FEDERAL COURT OF AUSTRALIA

CKM16 v Minister for Immigration and Border Protection [2019] FCA 729

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to bring an appeal from the orders made on 31 October 2018 by the Federal Circuit Court of Australia be refused.

2.    The applicant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an application for an extension of time in which to bring an appeal against orders made on 31 October 2018 by a judge of the Federal Circuit Court of Australia. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, also referred to as the IAA. The Authority had, on 9 August 2016, affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (at that time known as the Minister for Immigration and Border Protection) to refuse the grant of a class of protection visa, namely a Safe Haven Enterprise visa (SHEV).

2    The extension of time application, dated 18 February 2019, does not contain or refer to any proposed grounds of appeal. The applicant’s supporting affidavit affirmed 18 February 2019 does not annex any draft notice of appeal, nor identify any grounds of appeal. However, on 18 March 2019 the applicant electronically lodged a draft notice of appeal. It is clear that someone with legal training has been involved in drafting the grounds sought to be relied upon.

3    The applicant is not legally represented and did not provide any written submissions in support of his application. He appeared for himself at the hearing of the application, with the assistance of an interpreter. He did not address his proposed grounds of appeal. He gave as the reason for the late commencement of this proceeding being upset and being encouraged to do so by friends by reason of worsening circumstances in his country of origin, Sri Lanka.

4    The background to this application is helpfully summarised in the Minister’s written submissions as follows:

The applicant is a citizen of Sri Lanka, who arrived in Australia on 1 September 2012. The applicant applied for a SHEV on 9 November 2015. The applicant claimed to fear harm from the Sri Lankan Army (SLA) because of his Tamil ethnicity, his imputed political opinion and as a failed asylum seeker who departed Sri Lanka illegally.

On 4 July 2016, a delegate of the first respondent (the delegate) refused to grant the applicant a SHEV. The delegate's decision was referred to the Authority for review.

On 9 August 2016, the Authority affirmed the delegate's decision: CB 198. The Authority considered the material referred to it pursuant to section 473CB of the Migration Act 1958 (Cth) (the Act), at [3]. It identified the applicant's submission to it, received 8 August 2016. To the extent that the submission addressed the delegate's findings and referred to information before the delegate, the Authority had regard to it, at [4]–[5]. The Authority identified aspects of the submission that constituted ‘new information’ and, for the reasons given at [6]–[8], did not have regard to the new information.

The Authority accepted aspects of the applicant's claims concerning past events. These included his claims to have been detained and beaten on suspicion of Liberation Tigers of Tamil Eelam (LTTE) involvement during the civil war, at [15], to have been displaced and taken to an internally displaced persons camp, at [20], and to have faced a level of harassment, at [26]. The Authority also accepted the applicant's claim concerning an incident arising from the fishing pass system, at [28], and that the applicant had general involvement with the Sri Lankan Red Cross and Tamil National Alliance, at [31] and [33]–[34].

The Authority did not accept that the Sri Lankan authorities visited the applicant's family to inquire after the applicant, subsequent to the applicant's departure from Sri Lanka, at [37]. It found that the application of the fishing pass system to the applicant did not constitute serious harm, at [48]–[49], and was not satisfied that the applicant faced a real chance of persecution for reason of his being a Tamil fisherman from Jaffna in the north of Sri Lanka, at [51].

The Authority accepted the applicant’s evidence that he did not have actual LTTE links, other than having performed forced labour for the LTTE, and did not teach karate to the LTTE. The Authority repeated that it had accepted aspects of the applicant's claims but found the authorities’ interest in the applicant occurred during the war, and continued in the immediate aftermath of the war and the applicant’s release from the camp, up to 2010. The authorities only became interested in the applicant again in 2012, for a very short time, due to suspicion arising from the fishing pass incident, but this was explained away. The Authority found that the applicant did not have a profile suggested by country information to be at risk, and did not consider that the authorities would have had any further interest in the applicant had he remained in Sri Lanka, at [55].

The Authority considered the balance of the applicant’s claims, including his illegal departure claim. It considered the applicant’s circumstances as a whole and was not satisfied that he faced a real chance of persecution in the reasonably foreseeable future, at [79], or a real risk of significant harm, at [89].

5    The Minister opposes the grant of the extension of time by reason of its lateness (89 days), the absence of any satisfactory explanation for the delay, and the fact that the draft notice of appeal raises issues that were not raised before the primary judge. The last point is strictly correct, but the substance of the issue now sought to be agitated was dealt with by his Honour. The fate of this application can be adequately and most efficiently addressed by reference to an “impressionistic reading and consideration” of the proposed appeal grounds sought to be relied upon at the appeal that would follow, only refusing the application if those grounds are hopeless: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [66].

