FEDERAL COURT OF AUSTRALIA

ACF17 v Minister for Immigration and Border Protection [2019] FCA 1902

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, a citizen of Sri Lanka, applies for an extension of time to file a notice of appeal from a judgment of the Federal Circuit Court, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority). The decision of the Authority was to affirm a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV).

2    For the reasons that follow, I have concluded that the application for an extension of time should be dismissed.

Background

3    The background facts are set out in the reasons for judgment of the primary judge at [3]-[23].

4    The applicant arrived in Australia on 5 November 2012 as an unauthorised maritime arrival.

5    On 23 February 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection.

6    On 31 August 2016, a delegate of the Minister refused the applicant’s application for a SHEV.

7    On 7 September 2016, the delegate’s decision refusing the applicant a SHEV was referred to the Authority.

8    On 15 December 2016, the Authority handed down its decision affirming the decision of the delegate not to grant the applicant a SHEV.

9    On 9 January 2017, the applicant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision.

10    On 16 April 2019, the Federal Circuit Court dismissed the application for judicial review.

11    On 29 May 2019, the applicant filed the application for an extension of time in which to appeal. This was 15 days after the period in which to file a notice of appeal expired.

12    The applicant’s written claims in support of his SHEV application were set out at [9] of the reasons for judgment. The applicant made further claims at his interview with the delegate, as set out at [11] of the reasons for judgment.

13    The delegate’s decision is summarised at [13]-[23] of the primary judge’s reasons. At the hearing of the present application, counsel for the applicant referred to and relied on page 4 of the delegate’s decision (page 421 of the Court Book from the proceeding in the Federal Circuit Court). On that page, the delegate summarised the applicant’s written claims and the further claims made at the interview with the delegate.

The Authority’s decision

14    The Authority’s decision is summarised at [26]-[27] of the primary judge’s reasons. Relevantly, for present purposes, the Authority accepted that the applicant would be subject to penalty under the Immigrants and Emigrants Act 1949 (the I&E Act), which regulates entry and exit from Sri Lanka. The Authority found that the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of a law of general application and would not amount to persecution for the purposes of ss 5H(1) and 5J(1) of the Migration Act 1958 (Cth).

15    The key paragraphs of relevance for present purposes are [38]-[41] of the Authority’s decision, which were as follows:

38.    As a returnee it is likely that applicant will be questioned by police at the airport and charged under the I&E Act. As part of this process, most returnees will be fingerprinted and photographed. Returnees are transported to the nearest Magistrates Court at the first available opportunity. However, returnees may be required to remain in police custody at the CID Airport Office for up to 24 hours. In circumstances where a Magistrate is not available before this time, such as a weekend or public holiday, returnees may be held at a nearby prison. DFAT advises general prison conditions in Sri Lanka do not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions.

39.    DFAT understands that no returnee who was merely a passenger on a people smuggling boat has been given a custodial sentence for departing Sri Lanka illegally, instead fines have been issued as a deterrent. The amount of the fine may vary. If a person pleads guilty, they will be fined and released. In most cases, when a returnee pleads not guilty, they are immediately granted bail on personal surety by the Magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to act as guarantor. Bail conditions are imposed on a discretionary basis, although DFAT understand conditions are rarely applied. An accused will only need to return to court when the case against them is being heard. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of the people smuggling.

40.    Once before the Court, and if not dealt with on the spot if the applicant were pleading guilty, the returnee would ordinarily be released unconditionally or be bailed to return to Court at a later date. If a Magistrate is not available at that time, for example due to the weekend or a public holiday, the applicant could be held in a nearby prison for a short time. Although the maximum penalty includes five years imprisonment, the country information indicates custodial sentences are not imposed on returnees who were merely a passenger on a people smuggling boat but that fines are issued to act as a deterrent. There is no indication that the applicant was involved in facilitating or organising any people smuggling as part of his 1990 departure. Based on country information I find that the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the I&E Act and, may face a period of time held in prison.

