FEDERAL COURT OF AUSTRALIA

EHB17 v Minister for Home Affairs [2018] FCA 1280

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the costs of the first respondent fixed in the amount of $1,756.00 within three months.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    The applicant filed an application for an extension of time and a supporting affidavit on 16 March 2018. The application has been treated as one made under r 36.05 of the Federal Court Rules 2011 (Cth) (FCRs) for an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court of Australia made on 7 February 2018. The affidavit has been treated as identifying the proposed grounds of appeal, there not otherwise being any draft notice of appeal or other document identifying the grounds of appeal.

2    The Federal Circuit Court’s decision dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 1 September 2017. The Authority affirmed a decision made on 17 February 2017 of a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) refusing the applicant’s application made on 12 September 2016 for a temporary protection visa.

BACKGROUND

3    The applicant is of Tamil ethnicity and is from Kandy District in the Central Province of Sri Lanka. He lived most of his life in Vavuniya District in Sri Lanka.

4    The applicant arrived in Australia as an unauthorised maritime arrival on 26 October 2012 and applied for a Temporary Protection (class XD) (subclass 785) visa on 12 September 2016.

5    The applicant claimed in a written statement in support of his protection visa application that he feared he would be seriously harmed or killed by the Sri Lankan authorities due to:

(1)    his Tamil ethnicity;

(2)    his relationship to his uncle;

(3)    his former residence in a ‘Tamil area’;

(4)    his suspected membership of the Liberation Tigers of Tamil Eelam (LTTE);

(5)    his illegal departure from Sri Lanka; and

(6)    his application for asylum in Australia.

6    The applicant’s written claims included:

(1)    the applicant’s father went missing and was presumed dead;

(2)    in 2009, the applicant’s uncle was rounded up with other Tamils by the Sri Lankan Army (SLA) and detained in a camp in Vavuniya. The camp permitted detainees to be released for short periods of time so long as family members took responsibility for the detainees while they were released. The applicant secured temporary releases for his uncle in this fashion on multiple occasions;

(3)    on one occasion his uncle escaped from the camp and was not seen again;

(4)    SLA personnel came to the applicant’s home in search of his uncle and, when the uncle could not be located, the applicant was taken into custody;

(5)    the applicant was released only after members of his family agreed they would locate the uncle. The applicant’s release was conditional on weekly reporting to the camp on his uncle’s whereabouts;

(6)    the SLA visited the applicant’s home on numerous occasions, accusing him of assisting his uncle to escape. The SLA harassed him and threatened him with prison;

(7)    he was interrogated by the SLA several times. The first time he was interrogated he was hit, and on three subsequent occasions he was beaten by the SLA or the police or both;

(8)    he left Sri Lanka because he was worried about what the SLA would do if it could not find his uncle. After leaving, the SLA continued to look for him at his home.

7    On 9 December 2016, the applicant made the following additional claims in an interview with the delegate:

(1)    his uncle and aunt were former soldiers in the LTTE;

(2)    the SLA suspected that his uncle was a member of the LTTE;

(3)    after his uncle went missing, persons from the Criminal Investigation Department (CID) visited his home once or twice a week;

(4)    he was detained by the CID for a few days on at least one occasion;

(5)    he was arrested at least three times and beaten;

(6)    the authorities had looked for him at his brother’s house in Kandy District;

(7)    he had previously lived in India as a refugee.

8    As noted earlier, the delegate refused to grant the protection visa on 17 February 2017.

THE AUTHORITY

9    The Authority accepted that the applicant’s father had gone missing and was presumed dead: A[9]. The Authority also accepted that the applicant had resided in India as a refugee between 1990 and 1992: A[10] and A[11]. Both of these events were found to be consistent with the general events described in country information to which the Authority referred.

10    In relation to the applicant’s claim that his uncle was detained under suspicion of LTTE involvement, the Authority stated at A[12] and A[13] (footnotes omitted):

12.    However, I find the applicant’s claim that his uncle was detained under suspicion of LTTE involvement unconvincing. In the TPV interview, the applicant advised the delegate that he had a number of relatives residing in the same camp as his uncle, including his great-grandmother. He said that the camp was ‘for all the people who were displaced in the last war’. He said that his mother found out that the uncle was residing in the camp when she went to visit her grandmother. These claims were consistent with information the applicant provided in an earlier interview of 21 January 2013 (entry interview), where he indicated that some of his relatives were caught in the war zone along with his uncle, and had registered with the army.

