FEDERAL COURT OF AUSTRALIA

MZZQA v Minister for Immigration and Border Protection [2016] FCA 584

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant may appeal from the orders and decision of the Federal Circuit Court made on 24 October 2014 is extended to 24 August 2015.

2.    The name of the second respondent be amended from Refugee Review Tribunal to the Administrative Appeals Tribunal and the title to the proceeding be amended accordingly.

3.    The first respondent’s costs of the application are to be costs in the appeal.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

MORTIMER J:

1    The applicant applies for an extension of time to appeal a decision of the Federal Circuit Court published as MZZQA v Minister for Immigration and Border Protection [2014] FCCA 3181 and dated 24 October 2014. The Federal Circuit Court dismissed with costs an application for judicial review of a decision of the Administrative Appeals Tribunal (then known as the Refugee Review Tribunal), in which the Tribunal affirmed a decision not to grant the applicant a Protection (Class XA) visa.

2    The applicant is substantially out of time, and requires an extension of time of 281 days.

3    For the reasons that follow, the extension of time will be granted. I note that it was clear at the hearing of this application today that the applicant was very unwell. I asked him if he could remain in the hearing for a short period of time while I raised the matters I needed to raise with the Minister’s counsel, and he said he could. He was assisted by an interpreter at the hearing and remained, with obvious difficulty, during the hearing. However, once I had considered the Minister’s submissions, I pronounced orders extending time in which the applicant could appeal, and consequential orders, but did not read my reasons into the court record, so as not to require the applicant to sit for an additional, significant period of time in court when he was so obviously ill. What follows are the reasons for the orders I made earlier today.

BACKGROUND

4    The applicant is a citizen of Sri Lanka and is of Tamil ethnicity. He is from Udappu, a small Tamil village in a predominantly Sinhalese district in the North Western Province of Sri Lanka. He worked as a fisherman with his father before his departure for Australia.

5    The applicant lodged his application for the Protection visa on 31 October 2012 and it was refused by a delegate of the Minister for Immigration on 25 March 2013. The applicant appeared before the then Refugee Review Tribunal on 3 July 2013 and, on 8 July 2013, the Tribunal affirmed the delegate’s decision. It can be noted the Tribunal’s decision followed very quickly after the hearing it conducted.

6    The applicant filed an application for judicial review of the Tribunal decision in the Federal Circuit Court on 31 July 2013. On 24 October 2014, the Federal Circuit Court delivered an ex tempore decision dismissing the application with costs.

7    The applicant did not appeal from that decision. Instead, he sought Ministerial intervention under s 417 of the Migration Act 1958 (Cth). He twice sought such intervention. Only after his second request was unsuccessful did the applicant lodge an application with this Court for an extension of time to appeal the Federal Circuit Court decision.

8    The Court’s discretion to extend time in which to appeal is broad, and always depends on the individual circumstances of each case. That said, it is well established that the Court will examine, at the least, three considerations: the length of the delay and whether the applicant has provided an adequate explanation for the delay; any prejudice the respondent might suffer because of the delay; and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 344 at 348-349. Wilcox J’s outline of these core considerations has been applied consistently in this Court.

9    The Minister correctly accepts that he suffers no prejudice by the grant of an extension of time. Thus, it is the first and third factors, together with any individual considerations in relation to this applicant, upon which the exercise of the discretion turns.

10    The substantial delay is accounted for by the applicant because he twice sought Ministerial intervention under s 417 of the Migration Act. He did seek leave to appeal out of time reasonably promptly after his second request for Ministerial intervention was refused. He was notified on 7 August 2015 that his second request had not met the requirements for subsequent requests to be sent to the Minister for consideration and that, accordingly, his second request had not been forwarded to the Minister. His application for an extension of time was filed on 24 August 2015.

