did not attend. However, he walked past it on his way home from work. He saw the army beating and taking videos of people attending the meeting. The next day two CID officers came to his shop and asked him to come to their office where he was questioned and fingerprinted. The CID officers asked him to return for another meeting but he went to Colombo so that the CID could not harm him;

(6)    in August 2011, fearing that he would become a person of interest to the Sri Lankan security forces as an LTTE supporter or pro Tamil nationalist, his brother advised him to go abroad and arranged for an agent to organise his travel and a passport in his name. The applicant went to India planning to go on to another safe country. However, he had to return to Colombo in October 2011. He then flew to Malaysia in December 2011 and went to Indonesia, where he stayed for eight months, before coming to Australia by boat; and

(7)    as a result of the atrocities he witnessed during the civil war in Sri Lanka, the applicant would get nightmares and suffered from mental depression and possibly post-traumatic stress disorder.

10    The Tribunal accepted that the applicant was a Sri Lankan national from the northern province and of Tamil ethnicity. However, the Tribunal found that the applicant was not a truthful and credible witness about his experiences in Sri Lanka and the reasons he fears persecution there. This was because he provided inconsistent evidence about the circumstances surrounding the event which he says was the reason for leaving Sri Lanka, namely being targeted by the CID following a TNA meeting in Pallai, and his political involvement with the TNA. In summary the Tribunal:

(1)    found that the applicant embellished his evidence in an attempt to strengthen his claim to be a person of interest to the Sri Lankan authorities due to his political involvement with the Tamil cause and suspected LTTE links, which he did not have;

(2)    was not satisfied that the applicant had been truthful about his experiences in Sri Lanka and the reasons he fears returning to Sri Lanka, or that any of his evidence could be relied upon. The Tribunal was not satisfied that the applicant was ever actively involved with or supported the TNA or a TNA MP, including in any election campaigns, or that he was targeted by the CID for this reason or because he happened to be passing a TNA meeting in Pallai on his way home or that he was taken or summoned to the CID office for questioning or asked to return there at a later time, or that this prompted him to leave Sri Lanka as he claimed;

(3)    was not satisfied that the applicant had the profile of a perceived or actual TNA supporter or a suspected LTTE supporter, that his father and brother were involved in Tamil politics or that his brother was killed by the EPRLF or the Eelam People’s Democratic Party (EPDP) for refusing to join them or as an LTTE supporter;

(4)    did not accept that the applicant ever attended Pallai Central College or came into contact with the LTTE sports wing leader who might identify him at the airport as an LTTE supporter; and

(5)    the Tribunal did not accept that the applicant was of interest to Sri Lankan security authorities prior to his departure from Sri Lanka and was not satisfied that if he returned to Sri Lanka he would be identified, detained, interrogated, tortured or killed by the Sri Lankan authorities, CID, army or EPDP because of his involvement with the TNA or as a suspected LTTE supporter.

11    The Tribunal was not satisfied that the applicant had a profile as a young Tamil male from a former LTTE controlled area that would put him at risk of harm in Sri Lanka. Further, while the applicant asserted that he feared harm because of his Hindu religion, based on independent country information, the Tribunal found that there was no evidence to suggest that the Sri Lankan authorities persecute Hindus because of their religion.

12    As the Tribunal found that the applicant did not have a political profile of interest to the authorities for imputed LTTE links, as a risk to the Sri Lankan state or government or for any other reason, it was not satisfied that there was a real chance that the applicant would be subjected to serious harm on his arrival in Sri Lanka as a failed asylum seeker.

13    The Tribunal considered the applicant’s claims under the complementary protection criterion and found that there was not a real risk that the applicant would suffer significant harm upon return to Sri Lanka.

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

14    As noted above, the Federal Circuit Court convened a show cause hearing pursuant to r 44.12 of the FCC Rules. The hearing proceeded on the basis of the applicant’s amended application which raised the following grounds as recorded at [3] of AYM15:

I had a legitimate expectation that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments if they found any negative information in respect of my RRT review after the hearing.

The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by way of a further hearing or respond to me in writing of their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which RRT did not consider.

Particulars:

I intended to provide the enclosed materials before the RRT made my decision. The RRT did not give me that opportunity. If the RRT sent me a letter stating that as stated on page 7 of 16 at paragraph 16 of my RRT decision l would have given the RRT new evidence as to why I was credible. Therefore the RRT breached procedural fairness to me as required in the Migration Act.

From the paragraphs from 17 to 31 on the pages from 7 to I 0 or 14 in the RRT decision were not put me sufficiently for my comments during the hearing or after the hearing, by a second hearing or inviting me in writing, before this decision was made. Therefore the RRT breached the procedural fairness to me as required in the Migration Act. The RRT failed to exercise its power given to that in my RRT review.

