FEDERAL COURT OF AUSTRALIA

MZABH v Minister for Home Affairs [2019] FCA 861

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to bring an appeal from the orders made on 4 May 2015 by the Federal Circuit Court of Australia be refused.

2.    The applicants 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

KENNY J:

1    This is an application for an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia delivered on 4 May 2015, dismissing an application for judicial review of a decision made by the Refugee Review Tribunal (now Administrative Appeals Tribunal) not to grant the applicants Protection (Class XA) visas (protection visas). The Federal Circuit Court’s decision has the citation: MZABH & Ors v Minister for Immigration & Anor [2015] FCCA 1111.

2    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicants were required to file any notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. As judgment had been delivered by the Federal Circuit Court on 4 May 2015, the applicants had to file a notice of appeal by 25 May 2015 to be within time. The applicants did not file a notice of appeal by that date. They therefore require an extension of time to do so. The application for an extension of time was filed on 27 July 2018, over three years late. The Court may grant such an extension of time under r 36.05 of the Federal Court Rules.

3    For the reasons that follow, the extension of time application should be dismissed.

Background

4    The applicants are Sri Lankan citizens. They are a husband and wife and their three daughters.

5    The husband (the first applicant) lived in Sri Lanka until 2008 when he moved to Malaysia. The wife (the second applicant) and the eldest daughter (the third applicant) joined the first applicant in Malaysia in 2009. The second born daughter (the fourth applicant) was born in Malaysia. The first to fourth applicants arrived in Australia on 9 August 2012. The youngest daughter (the fifth applicant) was born in Australia.

6    On 7 February 2013, the first applicant applied for a protection visa, identifying his wife and daughters as members of his family unit. His claims included that:

    he left Sri Lanka because he was perceived to be wealthy, and unknown people had threatened him and tried to extort money from him because he is a Tamil;

    he was vocal about his political views that only the Tamil National Party (which the Tribunal understood as a reference to the Tamil National Alliance (TNA)) would help Tamils and it was likely his views reached authorities who had approached him about being involved with the Liberation Tigers of Tamil Eelam (LTTE) and threatened him with death;

    in 2007, he started receiving calls from an unknown person demanding money. He received hundreds of calls;

    shortly before he left for Malaysia, he was approached by two men in plain clothes in a café who accused him of supporting the LTTE and the TNA. They said they knew he had a family and they threatened to kill him; and they said that he was being observed; and

    once in Malaysia, he started a business venture with a local partner who stole money from him and threatened to kill his daughter.

7    The applicant claimed that if he returned to Sri Lanka he would be harmed or killed by the Sri Lankan authorities, the people who tried to extort money from him or the people who came to the café, because he is a Tamil, was suspected of supporting the LTTE and was presumed to be wealthy.

8    On 22 March 2013, the delegate refused to grant protection visas to the applicants.

9    On 27 March 2013, the applicants applied to the Tribunal for review of the delegate’s decision.

10    On 31 May 2013, the applicants attended a hearing before the Tribunal, assisted by an interpreter. They were represented in relation to the review by their migration agent. Only the first applicant gave evidence. He confirmed that only he was making claims for protection in his own right and that the other applicants relied on their membership of his family unit.

11    On 18 September 2013, the Tribunal was reconstituted by a different member. The reconstituted Tribunal conducted a second hearing on 15 October 2013.

12    On 31 January 2014, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

13    The Tribunal noted at the outset of its reasons that only the first applicant “made specific claims for protection, whilst the remaining applicants relied on their membership of his family unit” (at [11]). The second applicant also specifically confirmed at the Tribunal hearing that she relied on her husband’s protection claims as a member of his family unit (see at [112]).

14    In relation to the first applicant’s claim to fear harm due to his imputed political opinion, the Tribunal was not satisfied that he would be an active supporter of the TNA on return to Sri Lanka or that he would be imputed with a pro-LTTE political opinion (at [74]). The Tribunal found that while the first applicant may have been accused of being an LTTE supporter by some men on the evening before he departed Sri Lanka, as this occurred over five years ago and was an isolated incident, which did not involve serious harm, there was not a real chance that he would face serious harm on return to Sri Lanka as a result of the incident (at [75]).

