FEDERAL COURT OF AUSTRALIA

AJK15 v Minister for Immigration and Border Protection [2018] FCA 152

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

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

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

EX TEMPORE REASONS FOR JUDGMENT

KENNY J:

1    This is an application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) to file a notice of appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 8 August 2016 (AJK15 v Minister for Immigration and Border Protection [2016] FCCA 2444). A judge of the Federal Circuit Court dismissed an application for judicial review of a decision of 6 March 2015 made by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa (the visa).

2    The applicant, AJK15, is a national of Sri Lanka. He applied for the visa on 7 January 2013. On 5 March 2014, a delegate of the respondent Minister refused to grant the visa and, on 17 March 2014, the applicant made an application for review of that decision to the Tribunal. The applicant appeared before the Tribunal on 24 February 2015 to give evidence and present arguments, with the assistance of a Sinhalese interpreter, and was represented by his registered migration agent. On 6 March 2015, the Tribunal affirmed the delegate’s decision.

3    The applicant subsequently made an application for review of the Tribunal’s decision to the Federal Circuit Court. As indicated already, this application was dismissed on 8 August 2016. The applicant seeks to appeal out of time to this Court and before he can do so, he requires the Court to grant him an extension of time within which to appeal from the Federal Circuit Court’s judgment.

4    The applicant attended Court today and was assisted by an interpreter. The Minister was legally represented.

The PARTIES’ RESPECTIVE POSITONS

5    The applicant has not filed any written submissions in support of his application, although he has filed a very brief affidavit affirmed by him 14 September 2016.

6    The applicant has also filed a draft notice of appeal, which stated 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.

7    At the hearing, the applicant indicated that he had nothing further to add to this. The Tribunal filed a submitting notice, save as to costs.

8    The respondent Minister filed written submissions dated 14 February 2018, in which the Minister stated that he opposed the grant of an extension of time on the bases that there was no satisfactory explanation for the delay, and the proposed appeal lacked merit. At the hearing, the Minister relied on his written submissions.

application for an Extension of time

9    In the absence of an order extending time, an appeal from the Federal Circuit Court to the Federal Court under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) must be filed within 21 days of judgment: r 36.03 of the Federal Court Rules 2011 (Cth). The Federal Circuit Court delivered judgment on 8 August 2016. The last day for filing a notice of appeal was 29 August 2016. In this case, the applicant filed his extension of time application on 16 September 2016.

10    The Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal under r 36.05. Broadly speaking, bearing in mind the length of the delay, the applicant for an extension of time should satisfy the Court that:

1.    there is an acceptable explanation for the delay;

2.    there would be no undue prejudice to a respondent if the Court were to extend time; and

3.    there is sufficient merit in the proposed appeal to justify an extension of time.

See, for example, Singh v Minister for Immigration and Border Protection [2015] FCA 483 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17] and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

11    The above-mentioned considerations are not, of course, exhaustive and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with whom Edmonds J agreed).

12    As will be seen, the applicant is seeking a comparatively brief extension of 18 days.

13    The Minister has conceded that he would suffer no prejudice if the extension of time was granted.

14    In his supporting affidavit, the applicant affirmed that:

3.    After the order was granted, I was searching how to get a fair decision for me.

4.    During that period, I was silverly sick, and could not attend to my day today work.

5.    The searches for the next step and my sickness caused my appeal to the Federal Court delayed.

15    The Minister submitted that this explanation for the applicant’s delay was inadequate. I am inclined to accept the Minister’s submission in this regard, although my decision to refuse the applicant an extension of time does not turn on this issue but on the fact that the applicant has not satisfied me that there is sufficient merit in the proposed appeal to warrant the extension of time he seeks.

16    In order to assess the merits of the proposed appeal, it is necessary briefly to discuss the decision of the Tribunal and the reasons for judgment of the Federal Circuit Court, as well as the applicant’s draft notice of appeal.

Merits of the appeal

Tribunal’s decision

17    The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on the basis that the Tribunal was not satisfied that the applicant met the refugee criterion in s  36(2)(a) or the alternative criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act).

18    The Tribunal reproduced the applicant’s claims for protection as set out in the submission accompanying his visa application in its reasons for decision. In that submission, the applicant claimed that:

(1)    He is ethnically Sinhalese and a Christian.

(2)    He fears returning to Sri Lanka because he believes he will suffer persecution there for reason of his political views, and because he is married to a Tamil woman.

(3)    He had been involved in politics since about 1991, and his father was a very active and prominent supporter of the United National Party (UNP).

(4)    He had experienced many threats against him and his family because of his support for the UNP.

(5)    His family was forced to relocate within Sri Lanka but had still been threatened and their house has been damaged by political opponents.

(6)    He left Sri Lanka in April 2006 and went to the United Arab Emirates to escape the threats and danger.

(7)    In November 2008 he took employment in Iraq to avoid being killed or seriously injured in Sri Lanka because of his work with the UNP.

(8)    He was not a senior member of the UNP but organised meetings for party candidates in elections, put up posters, distributed election materials and collected people from the village to attend party meetings.