15    The primary judge accepted the Minister’s submission that the applicant had a genuine hearing and an opportunity to present evidence and arguments and that he was invited to provide information prior to the hearing and did so through his legal representatives after the hearing: AYM15 at [10]. His Honour found that there was no substance to the assertion that the applicant had a legitimate expectation that he would be contacted for a second hearing and that it was clear from [21], [28] and [30] of the Tribunal’s reasons that the Tribunal raised “live” issues with the applicant. It was not necessary for the Tribunal to invite the applicant to a further hearing in relation to adverse findings on credit. The applicant had an opportunity to give evidence and raise arguments in relation to his claims and fear of persecution or of significant harm: AYM15 at [11].

16    The primary judge found that the grounds of the application did not identify any basis upon which there was an arguable case of breach of s 424A of the Migration Act 1958 (Cth) and that the Tribunal did not have an obligation to notify the applicant of its intention to refuse his application. His Honour also found that there was no substance in the allegation that there were major issues not considered by the Tribunal and that it was clear from the Tribunal’s reasons that it addressed the claims articulated by the applicant: AYM15 at [12].

17    The primary judge held that there was no substance in the contention that the Tribunal breached the rules of procedural fairness, nor was the Tribunal required to give the applicant notice of its reasoning process in relation to findings on the applicant’s credit. His Honour held that the adverse findings by the Tribunal were open to it on the material before it and that nothing in the grounds of the amended application identified any arguable jurisdictional error: AYM15 at [13]-[14].

18    Finally, in relation to the applicant’s submission that he did not know what to say before the Tribunal and that he had been suffering from fever and was trembling at the time of the Tribunal hearing, the primary judge noted that the applicant had legal representation at the hearing and concluded that nothing said by the applicant from the bar table disclosed any arguable jurisdictional error: AYM15 at [14]-[15].

THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL

19    The application for an extension of time and leave to appeal (the Application) seeks an order for an extension of time to seek leave to appeal and leave to appeal from the whole of the judgment in AYM15.

20    In support of the Application, the applicant relies on two affidavits both sworn 23 November 2015 and filed on 21 December 2015.

21    One of the affidavits is in support of the application for an extension of time. Relevantly, the applicant states:

3.    I could not make this appeal within the required deadline, because:

(a)    I was given an impression that I had to apply to the Federal Court within 28 days

(b)    As a result of my poor comprehension of English and understanding of the Australian legal system I could not get the application forms filled.

4.    I was at the Federal Court Registry on the 19th and on the 20th of November 2015.

22    The second affidavit annexes a draft notice of appeal. The grounds set out in the draft notice of appeal are:

1.    That there is a jurisdictional error in the Federal Circuit Courts decision.

2.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

3.    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

Legal principles

23    Rule 35.13 the Federal Court Rules requires an application for leave to appeal to be filed within 14 days after the date on which judgment was pronounced or the order was made. The orders of the primary judge were made on 23 October 2015. Any application for leave to appeal had to be filed by 6 November 2015. The application for an extension of time and leave to appeal was filed on 21 December 2015, eight weeks and three days after the orders from which the applicant seeks leave to appeal were made. The applicant thus needs an extension of time of six weeks and three days.

24    The likelihood of leave to appeal being granted and the reasons for the delay are relevant considerations for the purpose of an application for extension of time: Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] (per Lindgren J); Deighton v Telstra Corporation Ltd [1997] FCA 1568 (per Lee, Heerey and RD Nicolson JJ). In relation to an application for leave to appeal, an applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

25    Thus, relevant to both applications is the issue of the prospects of success of the proposed appeal.

Adjournment application

26    In the course of making submissions in support of the Application, the applicant applied for an adjournment of the hearing to allow him to obtain legal representation. No prior notice of this application had been given to the Minister. The applicant submitted that he was under the impression that he would be able to argue his case before the Court with a lawyer, that he needed to get a lawyer but did not have the funds required at the moment, that he spoke to a lawyer who told him that he did not have time but that he would speak to him later and that it would cost a lot and that he had a friend who would help him by providing the necessary funds.

27    The Minister opposed the application for an adjournment on the basis that he had received no prior notice of it, there was no evidence before the Court to explain what steps the applicant had taken to secure legal representation and because of the lack of prospects of success of the proposed appeal.

28    I declined to grant the adjournment. The Application was filed on 21 December 2015, five months prior to the hearing. Paragraph 3 of the draft notice of appeal which accompanied the Application states that “[f]urther grounds of appeal will be provided once I have legal representation”. The applicant was thus contemplating legal representation at least since filing the Application. There is no evidence of any steps taken since that time to secure legal representation nor was any proper explanation given about any such steps at the hearing. In those circumstances it was not appropriate to grant an adjournment.

