FEDERAL COURT OF AUSTRALIA

CJA15 v Minister for Immigration and Border Protection [2018] FCA 170

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs of the application, in a fixed amount.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    I made orders on 23 February 2018 at the conclusion of the hearing of this application (Application) dismissing it with costs. The following are my reasons for doing so.

2    The Application is for an extension of time to file a notice of appeal from a Federal Circuit Court judgment (Judgment) delivered on 26 September 2016: r 36.05 of the Federal Court Rules 2011 (Cth) (Rules). The primary judge there dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister (delegate) not to grant the applicant a Protection (Class XA) visa (Visa): CJA15 v Minister for Immigration and Border Protection [2017] FCCA 2377.

3    Both the applicant and the first respondent (Minister) appeared at the hearing of the Application. The applicant did not file written submissions, but made oral submissions at the hearing. The first respondent made both written and oral submissions.

Background

4    The applicant is a Sri Lankan national who arrived in Australia on 20 June 2012 as an unauthorised maritime arrival.

5    The applicant applied for a Visa on 30 November 2012. His claims may broadly be summarised as follows, taken substantially from the Judgment:

(a)    He is a Christian fisherman of Sinhalese ethnicity born in Chillaw, Puttalam, Sri Lanka. He found it difficult to make a living from fishing as he was harassed by Indian fishermen if he ever left Sri Lankan waters.

(b)    His father supported the United National Party (UNP) and the applicant worked casually for the UNP in 2002. After the UNP lost the 2002 election, the applicant began to have problems with supporters of the Freedom Party of Sri Lanka (FPSL) which had won the election. These problems are summarised at [3] of the Judgment, and include attacks on the applicant by supporters of the FPSL on several occasions.

(c)    These ongoing problems with the UNP led to the applicant departing Sri Lanka to travel to Australia. He fears that he will be harassed, attacked and possibly killed by supporters of the FPSL if he returns to Sri Lanka, and that the authorities will not protect him as they support the FPSL.

6    The delegate refused to grant the applicant a Visa on 16 July 2013. The delegate accepted that the applicant had been a low level supporter of the UNP but found that he did not have a sufficient profile to be of interest to the authorities or other groups, and, significantly, that he had enhanced his claims for the purpose of procuring the Visa

The Tribunal proceedings

7    The applicant applied for review of the delegate’s decision to the then Refugee Review Tribunal on 22 July 2013. He attended a hearing before the Tribunal on 11 December 2014 with the assistance of his registered migration agent and a Sinhalese interpreter.

8    On 23 January 2015, the applicant's migration agent provided further written submissions to the Tribunal addressing concerns raised during the hearing as to the credibility of the applicant’s claims. These explained that the applicant was suffering from severe depression which had affected his ability to recall certain events. Further, the applicant's migration agent submitted that while the applicant may be a low profile UNP member, he was still at risk of persecution, given that he was identified and recognised by his community to be an active supporter and member of the UNP.

9    On 18 August 2015, a reconstituted Tribunal invited the applicant by email to attend a further hearing on 23 September 2015 (second hearing) which the applicant again attended with the assistance of his migration agent and a Sinhalese interpreter.

10    On 2 October 2015, the applicant's migration agent provided further written submissions to the Tribunal regarding the current political situation in Sri Lanka, submitting that it continued to be fraught, despite political developments at the time, such as the formation of the ‘national unity government’.

11    The Tribunal affirmed the delegate’s decision on 19 October 2015.

12    The Tribunal’s findings may be summarised as follows:

(a)    The genuineness of the applicant’s claims was in doubt. The Tribunal noted that on each occasion the applicant had given evidence he had added new claims and considered that, particularly towards the end of the second hearing, the applicant was engaged in the ‘wholesale embellishment of his claims’. The Tribunal had regard to the applicant's agent's explanations for the inconsistencies in the applicant's evidence: that he was suffering from post-traumatic- stress disorder, was not well educated and of poor socio-economic background, and had not previously mentioned certain events as he was not asked about them and had not understood their relevance. The Tribunal noted that no evidence of post-traumatic-stress disorder had been provided and considered the applicant's remaining explanations insufficient in circumstances where the applicant was at all times represented and the relevance of the incidents, if true, would have been readily apparent to the applicant.

(b)    The applicant’s claim of having suffered persecution involving serious harm due to his real or imputed political opinion in support of the UNP (for the purposes of s 91R(2) of the Migration Act 1958 (Cth) (Act)) could not be accepted. Having regard to what the Tribunal accepted and considered to be the applicant's relatively limited involvement in the UNP campaigns, the Tribunal found it difficult to accept that he would have been singled out to be attacked in the way he claimed. In particular, the Tribunal did not accept:

(i)    that the applicant had been taken into custody by the police and beaten;

(ii)    that the applicant had been truthful regarding claimed attacks on him in 2002 and 2011; and

(iii)    that in 2013 (after the applicant came to Australia) a crowd came and shouted in front of his house and burned an effigy of him.

