FEDERAL COURT OF AUSTRALIA

DIR16 v Minister for Home Affairs [2018] FCA 1935

ORDERS

THE COURT ORDERS THAT:

1.    The Application for an Extension of Time is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, identified by the pseudonym DIR16, is a citizen of Sri Lanka. He was born in 1986 and lived in India from 2008 to 2011. He returned to Sri Lanka in 2011

2    The Applicant arrived in Australia as an unauthorised maritime arrival in September 2012. He initially lodged an application for a Protection visa, but that application was invalid. He then applied for a Safe Haven Enterprise (subclass 790) visa in December 2015. His protection claims were set out in a Statutory Declaration originally prepared in September 2013 in support of the Protection visa application and apparently also relied on in support of his Safe Haven Enterprise visa application.

3    The Applicant attended an interview in April 2016 with his allocated “case officer”. A “post interview submission” was sent to the case officer in April 2016. The application was rejected in August 2016 by a delegate of the Minister for Immigration and Border Protection (the “delegate”). The matter was then referred to the Immigration Assessment Authority (the “Authority”). A submission in support of the review was sent by email to the Authority in August 2016. In October 2016, the Authority concluded that DIR16 did not satisfy the definition of “refugee” in s 5H(1) of the Migration Act 1958 (Cth) and thus did not satisfy s 36(2)(a) of that Act. The Authority also concluded that he did not meet the complementary protection criteria prescribed by s 36(2)(aa) of the Act. The delegate’s decision was thus affirmed.

4    In November 2016, DIR16 commenced a proceeding in the Federal Circuit Court of Australia seeking review of the Authority’s decision. That Court dismissed that application on 27 April 2018: DIR16 v Minister for Immigration and Border Protection [2018] FCCA 992.

5    On 22 May 2018, DIR16 filed in this Court an Application for an Extension of Time. An extension of time is required because r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) provides than an appeal is to be filed “within 21 days after … the date on which the judgment appealed from was pronounced”. Rule 36.05 of the Rules provides for a party to make an application to extend the time within which a notice of appeal may be filed. Also filed on 22 May 2018 was an affidavit of the Applicant annexing a copy of the decision of the primary Judge and a Draft Notice of Appeal.

6    The proceeding came on for hearing on 19 November 2018. The Applicant appeared unrepresented, albeit with the assistance of an interpreter. The Respondent Minister appeared by his solicitor.

7    The application is dismissed.

The discretion exercised

8    Many decisions of this Court have canvassed the principles to be applied when exercising the discretionary power to extend time. In BUD17 v Minister for Home Affairs [2018] FCAFC 140, Robertson, Steward and Thawley JJ summarised some of those principles as follows:

[82]    In considering whether to exercise the discretion to extend time under r 36.05 of the Federal Court Rules 2011 (Cth) … and recognising that the Court’s discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted …

9    Rule 36.05(3)(c)(ii) of the Federal Court Rules provides that an application for an extension of time must be accompanied by an affidavit stating “why the notice of appeal was not filed within time”. The affidavit filed on 22 May 2018 provided that the Applicant “thought [he] should file appeal within 28 days”, rather than within 21 days. The extension required in the present case – a period of four days – is, accordingly, short and the Respondent Minister claims no prejudice should an extension be granted.

10    The resolution of the application for an extension of time, accordingly, turns on an assessment as to the “prospects of success” of the appeal if an extension were granted. Whatever “prospects of success” the appeal may have is to be initially discerned from the Draft Notice of Appeal. The proposed Grounds of Appeal are there set forth as follows (without alteration):

Grounds of appeal

1.    His Honour erred at law by failing to hold that IAA failed to take a relevant issue into consideration.

Particulars

His Honour failed to find that IAA failed to deal with the claim that that long absence and being a son of a wealthy businessman will trigger suspicion in the minds of authorities, a claim not addressed by the IAA.

2.    His honour erred at law by failing to find that IAA misunderstood the country information.

Particulars

His Honour failed to hold that IAA failed to address country information that there were incidents of torture of returnees similar to the Appellant.

The “IAA” is a reference to the Authority.

11    Although each of these proposed Grounds need to be separately addressed, it is concluded that neither has any real prospect of success.

