FEDERAL COURT OF AUSTRALIA

BQH15 v Minister for Immigration and Border Protection [2018] FCA 159

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal is refused.

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

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

REASONS FOR JUDGMENT (AS REVISED FROM TRANSCRIPT)

GLEESON J:

1    This is an application for an extension of time to appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), made on 31 May 2017, dismissing the applicant’s application to the FCCA: BQH15 v Minister for Immigration & Anor [2017] FCCA 1171.

2    The application to the FCCA sought judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 6 July 2015, affirming the decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (“Act”).

3    The proposed single ground of appeal is: “Her Honour erred in not finding that the Tribunal failed to consider a claim squarely raised”.

4    This ground of appeal corresponds with the ground of review before the FCCA, which was that the “Tribunal erred in failing to consider a claim squarely made”. The particulars of that claim were, relevantly, at para 12 the applicant claimed that he will be interrogated, tortured and killed by Sri Lankan authorities, namely the CID, the army and navy because he is wanted by the CID and left Sri Lanka illegally and had been taken away and tortured by the authorities before.

5    The particulars are based on para 12 of the Tribunal’s decision record which states:

The applicant fears that if he returns to Sri Lanka he will be interrogated, tortured and killed by ‘the Sri Lankan authorities, namely the CID, the army and Navy’, because he is wanted by the CID and left Sri Lanka illegally; and had been taken away and tortured by the authorities before.

6    The applicant did not make written submissions in support of his application. He appeared at the hearing of the application with the assistance of a Tamil interpreter.

7    The applicant did not make oral submissions in support of his application but after the Minister’s solicitor made submissions, he applied for an adjournment. The stated purpose of the adjournment was to obtain legal representation. The applicant has not been able to afford to obtain legal representation until recently because his work rights were revoked until December 2017. I refused the application because, as set out below, I have concluded that the application is hopeless.

Background

8    The applicant is a Sri Lankan national. On 1 June 2012, he arrived in Australia as an unauthorised maritime arrival. On 21 November 2012, he applied for a protection visa.

9    The applicant’s claims, as recorded by the FCCA judge at [2] of her Honour’s reasons, are as follows:

5.    The bases of the applicant’s claim to fear harm from the Sri Lankan authorities are his:

(a)    Tamil ethnicity;

(b)    imputed political opinion (as a supporter of the LTTE); and

(c)    membership of a particular social group (as a failed asylum seeker from a Western country).

6.     In summary, the applicant claimed protection on the following grounds:

(a)    he is a Tamil male who worked as a staff assistant at a Tamil government school from 2007 until May 2012 when he left Sri Lanka;

(b)    he had several encounters with the Sri Lankan authorities in the past, in particular:

(i)    in 2005, he was beaten by Sinhalese ‘thugs’ after he reported election irregularities to the police while acting as an election observer;

(ii)    in 2009, he was beaten, tortured and accused of working with the LTTE by police;

(iii)    in January 2012, he was arrested and beaten by the navy for playing cricket on common land;

(iv)    he was harassed by a navy officer; and

(v)    in March 2012, he was beaten by the navy for refusing to participate in an anti-UN demonstration.

(c)    his brother also had several encounters with the Sri Lankan army and Criminal Investigation Department (CID), namely:

(i)    after being deported from Australia to Sri Lanka in 2010, his brother was arrested by police, detained for 5 to 6 days and tortured. His father ultimately secured his release by paying a bribe;

(ii)    in August 2011, his brother was caught and detained in a navy camp after he chased a ‘grease man’ into the grounds; and

(iii)    in February 2012, his brother fled Sri Lanka and went to India. On two occasions, the CID went to the applicant’s family home looking for his brother but his wife told the CID that his brother had gone to Dubai.

(d)    on 8 May 2012, the CID returned to his brother’s house and told his wife that they did not believe he was in Dubai. They also gave her a letter summoning her husband to appear within three days. They then went to the applicant’s house and told him that, if his brother did not appear within three days, they would arrest him. On 10 May 2012, the applicant fled Sri Lanka.

(e)    after the applicant left Sri Lanka, the authorities enquired as to the whereabouts of the applicant and his brother. In June 2012, they went back to his family home and beat his parents after they saw a photograph of the applicant in a Tamil newspaper.

10    On 3 October 2013, the delegate refused to grant the protection visa.

Tribunal proceeding

11    On 15 October 2013, the applicant sought merits review of the delegate’s decision by the Tribunal. On 2 July 2015, the applicant appeared at a hearing before the Tribunal, represented by his registered migration agent.

12    On 6 July 2015, the Tribunal affirmed the delegate’s decision.

13    At paras 18 to 27 of its decision record, the Tribunal considered the applicant’s claims concerning his experiences in Sri Lanka prior to his May 2012 departure.

14    The Tribunal did not find the applicant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he feared persecution there. The Tribunal did not accept that the applicant was of interest to the Sri Lankan security authorities at the time he left Sri Lanka in May 2012 and concluded that the applicant had fabricated his account in order to achieve a migration outcome.