41.    The High Court endorsed in MIBP v WZAPN [Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610], that whether a risk of loss of liberty constitutes serious harm required a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty. Should the applicant be held over a weekend or public holiday until seen by a Magistrate, I am satisfied the applicant would face only a brief period in detention. Even having regard to general poor prison conditions, I do not consider that a brief period in detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm for the applicant.

42.    Similarly, I do not consider any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine under the I&E Act, to constitute a threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm.

43.    Country information states that all persons who depart Sri Lanka illegally are subject to the I&E Act on return and that law is not discriminatory on its terms. Case law states that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. In this case, the evidence does not support a conclusion that the law is selectively enforced or that it is applied in a discriminatory manner. I find that the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of a law of general application and does not amount to persecution for the purpose of ss.5H(1) and 5J(l) of the Act.

(Footnotes omitted; emphasis added; errors in original.)

The Federal Circuit Court proceeding

16    The applicant applied to the Federal Circuit Court for judicial review of the Authority’s decision. The only ground ultimately relied upon at the hearing before the primary judge was ground 2 of the amended application, which is set out at [30] of the reasons for judgment of the primary judge. The ground was as follows:

2. Ground 2 – The IAA failed to consider important evidence.

Particulars

a.    At Reason [39], the IAA accepts country information indicating that the applicant may be required to have a family member act as a guarantor in order to secure bail and may need to wait until such a family member arrives.

b.    In relation to determining what harm might befall the applicant in the course of the return procedure to Sri Lanka and the likely charges he would face under the Immigrants and Emigrants Act, the IAA failed to deal with the evidence regarding the lack of familial support, and in turn, the question whether the applicant might be unable to have a family member act as a guarantor (as appears to be likely) and so, what might happen to him in the event (e.g. whether his detention may be longer than was the norm and might expose the applicant to a real chance of significant harm).

17    Counsel for the applicant before the primary judge contended that, in considering the risk of harm to the applicant on returning to Sri Lanka having departed illegally, the Authority failed to consider the risk to the applicant where the applicant did not have a family member who could act as guarantor on a bail application: see the primary judge’s reasons at [31].

18    The primary judge’s reasoning in relation to this contention appears at [39]-[42] of the reasons for judgment. In summary, the primary judge did not accept the applicant’s submissions that the Authority was making a finding that the applicant may be required to have a family member act as guarantor in order to be granted bail. In the primary judge’s view, fairly read, the Authority was doing no more than summarising the relevant country information: at [39]. The primary judge accepted the submission of counsel for the Minister that the applicant did not make any express claim that he did not have a family member who could act as a guarantor and that, in the absence of such a claim, there was no need for the Authority to make any specific finding on that issue: at [40].

19    Accordingly, the primary judge dismissed the application for judicial review.

The application for an extension of time

20    The applicant applies for an extension of time in which to appeal. In his draft notice of appeal the applicant relies on a single ground, as follows:

The primary Judge erred by failing to find that the decision of the [Authority] was procedurally unfair, as it failed to deal with the evidence regarding the lack of familial support, and in turn, the question whether the applicant might be unable to have a family member act as guarantor and so, what might happen to him in that event.

21    In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

22    In the Minister’s outline of submissions it is stated that, having regard to the short period of delay (15 days) and the explanation for the delay in the affidavit of Stephanie Vejar dated 21 May 2019, the Minister does not take issue with the application for an extension of time on these bases (i.e. the length of the delay and the explanation for the delay). However, the Minister does contend that the proposed ground of appeal lacks sufficient merit to justify granting an extension of time.

Consideration

23    In light of the above, the main issue to be considered is the merit of the applicant’s proposed ground of appeal.

24    The applicant submits that the Authority must consider a material question of fact that is squarely raised by the material before the Authority: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]. It is submitted that a failure to do so is a failure to discharge the Authority’s jurisdiction.

25    The applicant submits that the Authority is obliged to give in writing, not only its decision and reasons, but also its findings on material questions of fact and references to the evidence on which those findings were based: Acts Interpretation Act 1901 (Cth), s 25D. It is submitted that the Court can infer from the Authority’s statement of reasons that if an issue is not mentioned it has not been considered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [69] and [75]. The applicant submits that the Authority failed to consider a relevant consideration, a failure which may have affected the decision; it was thus a material error and a jurisdictional error.