Explanation for the delay

29    The applicant’s explanation for the delay is that he thought that he had 28 days within which to apply to this Court to appeal the decision of the primary judge and that as a result of his poor understanding of English and of the Australian legal system he could not get the “application forms filled”. The applicant also says that he was at the Federal Court registry on 19 and 20 November 2015. However, he does not say what occurred on those days.

30    The explanation given, namely the applicant’s lack of understanding of the legal system, provides a reason for the first two weeks of his delay. However, it does not speak to the cause of the delay between the expiration of the 28 day period, which he thought was the applicable appeal period, and the date on which he actually filed the Application. The applicant has failed to fully explain the reason for the delay.

Prospects of the appeal

31    The second issue to consider is whether the proposed appeal has any prospects of success.

32    The applicant did not file any written submissions in support of the Application. At the hearing he made the following submissions:

(1)    there are still a lot of problems in Sri Lanka and he had informed the earlier decision makers about those problems but they did not believe his claims;

(2)    if he returns to Sri Lanka his life will be in danger;

(3)    his older brother, who had arranged for the applicant to depart Sri Lanka, was now facing major problems there as a result of doing so, and had to leave. The applicant attempted to tender a document which he said supported this claim and informed the Court that he had other documents which he would like to provide in support of this claim;

(4)    the applicant called the Minister’s department every month about the problems his brother was facing and they told him to bring the issue to the Court’s attention. The applicant also claimed that the Minister’s department asked him for evidence of the claim but that he did not have the material at the time as his brother was moving around from country to country; and

(5)    he made an application for adjournment before the primary judge but it was refused.

33    The submissions made by the applicant do not raise any arguable grounds of appeal. To the extent the applicant alleges that there are still problems in Sri Lanka and that he fears returning he seeks impermissible merits review and, as the Minister submits, misunderstands the role of this Court. The applicant’s submission that the earlier decision makers did not accept his explanation of his problems is an attempt to take issue with the Tribunal’s credit findings. The Tribunal accepted that the applicant was a Sri Lankan national from the north of Tamil ethnicity but for the reasons summarised at [10] above, found that the applicant was not a witness of truth. The issue of credibility is a factual matter to be dealt with by the Tribunal. The findings made by the Tribunal were open to it on the basis of the material before it.

34    The applicant raised issues about his brother and attempted to tender a document in support of those issues, which was opposed by the Minister. The position of the applicant’s brother and the relevance of that issue to the applicant’s claims were not matters raised before the Tribunal. They are not matters that can now be raised before this Court and the attempt to raise them once again is an attempt to seek impermissible merits review. I declined the tender of the documents because they were in the German language, did not on their face appear to relate to the applicant and bore dates of May 2016, well after the date of the Tribunal hearing. Further the documents were not before the Tribunal.

35    There is no evidence that an adjournment application was made at the hearing before the primary judge. His Honour’s judgment does not refer to such an application and the Minister’s solicitor, who was present at the hearing before the primary judge, submitted that she could not recall such an application being made.

36    The proposed grounds of appeal do not allege any error on the part of the primary judge. The first ground of appeal contends that there is a “jurisdictional error in the Federal Circuit Courts decision”. The role of the primary judge was to consider whether there was any jurisdictional error in the decision of the Tribunal. The applicant’s ground raised in his amended application, in substance, alleged that the Tribunal breached its obligations of procedural fairness. The primary judge considered that ground and concluded that there had been no breach by the Tribunal of its procedural fairness obligations. His Honour found that the applicant had a genuine hearing before the Tribunal, he was legally represented at that hearing, given an opportunity to present evidence and arguments and was invited to provide information prior to the hearing and in fact did provide information both prior to and after the hearing. His Honour comprehensively considered and made findings in relation to the applicant’s claim of a breach of the Tribunal’s obligations of procedural fairness. There is no arguable error in the approach of the primary judge in his consideration of the applicant’s claim.

37    The second ground of appeal alleges that the reasons provided by the Tribunal to the Minister in support of the Tribunal’s recommendation that the applicant was not a person to whom Australia had protection obligations were neither logical nor rational. This ground of appeal once again fails to identify any alleged error in the reasoning of the primary judge. It appears to suggest that the Tribunal’s reasons were neither “logical nor rational”. This was not a ground that was raised before the primary judge and the applicant would need leave to raise it on appeal in this Court, should leave to appeal be granted. The ground is not particularised. However, the Tribunal considered the claims and facts before it in detail and, on the basis of its findings, found that the applicant had not satisfied the criteria for the grant of a protection visa. There does not seem to be any basis upon which it could be said that the Tribunal’s reasons were neither logical nor rational.

38    In my opinion, the proposed appeal has no prospects of success. On that basis, the applicant has failed to demonstrate that there is sufficient doubt about the correctness of the judgment below to warrant its review and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

CONCLUSION

39    In light of the matters set out above, I will make orders that the Application be dismissed and that the applicant pay the first respondent’s costs of the Application.

Associate:

Dated:    26 May 2016