15    Regarding his other claims, the Tribunal:

    was not satisfied that the first applicant’s profile and circumstances were such as to result in a real chance of persecution because of belonging to a particular social group of Tamil males from the North (at [80]);

    found that the first applicant did not belong to a particular social group of “wealthy Sri Lankans”, as there was no evidence to indicate that he would be wealthy or perceived to be wealthy upon return to Sri Lanka (at [81]);

    did not accept that Sri Lankan authorities were behind any extortion attempts against the first applicant in the past, particularly having regard to his ability to leave and re-enter Sri Lanka freely in 2008 on his own passport (at [82]);

    was not satisfied that the first applicant would be the victim of an unidentified person’s extortion attempts on return to Sri Lanka, noting that the extortion attempts took place over six years ago, there had been no follow up when he returned to Sri Lanka in 2008; and he never provided any money and was never physically harmed (at [83]);

    found that his claim to fear harm on return to Sri Lanka because of his Tamil ethnicity was not well-founded, having regard to country information and the Tribunal’s earlier findings that he was not considered by authorities to have LTTE links (at [86]-[88]);

    rejected the first applicant’s claim to fear persecution due to his Hindu religious beliefs on the basis that this was inconsistent with country information and his own evidence to the Tribunal, which it described as “vague and general” (at [89]-[93]);

    found that if the first applicant was perceived by the authorities to have departed Sri Lanka illegally (which the Tribunal said was not clear), he would likely be questioned and possibly charged under the Immigrants and Emigrants Act 1945 (I&E Act) (at [97]) and, if charged, he would be held in remand for a short period (at [104]). The Tribunal considered that the offence of departing Sri Lanka illegally was a law of general application and did not give rise to persecution under the Convention (at [103]). It was not satisfied that the treatment of returnees who departed unlawfully amounted to persecution involving serious harm or gave rise to a real chance of such harm for the first applicant given his personal profile and circumstances (at [105]); and

    rejected the first applicant’s claim to fear persecution as a failed asylum seeker/returnee from the West based on Department of Foreign Affairs and Trade (DFAT) advice and its earlier findings that he did not have an anti-government profile (at [106]-[111]).

16    The Tribunal concluded that the first applicant did not satisfy the criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) for any reason claimed or arising on the evidence.

Federal Circuit Court proceeding

17    By an amended application filed on 25 March 2015, the applicants sought judicial review of the Tribunal’s decision in the Federal Circuit Court on three grounds. In summary: ground 1 concerned the Tribunal’s use of a summary of the oral evidence given at the first Tribunal hearing on 31 May 2013; ground 2 alleged that the applicants were denied procedural fairness due to inadequate interpretation services at the Tribunal hearings; and, ground 3 contended that the legal representation provided to the applicants in their dealings with the Tribunal was inadequate (although the applicants disavowed any suggestion that it rose to the level of fraud on the Tribunal).

18    The application was heard on 23 March 2015. The applicants were legally represented at the hearing. On 4 May 2015, the primary judge dismissed the application.

19    In relation to ground 1, the primary judge held that the Tribunal was entitled to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted pursuant to s 422(2) of the Migration Act, and the applicants’ complaint was no more than speculation (see at [17]-[36]).

20    Regarding ground 2, the primary judge found that the applicants had not demonstrated any defect in the interpretation services provided at the Tribunal hearings that could amount to a jurisdictional error (see at [37]-[55]).

21    In relation to ground 3, the primary judge was unable to discern any jurisdictional error in the Tribunal’s reliance on statements made by the applicants’ lawyer concerning the standard of interpretation, where there was no fraud on the Tribunal, no general duty to intervene in cases of incompetence, and no default on the lawyer’s part was shown to have resulted in any specific error in interpretation materially affecting the hearing or the Tribunal’s decision: see at [56]-[61].

Extension of time application

22    On 27 July 2018, the applicants applied to this Court seeking an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court. In support of their application, the applicants relied on an affidavit of the first applicant sworn on 25 July 2018, which annexed a draft notice of appeal. The draft notice of appeal disclosed one proposed ground of appeal alleging that:

[T]he Tribunal erred by failing to consider the claims or an integer of the claims by the second to fifth appellants that they face a real risk of harm that they will be detained and or interrogated upon refoulment to Sri Lanka, given:

(i)     they departed Sri Lanka illegally;

(ii)     their Tamil ethnicity;

(iii)     their gender; and/or

(iv)     their status as failed asylum seekers.

Particulars

a)    The Tribunal erred at [110] of the decision record by failing to engage at all with the real risk of harm faced by the second to fifth applicants in detention as failed asylum seekers, their Tamil ethnicity; and their gender; and their status as a failed asylum seeker; and where they are from in Sri Lanka.

b)    Further, the Tribunal erred from [112]-[113] of the decision record, by failing to engage with the claims of the second to fifth applicants by finding erroneously that they were largely speculative.

…

23    The applicants relied on written submissions filed on 21 January 2019 in support of their application, which were augmented by counsel at the hearing.

24    The Minister opposed the application, relying on written submissions filed on 25 January 2019, which were also augmented by counsel at the hearing.

