FEDERAL COURT OF AUSTRALIA

CDB17 v Minister for Immigration and Border Protection [2018] FCA 1344

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The applicant is a Tamil man from Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 20 September 2012. On 15 December 2015, he applied for a Class XE sub-class 790 Safe Haven Enterprise visa (the “visa”). A delegate of the first respondent (the “Minister”) refused to grant the visa on 29 September 2016. Thereafter, the matter was referred to the Immigration Assessment Authority (the “Authority”), which affirmed the Minister’s decision on 20 April 2017.

2    The applicant then sought judicial review of that decision in the Federal Circuit Court of Australia. That application was dismissed on 5 February 2018. The applicant was required by r 36.03 of the Federal Court Rules 2011 (Cth) to file any notice of appeal from that decision within 21 days. This did not happen. Instead, on 28 February 2018, the applicant filed an application for an extension of time within which to file a notice of appeal. He was two days late. The principles for determining whether to grant an extension of time are settled. They include the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed appeal: see Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

3    For the purposes of considering the merits, a court should consider the prospects of success at a reasonably impressionistic level: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]-[66]. Here there would appear to be little, if any, prejudice to the Minister if leave were to be granted. Indeed, so much so was conceded by the Minister’s counsel. Moreover, the delay was only of two days. These factors suggests that the extension of time should be granted.

4    The application was accompanied by two affidavits, one affirmed on 28 February 2018 and one affirmed on 24 August 2018. I will return to the second affidavit later, as it addressed a separate application to adjourn the hearing before me. The first affidavit said the following:

1.    I am the Applicant.

2.    I am self-represented at this stage.

3.    My Federal Circuit Court Application was refused and I enclose herewith the Court Order.

4.    I do not agree with the [Immigration Assessment Authority’s (the “IAA’s”)] and the Federal Circuit Court’s decision.

5.    I rely on facts and grounds of review stated in my Federal Circuit Court Application and in the Form 121 to leave to appeal.

6.    I still fear persecution in my home country.

5     With respect, what is said in that affidavit does not give an explanation for the delay or address in any way why the applicant was two days late. Before me, I asked the applicant why there had been a delay of two days. He said he faced certain problems with his family and that he was suffering “mental pressure”. Especially having regard to the fact that the applicant had no legal representation, I accept this explanation and consider it sufficient for the purposes of his application.

6    The next issue to consider are the prospects of success. The proposed notice of appeal contained the following grounds, which appear to be the same as those pursued before the Federal Circuit Court. These are:

The Federal Circuit [C]ourt failed to find, in respect of the IAA that the IAA declined its jurisdiction to me on the basis of grounds including the main ground stated in my Federal Circuit Court Application. The ground of review and particulars which were stated in my Federal Circuit Court application was filed on 24 August 2017 and in my Amended Application as well that was filed in the Federal Circuit Court on 16 January 2018. The decision of the IAA is vitiated by jurisdictional error.

Grounds & Particulars

1.     The IAA erred in finding the Applicant does not meet S 5H (1) or 36 (2) (a) or 36 (2) (aa) of the Migration Act;

2.     The IAA erred in not being satisfied that the applicant faces a real chance of serious harm due to his father’s imputed links with the [Liberation Tigers of Tamil Eelam (the “LTTE”)] now or in the foreseeable future;

3.     The IAA erred in not being satisfied that the applicant faces a real chance of serious harm due to his Tamil ethnicity, his imputed LTTE profile, or for any reason upon his return to Sri Lanka now or in the foreseeable future;

4.     The IAA erred in finding the Applicant does not have a well-founded fear of persecution within the meaning of S 5J;

5.    The IAA erred in finding the Applicant is not of interest to the Sri Lankan authorities, the Karuna Group or any other group or persons due to his imputed links to the LTTE (including familial links);

6.     The IAA erred in finding the Applicant does not face a real chance of harm in connection with his interaction on the basis that finding the Applicant is not of interest to the Sri Lankan authorities, the Karuna Group or any other group or persons due to his imputed links to the L TTE (including familial links);

7.    The IAA erred in concluding the applicant does not face a real chance of harm in connection with his interactions with the Karuna Group in mid-2008, his involvement with [a Member of Parliament named] Amirthalingam or the [Tamil National Alliance (the “TNA”)], or for any reason including in connection with him being a returning asylum seeker;

8.    The IAA erred in misunderstanding the nature of the evidence upon which the IAA based its conclusions rendering the conclusions erroneous and unsupported by the evidence as follows:

a.     The IAA found the applicant changed his evidence about the number of people he was travelling with and the number of armed men involved (para 18), when such a finding was incorrect in that the applicant did not give conflicting evidence in respect of these points;

b.    The IAA concluded (para 18) that the applicant fabricated the claimed events of July 2012 in order to enhance his application. The IAA recounted as a basis for that conclusion that the applicant had claimed he was taken by the LTTE and there was an attempt by the LTTE to recruit or conscript him but that the applicant later stated there had never been an attempt by the LTTE to recruit or conscript him; however the applicant had referred to the Karuna group and not the LTTE;

c.     The IAA stated (para 21) ‘There is no information before me that indicates that the applicant had any further interactions with the Karuna group following that incident [mid-2008] and I have rejected the applicant’s claims that he and his family came to the adverse attention of the Karuna group between July 2012 and September 2012.’, when such rejection was not in accordance with the evidence and / or was invalid in light of the invalid conclusion.

