FEDERAL COURT OF AUSTRALIA

FHC17 v Minister for Immigration and Border Protection [2019] FCA 827

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application for an extension of time to appeal from the orders and judgment of the Federal Circuit Court (FCC) in FHC17 v Minister for Home Affairs [2018] FCCA 3382.

2    The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority dated 8 November 2017, affirming a decision of a delegate of the Minister to refuse the applicant the grant of a protection visa.

3    Rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) as it was at the time required a notice of appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. As the orders were pronounced on 23 November 2018, the notice of appeal should have been filed by 17 December 2018 – by r 1.61(2) time started on 24 November 2018 and since it would otherwise have ended on a Saturday, which is not a business day, under r 1.61(4) the last day was the following Monday, i.e. 17 December 2018. In fact, the application was made on Monday 24 December 2018, and was therefore seven days late.

4    It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349, adopted by the Full Court in Parker v R [2002] FCAFC 133 at [6].

5    Rule 36.05 of the FCR makes provision for an application for an extension of time within which to file a notice of appeal, and in particular provides that the application may be made during or after the period mentioned in r 36.03.

6    I accept, as the first respondent, being the Minister, submitted, that the time limits prescribed by the FCR are not mere aspirational guidelines; they are intended to mark out the period in which it is expected that any appeal might be lodged. Once that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs. See BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3] per Derrington J.

7    In this matter, the Minister accepts that the delay is short and that there is no prejudice to him if the Court grants an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision-making.

8    The Minister submits that no explanation has been given for the delay. The applicant’s affidavit simply states as follows:

  1.     I am the Appellant.

2.     I propose to seek further legal advices in respect of the Federal Court Application once I have obtained the transcript of the FCC’s hearing.

  3.     I do not agree with the IAA’s and the Federal Circuit Court’s decision.

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

  5.     I still fear persecution in my home country.

9    At the hearing the applicant explained that his appeal was late because it took him some time to raise the necessary funds to pay the filing fee. He said that he had been to the registry several times to file the notice of appeal but that he did not have enough money. I infer that at least some of these occasions were before the end of the period of 21 days after the orders in the FCC.

10    Having heard the applicant’s explanation, the solicitor appearing for the Minister made no further point about the delay and accepted that whether or not an extension should be granted turns on whether there are any prospects in the appeal.

11    In that regard, the Minister submits that the applicant’s grounds of appeal do not have sufficient prospects of success such as to warrant an extension of time being granted.

12    The approach by the Minister means that the focus must be on the merits of the proposed appeal. It is important at the stage of deciding whether time should be extended that the Court does not get drawn into deciding the appeal itself; the applicant is not required to show that he will succeed in the appeal if time is extended. That is particularly so where, as in this case, the record is incomplete – I have only the decision of the Authority and of the reasons of the FCC without any of the evidence that was before them or the decision of the delegate.

13    At this stage, the court considers what has been described as “the outline of the case” without “going into much detail on the merits”: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540 [66] per Kirby J adopting Lord Denning MR’s approach in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F.

14    See also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 per Mortimer J at 599 [66] where her Honour stated that “unless the grounds are hopeless … so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then consider and determine the grounds of review with a full consideration of them”. That approach was endorsed by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [21]-[23] and [38] per Tracey, Perry and Charlesworth JJ.

15    The focus of my enquiry is accordingly whether the proposed appeal is “hopeless”, or whether it has some reasonable prospect of success in the sense that “there is a finite non-trivial probability that it will succeed”: Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83 at 98 per French J, adopted in Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[37] per Griffiths J with Edmonds J agreeing.

Background

16    The Authority summarised the applicant’s claims for a protection visa as follows:

•    He is a young single male, Tamil Hindu born in Tamil Nadu [i.e. in India]. He is unemployed and dependent upon his parents.

•    He has never been to Sri Lanka.

•    If he returns to Sri Lanka he would be seriously harmed because of his Tamil ethnicity, imputed political opinion as a supporter of the LTTE and membership of the social group of Sakkiliar caste and Tamil people who have lived overseas for an extended period. He fears harm from the Sri Lanka authorities, Sinhalese and other Tamils.

•    In Sri Lanka, the applicant’s uncle did not return from work one day and they believe he is no longer alive. At that time Tamils did not go out after 6pm or they would be beaten and men also crept into people’s homes and assaulted women. Tamil men were disappearing between their homes and workplaces and the applicant’s father stopped going to work because of these incidents. The applicant’s parents left India after their home was bombed and burned. His mother was also burned.

