FEDERAL COURT OF AUSTRALIA

CMQ16 v Minister for Immigration and Border Protection [2018] FCA 881

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

GLEESON J:

1    By an application filed on 8 August 2017, the applicant seeks an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia (“FCCA”) made on 16 May 2017 dismissing an application for judicial review of a decision of the second respondent (“IAA”) made on 10 August 2016: CMQ16 v Minister for Immigration and Border Protection [2017] FCCA 998. The IAA had affirmed a decision of a delegate of the first respondent (“Minister”) refusing to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) for which he had applied on 25 September 2015.

2    The applicant represented himself in this Court. He filed no written submissions but appeared at the hearing of the application with the assistance of a Tamil interpreter.

Background

3    The applicant is a national of Sri Lanka who arrived in Australia on 28 August 2012. He applied for a SHEV on 28 September 2015. After being interviewed, his application was refused on 8 June 2016.

4    The applicant’s claims for protection were summarised in the IAA’s decision record. The Minister’s written submissions summarised the applicant’s claims as follows:

In summary, he claimed to fear harm on the basis of having lived in an LTTE controlled area, and his sister having married an LTTE member. He described being involved in an incident where a grenade had exploded at a check point near where he lived and having been accused of involvement in that incident. He also claimed that his brother was killed in 2009 by a sniper (while the applicant was living in India) which he believes occurred because he was Tamil. He and his family returned to Sri Lanka from India in 2010 and were “relatively safe” until July 2012 when a particular officer who he claimed had tortured him in 2006 was transferred to the army camp near his home. A CID officer came to his home when he was not there and asked his wife where he was. He believed that the officer intended to take him to the army camp. He made arrangements to leave Sri Lanka by boat. He also claims that since leaving Sri Lanka, his house has twice been visited by the CID looking for him and in September 2012, his brother was questioned about him.

IAA decision

5    The Minister’s written submissions summarised the IAA’s decisions as follows:

6. The IAA considered it plausible that the applicant had relatives who were members of the LTTE and accepted that, apart from those links, the applicant was not involved with the LTTE in any way: see IAA reasons at [10]. The IAA further found that even though the applicant had some links (eg his sister, and his cousin who was a senior sea tiger), he was not of adverse interest to the authorities on that basis: see [31], [33]. One reason given for this finding was that the applicant had departed Sri Lanka in 2006 and returned in 2010 using his own passport. He also described his life on return as “relatively safe” until 2012, and did not provide any evidence to suggest that anything untoward had happened to him during the period 2010 to 2012: see [32].

7. In relation to the 2006 incident which is at the centre of his claim, the IAA noted inconsistencies between the applicant’s statement attached to his protection visa application and the evidence he gave at the interview with the delegate on 3 February 2016: see [11]-[14]. The inconsistencies discussed in that part of the reasons related to whether the applicant:

7.1    was dragged by foot to the Army camp and assaulted or if the assault occurred on the road outside his house;

7.2    spent two full days in detention, and

7.3    was released and told to come back the next day or whether the CID returned the next day and took the applicant to the Army camp.

8. The IAA considered that if the applicant was of interest to the authorities for the 2006 grenade attack or for his links to the LTTE, he would have been detained under the Prevention of Terrorism Act when the attack occurred and would not have been able to depart or re-enter Sri Lanka without coming to the attention of authorities, as he did when he left for India shortly after the incident: [18].

9. The IAA found there was no evidence to suggest that the applicant had any difficulty with the authorities during the 2 years following his return to Sri Lanka and noted the applicant’s own statement that he was “relatively safe upon return until July 2012”: [18].

10. The IAA concluded on this issue that the applicant was not questioned, taken or beaten by the Army or the CID in relation to the grenade attack or in relation to real or imputed links with the LTTE and was not told to sign-in on a regular basis: [18]

11. In relation to the 2012 incident, ie, the claim that the applicant became aware of a CID officer who had tortured him in 2006 being transferred to the area in which the applicant lived in 2012, the IAA again noted inconsistencies between how the applicant came to know that the officer had returned to his village as between the applicant’s protection visa statement and that stated by him at the interview with the delegate: [20]. Given that the IAA already found that the applicant was not of interest to authorities in Sri Lanka for any reason and had not been questioned or beaten by the CID or Army in 2006, the IAA did not accept that the CID officer had any interest in the applicant in 2012: [23].

12. The IAA concluded at [26] that neither the 2006 nor the 2012 incidents had occurred and the applicant was not of interest to the authorities in 2006 or at any time thereafter.