13.    Country information indicates that following the surrender of those fleeing conflict areas, they were taken to IDP camps, and suspected LTTE were either killed or removed from the camps to separate locations generally referred to as ‘rehabilitation centres’. Thousands of individuals suspected of LTTE links were detained in extra-legal detentions centres, unmonitored, without counsel, and without family knowing their whereabouts. The applicant’s evidence is that his uncle resided in the same camp as his other relatives, including the applicant’s great-grandmother, which suggests that his uncle was residing in an IDP camp and not a rehabilitation or other type of extra-legal detention centre. Further, aside from the applicant’s testimony, there is no other information before me that indicates that those detained under suspicion of involvement with the LTTE were temporarily released using a family member ‘guarantor’ system. The applicant’s evidence in the TPV interview was that his uncle was released from the camp, for persons displaced by the conflict, and that he stayed with the applicant’s family for a period of one year in 2010, which does not indicate that he was a person of adverse interest to the Sri Lankan authorities on account of any actual or imputed LTTE links.

11    The Authority noted a number of perceived inconsistencies in the applicant’s claims. The Authority stated at A[15] to A[20] (errors in original):

15.    Firstly, there were inconsistencies as to how many people the applicant provided shelter to following the end of the conflict. In his TPV statement, the applicant indicated that he only provided shelter for his uncle. This was consistent with his oral evidence in the TPV interview where he confirmed to the delegate that he only provided shelter for his uncle. However, in the entry interview, the applicant stated that several relatives had escaped the war zone, had come to stay with him, and were registered with the army. His claims in the entry interview were also consistent with a letter dated 29 January 2013 from N. Sivasaktheey Ananthan, Member of Parliament (Vanni District). According to that letter, the applicant’s wife informed the MP that the applicant’s ‘relations’ stayed in his house in 2009 and 2010 and have since travelled abroad.

16.    Secondly, there were inconsistencies as to when and how the applicant’s uncle ‘escaped’ from the SLA. In his TPV statement, he stated that his uncle escaped from the camp and that following this the SLA came to the applicant’s house to look for him. However, in the TPV interview, he stated that his uncle was staying with him when he went missing. The delegate raised this inconsistency with the applicant, to which he responded that his uncle escaped from the camp but it was while he was living in his house. Further, the applicant initially advised the delegate that his uncle went missing after August 2011; however, later in the interview he said that his uncle went missing in March 2011. When the delegate pointed out to the applicant that he did not leave Sri Lanka until around 18 months following his uncle’s disappearance, the applicant then stated that his uncle went missing about six or seven months prior to his departure from Sri Lanka (approximately March or April 2012).

17.    Thirdly, the applicant gave various accounts as to what happened to his uncle following his escape. In his TPV statement, he claimed that his aunty (the uncle’s wife) had told him that his uncle tried to escape to Australia by boat, but that the boat sank on its way to Australia. In the TPV interview, the applicant initially told the delegate that he did not know his uncle’s location or what happened to him, nor did he know what had happened to his uncle’s family. When the delegate put this discrepancy to the applicant for comment, his response was that his aunty had told his mother that his uncle’s boat had sank, and that his mother relayed this information to him. I note in the entry interview, the applicant stated that he did not know where his uncle was and he speculated that his uncle had travelled to a country like Canada by boat.

18.    Fourthly, there were several inconsistencies as to how many times the applicant had been arrested and/or detained by the Sri Lankan authorities, and how often he was required to report. In his TPV statement, he claimed that he was taken into custody by the SLA on one occasion. He also claimed that his family members secured his release and that as a condition of his release he had to report to the SLA camp weekly. He indicated that his interactions with the SLA were either at the SLA camp or at his home. However, in the TPV interview, he claimed that the CID came two his house once or twice a week and ‘sometimes’ took him away for two or three days at a time. Later in the interview, he advised the delegate that he was arrested on three occasions, and that his was release was secured each time when his wife came and cried. He also stated that he was required to report to the SLA camp once a month. I note in the entry interview, the applicant stated that when he was taken by the authorities it was for three to four hours at a time.

19.    Fifthly, the applicant’s evidence in relation to his uncle’s association to the LTTE was inconsistent. In his TPV statement, the applicant stated that his uncle lived in a LTTE controlled area (Kilinochchi) and was rounded up with other Tamils. He made no claim that the Sri Lankan authorities had imputed his uncle as a person with links to the LTTE. Rather, the applicant claimed that it was he who was suspected of being a member of the LTTE, because he is a Tamil who lived in a Tamil area. However, in the TPV interview, the applicant stated that the SLA suspected that his uncle was with the LTTE. He initially advised the delegate that his uncle was a chef for the LTTE and that his wife lost a leg as a result of a shelling incident. Later in the interview, prior to a ‘natural justice break’, the delegate put to the applicant that it appeared that his uncle had low-level involvement in the LTTE and on that basis it was unlikely that he (the applicant) would be a person of ongoing interest to the Sri Lankan authorities. Following the break, the applicant raised a new claim that both his uncle and aunt were former soldiers in the LTTE and that after they married his uncle undertook a lower profile role in the LTTE as a chef. The delegate asked the applicant why these matters were not raised previously, to which he responded that he had forgotten. I note in the entry interview, the applicant stated that he was unsure as to whether his uncle was in the LTTE.