(9)    When he returned to Sri Lanka from Iraq, he bought a three-wheeler vehicle to transport people but was refused a licence by government officials. He believed this was because he was a known supporter of the UNP;

(10)    His wife is of Tamil ethnic origin and he and his wife have been subjected to abuse because of her Tamil ethnicity.

19    The Tribunal found that the applicant’s key claims concerning his involvement with the UNP were not credible and that his involvement with the UNP was “extremely limited”. The Tribunal stated that it had “serious concerns about the applicant’s involvement with the UNP and his claims that he has faced any form of harm arising out of that involvement”. The Tribunal said that the applicant’s evidence as to these claims was “vague, contradictory and admitted limited concerns arising out of his UNP involvement”. The Tribunal noted that when asked what harm had occurred because of his involvement in politics, the applicant was “extremely vague”. When asked if the applicant had ever been personally harmed because of his involvement in politics, the applicant stated he had not been harmed. The applicant stated that he had been involved in presidential, provincial and local elections on behalf of the UNP, but later acknowledged that he had not been in Sri Lanka for the previous Presidential election in January 2010 or the provincial elections in 2013 and February 2009. As for the local election in July 2011, the Tribunal said that the applicant was “vague about the details”, unable to name his local election area, and the applicant said he “had not conducted any serious work”.

20    The Tribunal found that a letter relied on by the applicant to corroborate his claimed activities contained information that was significantly inconsistent with the applicant’s own evidence about his activities. This was the letter provided by the applicant to the Department, which was written in 2012 and stated that the applicant was a member of the UNP. The Tribunal noted that the letter stated that the applicant was “a leading member of the United National Party” and that “he worked hard in all the election campaigns of the UNP in the past”. The Tribunal noted that this was inconsistent with the applicant’s own evidence that he was not a leading member of the UNP and that he had not been in attendance in Sri Lanka during any of the elections aside from one local election. The letter also stated that the applicant had had “attempts on his life for several times”, but the applicant had not disclosed any attempts on his life. Given the “significant inconsistencies” between the applicant’s activities and those stated in the letter, the Tribunal did not consider that the letter was an accurate reflection of the applicant’s position in the UNP, activities for the UNP or threats made because of his involvement with the UNP, and gave the letter no weight.

21    The Tribunal found that the applicant had not faced any threat arising from his support for the UNP. The Tribunal noted that the stones thrown at the family home did not occur during any of the electoral process and did not consider the home was stoned because of the applicant’s involvement in politics. The Tribunal did not accept that the applicant had faced any threat or intimidation arising from his involvement in politics in Sri Lanka. The Tribunal considered that the applicant’s statement that he left Sri Lanka to go to the United Arabic Emirates and Iraq to get away from the threats and danger to his life lacked credibility and did not accept them.

22    The Tribunal found that he was not denied the opportunity to work as a driver. As to the applicant’s claim that he was disadvantaged as a three wheeler driver because of his support of the UNP, the Tribunal found that the applicant had used the vehicle for an extended period of time as his personal vehicle and that he had provided very little information regarding his attempts to gain access to the appropriate permit to work from a pickup park. The Tribunal noted that it had not accepted that the applicant had any profile with the UNP that would cause him to be threatened or harmed, and did not accept that his involvement with UNP would be a reason for him to be denied an opportunity to drive the three wheeler in the manner that he so chose.

23    The Tribunal accepted that the applicant’s wife was a Tamil, but did not accept that he faced a real chance of serious harm as a result. The applicant stated that there were no direct attacks against him or his wife, but that “hints had been passed, there were occasional negative comments and he was looked down upon”. In response to the applicant’s statement that there was a suggestion that him and his wife were supporters of the LTTE, the Tribunal referred to country information which indicated the LTTE had not been influential in the north-western province of Sri Lanka and the imputation that the applicant was a supporter of the LTTE simply because he was in a relationship with a Tamil woman was difficult to accept. The Tribunal did not consider that the throwing of stones at the applicant’s property constitutes a threat to the applicant or his family, noting that the applicant does not know who or why it was done, and the incidents took place many years apart. In these circumstances, the Tribunal did not consider that the throwing of the stones constitutes significant harm. The Tribunal concluded that the applicant did not face a real chance of serious harm arising from his marriage to a Tamil woman.

24    The Tribunal accepted that the applicant left Sri Lanka unlawfully and would face charges on return to Sri Lanka due to the manner of his departure. The Tribunal considered country information on the process on return to Sri Lanka. The Tribunal made the following findings:

(1)    The applicant will be held for questioning for a short period on arrival, and is likely to then be charged for offences under the Immigrants and Emigrants Act due to his unapproved departure from Sri Lanka.

(2)    Those who are charged with departing without approval are generally held briefly (for hours or at most days) on remand, then bailed pending hearing.

(3)    The applicant’s family are in Sri Lanka and will guarantee his bail and thus ensure his quick release from any process required to inform the applicant of the charges he will face.

