FEDERAL COURT OF AUSTRALIA

AYI16 v Minister for Immigration and Border Protection [2017] FCA 1358

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to commence an appeal be refused.

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

TRACEY J:

1    The applicant is a citizen of Sri Lanka. He landed on Christmas Island in July 2012 as an unauthorised maritime arrival. In November 2012 he applied for a Protection (Class XA) visa.

2    A delegate of the Minister refused the application. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision. In March 2016 the Tribunal affirmed the delegate’s decision.

3    The applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court (“the FCC”). The FCC dismissed the application on 21 April 2017: see AYI16 v Minister for Immigration and Border Protection [2017] FCCA 1040.

4    On 9 June 2017 the applicant filed in this Court an application for an extension of time within which to appeal and for leave to appeal from the FCC’s decision.

5    The application was supported by an affidavit in which the applicant deposed that he only received a written copy of the FCC’s reasons for decision on 26 May 2017.

6    A draft notice of appeal was also provided. It contained two grounds. They were:

1.    The learned judge erred in her finding of the Tribunal’s rejection of the “boating incident” as such finding was simply not open on evidence. The decision was so illogical and irrational in nature. (reference is drawn from Minister for Immigration and Citizenship-v-SZMDS {2010} HCA 16)

2.    The Tribunal erred in its construction of the phrase “intentionally inflicted”. It had failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. This matter is not finally determined and special leave was granted by the High Court, the matter was heard and the judgment reserved in SZTAL, High Court- S272/2016.

(Formatting in original.)

7    The hearing of the application took place this afternoon. The applicant appeared in person. He had the assistance of an interpreter.

8    The applicant requires an extension of time within which to commence this proceeding because his notice of appeal was not filed within 21 days after the date on which the FCC’s orders were made: see Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth).

9    The Court has a broad discretion to enlarge time for the commencement of proceedings.

10    That discretion must be exercised in the interests of justice. In SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21] Cowdroy J identified a number of considerations which were relevant to the exercise of the discretion. His Honour said that “the court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the court were to grant leave, and that there is merit in the substantial application”. See also SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12] (Flick J).

11    The Minister accepts that he would suffer no prejudice were the Court to grant an extension of time apart from some undermining of the public interest in the finality of administrative decision-making. He submitted, however, that the applicant had not offered an acceptable explanation for his delay in approaching this Court. The Minister did not dispute the applicant’s claim not to have received a copy of the FCC’s written reasons for decision until 26 May 2017. He did, however, note that the applicant had been present in the FCC when the trial judge delivered oral reasons for decision on 21 April 2017 and heard the orders pronounced. He submitted that the applicant, like any other potential litigant, was required to ascertain the relevant time limits and to act accordingly. The applicant had not offered any proper explanation for not having commenced the proceeding in a timely manner.

12    The applicant appeared in person before the FCC. He required the assistance of an interpreter. It may be assumed that the interpreter translated the trial judge’s oral reasons for judgment and the orders which she pronounced. The applicant could hardly be expected to recall the detail of reasons which extended (when published) to almost 11 pages and included references to various sections of the Migration Act 1958 (Cth) (“the Act”). It was not unreasonable for the applicant to await the publication of the edited reasons before determining whether or not to commence an appeal. He was entitled to seek advice. He acted promptly once he was given the written reasons. By the time he applied for an extension he was only about one month out of time.

13    In these circumstances I do not consider that the short delay, standing alone, would warrant a refusal of the application for an extension.

14    A more fundamental difficulty confronts the applicant. It is that, in my view, he would enjoy, little, if any, prospect of success on the appeal were leave to be granted. It is in nobody’s interest for the matter to proceed to trial in such circumstances.

15    The first ground in the draft notice of appeal alleges that the FCC erred in not finding that the “Tribunal’s rejection of the ‘boating incident’” was not open on the evidence and was so illogical and irrational as to give rise to jurisdictional error.

16    The “boating incident”, to which reference is made in the ground, was a reference to a claim, made by the applicant in support of his visa application, that his father had been killed in December 2009 when Sinhalese fishermen and the police rammed his father’s boat. This was said to have occurred because of his father’s involvement with the Liberation Tigers of Tamil Eelam (“LTTE”).

17    When asked why the Tribunal’s decision was not open to it on the evidence the applicant responded: “It happened. It was true.” He said that this had been established by documents given to the Tribunal. When pressed he said it was a single document. It had been sent to him from Sri Lanka. He did not know the author. It was a government document which related to the death of his father. The FCC court book contained the material that was before the Tribunal. No document matching the description which the applicant said his lawyers had given to the Tribunal appeared in the court book. The applicant did not produce the document. Its contents were unknown.

18    The Tribunal accepted the applicant’s claim that his father had died in a boating accident. It did not, however, accept that the accident occurred as a result of a deliberate act of Sinhalese people. Nor was it satisfied that the Sri Lankan police had conspired to kill the applicant’s father and disguise the incident as an accident. The Tribunal explained its reasons for so concluding. It had regard to country information relating to the state of security concerns at the time of the boating incident which was towards the end of the civil war. It found that the Sri Lankan authorities had had a low level of interest in the applicant’s father having previously held him for one day and then released him. It also found that the applicant had given inconsistent evidence; at one point he said that he had observed the incident and in another that he relied on an account of it given to him by his uncle. It found that he had embellished the accident in order to strengthen his claims for a protection visa.

19    The FCC found that the Tribunal’s findings, in relation to this incident, “were clearly open to it”: at [22].

20    The Tribunal was not obliged to accept the applicant’s claims relating to the boating incident. It explained its reasons for not accepting the claim in a manner which did not suggest any jurisdictional error on its part. Its reasoning was neither illogical nor irrational.

21    The second ground referred to the then-pending decision of the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34. The ground alleges that the Tribunal had erred in its construction of the phrase “intentionally inflicted”. Although not expressly stated this appears to be intended to be a reference to the definition of the term “cruel or inhuman treatment or punishment” appearing in s 5(1) of the Act. The ground is not particularised. The applicant implies that the necessary intention could arise because the Sri Lankan authorities had foreseen the consequences of their alleged actions in ramming his father’s boat even if they did not intend to kill him.

22    “Cruel or inhuman treatment or punishment” falls within the definition of “significant harm” in s 36(2A)(d) of the Act, which is in turn falls within the complementary protection criterion for a protection visa in s 36(2)(aa). The ground could therefore also imply that the FCC erred by not finding that the Tribunal made a jurisdictional error in its consideration of this criterion. The Tribunal accepted that, upon return to Sri Lanka, the applicant will be charged under Sri Lanka’s departure laws and held in remand for a short period of time. However, the Tribunal did not accept that this gave rise to a real risk that the applicant will suffer significant harm constituted by “cruel or inhuman treatment or punishment”.

23    This ground was not argued before the FCC. Leave would be required before it could be relied on in this Court.

24    When asked to elaborate on this ground the applicant said that it had been drafted by a lawyer and he did not know what it meant.

25    Since the ground was raised the High Court has handed down its decision in SZTAL. The majority held that the reference to “intends” in s 5(1) comprehends actual, subjective, intent. Foresight of a result is not sufficient: see SZTAL at 943 [26]-[27] (Kiefel CJ, Nettle and Gordon JJ) and 957 [103] (Edelman J).

26    In these circumstances any reliance on the second ground in this Court would be bound to fail.

CONCLUSION

27    Having regard to all of the circumstances I do not consider that it is appropriate to extend time in order to enable the applicant to commence this appeal.

28    The application will be refused with costs.

Associate:

Dated:    21 November 2017