13. In relation to his Tamil ethnicity, and status as a Tamil male from the North of Sri Lanka, the IAA noted that the applicant had completed 10 years of education and worked as a self-employed fisherman. There was no evidence to suggest that the applicant had been subjected to discrimination regarding access to education, employment, adequate housing or socio-economic opportunities and he had demonstrated an ability to move freely in and out of Sri Lanka when he went to India: [44]. The IAA accepted that the applicant’s family suffered harm during the war but country information indicated an improvement in circumstances for Tamils. The IAA did not accept that the applicant would be targeted upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the north: [45].

14. The IAA was not satisfied that the applicant faced a real chance of harm on return to Sri Lanka as a failed Tamil asylum seeker now or in the reasonably foreseeable future. It accepted that the authorities would identify the applicant as having departed Sri Lanka illegally. However, it found that all persons who do so are subject to the terms of the Immigration and Emigration Act on return to Sri Lanka and that law is not discriminatory and is a law of general application. While the applicant would be charged and may face a brief period in detention, the IAA found that that would not amount to serious harm: [47]- [57].

15. Having regard to the applicant’s cumulative circumstances, including his links to the LTTE, that he is a Tamil from the North and that he departed Sri Lanka illegally and will be returning to Sri Lanka as a failed asylum seeker, it was not satisfied that there was a real chance that the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future: [58].

16. The IAA went on to consider the complementary protection criterion under the Act but was not satisfied that the applicant would face a real risk of significant harm and did not meet section 36(2)(aa) of the Act: [69]-[70].

17. For these reasons, the IAA affirmed the delegate’s decision.

FCCA proceeding

6    The applicant was legally represented before the FCCA. The ground on which review was sought in the FCCA was set out at [47] of the FCCA judge’s reasons, as follows:

[The IAA] erred in drawing an unreasonable inference as to the applicant’s credibility and failing to properly consider matters in the materials, including the submissions made by the applicant’s representative during the First Respondent’s assessment of the applicant’s [SHEV]. The unreasonable inference drawn from the applicant’s credibility was brought about by the IAA proceeding upon the premise that the applicant’s version of events in 2006 and 2012 was untruthful. This led to the IAA making incorrect factual findings and the applicant’s case not being properly considered.

7    The ground of review was supported by the lengthy particulars, also set out at [47] of the FCCA judge’s reasons.

8    The FCCA judge’s reasons for rejecting the ground of review were set out at [48]-[50] of his Honour’s reasons, as follows:

[48] Ms Buncle of counsel on behalf of the applicant sought to argue that the Authority had made findings in relation to inconsistencies in respect of matters that were trivial and minor and that the adverse credibility findings were not open and that the adverse credibility findings were unreasonable, illogical and irrational. Ms Buncle of counsel confirmed that no allegation of bias was maintained or advanced in relation to the Authority and abandoned that part of the applicant’s submissions that indirectly suggested such a submission. For the reasons already given, the adverse credibility findings by the Authority were open and cannot be said to lack an intelligible justification. Ground 1 is, in substance, an invitation to this Court to engage in impermissible merits review.

[49] The applicant’s submissions reflect a disagreement with the adverse findings but do not make out any relevant error in the adverse credit findings. The adverse findings were not minor or trivial matters. The adverse findings were not unreasonable, illogical, or irrational given the reasoning by the Authority in support of the adverse findings.

[50] To the extent that it was suggested in Ground 1 that there was a failure by the Authority to have regard to all of the material, Ms Buncle made reference to an outline of submissions advanced by the representative during the Safe Haven Entry interview on 3 February 2016. In substance, Ms Buncle submitted that because of the absence of reference to those submissions directly, it should be inferred that the Authority had failed to have regard to the whole of the material. The Authority expressly refers to that interview and expressly refers to the explanations advanced by the applicant in respect of inconsistencies raised with the applicant at that interview. There is no proper basis to infer that the Authority failed to have regard to the whole of the material. No jurisdictional error is made out that the Authority failed to have regard to the whole of the material. Ground 1 fails to make out any jurisdictional error.

Proposed appeal to the Federal Court

9    By r 36.03 of the Federal Court Rules 2011, the period within which the applicant was entitled to file a notice of appeal from the judgment of the FCCA expired on 6 June 2017. The applicant filed the application 33 days later, on 9 August 2017. In his affidavit made on 8 August 2017, the applicant explains the delay on the basis of his need for money to appeal, saying that he tried to find the money but ran out of time. He then sought Ministerial intervention but when that was rejected, he discovered he could “make an application to appeal the Federal Circuit Court judgment even if I am late”.

10    The applicant’s proposed notice of appeal contains the following single ground of appeal:

The Federal Circuit Court erred in failing to consider s 473GB certificate at CB142 of the Court Book.