9.     The IAA erred in finding the Applicant does not face a real risk of suffering significant harm;

10.    The IAA failed to give the applicant the benefit of the doubt where the IAA found evidence otherwise unconvincing;

11.     The IAA erred in affirming the Delegate’s decision not to grant the applicant a protection visa;

12.     The IAA erred in not granting the applicant a protection visa.

7    The Minister submitted that the application should be refused because the proposed notice of appeal did not engage with the decision below in “any meaningful way”, and did not identify any appealable error. The Minister submits that the applicant’s grounds comprise an impermissible attack on the merits of the Authority’s decision.

8    I have reviewed the decision of the Authority at an impressionistic level. Essentially, the applicant claimed that, if returned to Sri Lanka, he would be exposed to a sufficient risk of harm for the purposes of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). The basis for his fear was summarised by the Authority at [5] of its reasons:

The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:

•    The applicant is a Tamil male from Batticaloa District, Eastern Province;

•    In 1999, the applicant’s uncle was killed while fighting for the Liberation Tigers of Tamil Eelam (LTTE);

•    Prior to the end of the conflict, the applicant’s father was suspected of providing assistance to the LTTE;

•    In 2008, the Karuna Group attempted to recruit the applicant;

•    In January 2012, the applicant began working as a personal driver for a Tamil National Alliance (TNA) Member of Parliament named ‘Amirthalingam’;

•    In July 2012, the applicant distributed flyers and posters for the TNA;

•    On 15 July 2012, the applicant was detained, threatened and harmed by armed men;

•    Three days later, the applicant’s brother received a threat from the Karuna Group;

•    Following the events of 15 July 2012, armed men beat the applicant’s friends and came looking for him at his home;

•    In August 2012, the applicant went into hiding at his aunt’s home;

•    In September 2012, the applicant departed Sri Lanka;

•    After he left Sri Lanka, the applicant’s brother was threatened and beaten by members of the Karuna Group and persons threw stones on his sister’s house;

•    The applicant fears he will be harmed or killed by the Karuna Group and/or the Sri Lankan authorities on account of:

    - his Tamil ethnicity

    - his association to Amirthalingam and the TNA

    - his imputed LTTE connections

    - his illegal departure from Sri Lanka

    - his asylum application abroad.

9    By reason of those alleged events set out in [5], the applicant claims that if returned to Sri Lanka he will be harmed or killed by the Karuna Group and/or the Sri Lankan authorities because of his:

(1)    Tamil ethnicity;

(2)    association with a certain politician and the TNA;

(3)    imputed LTTE connections;

(4)    illegal departure from Sri Lanka; and

(5)    asylum application abroad.

10    Regrettably for the applicant, the Authority accepted some, but not all, of his claims. For example, it accepted that the applicant’s paternal uncle was killed while fighting for the Liberation Tigers of Tamil Eelam (the “LTTE”). It accepted that the applicant’s father was treated with suspicion by the Sri Lankan authorities. It accepted that the applicant had advised the interviewing officer for the Department of Immigration and Border Protection that the Karuna Group was recruiting people in 2005, and that he avoided recruitment by going to work in a shop in the Ampara district. The Authority accepted that it was plausible that the applicant had come to the adverse attention of the Karuna Group as claimed, and that this would have occurred in 2008. The Authority accepted that the applicant worked as a personal driver for a distant relative, who was a member of a municipal council and was associated with the Tamil National Alliance (the “TNA”). It was thus plausible that the applicant distributed fliers and posters in July 2012.

11    However, the Authority did not accept that the events of July 2012 had occurred and found that this event had been fabricated in order to enhance the applicant’s protection application. It was not satisfied that the applicant had come to the adverse attention of the Karuna Group or Sri Lankan authorities by reason of his uncle’s profile. It also rejected the proposition that the applicant came to the adverse attention of the Karuna Group by reason of his involvement with the politician or the TNA. It was not satisfied that the applicant had had any further interactions with the Karuna Group since 2008.

12    The Authority considered the applicable country information and concluded that the applicant did not face a real chance of serious harm due to his Tamil ethnicity, his imputed LTTE profile, or for any other reason now or in the foreseeable future. The Authority also considered whether the applicant would be exposed to a risk of harm as a person who had left Sri Lanka illegally and would be returning as a failed asylum seeker. It found that, if returned, the applicant would be charged, fined, and then released. It found that he would not face any chance of imprisonment and that, in those circumstances, it was not satisfied that the applicant had a well-founded fear of persecution. It followed that the applicant did not meet the requirements of s 36(2)(a) of the Act.

13    The Authority also considered the possible application of s 36(2)(aa) of the Act and, having regard to the applicant’s circumstances both individually and cumulatively, found that the applicant did not face a real risk of suffering significant harm if returned to Sri Lanka.