6    The proposed appeal grounds assert jurisdictional error, by way of legal unreasonableness, in the Authority failing to exercise the power in s 473DC of the Migration Act 1958 (Cth) to obtain “new information”, being information that was not before the delegate and that the Authority considers to be relevant to the review.

7    Importantly, s 473DC(2) expressly provides that there is no duty imposed to get, request, or accept any new information in any circumstances. The information in question was a translation of country information provided by the applicant to the Authority.

8    The Authority had regard to country information that was before the delegate, and to submissions made to it that respond to the delegate’s decision, regarding that as not being new information. However, the Authority declined to have regard to information postdating the delegate’s decision that was in Tamil from newspapers and social media from 11 July 2016, which was considered, correctly, to be “new information”. The Authority said of this information (at [7]-[8]):

… The applicant has explained the un-translated material consists of articles about the fate of returned failed Tamil asylum seekers from the east / former LTTE controlled areas. The information is untranslated and there already was current information before the delegate, and therefore now before the IAA, about incidents involving failed Tamil asylum seekers on their return to Sri Lanka.

Based on the above, I am not satisfied that there are exceptional circumstances to justify considering the new information.

9    The above topic was dealt with by the primary judge in the course of addressing ground 2 before his Honour, viz “Ignoring relevant material”. His Honour said (at [17]-[21], omitting paragraph numbers and footnotes):

In relation to ground 2 the applicant submitted that the relevant material the Authority ignored was the untranslated country information the applicant’s agent provided to the Authority by the email sent on 8 August 2018 to which I have previously referred.

There are two things that may be said about this. First, the Authority was under no obligation to arrange for the translation of the country information. That is made clear in paragraph 25 of the Authority’s Practice Direction, and was appreciated by the applicant’s agent who, in his email to the Authority sent on 8 August 2016, stated “we have requested for a translated copy which is yet to be provided”.

Second, the Authority did refer to the country information in that part of its reason dealing with new information. The Authority identified the extracts from country information referred to in the submissions made by the applicant’s agent on 8 August 2016. That included what the Authority described as “material, in Tamil, from newspapers and social media from 11 July 2016”. In relation to that material the Authority made the following observations and findings about the untranslated country information:

The only new information that post-dates the delegate making a decision is the material from 11 July 2016. The applicant has explained that the un-translated material consists of articles about the fate of returned failed Tamil asylum seekers from the east/former LTTE controlled areas. The information is untranslated and there already was current information before the delegate, and therefore before the IAA, about incidents involving failed Tamil asylum seekers on their return to Sri Lanka.

Based on the above, I am not satisfied that there are exceptional circumstances to justify considering the new information.

The claim ground 2 may be taken to raise is that the Authority misconstrued or misapplied s.473DD of the Act. That is how the Minister has understood ground 2. The Minister submits the Authority engaged with what the Minister submits was the very limited argument the applicant advanced as to exceptional circumstances, and otherwise correctly understood and considered s.473DD of the Act. I agree. The untranslated documents were not “credible information which was not previously known” within the meaning of s.473DD(b)(ii) because the documents contained country information; and the Authority noted that the untranslated documents were created after the date on which the delegate made the decision rejecting the TPV. The Authority then considered whether there were exceptional circumstances to justify considering the information and, for reasons that were reasonabl[y] open to it, decided there were no exceptional circumstances. The Authority made no error in proceeding this way.

Ground 2 therefore, also fails.

10    I can see no error in the primary judge’s reasoning or conclusions, noting that the applicant does not seek to challenge either. The same reasoning may equally be applied for present purposes to the complaint that the Authority did not obtain a translation of the new information sought to be relied upon by the applicant, especially as he had indicated the substance of what the information was. Once the decision was made not to receive this new information upon the basis that the necessary satisfaction was not reached that there were exceptional circumstances to justify considering it, as required by s 473DD(a), it would have been not just pointless, but also irrational, to seek to have that material translated.

11    The grounds of appeal that the applicant seeks to rely upon out of time are apparently doomed to fail, and are therefore properly characterised as hopeless. It follows that there is no proper basis for the grant of the extension of time sought to advance those grounds of appeal. The application must therefore be refused, with costs.

Associate:

Dated:    22 May 2019