11    Although no doubt in his mind this is a logical explanation, and it may seem sensible that he sought such intervention before exposing himself, again, to potential awards of costs against him if he were to lose an appeal from the Federal Circuit Court decision, I am amongst the judges in this Court who have said that the fact that a person seeks Ministerial intervention is not, of itself, an acceptable explanation for delay in lodging an appeal: see my observations to that effect in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15]. However, at [15], I also stated:

On the other hand, a lack of access to legal representation and advice for any appeal provides some explanation, especially for an applicant who has the additional disadvantages of unfamiliarity with the Australian legal system, insecure migration status and future in Australia, and lack of functional English. That these attributes may be shared by many litigants in this Court in the migration jurisdiction is no reason to diminish their importance. They do in a real sense, in my opinion, affect the capacity of individuals to access the justice system.

12    I adhere to that opinion, and it is applicable to the applicant in this proceeding. Further, as I have noted above, it may well seem sensible to an unrepresented person to exhaust an option (Ministerial intervention) which is both ‘no cost’ and capable of delivering the grant of a visa, rather than to pursue an appellate process which cannot deliver the grant of a visa and may result in a substantial award of costs against an applicant.

13     Seen in that light, the applicant’s explanation for the delay does not tip the scales of the discretion much one way or the other. His explanation is certainly not a powerful exculpatory consideration but nor is it lacking in logic for an unrepresented person who seeks the grant of a visa.

14    This is a case, much like MZZGC, where the exercise of the discretion to extend time should be guided by the Court’s assessment, at an impressionistic rather than a final level, of whether there are any arguable grounds of appeal. The consequences for an applicant of the process of judicial review coming to an end, under a scheme such as the Migration Act which does not allow a further visa application except in the exercise of a personal power by the Minister, is a significant consequence for both the applicant’s liberty and his ability to remain in Australia, in circumstances where he continues to claim he fears harm if returned to Sri Lanka. If he may have arguable grounds of appeal, consideration should be given to whether he should be allowed to put them forward in the usual manner.

15    In my opinion, there may be arguable grounds of appeal because first, there is a clear and concerning error in the Federal Circuit Court decision and second, the Federal Circuit Court’s assessment of the lawfulness of the Tribunal’s decision may be erroneous. Conscious that on an extension of time application, the court’s appellate function should not be usurped, I will explain briefly why I have reached that conclusion. I turn first to the Tribunal decision.

THE TRIBUNAL DECISION

16    The applicant was assisted by his registered migration agent at the Tribunal hearing. A Tamil interpreter was also present to assist him. The presence of an interpreter assumes some importance.

17    The applicant claimed that he feared serious or significant harm from the Sri Lankan Navy and other Sri Lankan authorities because of his Tamil ethnicity and past incidents of harm perpetrated against him by the Navy, in combination with his imputed political opinion as a supporter of the LTTE, his membership of particular social groups comprising asylum seekers in Australia, Sri Lankan Tamils, young Tamil males and Tamil fishermen, and his illegal departure from Sri Lanka. It was a claim which bears in some respects considerable similarity to many claims made by young Tamil men, however the applicant’s encounters with the Navy, and the Tribunal’s acceptance of what happened to him, differentiate his claims in key respects.

18    The Tribunal accepted the applicant’s claims that the Sri Lankan Navy occasionally harassed Tamil fishermen. However, it found that such occasional harassment had not been sufficiently severe to have had any major impact on the applicant’s ability to subsist.

19    It also accepted the applicant’s account of past incidents of harassment perpetrated against him and his father by the Sri Lankan Navy shortly prior to the applicant’s departure for Australia. During one such incident, Navy officials boarded the applicant and his father’s fishing boat inquiring about their catch for the day and discovered some fish the applicant and his father had hidden from the Navy officials. One of the Navy officers then beat the applicant and his father, resulting in his father hitting his head and becoming unconscious.

20    The tribunal also accepted that the applicant and his father were ordered to, and did, report to a Navy camp the next day, where the applicant was beaten again by the same Navy officer. The Tribunal accepted – and found it significant – that the Camp Commander told the applicant’s father that the Navy officer involved would be punished and that the Commander would make sure incidents of that nature would not happen again. The Tribunal accepted that the applicant was unable to work for a few days because of bruising and that, upon the applicant’s return to work as a fisherman, the Navy officer again sought the applicant out and he and others threatened to kill the applicant by pointing a gun into his neck.

21    Relevantly, the applicant attempted to tender several newspaper articles in the Tamil language which apparently related to the harassment of a Tamil fisherman. The Tribunal member explained that the documents would have to be in English if the applicant wanted the Tribunal to have regard to them.