25    The principles applicable to the exercise of the Court’s discretion to grant an extension of time are well established. Generally speaking, the Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal under r 36.05 of the Federal Court Rules. The factors that fall for consideration include the length of the delay and the explanation for it, any prejudice to the respondent if the extension is allowed, and whether there is sufficient merit in the proposed appeal to justify an extension of time.  These considerations are not exhaustive, and the outcome of an extension of time application will always depend on the particular circumstances of the case.

Length of extension and explanation for the delay

26    As already indicated, the applicants filed their application for an extension of time over three years after the expiration of the 21-day period prescribed by r 36.03 of the Federal Court Rules.

27    The applicants have not provided a compelling explanation for their delay, which they properly acknowledged was significant. The first applicant deposed that the reason for the delay was because he could not afford legal advice or representation. There is nothing in the materials before the Court to indicate that the applicants were unaware of the existence of a time limit for filing a notice of appeal.

28    In written submissions filed on their behalf, the applicants further stated that the delay arose because they applied for Ministerial intervention on “26 November 2015 and 17 September 2015”, although there is no evidence before the Court in respect of any application for Ministerial intervention. Assuming that the applicants made such applications, deciding to pursue Ministerial intervention instead of an appeal, there is nothing before the Court to show when the applications were refused (as it may be inferred they were) and what steps, if any, the applicants took thereafter.

Prejudice to the Minister

29    The Minister did not claim prejudice by reason of any extension of time, but the mere absence of prejudice to the respondent is not enough to justify the grant of an extension of time: see Hunter Valley at 349.

Impact on the applicants

30    The applicants submitted that the impact on them will be significant if the extension of time were refused, as they will be returned to Sri Lanka where they faced a real risk of persecution.

Explanation for why proposed new ground was not previously agitated

31    In addition to an extension of time, the applicants sought leave to raise on the proposed appeal a new ground that was not raised before the primary judge. The Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”.

32    The Minister did not claim prejudice in the event that the applicants were granted leave to raise a new ground on appeal. Again, the absence of prejudice without more is not sufficient to justify the grant of leave to raise a new ground on appeal.

33    The applicant pointed to the prejudice that they would suffer if the new ground was not heard.

34    The applicants also submitted that there was a reasonable explanation as to why the proposed ground of appeal was not previously agitated. They submitted that this ground was based on the Federal Circuit Court’s decision in CBH15 v Minister for Immigration & Anor [2017] FCCA 2462, decided on 13 October 2017, well after the Federal Circuit Court delivered judgment in their case. In support of this contention, the applicants referred to and sought to rely particularly on [61] in the reasons for judgment of Judge Riley delivered in that case. Paragraphs [61] and [62] read as follows:

[61]     It is true that the Tribunal dealt thoroughly with many aspects of the issues in this case. It is also true that the Tribunal expressly dealt with some of the applicant’s vulnerabilities in a cumulative manner. The Tribunal said, under the heading, Tamil failed asylum seeker, that it did not accept that the applicant faced persecution as a Tamil failed asylum seeker returning from a Western country. Also, under the heading, Female claims, the Tribunal said the applicant did not face a real chance of persecution as a single, young, Tamil woman without an identity card. They were arguably cumulative assessments, as far as they went. However, the Tribunal did not deal specifically with the risk of rape faced by the applicant in detention as a Tamil woman without an identity card from the north east who was a failed asylum seeker and who had departed Sri Lanka illegally.

[62]     It seems to me that the Tribunal in the present case made a jurisdictional error of the type identified in DDK16, and made a jurisdictional error by failing to consider whether the applicant faced a real risk of rape while she was in short term detention. Ground 2 is made out.

(Emphasis in original.)

35    The applicants stated in written submissions that they only became aware of CBH15 when they sought another legal opinion in July 2018.

36    If it matters, the applicants’ explanation for the delay in raising this proposed new ground is not, in my opinion, persuasive. It is well-established that the Tribunal is required to deal with any claim expressly made by an applicant or squarely raised on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [58], [63]. CBH15 involved an orthodox application of that established principle; and indeed, her Honour expressly cited NABE and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389 as authority for the principle on which her analysis in that case depended (see at [37]). While it may be accepted that the proposed new ground did not occur to the applicants or their lawyer until after their hearing in the Federal Circuit Court, and that the applicants’ lawyer may have thought of it after reading CBH15, it remains the case that the ground that the applicants now seek to rely on has been available to them at all material times, including in March 2015 when their application (as amended) was before the Federal Circuit Court.