(c)    It was relevant that following the Sri Lankan election in August 2015 the UNP is in Government in Sri Lanka. The Tribunal rejected country information provided by the applicant's agent who suggested there was instability in the country, and instead relied upon country information indicating that political parties are generally free to operate in Sri Lanka.

13    As a result of its findings, the Tribunal rejected the substance of the applicant’s claims. The Tribunal did not accept that there was a real chance the applicant would be persecuted for reasons of:

(a)    his real or imputed political opinion in support of the UNP;

(b)    his race or his religion;

(c)    his membership of a particular social group comprising his family (as supporters of the UNP);

(d)    his membership of a particular social group comprising failed asylum seekers or an imputed political opinion of being opposed to the Sri Lankan Government for having sought asylum in Australia.

14    Fear of persecution, the Tribunal found, would also not prevent the applicant from expressing his political opinion in support of the UNP. The Tribunal also did not accept that there was a real chance the applicant would be denied the capacity to earn a livelihood or that he would otherwise suffer persecution involving serious harm due to being harassed as a fisherman.

15    The Tribunal did, however, accept that the applicant, on his return to Sri Lanka, would be charged under the Sri Lankan Immigrants and Emigrants Act and may face a fine for having departed Sri Lanka illegally. However, the Tribunal considered that this was part of the enforcement of a generally applicable law in Sri Lanka and therefore did not amount to persecution.

16    The Tribunal also found that the applicant was not owed complementary protection obligations pursuant to s 36(2A). The Tribunal did not accept that there was a real risk that the applicant will suffer significant harm as a result of his political involvement or his status as a failed asylum seeker returning to Sri Lanka.

17    The Tribunal, on the basis of the country information before it, found that the chance of the applicant having to spending longer than a fortnight in prison on remand on his return was remote. Further, although it accepted that the prison conditions in Sri Lanka were poor, the Tribunal did not accept that spending up to a fortnight in a prison would constitute significant harm as there was not a real risk that the applicant would be subjected to ‘torture’ and the period in prison would not amount to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’: ss 36(2A)(d) and (e), as defined in s 5(1) of the Act.

18    The Tribunal therefore found that the applicant did not meet the criteria for the grant of the Visa under ss 36(2)(a) or (36)(2)(aa) of the Act.

Federal Circuit Court proceedings

19    On 9 November 2015, the applicant lodged an application for judicial review of the Tribunal’s decision in the FCC challenging the Tribunal's decision. The single ground of the application was as follows (without alteration):

That my RRT review was refused since the RRT found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of me being removed from Australia to Sri Lanka that I would suffer significant harm as a result of my political involvement and also due to the fact as a failed asylum seeker. I provided evidence to the contrary that as a consequence of returning back to my home country the alleged offenders who had already caused harm to me would cause me harm once again due to my political involvements with the UNP party in Sri Lanka. I had been significantly abused before. There is foreseeable harm upon my return. I provided evidence to that effect. The RRT did not consider this evidence in making a decision. Accordingly the RRT erred in not giving consideration to the evidence before it as a matter of law.

20    The matter came before the primary judge for hearing on 26 September 2017. The applicant appeared in person with the assistance of a Sinhalese interpreter. The primary Judge delivered an ex tempore judgment the same day dismissing the application, which has been published.

21    The primary judge found that the Tribunal had dealt with the applicant's claims and evidence at considerable length, including the matters raised in his Visa application, the evidence given, and his representative’s submissions at the hearing: Judgment at [4]. The primary judge found that it had not been identified, nor was it apparent, that the Tribunal had failed to identify or consider any of the claims made by the applicant: Judgment at [4].

22    The primary judge considered the procedural history of the matter and findings of the Tribunal. Having done so, his Honour found that no jurisdictional error could be shown as the Tribunal had detailed and considered each of the applicant’s claims: Judgment at [22].

Application for extension of time and Notice of Appeal

23    An appellant must file a notice of appeal within 21 days after the date of the judgment or orders appealed from: r 36.03(a)(i) of the Rules. The applicant was required to file an extension of time application before he could institute an appeal from the Judgment, as he failed to file a notice of appeal by 17 October 2017. He filed the application 3 days after the expiration of the 21-day period.