•    In India, the applicant was treated badly due to his Sakkiliar caste. Whenever there were thefts, the police would suspect the applicant’s father and older brother and took them away many times. They also had great difficulty finding a place to rent and had to live in secluded places. If the applicant went out with money or mobile phone people would snatch it from him.

•    A week before they left India, three Indian men entered their home and attempted to assault and remove the clothes of the applicant’s 12 year old sister. The applicant’s mother shouted and they ran off. The following day the applicant’s mother and sister tried to hang themselves. He does not recall saying in his arrival interview that, the incident happened three months before they left India.

•    His parents did not report the incident because it would make it difficult for his sister to ever marry.

•    The applicant’s friends who have moved back to Sri Lanka are Sakkiliar and they say things are bad for them and they are harassed by police because of their caste. He fears the same if he returns to Sri Lanka.

•    He fears authorities will suspect his parents of LTTE involvement as they fled during the war, the uncle went missing during that time and they lived overseas for many years. He is worried that authorities might also be suspicious of him and harm, imprison and beat or kill him.

•    Due to the immigration data breach where the family’s names were published online he worries people will know he sought asylum and that the Sri Lankan government will be more suspicious of them and his family are at greater risk. If suspected as LTTE, there is no safe place for them.

•    As Sakkiliar caste they would be discriminated against by the authorities, Sinhalese, or other Tamil people wherever they live in Sri Lanka. On Facebook, he sees and hears about people getting beaten and killed when they return to Sri Lanka and fears the same will happen to him.

•    While he attended school in India, he was discriminated against and not allowed to sit or play with other children and had to clean the kitchen and had to eat after others were served.

•    He has no identity documents as his Indian birth certificate and school record were left on the boat. He has contacted his school for a copy but they would not provide it if he could not prove who he was. He does not have any other way of proving his identity.

•    At his protection interview the applicant added that men attacked his sister in law the day after his sister was attacked.

17    The applicant’s application for a protection visa was refused by the delegate. It was then automatically referred to the Authority under Part 7AA of the Migration Act 1958 (Cth). As indicated, the Authority affirmed the delegate’s decision.

The Federal Circuit Court

18    The applicant then applied to the FCC to review the decision of the Authority.

19    Two independent grounds of review were asserted before the primary judge, although the first was divided into five sub-grounds, or particulars. For present purposes, only one of the grounds is relevant, namely that the Authority failed to take into account a relevant consideration being that Sri Lankan authorities target young Tamils from the north or that the applicant would be perceived as a young Tamil male from the north.

20    The primary judge dealt with that ground as follows:

[13]    The reference to the “North” here is to the North of Sri Lanka. The applicant claimed, and the Authority accepted, not only that he did not come from the North of Sri Lanka, but that he had never been to that country. The closest that the applicant came to claiming a profile as a result of his background was that his parents had fled overseas and spent considerable time away from Sri Lanka. The Authority considered that claim: [27].

21    It was not a ground of review before the primary judge that the Authority had made any error in concluding that the applicant is a Sri Lankan citizen and the receiving country is Sri Lanka.

The application for an extension of time

22    As required by the FCR, the application before me is accompanied by a draft notice of appeal. It states the following two grounds:

GROUND ONE

His Honour erred in holding that the Authority took into account a relevant claim in that it dealt with the claim that Applicant, being a young Tamil male from the north, will be targeted by the Sri Lankan authorities.

Particulars

On behalf of the Applicant Applicant’s father claimed that Applicant will be targeted for his characteristics: young, Tamil, male, from the north. His Honour failed to fully consider all the integers cumulatively, rather than severely (sic). It was also put to His Honour for many years Sri Lankan authorities targeted young Tamil males from the north as they were perceived as LTTE militants.

There was material before the Authority that Sri Lankan authorities suspected persons who had familial links with the LTTE.

GROUND TWO

Authority made a jurisdictional error in that it incorrectly assessed the receiving country as Sri Lanka.

Particulars

Applicant is a stateless person in that he cannot invoke Sri Lankan citizenship as of right owing to recent legislative changes obtaining Sri Lankan citizenship.