26    The applicant submits that: it was essential for the Authority, on its own review of the material before it, to consider whether there was a family member able and willing to be a guarantor for the applicant; the Authority’s reasons, read fairly, show that the Authority (at [39]) was reviewing the advice from the Department of Foreign Affairs and Trade about the treatment of illegal emigrants on their return to Sri Lanka, and then accepted and used this as the basis for a finding that the applicant would spend only a brief period in detention; the primary judge was wrong to find that “the Authority was doing no more than summarising the relevant country information” (at [39]); the country information referred to by the Authority squarely raised the possibility that a family member might be required as guarantor before the applicant might be released; the Authority failed to address this question and thus failed to have regard to a question squarely raised by the material before it. It is submitted that dealing with this question was an essential step in the reasoning of the Authority, because the availability of a family member as guarantor may be crucial to determining if and when the applicant may be released, as in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS) at [41]-[46]. In oral submissions, counsel for the applicant also relied on ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (ABA15) at [50] and [52].

27    In my view, the applicant’s proposed ground of appeal lacks merit.

28    First, notwithstanding that the country information indicated that, if a returnee pleads not guilty they may be required to have a family member act as guarantor in order to obtain bail, it was open to the Authority to find that any period of detention was likely to be brief. The country information merely stated that the returnee “may” be required to have a family member act as guarantor, and the other material and evidence before the Authority did not state or indicate that a family member would not be able to do so. It is true that, in his claims as summarised by the delegate, the applicant claimed that he would be arrested at the airport because he would be by himself and “[h]e doesn’t have anyone in Sri Lanka and his sister is unable to look after him”, but this did not address the matter of a guarantee for bail, should the applicant plead not guilty and a guarantee from a family member be required.

29    Secondly, unlike ABA15, this is not a case where any implicit finding that a family member would provide surety for bail, was a critical step in the Authority’s finding that any period of detention would be brief. In ABA15, the Tribunal found that bail is routinely given on the accused’s own recognisance, although a family member “is also required to provide surety”: ABA15 at [46]. In contrast, in the present case, the Authority found that in most cases where a returnee pleads guilty, they are immediately granted bail on personal surety, or they “may” be required to have a family member act as guarantor. In these circumstances, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority’s reasons: see DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [100] per Beach, O’Callaghan and Anastassiou JJ. See also at [101] and [102].

30    Thirdly, in DCP16, the Full Court indicated (at [100]) that ABA15 may go too far. The Full Court stated that “it may not be necessary for a decision-maker to have positive evidence that a family member is willing to act as guarantor for a person (cf ABA15 at [52]). Rather, if there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so.” I note that the Full Court also stated that to so reason may first require that the decision-maker has put the person on notice of the guarantee question.

31    Fourthly, as in DCP16 (see at [103]), the Authority gave independent reasons for rejecting the applicant’s claims on this point. In relation to the refugee claims, the Authority found that detention under the I&E Act would be the result of a law of general application and does not amount to persecution: at [43]. In relation to complementary protection, the Authority found that, even if the applicant was required to spend a brief period in prison, this would not amount to “significant harm” within s 36(2A) of the Migration Act: at [53]. While the latter finding assumes any period of detention would be brief, the reasoning would seem to be applicable also to a longer period of detention.

32    Fifthly, SZTQS is distinguishable for similar reasons as discussed above in relation to ABA15. In SZTQS, the Tribunal found that bail is routinely given on the accused’s own recognisance “although a family member is also required to provide surety”. This was one of the matters that Griffiths J considered provided an adequate basis for the primary judge’s finding and conclusion: see SZTQS at [43]-[45]. Contrastingly, in the present case, the Tribunal found that the returnee “may” be required to have a family member act as guarantor.

33    In light of the above, the applicant’s ground of appeal lacks merit and has no reasonable prospect of succeeding. In these circumstances, and notwithstanding the short period of delay and the explanation that has been provided, the application for an extension of time should be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Minister’s costs of the application, to be fixed by way of a lump sum.

Associate:

Dated:    18 November 2019