Merits of the proposed appeal

37    In this case, the outcome of the applications before the Court turns on an assessment of the merits of the proposed new ground of appeal. As already indicated, the proposed ground is that the Tribunal erred by failing to consider a claim and/or an integer of a claim and/or the cumulative risk of harm faced by the second to fifth applicants, by failing to consider whether they would suffer harm by being detained or interrogated on return to Sri Lanka, because they departed Sri Lanka illegally and because of their Tamil ethnicity, their gender, their status as failed asylum seekers and where they are from in Sri Lanka.

Parties’ submissions

38    Counsel for the applicants summarised their complaint as follows:

[There is] nothing [in the Tribunal’s reasons] about what might happen to the mother or the children. Nothing. It needed to expressly deal with their claims. It needed to expressly deal with their ethnicity. Needed to expressly deal with their gender. Needed to expressly make findings about whether [the second applicant] has an identity card, whether she left it illegally or not, whatever. Needed to make those findings and needed then to apply the country information that was present. And the conclusion then would have been that there is … in the country information, that women and females are subjected to rape, torture, inhumane, degrading treatment whilst in detention and prison in Sri Lanka. Didn’t deal with it at all.

39    Counsel explained that there were “three aspects” to the applicants’ argument:

The first aspect is that the claims were squarely raised and, if they were not, then they were certainly an integer of the claims; [secondly,] there is country information cited by the tribunal which squarely identifies a risk to the mother and daughters; and then [thirdly there is] the tribunal’s own findings.

40    As to the first aspect, counsel submitted the second to fifth applicants “through the first applicant and, most certainly, at the [Tribunal] hearing, raise[d] their own claims which were not dealt with” by the Tribunal. Counsel identified the claims that he said were “squarely raised” in relation to the second to fifth applicants as follows: “They are, by the extortionists, threat to kidnap and kill [the first applicant’s] daughter. They are that [the applicants] will be detained on return and detained for possibly long periods.” He took the Court to the following passages of the Tribunal’s decision which he said demonstrated that the claims had been made:

•    the first applicant made a claim that his business partner in Malaysia had threatened to kill his daughter who was in kindergarten at the time (at [12]);

•    the applicants’ representative submitted to the Tribunal that “the applicants would be returning without passports, and faced imprisonment” (at [50]);

•    the first applicant disagreed with country information referred to by the Tribunal which indicated that Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen (at [61]). The first applicant said:

that is not the case for Tamils. The authorities will check their records and find out why and how they left the country. He said that Tamils are treated in different ways, including torture. The government does not follow laws for Tamils like other citizens.

•    the first applicant said that “the Sri Lankan government does not state openly that they will kill Tamils, but they will and that is serious harm” (at [63]);

•    the first applicant said that “the Sri Lankan government says that they are supporting Tamils but internally they are not doing anything for Tamils. … He said that the Sri Lankan government are still torturing Tamils which he fears will happen to him” (at [66]); and

•    the second applicant “said that they want to live with peace and trust, which they have not had in Sri Lanka. She added that she cannot tolerate what would happen in Sri Lanka if they had to return with three daughters, noting that females have no protection there” (at [67]).

41    Counsel for the applicants also suggested that the Tribunal was required to consider, as an integer of the risk of detention for the first applicant, whether the other applicants would be stopped and questioned. He said, on that basis, because of “their ethnicity, on the basis that there was no identity cards, there was a real risk that they could be detained. And the risk there would need to be addressed in terms of that prism”.

42    As to the second aspect of the applicants’ argument, counsel submitted that “the country information shows not only that the first applicant is at risk, but particularly women and children are at risk in detention because of their Tamil ethnicity, their region they come from, [and] their gender”. Counsel referred to various sources of country information referred to by the Tribunal and submitted, among other things, that:

•    there were risks for Tamils who return to Sri Lanka as they are detained on entering Sri Lanka and “are exposed to a prison system where there is a high degree of violence against Tamils, particularly women”;

•    the Tribunal’s finding that the first applicant did not have a profile which gives rise to a well-founded fear of persecution on the basis of his Tamil ethnicity was “clearly wrong”, because one of the categories of persons who might need protection identified in the United Nations High Commissions for Refugees (UNHCR) guidelines were “Tamils from a region in the north who are perceived to be wealthy”.

•    “[i]t’s unbelievable how the Tribunal” could draw the conclusion that the first applicant would not be treated any differently on return to Sri Lanka, as the laws concerning illegal departure were “being applied to all persons who have departed regardless of ethnicity”;

•    “the country information clearly shows that the detention at the airport and the detention in that process and imprisonment that’s where the risk is against Tamils. That’s where the violence is committed against women”. Counsel also submitted that:

[t]he question is whether they will be held and detained. The question is whether the mother has a passport to get back in; she will have to apply for that. Though she doesn’t have an identity card, and they most certainly will be – could be – most certainly will be detained to establish that, and it’s that point of detention where there is a real risk. … [T]hey may be released … they may be charged. … [B]ut they certainly will be on the country information detained, there will be an investigation as to … whether they have an identity card, whether they have a passport, … and whether they left or did not leave illegally, all of that will happen and they will be detained.