12    The Grounds, moreover, seem to depart from the Grounds of Review relied upon before the primary Judge. Different arguments to those previously relied upon may be advanced on appeal if it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ (“VUAX”). Leave to raise a new argument on appeal, however, may be refused if there is no satisfactory explanation as to why the argument was not previously raised and where there is no merit in the proposed new argument: e.g., Abdel-Hady v Minister for Immigration and Border Protection [2018] FCAFC 164 at [37] per Greenwood ACJ, Charlesworth and O’Callaghan JJ.

13    Insofar as the first proposed Ground of Appeal is concerned, part of the claims made by DIR16 in support of his visa application centred upon his being the son of a wealthy businessman. In resolving that part of the claim, the Authority made the following findings (without alteration):

14.    In view of the applicant’s individual profile, my findings on which I discussed below, I do not consider that the applicant would have been targeted in August 2012 because of any actual suspicion on the part of the authorities that he has any LTTE connection. However, in the absence of any contradicting information and on the basis of the applicant’s consistent evidence in this regard I am prepared to accept that the applicant’s father is a successful business person owning some seven shops and is known in his area to be wealthy. I am also prepared to accept that the applicant’s father’s perceived wealth may have been the cause of opportunist motivation on the part of the CID in August 2012 to extort money from the applicant’s father by arresting the applicant and threatening false charges concerning LTTE involvement, in order to secure the applicant’s release.

15.    I am therefore prepared to accept the applicant’s claim in relation to being targeted for arrest in August 2012 by the CID and then released after several hours following his father’s payment of a ransom, and that there was a follow up attendance by CID three days after he applicant departed Sri Lanka.

The primary Judge in respect to this aspect of the claim summarised the findings of the Authority as follows:

[11]    The IAA accepted that the applicant’s father was a successful businessman, being the owner of a number of shops, and that he was perceived in his area to be wealthy; and it was prepared also to accept the applicant’s father’s perceived wealth may have been the cause of opportunistic motivation by the CID to extort money from the applicant’s father by arresting the applicant and threatening false charges concerning LTTE involvement to secure the applicant’s release.11 The IAA, therefore, was prepared to accept the applicant’s claim “in relation to being targeted for arrest in August 2012 by the CID and then released after several hours following his father’s payment of a ransom, and that there was a follow up attendance by CID three days after [the] applicant departed Sri Lanka”.12 The IAA, however, did not consider that the applicant would have been targeted in August 2012 because of any actual suspicion by the authorities that he had any LTTE connection.13

The footnote references are references by the primary Judge to parts of the Authority’s reasons for decision, including paras [14] and [15].

14    Any argument that the Authority failed to take into account or “deal with” that part of the Applicant’s claim that he was the “son of a wealthy businessman” was an argument without merit. The Authority did “deal with” that part of the claim. Any argument that the primary Judge was unaware of the Authority’s assessment on this issue is equally an argument without merit.

15    The Applicant’s argument that the Authority, and thereafter the primary Judge, “failed to deal with” the Applicant’s “long absence” from Sri Lanka is also without merit. The “long absence” referred to is the Applicant’s residence in India from 2008 to 2011. Any reliance by the Applicant upon this “long absence” formed no part of the claim initially advanced to the delegate in the 2013 Statutory Declaration nor the “post interview submission” in April 2016. Nor was it an issue expressly raised in the email submission to the Authority in August 2016 forwarded by the Applicant’s then legal representative. That representative’s instructions, it would appear, were withdrawn later that month.

16    The issue seems to have emerged only during the course of the interview with the case officer. The reasons of the delegate provided with his decision in August 2016 thus records in part as follows:

109.    The applicant stated in the PV interview that when he returned from India he registered with the Police in Killinochchi and he was asked questions which included “Where I was all this time.” The applicant adds that the Criminal Investigation Department (CID) suspected that he was former LTTE as some LTTE had escaped to India and were returning to Sri Lanka. The applicant claims in the PV interview that the CID started to come around to his house asking for money and making allegations that he was LTTE. The applicant states that he returned to his Aunt’s house in Colombo because “I was scared of persecution and life threatening.” He stated that he was only in Killinochchi for two weeks during which time the CID made threats against him and that they came to his parents’ house at least once a day. The applicant was asked if they directly made threats to him. He replied “They pulled my neck and said ‘tell the truth’. The applicant described the persons who did this to him as being CID officers wearing uniforms. He was asked in the PV interview how he knew they were CID. He replied that by their uniforms and identifications and he recognised them from before. The applicant claimed that he departed Killinochchi for Colombo after about two weeks. He stated that at this time his Father managed to convince the CID that he had returned to India.

