FEDERAL COURT OF AUSTRALIA

CBO15 v Minister for Immigration and Border Protection [2017] FCA 1323

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 26 June 2017 be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of an agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant has applied for an extension of time to appeal the order of the Federal Circuit Court of Australia (“the FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. The applicant was over four months late in filing a notice of appeal, but in an affidavit supporting his application for an extension of time, the applicant explained that the delay was occasioned by him, on legal advice, applying to the Minister to exercise his discretion under s 48B of the Migration Act 1958 (Cth) and later, seeking the assistance of the United Nations High Commissioner for Refugees.

2    As submitted for the Minister, taking those courses of action was inconsistent with exercising his appeal rights and I do not consider that the fact that the applicant was pursuing alternative avenues in lieu of exercising his appeal rights constitutes an acceptable explanation for the delay: MZABO v Minister for Immigration and Border Protection [2016] FCA 980. As I am also not satisfied that the proposed appeal has reasonable prospects of success, the application for an extension of time should be refused.

3    There are two proposed grounds of appeal, both of which seek to challenge adverse credit findings made by the Tribunal.

4    The first ground alleges that the FCC erred in not finding that the Tribunal failed to consider relevant considerations, including all of the applicant’s claims, or integers of claims, or material questions of fact raised by the material before the Tribunal, or information before the Tribunal. Four particulars support that ground, but the court has been informed that two of those particulars are no longer pressed. The second ground alleges that the FCC erred in not finding that the Tribunal made findings that were not based on logically probative evidence, or that it was otherwise legally unreasonable.

5    Central to the first particular supporting ground 1 and also to ground 2, is a claim that the Tribunal, in assessing the creditability of the applicant’s claims and the significance of inconsistences in his evidence, was obliged, but failed, to consider the likely effect of trauma on the ability of the applicant to recall events. It was argued that the likely effect of trauma on the ability of the applicant to recall events was squarely raised in the delegate’s reasons. The delegate’s reasons recorded that:

The applicant couldn’t recall the exact date of when this incident occurred, but stated it was in October or November and it was either 2010 or 2011. The applicant stated that he does not want to think about these incidents anymore and has forgotten many details since his arrival in Australia.

6    The FCC rejected this claim. First of all, the passage from the delegate’s reasons must be read in context and, as the FCC pointed out, later in the delegate’s reasons the delegate said that during the interview that the applicant would often change his statement when adverse information was put to him to validate his claim. Secondly, the passage itself does not squarely raise that the applicant’s memory may have been effected by trauma. Thirdly, the Tribunal’s reasons disclose that the Tribunal was alert to the possibility that there may be other explanations for the inconsistencies and discrepancies in the applicant’s evidence, other than the witness not being a witness of truth. The reasons for decision disclose that the Tribunal gave the applicant the opportunity to explain the inconsistencies and discrepancies, and took his explanations into account in reaching its decision and that there were cogent and well-founded bases for the Tribunal making its adverse credit findings. Furthermore, the Tribunal’s reasons do not disclose that the likely effect of trauma on the ability of the applicant to recall events was squarely raised by his responses.

7    Ground 1 (c), the other particular still in issue, alleges that the Tribunal failed to consider matters raised by country information in determining whether the applicant may suffer persecution or significant harm on his return to Sri Lanka as a result of his illegal departure. The FCC rejected this ground, holding that the Tribunal did what it was asked to do and assessed the country information, put that information to the applicant and applied it to the applicant’s circumstances. It was contended, however, that the Tribunal did not consider how long investigations of the applicant by the authorities may take, or whether the applicant may be transferred to prison and how long he may remain there, or whether he had a well-founded fear of persecution or a real risk of significant harm if he remained for some time in prison, although the material before the Tribunal raised those questions. I reject that submission. On a fair reading of the Tribunal’s decisions, those matters were addressed by the Tribunal (at paragraphs [57], [58], [59], [68], [69] and [70] in particular). It is clear from those paragraphs that the Tribunal considered the possibility that the applicant may be held in detention, and accepted that he may be detained briefly but country information had suggested that all persons are granted bail. Having taken those matters into account, the Tribunal did not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country either on arrival at the airport, whilst on remand awaiting a bail hearing, or when he appeared later before the Court, constituted a serious harm amounting to persecution or a real risk of being significantly harmed during this process. No jurisdictional error is shown in reaching that conclusion. In addition, it has not been shown that the matters which it was claimed were not addressed might have led the Tribunal to any different conclusion.

8    Accordingly, as I am not satisfied that the proposed appeal has any reasonable prospects of success, there would be no utility in granting an extension of time and the application for an extension of time should be refused.

Associate:

Dated:    2 November 2017