22    The Tribunal accepted that, if returned to Sri Lanka, there was a chance the applicant might encounter the same rogue Navy officer again. However, it found that there was not a real chance that this officer, Sri Lankan navy personnel more generally, or any other agents of the Government of Sri Lanka, would cause serious or significant harm to the applicant in the future, especially in light of the assurance given to the applicant’s father by the Commander.

23    I consider the key relevant paragraphs of the Tribunal’s reasons to be what it said at [26] and then at [28]:

Given that I accept that the applicant may return to Trincomalee to fish, according to his traditional practise, I cannot regard it as a remote chance that the applicant will not encounter this man again. However, even taking into account that I accept that the Navy officer may have threatened the applicant on one occasion after his father received an assurance from his superior officer that it will would not- happen again, I am not satisfied that there is a real chance that the applicant would be subjected to further threats that connote an actual intention to do harm, or further physical mistreatment or harassment or that he would be killed as he claims. The applicant’s father has received an assurance of protection from this man’s commanding officer; I see no reason why the applicant and his father could not approach the commanding officer to explain what has happened and seek a further assurance. There is no reason to suggest that it would not be forthcoming. The applicant argues that it is quite common place for Navy officers to shoot people and in the newspaper it will be reported as the people being killed by ‘unknown persons’. He sought to produce Tamil language newspaper articles to me, which I explained would have to be in English if he wanted me to have regard to them. I am not satisfied that there is a common place practice for navy officers to shoot people in Sri Lanka.

…

In the applicant’s case, he has no LTTE or other adverse profile, his issue is a personal grudge from a rogue Navy officer. He has been offered protection by this man’s commanding officer. I do not accept, as remote and far-fetched, that there is a real chance that the applicant will experience systematic and discriminatory ‘serious harm’ now or in the reasonably foreseeable future, if he were to return to Sri Lanka.

24    For present purposes, it suffices to say that the Tribunal rejected the applicant’s other more general claims (relating to his ethnicity or imputed political opinion, and an imputed association with the LTTE) as well as his claims relating to him being a failed asylum seeker who departed Sri Lanka illegally.

25    The Tribunal also decided that the applicant was not entitled to complementary protection. All it said about this criterion for the grant of a Protection visa (in relation to the applicant’s claims concerning harm at the hands of the Navy) was (at [30]):

Based on the same reasoning and the same “real chance’ test, I find further that the past events do not give rise to substantial grounds for believing that there is a real risk that he will experience significant harm as a necessary and foreseeable consequence of his removal to Sri Lanka.

THE APPLICATION TO THE FEDERAL CIRCUIT COURT

26    The applicant filed an application for judicial review of the Tribunal decision in the Federal Circuit Court on 31 July 2013. He raised two grounds of review: first, that the decision of the Tribunal was ‘affected by an error of law’ and second, that he was denied procedural fairness.

27    The hearing of the application was delayed pending the High Court decision in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179. This case did not ultimately affect the applicant’s own case.

28    The applicant appeared in person at the hearing.

29    He sought to introduce new evidence at the Federal Circuit Court hearing that had not been before by the Tribunal. The evidence was that, after the Tribunal decision, the Sri Lankan police had visited the applicant’s home in Sri Lanka with a message that the applicant should be handed over to the Criminal Investigation Department upon his return to Sri Lanka. However, the Court correctly found (at [13]) the production of new information did not affect the lawfulness of the Tribunal’s decision.

30    The applicant also claimed that the Tribunal failed to consider relevant and important documents, namely the newspaper articles in the Tamil language referred to in those parts of its reasons I have extracted above. The Federal Circuit Court also rejected this contention, on the basis that the Tribunal had the power to require documents to be in English and, in any event, similar information had already been accepted by the Tribunal.

31    The Federal Circuit Court otherwise found no jurisdictional error in the Tribunal’s decision.

THE PROSPECTS OF SUCCESS OF ANY APPEAL

32    The applicant filed a proposed notice of appeal on 17 May 2016 outlining two proposed grounds of appeal. Both were generally expressed to allege error, first in the Federal Circuit Court’s orders, and second in the Tribunal’s decision, without any particulars.