It was also averted to in the Authority’s reasons for decision as follows (without alteration):

32.    I am further not satisfied that the applicant’s return to Sri Lanka in the middle of 2011 after a three year period of residence and study in India would add to the applicant’s profile in a way that would involve being imputed with a pro LTTE political opinion. The country information in the referred materials indicates that many thousands of ethnic Tamils have returned to Sri Lanka from abroad including from India since the end of the Civil War, and whilst I accept that the applicant had been unable to complete his Bachelor of Commerce qualification following his study in India, I consider he would readily be able to provide evidence c to the Sri Lankan authorities that would explain his period of absence.

33.    I am satisfied that the applicant will not face a real chance of harm from the Sri Lankan authorities due to any imputed political opinion on return to Sri Lanka, including by reference to the applicant’s absence in India for a three year period between 2008 to 2011, now or in the reasonably foreseeable future.

(Footnote omitted.)

17    However the argument as to the “long absence” of the Applicant from Sri Lanka arose, it would appear that:

    it was not an issue that was relied upon by the Applicant in his submissions to either the delegate or the Authority;

but was an issue addressed in any event by both:

    the delegate and the Authority.

Such consideration as was given to the Applicant’s “long absence” does not expose any self-evident error. It was not an argument which formed any part of the Grounds of Review advanced before the primary Judge. Leave to now rely upon this as an argument advanced before this Court for the first time is refused. To permit such a course to be pursued would only encourage the opportunistic recasting of arguments not previously advanced with a view to abandoning other grounds which have been considered and which have been held not to be persuasive. To permit such a course would not be “expedient in the interests of justice”: cf. VUAX [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ.

18    Given the consideration in fact given by both the delegate and the Authority to both limbs of the first Ground of Appeal – namely the Applicant’s “long absence” and his being the “son of a wealthy businessman” – the first proposed Ground of Appeal is without merit.

19    Insofar as the second proposed Ground of Appeal is concerned, the Authority sequentially addressed country information (or the absence of country information) when dealing with the question of whether the now-Applicant had a “well-founded fear of persecution”. The Authority addressed that question – and considered country information – under the following sub-headings:

    “Tamil male from the north/young Tamil male who fled to India/imputed political opinion” (at paras [25] to [29]);

    “Failed Tamil asylum seeker and illegal departure from Sri Lanka” (at paras [36] to [48]);

    “Claims in relation to extortion” (at paras [50] to [51]); and

    “Cumulative circumstances” (at para [54]).

20    The Authority went on to set forth its “[c]omplementary protection assessment” (at paras [56] to [65]) and again considered the country information (at paras [60] to [61]). The primary Judge summarised the findings of the Authority and the manner in which it addressed country information as follows in his reasons for decision:

[14]    The IAA accepted the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally;19 but it was not satisfied the applicant would face harm on his return as a failed Tamil asylum seeker,20or that he would face a real chance of persecution now or in the reasonably foreseeable future because he was a failed Tamil asylum seeker who departed Sri Lanka illegally.21 The IAA also accepted that under the Immigrants and Emigrants Act (Sri Lanka) (IE Act) penalties for departing Sri Lanka illegally include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees,22 and that country information indicated that asylum seekers with actual or perceived links to the LTTE may be at risk of harm when processed at the airport.23 The IAA found, however, that the applicant did not have any actual or perceived links with the LTTE and he was not of interest to the former Sri Lankan authorities at the time he left Sri Lanka, and it did not accept the applicant will be at risk of adverse attention from the current Sri Lankan authorities on arrival in Sri Lanka.24

Again, the footnote references are references to the decision of the Authority.

21    No explanation was forthcoming as to the manner in which it was said that the Authority had “misunderstood the country information”.

22    The second proposed Ground of Appeal is also without merit.

CONCLUSIONS

23    The manner in which the primary Judge considered the findings made by the Authority, and did so by cross-referencing his own conclusions by way of footnote to the decision of the Authority, indicates a degree of care in the analysis undertaken.

24    Such leave as is necessary to raise the new argument as to the Applicant’s “long absence” is refused. Neither of the proposed Grounds of Appeal, in any event, have any prospects of success.

25    An extension of time is thus refused.

26    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Application for an Extension of Time is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    4 December 2018