•    the Tribunal specifically referred to “reports claiming that Tamil returnees have been harmed on return to Sri Lanka”, footnoting reports prepared by Freedom from Torture and Amnesty International, but then said that “other sources contest these claims”, including the UK Home Office report in 2012 which noted “that these allegations lack substance and detail” (at [108]). Counsel for the applicants submitted that “where there’s conflicting country information, surely, the tribunal should err on the side of caution”; “Amnesty International is a reputable human rights organisation”; and UK Home Office reports “are conservative in nature”. He added that the Court should look at the Freedom from Torture and Amnesty International reports, which he said showed that “females are subjected to rape and torture whilst in detention or the prison system, particularly if they’re Tamil”. Counsel did not mention any particular passages in those reports in seeking to make good an argument that that material demonstrated that the relevant claims squarely arose on the materials before the Tribunal.

43    The third aspect of the applicants’ argument was more difficult to follow. In broad terms, counsel for the applicants referred to and criticised a number of findings made by the Tribunal. He submitted, for example, that the Tribunal:

•    “accepted that the mother made claims and she was fearful of her daughters’ futures, but didn’t engage in anything past that”. Counsel submitted that “the tribunal should have … asked [the second applicant] what those concerns are. Should have put the country information about the threat”; and

•    accepted “that they will be detained and that – but does not go any further to the risk to women there”.

44    The Minister submitted that a claim of the kind now referred to by the applicants was neither expressly articulated by the applicants nor arose squarely on the material that was before the Tribunal. To the contrary, the Minister submitted that the information before the Tribunal disclosed that the second and third applicants departed Sri Lankan on passports issued to them by the Sri Lankan authorities; the fourth applicant was born in Malaysia; and the fifth applicant was born in Australia.

Consideration

45    The Tribunal was obliged to deal with any claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review: see NABE at [63]. Citing Dranichnikov at [24], the Full Court in NABE further stated (at [55]) that “[w]here the Tribunal fails to make a finding on ‘a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction”. The Full Court explained (at [58]) that:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it ... . There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated ... . It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has as statutory duty to consider it … . The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

Claims, if any, made by or on behalf of the second to fifth applicants

46    It may be observed that in the present case, as the Tribunal recorded at the outset of its reasons, only the first applicant “made specific claims for protection, whilst the remaining applicants relied on their membership of his family unit” (at [11]). The second applicant also specifically confirmed at the Tribunal hearing that she relied on her husband’s protection claims as a member of his family unit (see at [112]).

47    To the extent that there were any relevant claims expressly made in relation to the second to fifth applicants, they were referred to by the Tribunal at [12], [50], [67] and [112] in the following terms:

[12]    … In his declaration the [first] applicant stated:

    …

•    Once in Malaysia he started a business venture with a local partner but fell out with that person who was stealing money from him. This other person threatened to kill his daughter who was in kindergarten at the time, and said he knew people in Sri Lanka who would harm him if he returned. He had to report this to police as he was accountable for the funding given to him by the UNHCR.

…

[50]    Mr O’Dor asserted the applicants would be returning without passports, and faced imprisonment. The Tribunal observed the applicant’s evidence was that he lawfully departed the country on his own passport, but subsequently lost that passport, and queried why he would not simply seek to replace it. The applicant observed even though he left with a passport, he would be mistreated because he used a false Malaysian visa. The Tribunal observed that it seemed highly unlikely Sri Lankan authorities would be aware, or even interested in the possibility he had used a false Malaysian visa to enter Malaysia, particularly given the passage of time. The applicant then said he used an agent to leave the country, and perhaps there was no record of him formally leaving. The Tribunal observed whilst he had made that assertion, there was nothing to suggest that having used his own passport, he had not been recorded as lawfully departing the country.

…

[67]    The applicant’s wife said that they want to live with peace and trust, which they have not had in Sri Lanka. She added that she cannot tolerate what would happen in Sri Lanka if they had to return with three daughters, noting that females have no protection there.

…

[112]     At the Tribunal hearing the second named applicant confirmed that she relies on her husband’s specific protection claims, as a member of his family unit. However she did mention briefly her concerns about returning to Sri Lanka because she has three young daughters. The Tribunal accepts the second named applicant’s concerns are genuine in terms of worrying about her daughters’ future; however no further submissions have been made regarding specific protection claims in this regard. The Tribunal therefore finds they are largely speculative and is not satisfied on the basis of this vague and limited claim that there is a real chance of persecution occurring on that basis.