33    The Minister properly drew the Court’s attention to a possible argument arising from the decisions in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 and Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507, which consider whether there may be a breach of the principle in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 if a Tribunal does not draw to an applicant’s attention the “issue” of the circumstances under which the applicant may be released from detention at the airport upon return to Sri Lanka. I accept the Minister’s submissions that the Tribunal’s decision in this case is not affected by any such error.

34    However, there are other matters which in my opinion mean the applicant should be granted leave to appeal.

35    First, there is a whole paragraph in the reasons of the Federal Circuit Court which appears to completely misunderstand and misstate the findings of the Tribunal on the credibility of the applicant: see [29] of the Federal Circuit Court reasons. The Tribunal found the applicant to be credible and accepted in all substantive matters the account he gave to the Tribunal of what had happened to him at the hands of the Sri Lankan Navy officers. Paragraph [29] assumes the opposite to be the fact. What is then said by the Federal Circuit Court at [30] of its reasons seems to proceed from the misstatement in [29]. At the hearing, the Minister’s counsel, understandably, could offer no explanation for these paragraphs in the Federal Circuit Court reasons. If that is, mistakenly, how the Federal Circuit Court considered the Tribunal approached the applicant’s claims, then its misapprehension may have affected its consideration of his entire judicial review claim. While, as the Minister’s counsel submitted in oral argument, this might technically mean the correct order is to remit the judicial review to the Federal Circuit Court to determine again, the most cost and resource effective approach is to grant leave to appeal so that the matter can be finally determined expeditiously by this Court.

36    Second, and without descending into more detail than is appropriate on an extension of time application, I am not satisfied that there was adequate discharge by the Tribunal of its statutory task to determine whether the applicant was entitled to complementary protection. Its reasons are somewhat cursory, and repetitive of its assessment of the applicant’s Art 1A claim. I accept, as the Minister’s counsel developed in oral submissions, that there are authorities of this Court which suggest that in a particular circumstance, the overlap between a person’s claim under Art 1A of the Refugees Convention, and her or his claim to complementary protection may be so complete that disposal of the former means the latter can be disposed of with only brief reasons, but whether this is such a case is a matter to be determined in the appeal.

37    Third, and again without descending into more detail than is appropriate on an extension of time application, it is arguable that the Tribunal’s approach to the applicant’s request that it look at the press articles he produced in Tamil involved a denial of procedural fairness, in the sense of a failure to give the applicant a meaningful opportunity under s 425(1) of the Migration Act to appear and present evidence and arguments. It is also possible (as the Minister’s counsel properly noted) that the Tribunal’s refusal to consider the articles was legally unreasonable. I emphasise that at the moment all I have determined is that these arguments are not fanciful or remote, and the applicant is entitled to have them considered and developed. The issue about the Tribunal’s refusal to consider the Tamil articles was an argument the applicant made to the Federal Circuit Court. Although the Federal Circuit Court stated that the Tribunal had the “power” to require documents to be in English, there was a Tamil interpreter present at the Tribunal hearing who could have translated the relevant parts then and there for the Tribunal. If there were additional press reports to those the Tribunal already had (and referred to), then the additional press articles were capable of affecting the strength of the applicant’s claims about the targeting of Tamil fishermen by the Sri Lankan Navy, and thus were capable of being material to the Tribunal’s consideration of the risks faced by the applicant, given that it accepted he would return to his traditional fishing occupation.

38    It is no part of the Court’s task on this application to decide whether the Tribunal’s decision is affected by jurisdictional error, nor to decide if the Federal Circuit Court’s decision is affected by error. However, given what I have said about each of those decisions, I am satisfied there are sufficient grounds to warrant an extension of time being granted to the applicant, despite the delay, because of what is at stake for him and because, if the Tribunal’s decision is unlawful, it should not stand.

39    There will be a referral for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth) in favour of the applicant so that he can be properly advised and represented on the appeal, and so that the Court can have the benefit of full legal argument by both parties. The parties will be informed in due course of the arrangements for the hearing of the appeal, including orders for the filing of a notice of appeal.

Associate:

Dated:    24 May 2016