Particulars

a.    The Federal Circuit Court erred in not considering that the IAA failed to exercise its discretion and disclose the existence of the certificate to the applicant for comment under s 473BG(3) & (4).

b.    The Federal Circuit Court erred in not considering that the IAA failed to consider and evaluate the validity of the certificate.

c.    The Federal Circuit Court erred in failing to consider the role the certificate may have played in the IAA’s adverse credibility findings.

CONSIDERATION

11    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] (“DZAAD”). 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 that 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; and

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

12    The substantive application should have such prospects of success as not to render the EOT an exercise in futility: SZUOV v Minister for Immigration and Border Protection [2017] FCA 1420 at [5], [8]; see also BAG15 v Minister for Immigration and Border Protection [2018] FCA 307 at [18].

Minister’s submissions

13    The Minister’s principal submission was that the application should be refused because the appeal lacks merit, although the Minister also contended that the applicant’s explanation for his delay in seeking to appeal from the FCCA judgment was not satisfactory.

Merits of appeal

14    The proposed ground of appeal was not raised in the FCCA where the applicant was legally represented. The Minister submitted that, where the only ground sought to be agitated on appeal is, effectively, a request to have this Court exercise original jurisdiction (see CWD16 v Minister for Immigration and Border Protection [2018] FCA 578 at [18]-[19] per Flick J, referring in turn to the decision of Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]), leave is required and ought not be granted unless it is “expedient in the interests of the administration of justice to allow a new argument to be raised on appeal”: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [81] per Gilmour and Mortimer JJ.

15    The Minister submitted:

(1)    As the material included under cover of the certificate issued pursuant to s 473GB of the Migration Act 1958 (Cth) (“Act”) demonstrates, even if Part 7AA of the Act did not significantly limit the procedural fairness obligations owed to fast track review applicants (see s 473DA), there is nothing in the material that could possibly have adversely affected the assessment by the IAA of the applicant’s credibility.

(1)    In relation to fast track reviews pursuant to Part 7AA of the Act, the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) has held that the considerations that apply to certificates issued under Part 7 and Part 5 of the Act have no application to those issued under Part 7AA: see BBS16 at [85]-[101]. This is because (see, in particular, BBS16 at [97]-[100]) the procedural fairness obligations in Part 7AA are expressly limited: see s 473DA, referring to Division 3 of Part 7AA. In BBS16, the document under cover of the certificate was also an identity assessment. Thus the reasoning is equally applicable to this case. It follows that no error was made by the IAA in relation to the certificate as it is entirely a matter for the IAA as to whether to disclose its existence; there was no duty on the IAA to do so: see BBS16 at [97].

(2)    In any event, to the extent that procedural fairness issues might be raised by certificates issued under s 438 of the Act, the Full Court has rejected the argument that the case law “supported rigid and unqualified propositions” to the effect that “it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant”: see BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36 at [30] and see also Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1; and Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; (2017) 253 FCR 21.

16    Accordingly, the Minister argued the only ground sought to be agitated cannot succeed, and therefore that the application for an extension of time to appeal should be refused.

Applicant’s submissions

17    At the hearing, the applicant submitted that the FCCA judge and Tribunal members did not properly understand his application. This was said to be because “they did not understand… [that he is] suffering from an incurable disease” he described as “life-threatening”. In support of this submission, the applicant tendered documents relating to his diagnosis with, and treatment for, hereditary angioedema. These included a record of past and future hospital appointments and a letter from an Australian clinical immunologist stating that, in that doctor’s view, the applicant requires extensive medications to treat his condition that are unlikely to be available to him should he be returned in Sri Lanka. Beyond this potential lack of medication, the evidence does not identify particular medical risks that might arise if the applicant returns to Sri Lanka.

18    The applicant further submitted that the medication he has been prescribed for his hereditary angioedema has caused him “to become a very forgettable person”. This may have been an additional explanation for the applicant’s delay in filing his notice of appeal from the FCCA judgment.

19    The applicant also drew the Court’s attention to his generally poor mental health and ongoing attendance at counselling, tendering letters from a counselling service. These letters refer to the applicant’s suicidal ideation and claimed preference for death over return to Sri Lanka.

Conclusion

20    I accept the Minister’s submission that the proposed ground of appeal cannot succeed for the reasons identified on the Minister’s behalf.

21    Although the matters raised by the applicant at the hearing are heart-rending, they do not affect the merits of the proposed appeal and therefore cannot provide any support for the proposed extension of time.

22    Accordingly, it would be futile to grant an extension of time to file the notice of appeal, regardless of the adequacy or otherwise of the applicant’s explanation for his delay.

23    It follows that the application should be dismissed. Costs should follow the event.

Associate:

Dated:    15 June 2018