23    I will consider each of these grounds in turn.

Ground 1: targeted as young Tamil male from the north

24    Paragraph [27] of the decision of the Authority, which is referred to in the judgment of the primary judge in the paragraph quoted above at [20], is as follows:

I have considered the applicant’s concerns that he and his parents would be accused of being LTTE because of their race, having fled Sri Lanka to Tamil Nadu during the war and having lived overseas for an extended period. However, I do not accept that he or the family face any such accusation or harm. Firstly, the applicant’s parents left Sri Lanka in the context of the war in 1987 when they were very young and in the context of the home being bombed and burned. Secondly, the war ended in 2009 and the LTTE is a spent force. Thirdly, the applicant was born in Tamil Nadu and has never been to Sri Lanka or involved in political protests or activism. Fourthly, the country information many thousands fled to Tamil Nadu in similar circumstances and many are and have returned without harm. Fifthly, the Sri Lankan authorities have sophisticated intelligence in respect of persons with anti-government sentiments and profiles and I do not accept the applicant has any such profile.

(Emphasis added.)

25    Part of the reasoning of the Authority in rejecting the applicant’s apparent claim that he would face persecution on account of being identified as being “from the North” was that the applicant had never been to Sri Lanka. That reasoning however overlooks that where someone is perceived as being from does not depend on the person ever having been there, and it can readily arise from the person’s family being from that place.

26    That is to say, a proper answer to the question “where are you from?” is not limited by where one presently lives, or has ever lived, and in particular circumstances would include where one’s family is from. That is particularly the case where the person is young and is, presently, from a place that his family is clearly not from – the applicant’s family had fled from Sri Lanka, as accepted by the Authority, and thus he and his family would quite properly be seen as being “from Sri Lanka”, even though the applicant had never been to Sri Lanka. Indeed, that much is recognised in the Authority’s reasoning that the applicant is a Sri Lankan citizen and that his receiving country is Sri Lanka. If he is perceived as being from Sri Lanka because his family fled from there, then, if his family fled from the north of Sri Lanka, why would he not be perceived as being from the north?

27    In the circumstances, in my view the reasoning of the Authority is illogical and does not withstand scrutiny. Is that, however, sufficient to mean that there may be some prospects in the appeal?

28    There are a few considerations that stand in the way of the appeal succeeding, even on the limited material before me.

29    First, the Authority in its recital of the applicant’s claims, or the integers of his claims, did not identify him to have claimed that he would be perceived as being from the north. That is apparent from what I have quoted at [16] above. Further, the primary judge said, in effect, that the applicant had made no such claim. That is apparent from what I have quoted at [20] above.

30    Secondly, the Authority did not accept that the authorities in Sri Lanka would be suspicious that the applicant’s family were LTTE members who fled during the war. It also, in its fifth point quoted by me at [24] above, concluded that the Sri Lankan authorities have sophisticated intelligence in respect of persons with anti-government sentiments and profiles and that the applicant does not have such a profile.

31    In the circumstances, not only is it not open to the applicant to now seek to criticise the decision of the Authority on the basis that it failed to consider that being a young Tamil male from the north he will be targeted by the Sri Lankan authorities – because that was not advanced before the Authority, but the Authority’s other conclusions count decisively against such an assertion succeeding.

32    I accordingly conclude that ground 1 is hopeless.

Ground 2: receiving country

33    It is not apparent from the draft notice of appeal what “recent legislative changes” are referred to. I asked the applicant about this but he was unable to assist. Also, as this ground was not covered by any grounds of review asserted before the primary judge, save with leave it is not open to the applicant to assert that now. In the absence of an identification of what the recent legislative changes are and what difference they would make, I am not in a position to consider whether the applicant should or would be granted leave.

34    The Authority concluded that although the applicant may need to obtain paperwork to evidence his Sri Lankan citizenship – noting that a birth certificate issued by the Indian authorities had been lost at sea, the applicant is a Sri Lankan citizen by operation of law. The Authority based this finding on new information it had obtained about persons of Indian origin under the Grant of Citizenship to Persons of Indian Origin Act, No. 35 of 2003 (Sri Lanka). The Authority stated that the effect of that information is that the status of Sri Lankan citizenship is conferred automatically on all descendants of Sri Lankan permanent residents who were compelled to leave Sri Lanka due to circumstances beyond their control.

35    The applicant has not identified any potential reviewable error in the Authorities reasoning on this point.

36    In the circumstance, the mooted appeal on this point is also hopeless.

Conclusion

37    The application accordingly falls to be dismissed with costs.

Associate:

Dated:    4 June 2019