14    Turning to the proposed notice of appeal, I am satisfied that particulars (1) to (7) do no more than seek to challenge the merits of the findings of fact reached by the Authority. In my view, looking at those findings at an impressionistic level, I am satisfied that it was open to the Authority to make the findings that it made. The applicant’s proposed attempt to challenge those findings on the merits would have little, if any, prospect of success.

15    Particular (8) articulated a more exact complaint. It contended that the Authority had wrongly rejected the applicant’s claims concerning the incident said to have taken place in 2012. The applicant contends that he did not change his evidence about the number of people he was travelling with and the number of armed men involved, and that the Authority had mistakenly referred to attempts by the LTTE to recruit him.

16    The allegation raises for consideration the second affidavit affirmed by the applicant. In it, he deposes that following attendance on counsel’s chambers on 22 August 2018, he was informed that he needed to obtain a certified transcript of his visa interview. Further, he deposes that he tried and failed to obtain that transcript from the Minister’s solicitors, and that, in any event, because Tamil translators who have achieved level three accreditation from the National Accreditation Authority for Translators and Interpreters are busy, it was unlikely that he would get a translated transcript soon. The applicant accordingly sought an adjournment of the hearing of his application for an extension of time to enable him to obtain the transcript and seek legal advice. On the applicant’s case, the transcript may be important because, as he contends it, it will show that the Authority wrongly referred to the LTTE at [18] of its reasons.

17    This contention concerning an alleged error in [18] of the Authority’s reasons is not new. The same contention was put before the primary judge as ground 8(b) in the amended application as follows:

The IAA erred in misunderstanding the nature of the evidence upon which the IAA based its conclusions rendering the conclusions erroneous and unsupported by the evidence as follows:

…

b.     The IAA concluded (para 18) that the applicant fabricated the claimed events     of July 2012 in order to enhance his application. The IAA recounted as a basis     for that conclusion that the applicant had claimed he was taken by the LTTE     and there was an attempt by the LTTE to recruit or conscript him but that the     applicant later stated there had never been an attempt by the LTTE to recruit     or conscript him; however the applicant had referred to the Karuna group and     not the LTTE; …

18    The primary judge addressed ground 8 at [35] of his reasons for decision:

Ground 8 reflects a disagreement with the adverse credibility findings made by the Authority. The Authority provided logical and reasonable reasons in support of its adverse credibility findings as summarised above. In particular, the Authority referred to the change of the applicant’s evidence in relation to the alleged incident in July 2012 and summarised the relevant inconsistencies. In that regard the adverse findings by the Authority were open for the reasons given by the Authority as summarised above and cannot be said to be unreasonable or illogical. No jurisdictional error is made out by Ground 8.

19    Without commenting on the adequacy of those reasons, I am satisfied that the applicant may have had a sufficient opportunity to obtain the transcript in the past. This was a point he had advanced at the hearing below on 5 February 2018. When asked by me why he had not obtained the transcript earlier, the applicant stated that he simply did not know until he was told by an unknown barrister on 22 August 2018 that obtaining the transcript was a possibility available to him. Once again, given that the applicant has not been legally represented, I am prepared to accept that explanation. However, it does not address why the applicant did not seek legal assistance at an earlier stage for the purposes of preparing for the Federal Circuit Court application or for the application before this Court.

20    In these circumstances, I declined to grant the adjournment. I was also not satisfied that the point concerning the transcript was not futile. That is so for two reasons. First, on one view, it may be the case that the applicant has misunderstood the Authority’s reasons at [18]. Finding that the applicant had fabricated the events of July 2012 was based upon, amongst other things, the Authority’s analysis at [15]-[17] of its reasons and the reference to the LTTE at [18] is to events alleged to have taken place in 2009, not 2012. Secondly, if there was a mistaken reference to the LTTE instead of the Karuna Group, in my view, it was one made within jurisdiction. The Authority was otherwise well aware of his claim for fear from the Karuna Group and this can be seen at [12] of the reasons for decision.

21    I have also considered particulars (9) to (12) of the proposed notice of appeal, and I am satisfied that they do not give rise to appealable errors which have a sufficient prospect of success. Rather, they are expressions of disagreement with the Authority’s conclusions. For these reasons, I reject the application for the extension of time. In my view, for the purposes of that application, the grounds in the proposed notice of appeal lack merit. They seek to impugn the Authority’s decision on the basis of disagreement with conclusions of fact which were open to be made by the Authority or which concern the credit-worthiness of the applicant. This was also the conclusion of the primary judge at [27] to [41], below, whose reasons for decision I have also reviewed.

22    More particularly, the findings of fact concerning the number of men said to have travelled with the applicant in 2012, together with the number of armed men said to have been involved in the 2012 alleged incident, were again findings of fact which the Authority made which were open to it. They were findings made within jurisdiction.

23    For these reasons, because the proposed notice of appeal does not disclose grounds of review which are not futile, the application for the extension of time is refused, with costs as agreed or assessed.

Associate:

Dated:    27 September 2018