15    In particular, at para 22, the Tribunal did not find credible the timeframe of key events leading up to the CID threatening him. At para 25, the Tribunal was not satisfied that the Sri Lankan authorities threatened to arrest the applicant in May 2012 if his brother did not show up within three days, prompting him to depart Sri Lanka. At para 26, the Tribunal did not accept that the applicant was arrested and beaten by the navy for playing cricket in January 2012 or that he was subsequently harassed by a navy officer to give him a lift. At para 27, the Tribunal concluded:

As the Tribunal does not accept that the applicant was of interest to the Sri Lankan security authorities at the time he left Sri Lanka in May 2012, it follow that the Tribunal is not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face serious harm, including being interrogated, beaten, burnt with a cigarette, tortured and killed by the Sri Lankan authorities, namely the CID, the army and the Navy, because he is wanted by the CID in relation to his brother, as a result of any previous incident with … army/navy officers or for any other reason. In the Tribunal’s view, the applicant fabricated his account in order to achieve a migration outcome.

FCCA proceeding

16    The application for judicial review of the Tribunal’s decision was filed on 12 August 2015.

17    The application was heard on 5 April 2017 and 31 May 2017.

18    At [29] of her Honour’s reasons, the FCCA judgment concluded:

[T]he applicant’s claim in Ground 1(a) that the Tribunal had not considered his claims that he would be interrogated, tortured and killed by Sri Lankan authorities (including the CID, the Army and the Navy); that he had left Sri Lanka illegally; and that he had been taken away and tortured by authorities before, was considered and rejected by the Tribunal.

19    In essence, her Honour’s conclusion was that the claim had been considered and rejected by the Tribunal.

Principles governing extension of time

20    The application for an extension of time to file a notice of appeal was filed on 22 June 2017.

21    The last date for filing a notice of appeal was 21 June 2017: Federal Court Rules 2011 “Rules”), rr 1.61 and 36.03(a)(i). The applicant therefore requires an extension of one day.

22    The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]. The relevant considerations are:

(1)    the reasons for and length of the delay. The Court must be satisfied that it is proper to grant an extension of time, noting the prescribed period is not to be ignored;

(2)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

(3)    the merits of the appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration, Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD at [28].

Consideration

Delay and prejudice

23    The delay in this case is minimal.

24    There is no suggestion of any prejudice to the Minister if an extension of time were granted.

Merits of the proposed appeal

25    The right to appeal from a decision of the FCCA is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). To succeed on an appeal, the applicant would have to demonstrate that the FCCA judge fell into error. In turn, the FCCA could only disturb the decision under review (being the decision of the Tribunal), if that decision was affected by jurisdictional error.

26    The Minister submitted that the proposed ground of appeal lacks substance and no useful result would ensue from the application being granted. The Minister submitted:

27.    More importantly, the proposed ground of appeal lacks substance. No useful result would ensue from the application being granted. For these reasons, the Minister submits that the application should be refused.

The applicant’s solitary, unparticularised, ground of review appears to simply disagree with the Primary Judge’s finding with respect to the Tribunal’s findings of fact without any further substantive particulars to support the claim. Insofar as the applicant’s ground appears to simply re­ agitate his ground in the proceedings below, the Minister respectfully submits that the applicant appears to assert that the claim identified at Particular (a) was a “claim squarely raised” before the Tribunal and that the Tribunal unlawfully limited its consideration of such a claim in the way described at Particular (b).

28.    The Minister submits that such an assertion is, with respect, misconceived and incorrect. In its reasons at [14) and [16), the Tribunal outlined the factual and evidentiary basis for the applicant’s claim summarised at [12]. The Tribunal plainly appreciated the claims raised by the applicant’s evidence and submissions. It addressed those claims at [27] of its reasons where it said, “...the Tribunal is not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face serious harm, including being interrogated, beaten, burnt with a cigarette, tortured and killed by the Sri Lankan authorities, namely the CID, the army and the Navy”.

29.    The Minster respectfully submits that there is no basis for the applicant’s ground of appeal as the Tribunal decision clearly demonstrates that the Tribunal did consider the precise claim he asserts that it failed to. Consequently, the Minister submits that the Primary Judge did not err in her findings with respect to the Tribunal’s consideration of the applicant’s claims and the applicant’s ground of appeal amounts to an attempt to invite this Court to engage in impermissible merits review.

…

31.    It follows that there is no appealable error in the decision of the Federal Circuit Court. The application is legally unmeritorious.

27    I accept these submissions. The applicant has not identified any appellable error in the FCCA judge’s decision. There is no aspect of the applicant’s protection claims that does not appear to have been considered by the Tribunal and no basis for doubting the FCCA judge’s conclusion at [29] of her Honour’s reasons.

28    Accordingly, I am not satisfied that there is any merit in the proposed appeal and the application should therefore be refused with costs.

Associate:

Dated:    23 February 2018