(4)    The sanction on conviction is generally a fine rather than imprisonment. The risk of the applicant being sentenced to imprisonment on conviction, rather than fined, was ‘very remote’.

(5)    The applicant will be able to pay the fine and there is no real chance the imposition of a fine would give rise to serious or significant harm.

(6)    The application of the relevant laws is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. Therefore, the applicant’s brief remand pending charge and bail will not constitute systematic and discriminatory conduct and the conduct is not persecution.

25    The Tribunal accepted that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka, but found the chances remote that the applicant would be targeted and harmed or seriously harmed in the context of a very brief stay in remand pending bail. The Tribunal also considered the prison conditions with respect to the complementary protection provisions of the Migration Act, but did not accept that the applicant would be intentionally harmed by the authorities while waiting for his bail and found that the applicant does not face a real risk of significant harm while detained on remand.

26    The Tribunal did not accept the submission made by the applicant’s adviser on his behalf that there was a cumulative effect of the applicant’s wife’s ethnicity, coupled with having criminal charges against him, which meant there was a real risk of significant harm for the applicant on return to Sri Lanka. The Tribunal did not accept that there was any correlation between the two sets of circumstances that would lead to the applicant being at risk of harm.

27    The Tribunal concluded that having regard to all of the circumstances and its findings, both individually and cumulatively, the applicant did not face a real chance of serious harm in Sri Lanka for a Convention based reason. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention based reason, now or in the reasonably foreseeable future. The Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a), or the alternative, that he satisfied the criterion in s 36(2)(aa).

the judgment of the Federal Circuit Court

28    The applicant filed an application for judicial review in the Federal Circuit Court on 2 April 2015, which was heard on 8 August 2016. The applicant appeared at the hearing in person and, on the same date, the Federal Circuit Court dismissed the application. That Court published written reasons for judgment dated 21 September 2016 revised from the transcript of the hearing.

29    In its reasons the Federal Circuit Court set out the applicant’s claims for protection, his evidence and arguments in support of those claims, and the Tribunal’s findings.

30    The Federal Circuit Court noted that the applicant raised only two grounds of review:

1.    The Refugee Review Tribunal did not afford me procedural fairness.

2.    The Refugee Review Tribunal applied the wrong legal test.

31    The Federal Circuit Court judge noted that the applicant provided no particulars of those grounds; and did not file any written submissions. In oral submissions at the hearing, her Honour noted that the applicant “said that he had said everything to the Tribunal and asked the court to consider it”. The Federal Circuit Court noted that this was essentially an application for merits review, which the court was not permitted to provide.

32    The Federal Circuit Court judge was unable to discern any basis upon which it could be said that the Tribunal denied the applicant procedural fairness. Her Honour noted that the claimed denial of procedural fairness was not supported by a transcript or other evidence of what took place at the Tribunal hearing or in the Tribunal’s processes. The Tribunal’s decision record showed that the applicant appeared before the Tribunal on 26 February 2015; that he was assisted by an interpreter; and that he was assisted in the review before the Tribunal by a registered migration agent. Her Honour observed that the Tribunal’s decision record set out various questions and answers that were given during the Tribunal hearing, and indicated that the applicant’s agent made a submission.

33    The Federal Circuit Court judge considered that the Tribunal appeared to have taken into account and considered all of the applicant’s claims and that there was nothing in the material to suggest the Tribunal may have prejudged the outcome of the matter. Her Honour described the Tribunal’s reasons as “detailed” and apparently “comprehensive” and considered that there was “no basis on which it could be suggested that the Tribunal failed to comply with its codified obligations under the Migration Act 1958.” Her Honour noted that the Tribunal had made its decision on essentially the same basis as the delegate had made his decision.

34    As to the second ground, that the Tribunal applied the wrong legal test, the Federal Circuit Court judge concluded that the Tribunal had set out in its reasons for decision the correct legal tests, and appeared to have applied those tests correctly. Her Honour was unable to detect any jurisdictional error in the Tribunal’s reasons for decision and dismissed the application.

Consideration

35    The applicant’s draft notice of appeal in this Court contains 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.

36    For present purposes it suffices to say that no appellable error is apparent in the judgment of the Federal Circuit Court. No error is discernible in the finding that there was no denial of procedural fairness on the Tribunal’s part. The applicant was invited to attend the hearing before the Tribunal, and did so. The applicant was given an opportunity to give evidence and make submissions on the relevant issues. The applicant failed to establish any denial of procedural fairness or failure on the Tribunal’s part to comply with its hearing obligations.

37    There is no discernible basis for the claim that the Tribunal applied the wrong legal test, and no error shown in the Federal Circuit Court’s finding that this ground was not made out.

38    It is also sufficient here to note that, although the hearing of this matter was stood over pending the delivery of the High Court’s judgment in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the applicant cannot derive any assistance from that case.

39    For the reasons stated, I have formed the view that the applicant’s prospects of success on his proposed appeal are negligible, and accordingly that no extension of time in which to appeal should be granted. The application for an extension of time should be dismissed.

Associate:

Dated:    22 February 2018