20.    Sixthly, in the TPV interview, the delegate asked the applicant whether he could live safely with his brother in Kandy in the Central Province. His initial response was that he could not live in Kandy because he did not have property there. The delegate again suggested that the applicant might be safe from the CID if he resided with his brother. He responded that he could not live with his brother because when the CID had previously gone looking for him they searched at his brother’s house. I note this claim was not mentioned in the applicant’s TPV statement.

12    On the basis of the cumulative inconsistencies reproduced above, the Authority concluded that the applicant was not recalling a genuine personal experience in relation to the events leading to his decision to leave Sri Lanka: A[22]. The Authority did not accept that the applicant’s uncle was detained due to actual or imputed links with the LTTE or that the applicant had, prior to leaving Sri Lanka, come to the adverse attention of the SLA, the police, or the CID: A[22]. The Authority did, however, accept that the applicant’s uncle and other relatives were displaced and taken to an internally displaced persons (IDP) camp at the end of the conflict. It accepted that the applicant resettled some relatives in his home from the IDP camp: at A[22]. The Authority concluded the applicant was not a person with an adverse profile with the Sri Lankan authorities as claimed: A[22].

13    The Authority also had regard to whether the applicant would face a real chance of harm by virtue of him being a returning Tamil asylum seeker. The Authority accepted that the applicant would be identified by the Sri Lankan authorities as someone who had departed Sri Lanka illegally: A[30]. However, the Authority was not satisfied that there was a real chance the applicant would be harmed by virtue of being a Tamil asylum seeker. The Authority accepted that the applicant would likely face a fine for committing an offence under the Sri Lankan Immigrants and Emigrants Act 1948 (Sri Lanka) (IEA). The Authority also found that the applicant might be subjected to poor prison conditions during a short period of detention. However, the Authority was not satisfied that either a fine or temporary imprisonment in poor conditions constituted significant harm: A[35].

14    The Authority was satisfied that the provisions and penalties of the IEA were laws of general application that applied to all Sri Lankans equally and were not discriminatory in their terms, or in their enforcement, or in their application in an otherwise discriminatory manner: A[36].

15    The Authority affirmed the decision of the delegate not to grant a protection visa on the basis that:

(1)    the applicant was not a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) as he did not have a well-founded fear of persecution within the meaning of s 5J of the Act, and therefore did not meet the requirements of s36(2)(a) of the Act: A[37], A[38]; and

(2)    the applicant did not face a real risk of suffering significant harm within the meaning of s 36(2A) of the Act, and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk he would suffer significant harm, and that the applicant therefore did not meet the complementary protection criterion in s 36(2)(aa) of the Act: at A[46], A[47].

FEDERAL CIRCUIT COURT

16    The applicant relied on three grounds of review before the Federal Circuit Court, with no particulars provided, as follows:

1.    Jurisdictional error.

2.    Bias based on conscious or unconscious prejudice by ignoring relevant materials.

3.    Identifying a wrong issue on a wrong question.

17    Through an interpreter, the primary judge invited the applicant at the hearing to tell the court what the Authority did wrong. The reasons for judgment record that the applicant was unable to respond meaningfully.

18    The Federal Circuit Court stated (footnotes omitted):

16.     It was held in WZAVW v Minister for Immigration and Border Protection and in WZATH v Minister for Immigration and Border Protection that a court is entitled to dismiss a case seeking judicial review by reason of generalised and unparticularised grounds of review. In this case, the grounds of review were in the extreme category of generality. The applicant gave not the slightest inkling of his complaint in ground 1. Stating “jurisdictional error” concealed, rather than revealed, the factual and legal basis for his assertion. Ground 1 was devoid of merit.

17.    Ground 2 was premised on a contention of bias. The applicant did not say in what way the IAA was said to have been biased. I detected no bias. It seemed to me the IAA faithfully and properly undertook its tasks in accordance with Part 7AA of the Act. Ground 2 was devoid of merit.

18.    Ground 3 failed to identify the wrong issue on which the applicant relied. Far from the IAA identifying a wrong question or issue, in my view the IAA undertook its consideration of Convention-based protection and complementary protection wholly correctly. I detected no error. Ground 3 was devoid of merit.

    …

20.     The applicant gave evidence before me today. As is my usual practice, after he was affirmed I asked the applicant what he said the IAA did wrong in this case. Several times today he told me he believed the IAA did not adequately consider his case. I disagree. It gave proper consideration to his claims.