24    The application was accompanied by an affidavit dated 20 October 2017 deposing relevantly as follows (altered only to add the date of the order):

After the order [of 26 September 2017], I was searching how to get fair decision for me.

I was seeking legal help for my matter.

This caused my appeal to the Federal Court delayed.

25    The proposed grounds of appeal are (without alteration):

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.

The applicable legal principles

26    In Singh v Minister for Immigration and Border Protection (2015) 147 ALD 109, Kenny J considered relevant authorities concerning r 36.05 and identified the factors as to which an applicant for an extension of time should satisfy the court;

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.

27    Her Honour, at [21], went on to make clear that such considerations are not exhaustive and the outcome of any application will always depend on the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]–[38] per Griffiths J, with whom Edmonds J agreed.

[21] 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] per Griffiths J, with whom Edmonds J agreed.

…

[23] There is no doubt that the merits of a proposed appeal are relevant: compare WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9]. Thus, an extension of time will not be granted if the proposed appeal has no prospects of success, even though the delay is short: see, for example, DZAAD at [30] and Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 ; [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed.

(emphasis added)

28    In particular, her Honour stated at [23]:

There is no doubt that the merits of a proposed appeal are relevant: compare WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9]. Thus, an extension of time will not be granted if the proposed appeal has no prospects of success, even though the delay is short: see, for example, DZAAD at [30] and Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 ; [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed.

(emphasis added)

29    I will consider in turn the relevant factors.

Prejudice and delay

30    The Minister accepts that there is no prejudice to him if the Court were to grant an extension of time, beyond the public interest in the finality of administrative decision making: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491.

31    The Minister also accepts that the length of delay in filing the application is not significant. However, the Minister submits that the applicant has not offered a proper explanation for the delay.

32    The applicant did not file any written submissions in support of the Application. The only explanation for the delay is that in the affidavit dated 20 October 2017, as set out at [24].

33    The Minister submits that it was the responsibility of the applicant to ascertain his review rights and any applicable time limits, following on from the hearing at which the applicant was present to receive the Judgment: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108.

34    The Minister further submits that it appears that the applicant did receive some legal assistance in relation to his application for an extension of time, which had been sent to the Court from ‘WARNA LEGAL’ and the applicant's email address for correspondence on the application is ‘info@warnalegal.com’. The Minister submits that what is not apparent is why it took 24 days to obtain legal assistance and file the application. The first respondent submits that the applicant has not provided a satisfactory explanation for the delay in filing the application.

35    Whether the reasons provided for delay are adequate has to be considered in the circumstances of the matter: see AEL15 v Minister for Immigration and Border Protection [2017] FCA 1295 at [6]. Here, in all the circumstances, including the relatively short period of delay and the fact that the applicant was not legally represented (although he appears to have ultimately received some legal advice), the appellant’s explanation was, in my opinion, satisfactory.

Merits

36    The consideration of the merits of the proposed appeal are critical to the Application. If the court forms the view that the prospects of success on the appeal are negligible, then the Court will not grant an extension of time in which to appeal.

37    The Minister submits that the proposed grounds of appeal fail to identify any basis for the Court to be satisfied that an extension of time is warranted. These grounds, again, are as follows (without alteration):

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.

38    The Minister submits that the first ground is meaningless, and the second ground is insufficiently particularised so as to be meaningful and that, furthermore, no appealable error is apparent in the decision of the primary Judge.

39    The Minister submits that the only discernible ground of review before the primary judge was that the Tribunal had failed to consider the applicant's claims and evidence. As noted by the primary judge at [4], the ground of review was wholly lacking in particulars. The primary judge, as set out at [21] above, found that the Tribunal had comprehensively detailed and considered the integers of the applicant’s claims.

40    I accept the Minister’s submission that there is no discernible error in the decision of the primary judge, the applicant having failed to identify any claims or evidence which the Tribunal failed to consider, and there being no such failure apparent in the Tribunal's decision. Similarly, I accept the Minister’s submission that there is no other error apparent in the Tribunal's decision.

41    Nothing has been demonstrated by the applicant which might suggest the existence of any valid grounds of appeal. Despite the directions for the filing of an outline of submission in support of today’s application, none has been filed by the applicant. It follows that the grounds on which any appeal might proceed are necessarily obscure. Nothing said by the applicant in the course of the oral hearing was able to shed any light on these matters.

42    There is no merit in the applicant’s proposed ground of appeal to warrant an extension of time to file the proposed Notice of Appeal.

Conclusion and orders

43    The application for an extension of time must, for the above reasons, be refused.

44    I will also order that the applicant pay the first respondent’s costs to be taxed if not agreed.

Associate:

Dated:    26 February 2018