FEDERAL COURT OF AUSTRALIA

BZAIZ v Minister for Immigration and Border Protection [2016] FCA 956

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time lodged electronically on 6 April 2016 be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    On 13 November 2012, the applicant, a citizen of Sri Lanka, made an application for a Protection (Class XA) visa. The applicant is of Tamil ethnicity. The applicant claimed that he had been, and would be, considered to be a member or supporter of the Liberation Tigers of Tamil Eelam (LTTE) and, as such, would suffer persecution or serious harm at the hands of the Sri Lankan government and its authorities.

2    On 31 July 2013, a delegate of the first respondent (the Minister) refused the application for a protection visa.

3    The applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. A hearing took place before the Tribunal at which the applicant was represented by a migration agent and gave evidence with the assistance of an interpreter. On 20 January 2015, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa. In relation to the Tribunal’s decision, I note the following:

(a)    The Tribunal made a number of findings relating to the applicant’s credibility and ultimately accepted only one very limited aspect of the applicant’s claims relating to his questioning by authorities in 2009.

(b)    In rejecting the applicant’s claims, the Tribunal noted that it found the applicant’s evidence to be vague and lacking in detail in a number of respects, as well as at times repetitive, hesitant and generally lacking in credibility. The Tribunal also found that when certain concerns were put to the applicant about his evidence, the applicant changed his story.

(c)    The Tribunal found that the applicant had fabricated certain claims, including regarding his detention by police in 2008 and that the applicant “was adding to his story in response to tribunal concerns” (paragraph 46).

(d)    Having considered the applicant’s evidence, the Tribunal found that the applicant was “not a witness of truth and fabricated his evidence” (paragraph 48).

(e)    In considering the applicant’s claim to have been questioned for about half an hour by authorities in 2009, the Tribunal accepted that country information indicated that authorities often questioned Tamils, particularly those who had travelled into Colombo from the North or East. It accepted that the applicant may have been asked about his knowledge of other people and that authorities may have checked the family’s tailor shop and questioned the applicant. The Tribunal did not accept that the applicant had suffered any harm or that he had an adverse political profile or was of adverse interest.

(f)    While the Tribunal accepted that the applicant was questioned in 2009, it did not accept that he faced a real chance of serious harm upon return, noting that the security and humanitarian situation concerning Tamils had improved considerably. The Tribunal did not accept that the prior questioning meant that the applicant would be perceived as having LTTE connections.

(g)    Ultimately, considering the circumstances singularly and cumulatively, the Tribunal was not satisfied that the applicant faced a real chance of serious harm by the police, the Sri Lankan army, or by any other Sri Lankan authorities or anyone else due to his race, religion, being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka; the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason at the time of the decision or in the reasonably foreseeable future if he returned to Sri Lanka; therefore, the Tribunal concluded, he did not satisfy the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (paragraphs 100-101 of the Tribunal’s reasons).

(h)    The Tribunal considered the complementary protection criterion and concluded, having considered matters singularly and cumulatively, that it was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm; the Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act (paragraphs 114-115 of the Tribunal’s reasons).

4    On 17 February 2015, the applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

5    On 31 July 2015, the hearing before the Federal Circuit Court took place. The applicant appeared in person, without legal representation.

6    On 19 January 2016, the primary judge dismissed the application and ordered the applicant to pay the Minister’s costs of and incidental to the application fixed in the sum of $6,825.

7    On 6 April 2016, the applicant lodged electronically an application for an extension of time in which to appeal to this Court from the orders of the Federal Circuit Court. The application was filed in the Queensland District Registry but was subsequently transferred to the Victoria District Registry of the Court.

8    The application for an extension of time is supported by an affidavit of the applicant which contains some brief reasons in support of the application. The affidavit relevantly states:

2.    I annexed the order was granted from the Federal Circuit Court on 19 January 2016.

3.    After the order was granted, I made the request in January 2016 to the MINISTER FOR THE IMMIGRATION AND BORDER PROTECTION to look in to my matter under special circumstances.

4.    The Ministerial Intervention outcome was delivered in 26 February 2016.

5.    My exceptional circumstances were not considered by the Minister.

6.    The proceedings with the Ministerial Intervention request, my appeal to the Federal Court was delayed.

9    The applicant has filed a draft notice of appeal with the following two grounds.

1.    The proceeding in the order which the application relates was pronounced involves a question of law.

2.    There is a jurisdictional error occurs in the order.

10    The applicant is not represented by a lawyer and it appears that the affidavit and draft notice of appeal were prepared without any, or any significant, legal assistance.

11    The applicant made oral submissions today through a Tamil interpreter. In support of his application, he referred to the fact that he is being held in a detention centre and has not been able to obtain legal assistance.

Applicable Principles

12    The principles applicable to an application for an extension of time are well established. The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.

Application of principles to the facts of the present case

13    The delay in the present case is not insignificant. The applicant had 21 days from 19 January 2016 in which to file a notice of appeal. The application for an extension of time was lodged approximately six weeks after that date.

14    The applicant by his affidavit relies on the fact that he had applied to the Minister for intervention. Before considering this ground, I will consider the merits of the proposed appeal.

15    The two grounds in the draft notice of appeal do not identify with any particularity any errors in the decision of the Federal Circuit Court or the decision of the Tribunal.

16    For completeness, I will refer to the grounds for judicial review that were relied upon by the applicant in the Federal Circuit Court. The applicant relied on six grounds in his application for judicial review in the Federal Circuit Court. The application for review identified these grounds as follows:

The Tribunal’s decision discloses jurisdictional error because the Tribunal:

1.    Did not consider all of my claims.

2.    Did not comply with s 425 of the Migration Act.

3.    Did not correctly apply the ‘real chance’ test.

4.    Misunderstood and misapplied s 91R of the Migration Act.

5.    The Tribunal did not afford me procedural fairness.

6.    The Tribunal applied the wrong legal test.

17    The primary judge commented that these grounds were in the nature of “pro-forma” grounds; that there were no particulars that expanded upon the grounds or gave them content; that the applicant was unable to give the grounds any content in his oral submissions before the primary judge; and that his submissions sought to cavil with the Tribunal’s determination that his claims were not credible (at [16]).

18    The primary judge considered the first ground at [17]-[20] of the reasons, concluding that there was nothing in the Tribunal’s reasons that would suggest that the Tribunal did not consider all of the claims made by the applicant; the primary judge concluded that the Tribunal considered all of the claims made by the applicant or which appeared open on the material before it (at [20]).

19    The primary judge considered the other grounds raised in the application for review at [21]-[24], rejecting each of those grounds. The primary judge accepted the Minister’s submission that, properly characterised, the applicant simply disagreed with the Tribunal’s findings of fact and sought to have the court undertake an impermissible review of the merits of the applicant’s claims and the Tribunal’s decision.

20    There does not appear to be any error in the way that the primary judge dealt with these matters.

21    For these reasons, the proposed appeal has no merit, and therefore the application for extension of time is to be refused.

22    It is therefore unnecessary to consider the applicant’s grounds for an extension of time, in particular that an application was made for ministerial intervention. However, I note that this will generally not constitute an acceptable reason for not filing a notice of appeal in time: see, eg, Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29] per Jessup J; MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15] per Mortimer J.

23    For these reasons, the application for an extension of time will be dismissed. There is no proper reason why costs should not follow the event. Therefore, there will be an order that the applicant pay the Minister’s costs.

Associate:

Dated:    15 August 2016