19    The Federal Circuit Court dismissed the application for judicial review with costs.

THe application for extension of time to APPEAL

20    The applicant’s affidavit, referred to earlier as setting out the proposed grounds of appeal, included:

1.    I am aware that appeals from the Federal Circuit Court to the Federal Court have to be done within a specified period of time.

2.    To the best of knowledge and belief I have abided by this stipulation.

3.    My appeal is based on jurisdictional error committed by the Second Respondent who failed to exercise his proper jurisdiction by not examining the facts presented by the way of evidence and the law under the Migration Act 1958.

4.    The Primary Judge also misdirected himself on the facts presented and in the application of the law pertaining to the assessment of the persons seeking refuge in Australia.

5.    As the minimum standards of fairness have not been applied in the adjudication of my case I believe that I am entitled to a new inquiry for a Protection Visa to remain in Australia.

6.    Accordingly my appeal is that writ of mandamus be given by the Federal Court in this regard.

21    The first two paragraphs are not grounds of appeal. They are understood as directed to whether an extension of time should be granted. Rule 36.03 of the FCRs requires an appeal to be filed and served within 21 days after the date on which the judgment appealed from was pronounced. A notice of appeal was not filed within 21 days of that date and the applicant requires an extension of 16 days. The applicant’s affidavit did not provide an explanation for the delay of 16 days. However, in oral submissions, the applicant stated that he lives in Queens Park and that his letters periodically go missing. He also stated that his home had been burgled three or four times. He considered this could be an explanation for the delay.

22    A delay of 16 days is not a particularly substantial extension where there is no prejudice and the consequences to the applicant are serious. I do not regard the explanation as particularly satisfactory, however I would not refuse an extension solely on that basis. Nevertheless, an extension would not normally be appropriate where there is no merit to the proposed appeal. For the reasons now to be described, an appeal would be bound to fail and, accordingly, an extension of time to appeal is refused.

23    The third paragraph does not raise a ground with any prospect of success. The applicant has not identified any jurisdictional error on the part of the Authority. An examination of the Authority’s reasoning does not reveal any jurisdictional error in considering the relevant material, making findings of fact, identifying the correct issues of law, or reaching its ultimate conclusion.

24    As to the fourth paragraph, the applicant was not able to identify any way in which the primary judge misdirected himself as to the facts presented or the application of the law. An examination of the primary judge’s reasons does not disclose any such misdirection. In particular, the applicant’s oral submissions focussed upon the facts concerning his uncle and the facts concerning his living in Vavuniya District and Kandy. Both of these matters were the subject of consideration by the Authority and in the reasons of the Federal Circuit Court.

25    Ultimately, the Authority made findings of fact with which the applicant disagreed. However, the applicant has been unable to show that those findings were made in a manner which constitutes a jurisdictionally erroneous approach. Absent jurisdictional error on the part of the Authority, or error on the part of the Federal Circuit Court, this Court cannot intervene.

26    I do not understand the Federal Circuit Court to have dismissed the application purely on the basis that the grounds of review were unparticularised. The reasons of the primary judge show that, notwithstanding the lack of particulars and the lack of assistance provided by the applicant in oral submissions, the court considered the Authority’s reasoning. The court set out the claims made and the conclusions of the Authority. It referred to the unparticularised grounds before it and actively sought the assistance of the applicant to assist in further identification of the contended errors. The reasons as a whole, including at J[20], indicate that the court reviewed the Authority’s reasons with a view to identifying errors of the kind set out in the grounds before it. This Court has done likewise.

27    The consequences of a failure to particularise grounds was recently considered by Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4] to [10]. His Honour observed at [9]:

[I]t will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

See also: BBT16 v Minister for Home Affairs [2018] FCA 1225 at [4] and [5] (Colvin J).

28    The fifth paragraph can be understood as raising a breach of the fair hearing rule and a breach of the bias rule. To the extent paragraph five raises a denial of a fair hearing, it is broader than what was put to the Federal Circuit Court and leave would be required to raise it: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588. In any event, the applicant has not established a breach of either rule. As to the fair hearing rule, Part 7AA of the Act required the Authority, subject to the terms of Part 7AA, to review the decision on the “review material” without accepting or requesting “new information” and without interviewing the referred applicant. There was no error shown in the way the Authority conducted its review. As to bias, there is nothing which suggests actual or apprehended bias.

29    The sixth paragraph is not a ground of appeal but a claim for relief. No basis has been shown for the grant of relief.

CONCLUSION

30    The application for an extension of time is dismissed. The Minister seeks costs fixed in the amount of $1,756.00, being the amount contemplated by r 40.43 and sch 3, cl 15.1(b) of the FCRs. It is appropriate that the applicant pay costs fixed in that amount. The applicant asked that he be given three months to pay and the Minister did not object to such an order.

Associate:

Dated:    22 August 2018