(Emphasis added.)

The no-passport issue considered by the Tribunal

48    It may be accepted that the statement made by the applicants’ representative that “the applicants would be returning without passports, and faced imprisonment” (at [50]) was an express claim that all of the applicants (not just the first applicant) would be detained on return to Sri Lanka.

49    For the reasons I am about to state, however, it seems to me that, having regard to the way in which the claim was put and reading the Tribunal’s reasons fairly and as a whole, the Tribunal did consider that claim, but it rejected it on the basis that there was nothing to suggest the applicants would in fact be returning without passports. The following passages of the Tribunal’s reasons are particularly relevant in this regard:

[11]    [The first applicant] said he had a Sri Lankan passport, that passport was lost whilst he was in Malaysia. He said he had used that passport to leave Sri Lanka lawfully in April 2008 to travel to Malaysia, and to return to Sri Lanka in June 2008 to see his newly born daughter, before returning to Malaysia where he remained until going to Indonesia in June 2012. …

…

[20]     He said he and his wife and first child had Sri Lankan passports, which were stolen in Malaysia in about 2010. He had not taken action to replace those passports, saying he did not think of this, as they had been living with the United Nations card. He said he was able to provide photocopies of the bio data page from his own and his wife’s passport as they were on computer, which he had saved for their skilled migration application to migrate to Australia. ...

...

[22]    … He said he went to Malaysia with a fake Malaysian visa but subsequently returned within a month to Sri Lanka. He confirmed he used his own passport to leave Sri Lanka and to re-enter the country on those occasions. …

…

[43]    The Tribunal observed his evidence was that he had departed Sri Lanka lawfully on his own passport on two occasions, and in light of this asked why officials would have interest in arresting him on return to Sri Lanka. It observed that unlike persons who left unlawfully, he and his wife used their own passports, and queried why he would have a problem on return. He again said it was because of his links with the LTTE, for which he believed he would be tortured and killed.

…

[94]    … [T]he Tribunal has considered the assertion that the first, second and third applicants had their passports stolen whilst in Malaysia, and whilst it is prepared to accept this may have occurred as alleged, it does not consider there is any material to support a conclusion that those applicants could not acquire replacement passports from their own Government.

(Emphasis added.)

50    From those passages it is apparent that the Tribunal expressly turned its mind to whether the applicants would be “returning without passports”, as their representative had alleged. It made a clear finding that there was no material to support a conclusion that they would be returning without passports, as there was no evidence to suggest they could not acquire replacement passports from the Sri Lankan Government. This finding would seem to be consistent with the Tribunal’s observations that: the first applicant had used his own passport to leave Sri Lanka, although he said that he departed with a fake Malaysia visa (see at [11], [21], [22], [23], [43], [50], [57], [59], [76], [82], [96]); “unlike persons who left unlawfully, [the first applicant] and his wife used their own passports” (at [43]); and “the second and third named applicants departed Sri Lanka in about 2009 on passports issued to them by the Sri Lankan authorities” (at [96]). The fourth and fifth applicants were born outside Sri Lanka and there is nothing to indicate that they are not entitled, on application, to a passport of their country of nationality.

The first applicant’s particular claims regarding likely detention on return

51    Having found that there was nothing to suggest that any of the applicants had departed Sri Lanka unlawfully and would be returning without passports, the Tribunal nonetheless went on to consider whether the first applicant faced a real chance of serious harm if he were returned to Sri Lanka as a result of departing illegally or as a failed asylum seeker at [96]-[111]. In essence, the applicants in this proceeding take issue with the Tribunal’s failure to undertake the same analysis with respect to the second to fifth applicants. There are a number of difficulties with this argument.

52    Most significantly, the first applicant specifically made claims that, notwithstanding that he departed Sri Lanka on his own passport, “he would be mistreated because he used a false Malaysian visa” and because “he used an agent to leave the country” there may not be any “record of him formally leaving” (at [50]). This is reflected in [96] of the Tribunal’s reasons, where it recorded:

[96]    The [first] applicant has claimed to fear returning to Sri Lanka because he departed the country illegally. It is not clear to the Tribunal if that is actually the case, given the [first] applicant’s evidence at the hearing that he departed Sri Lanka in May 2008 using a Sri Lankan passport issued to him in 2006, and returned in June 2008, before again departing on the same passport later that month. The Tribunal also notes that the second and third named applicants departed Sri Lanka in about 2009 on passports issued to them by the Sri Lankan authorities. When this issue was discussed at the hearing, the [first] applicant said that, although he departed on a valid passport, because he did so using a false Malaysian visa and with the assistance of an “agent”, there may be no official record of him having left. He claims that he would be of interest to the authorities on return because of this. The Tribunal has therefore considered whether the [first] applicant will face a real chance of serious harm as a result of departing Sri Lanka illegally.

53    Those claims were, evidently, unique to the circumstances of the first applicant. Understandably, no equivalent claims were made in relation to the second to fifth applicants. Unlike the first applicant, the information that was before the Tribunal disclosed that: the second and third applicants “departed Sri Lanka in about 2009 on passports issued to them by the Sri Lankan authorities” (see Tribunal’s reasons at [96]); the fourth applicant was born in Malaysia, and there was no evidence that she ever travelled to or departed from Sri Lanka; and the fifth applicant was born in Australia and, again, there was no evidence that she ever travelled to or departed from Sri Lanka.

54    Having regard to the limited way in which the claim about detention on return to Sri Lanka was put, and in light of the Tribunal’s finding that there was nothing to suggest they could not acquire replacement passports, there is no discernible error in the Tribunal’s consideration of this claim. Further, there is nothing in the materials before the Court to indicate that any claim squarely arose on the materials that were before the Tribunal to the effect that the second to fifth applicants would be at risk of detention or interrogation on return to Sri Lanka, notwithstanding that they could obtain passports, because of their Tamil ethnicity, their gender, their status as failed asylum seekers, or where they are from in Sri Lanka.

55    To the extent that the applicants’ counsel sought to contend that the supposed claim “squarely arose” in relation to the second to fifth applicants by virtue of the claims made by the first applicant (see [40] above), that argument must be rejected. The claims made by the first applicant regarding detention on return to Sri Lanka were considered by the Tribunal in the context of deciding whether the first applicant, specifically, would face serious harm by reason of unlawfully departing Sri Lanka. For the reasons already stated, it was unnecessary for the Tribunal to consider that question in relation to the second to fifth applicants. In any event, the Tribunal clearly rejected the various claims made by the first applicant regarding the mistreatment of Tamils returning to Sri Lanka (see, for example, at [104]).

CBH15 dealing with different circumstances

56    As already indicated, the applicants placed considerable reliance on CBH15. In that case, the applicant argued that the Tribunal failed to consider individually or cumulatively the risk to the applicant while she was in detention arising from her particulars characteristics. In an interview with a delegate of the Minister, the applicant had relevantly claimed that she feared being: (a) arrested on suspicion of involvement with the LTTE because she did not have an identity card; (b) tortured and killed for leaving Sri Lanka illegally and applying for asylum in Australia; and (c) raped by the army because she did not have an identity card. Notwithstanding that the applicant did not raise an express claim about any particular risks that she might face in detention (see at [12]-[13]), the judge considered that country information before the Tribunal (indicating that violence against women, including rape, had affected female prisoners in Sri Lanka) was “sufficient to raise a claim that the applicant may be raped during her short term detention” (at [35]). Her Honour held that the Tribunal failed to address “the particular claim, which was raised on the materials, that the applicant may be raped in detention” (at [41]). The present case is, however, clearly different. As already indicated, in this case the Tribunal considered and effectively rejected the claim that the second to fifth applicants would be detained because they would be returning to Sri Lanka without passports. It was unnecessary for the Tribunal to consider the risks that the second to fifth applicants might face in detention on the basis of unlawfully departure, having found that no issue of illegal departure arose in their cases and that they could obtain replacement passports before they returned.

No failure to engage with first applicant’s claim about his business partner and the second applicant’s fears for her children

57    As will be seen, counsel made specific submissions about the claim made by the first applicant that his former business partner threatened to kill his daughter (recorded at [12] and [113]) and the second applicant’s concerns about her daughters returning to Sri Lanka (recorded at [67] and [112]). It was contended that the Tribunal erred at [112]-[113] by failing to engage with these claims by finding that they were largely speculative.

58    The Tribunal expressly referred to the first applicant’s claim that “his former business partner in Malaysia tried to steal money from him and that he has threatened to kill one of the [first] applicant’s daughters who was in kindergarten at the time, and that he knew people in Sri Lanka who would harm him if he returned” (at [113]). The Tribunal then stated that:

[113]     … [T]he [first] applicant did not raise this as an issue at either Tribunal hearings [and] no further submissions have been made regarding specific protection claims in this regard. The Tribunal therefore finds they are largely speculative and is not satisfied on the basis of this vague and limited claim that there is a real chance of persecution occurring on that basis.

59    It is evident from that passage of the Tribunal’s reasons that it dealt with and rejected that claim. It was clearly open to the Tribunal to find, as it did, that this claim was “largely speculative”, having regard to the lack of submissions or materials in support of the claim.

60    I interpolate here that counsel for the applicants apparently submitted at one point that it was the people who made threats to the applicant in the past in Sri Lanka (a claim which the Tribunal accepted) who had “threatened to kidnap and kill his daughter with people connected to Sri Lanka”. There is nothing in the materials before the Court to indicate that this was how the claim was put to the Tribunal. On the contrary, I accept, as counsel for the Minister submitted, that the claim that the first applicant’s former business partner threatened to kill his daughter was separate and distinct from his claims about being the subject of extortion threats in Sri Lanka because of his perceived financial status (see at [81]-[83]).

61    As to the concerns raised by the second applicant about her three daughters recorded at [112] of the Tribunal’s reasons (see above), it is clear that they were expressed in very general terms and were not the subject of any further submissions. In those circumstances, in my view, it was open to the Tribunal to find that her concerns were “largely speculative”. As noted above, counsel for the applicants submitted that the Tribunal “should have … asked [the second applicant] what those concerns” were. I would reject this submission. The Tribunal is not required to consider claims that have not been made: see NABE at [60] and the cases there cited. It cannot be said that the second applicant’s statement of concern raised any relevant issue concerning her daughters, especially where the second applicant had expressly confirmed that she was relying only on her husband’s protection claims.

Outcome of applications

62    The proposed ground of appeal has no prospect of success. There is insufficient merit to justify the extension of time; and even if an extension of time were granted, it would not be expedient and in the interests of justice to grant leave to the applicants to rely on the proposed ground on any appeal.

Other matters

63    For completeness, I address some other matters raised by counsel for the applicants at the hearing.

64    First, counsel for the applicants made some other submissions about the correctness of the Tribunal’s findings and conclusions. Counsel submitted:

•    the Tribunal’s finding that the first applicant did not have a profile which gives rise to a well-founded fear of persecution on the basis of his Tamil ethnicity was “clearly wrong” because one of the categories of persons who might need protection identified in the UNHCR guidelines were “Tamils from a region in the north who are perceived to be wealthy”;

•    “[i]t’s unbelievable how the Tribunal” could draw the conclusion that the first applicant would not be treated any differently on return to Sri Lanka, as the laws concerning illegal departure were “being applied to all persons who have departed regardless of ethnicity”;

•    “it is just absolutely incongruous how the tribunal can, on the one hand, accept the claim [by the first applicant that he received threats from unidentified persons], but then say he is not wealthy”; and

•    the Tribunal accepted that “there remains an element of discrimination against Tamils even after cessation of hostilities in May 2009” (at [87]), but it was not satisfied, “that such discrimination amounts to ‘serious harm’ required to constitute persecution, nor is it satisfied that such discrimination amounts to ‘significant harm’”. Counsel submitted that “rape, abuse, torture, potentially death must reach … serious or significant harm”.

65    In substance, counsel for the applicants’ challenges at this point were complaints about the Tribunal’s findings and conclusions, particularly those based on country information. It would appear, however, that these findings and conclusions were open to the Tribunal on the material before it. Indeed, neither the applicants’ notice of appeal nor submissions identified any basis upon which a challenge could properly be made.

66    Secondly, in his oral submissions in reply counsel submitted that, although the focus of the applicants proposed appeal concerned the risk of detention on re-entering Sri Lanka, he said their argument is:

framed more generally: that the mother and daughter[s] make claims about – if they get through the detentions regime on re-entry, it’s the threat to their lives in Sri Lanka, their access … on the basis of their ethnicity and their membership as a social group as … Tamil females in Sri Lanka.

He added that:

the more important point is … the risk of persecution and serious and significant harm in Sri Lanka as females, as Tamils. Will they access education? Will they face persecution in employment? Will they face the risk of mistreatment because they are female Tamils? That was just not considered at all. So, yes, there is a real risk that they will be detained. There is a real risk that they will suffer harm … on return … . But there is a further and greater risk to the mother and daughters, and that is that they will suffer persecution on the basis of their gender, on the basis of their ethnicity as women in Sri Lanka. That wasn’t addressed at all.

67    These matters are, as the applicants’ counsel acknowledged, beyond the scope of the applicants’ notice of appeal. More importantly, however, these matters were clearly never raised with the Tribunal or the delegate. As the Tribunal recorded at the outset of its reasons, only the first applicant “made specific claims for protection, whilst the remaining applicants relied on their membership of his family unit” (at [11]). The Tribunal was not required to make findings about claims and arguments that were never made or articulated: NABE at [55], [60].

Disposition

68    The application for an extension of time should be refused, with costs.

Associate:

Dated:    6 June 2019

SCHEDULE OF PARTIES