FEDERAL COURT OF AUSTRALIA

ECJ17 v Minister for Home Affairs [2019] FCA 2121

ORDERS

THE COURT ORDERS THAT:

1.    Application for an extension of time to appeal and leave to adduce new evidence refused.

2.    The applicant pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia. The primary judge dismissed an application for review of the decision of the Immigration Assessment Authority to affirm the decision by a delegate of the Minister to refuse a safe haven enterprise protection visa.

2    The applicant is a citizen of Sri Lanka who identifies as Muslim and is of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival, and his application to the Authority was dealt with under the fast track regime established by Part 7AA of the Migration Act 1958 (Cth).

Extension of time

3    The applicant requires an extension of time to appeal. His appeal was instituted outside the 21-day period provided for by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth).

4    In considering whether to grant an extension of time for an appeal, the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The proposed appeal should have sufficient prospect of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].

5    The application for an extension of time was filed just over one month outside of the prescribed time period. This is not an excessive delay, but it is also not insignificant.

6    The applicant submits that he did not have access to the primary judge's reasons for judgment during the appeal period because they were published after the appeal period ended, that he understands little English and was unaware of the 21-day appeal period, that he lacked funds to pay for legal representation and that he was unable to attend a meeting with a lawyer in any timely manner.

7    The unavailability of written reasons for judgment is an adequate explanation for delay: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (Perram, Farrell and Perry JJ).

8    The Minister accepted that the reasons were delivered after the appeal period expired, but opposed the extension of time on the grounds that the proposed appeal was of no merit. It therefore remains for the Court to consider the merits of the proposed appeal, but at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)).

9    I am cognisant that the proposed appeal grounds are to be considered in that context. This is not the determination of an appeal. However, it is necessary in order to consider whether the appeal ground could be said to have any merit or any reasonable prospect of success to set out the background to the claim in some detail in order to understand the applicant's contentions.

New evidence

10    Additionally, at hearing, the applicant sought to rely on new evidence. I have refused the application to rely upon the new evidence and provide my reasons as to that application below.

The applicant's protection claims

11    The applicant claims to fear harm in Sri Lanka on the basis that he is on a special list of Tamil Muslims suspected of having connections with the Liberation Tigers of Tamil Eelam (LTTE).

12    The applicant was a fisherman. He claims that his village was under the control of the LTTE, and he was required, along with other fishermen, to pay tax. The applicant was nominated to collect the money from other fishermen and to act as a messenger between the Sri Lankan Army and the LTTE. He claims that after the war, paramilitary groups were formed to locate suspected LTTE supporters, and that in 2011 he was told that he should be careful.

13    The applicant claims that in March 2012 the army built a fishing harbour which was perceived as an attempt to settle Singhalese fishermen in the area. In response, the applicant spoke at a protest and was perceived as standing up to the government.

14    The applicant claims that later that month a bomb was detonated outside his house at 8pm at night. He believes a Muslim paramilitary group was calling his name. The following morning, the applicant complained to the police, but they did not believe it was a paramilitary group.

15    In support of his claims, the applicant provided a complaint made at a police station stating that the applicant supported the Sri Lanka Muslim Congress, that an opponent was very angry at him, and that a bomb was set off at midnight on 24 June 2012. He also provided an affidavit from his wife affirming that he was a supporter of the Sri Lanka Muslim Congress and that their house was bombed on 24 June 2012, and a letter from a Fishermen's Co-op Society confirming that he had been a fisherman for a long time.

The Authority's findings

16    The Authority accepted that the applicant worked as a fisherman. However, having regard to an article from May 2012, the Authority rejected his claim that he was involved in a protest in March 2012.

17    The Authority did not accept that a bomb was thrown at the applicant's house. It noted the inconsistency in time and date between the applicant's statements, his statutory declaration and that of his wife, and the police report, and considered the inconsistencies to be significant in light of the prevalence of document fraud in Sri Lanka.

18    The Authority rejected the applicant's claim that he would face harm because of an imputed pro-LTTE or anti-government political position. It noted that he was a Muslim, and Muslims had generally sided with the government during the war; that successive army groups in his area had realised his role in the LTTE was done under duress; that he had no issues with the Sri Lankan authorities since 2004; and he has family members who work for the Sri Lankan government.

19    The Authority did not accept that the applicant is on a special list of Tamil Muslims suspected of having connections with the LTTE. It had regard to country information in the referred materials regarding the Sri Lankan authorities not imputing every Tamil with pro-LTTE political opinion and that the authorities have sophisticated intelligence gathering techniques. The Authority found support in its finding in the fact that there was no credible claim of any serious harm to the applicant while he lived in Sri Lanka.

20    The Authority did not accept that the applicant was a supporter of the Sri Lanka Muslim Congress, as this claim was not raised in his entry interview, his visa interview or his statutory declaration. The Authority did not accept that the applicant faced any harm as a result of being a supporter.

21    The Authority considered whether the applicant would face any discrimination due to his Tamil ethnicity. The Authority was satisfied there was no evidence of official laws or policy to discriminate based on ethnicity or language. The Authority was not satisfied the applicant was subject to discrimination or economic hardship which would threaten his capacity to subsist or subject to other treatment which would amount to serious harm.

22    The Authority accepted that the applicant had committed an offence by leaving Sri Lanka illegally and that he would likely face a fine and a short period of detention upon return. The Authority found that although conditions in prisons are poor, the chance that he would be detained in prison was remote and the conditions were not as a result of an intention to inflict pain, suffering or extreme humiliation. As a result he did not face significant harm.

23    The Authority concluded that the applicant did not meet the definition of refugee under s 5H and did not meet s 36(2)(a) of the Migration Act. For similar reasons, it concluded he did not face significant harm under s 36(2)(aa). It therefore dismissed his claim.

Before the Federal Circuit Court

24    The applicant raised five grounds of appeal before the Federal Circuit Court. These were:

(a)    the Authority erred by failing to consider the applicant's claim of inadequate interpretation, as the first interview took place with an Indian interpreter instead of a Sri Lankan one, and by failing to explain that the inability of the first interpreter to interpret would not affect his assessment of the applicant's claim;

(b)    the Authority erred by failing to conduct a fresh interview with the applicant, as the applicant's credibility was crucial and the lack of an interview meant no judgment could be made on this critical aspect, and because the delegate who refused his application was a different person to the interviewing officer;

(c)    the Authority erred by filing to give due consideration to the evidence tendered;

(d)    the Authority incorrectly found that the applicant was Tamil, when he was in fact Muslim; and

(e)    the Authority erred by failing to consider the applicant's claim that he witnessed atrocities committed by the army against Tamils.

25    The primary judge dismissed each of these grounds.

26    On the first ground, the primary judge found that it was apparent that both the delegate and the Authority disregarded the first interview where the incorrect interpreter was provided. The primary judge found that there was no evidence identifying any error by the interpreter on the second interview.

27    On the second ground, the primary judge noted that Part 7AA of the Act provides that the Authority was to conduct a review on the papers. The primary judge also found that an error in the decision of the delegate did not of itself give rise to jurisdictional error by the Authority, and that there was nothing to suggest that there had been a change in the delegate.

28    On the third ground, the primary judge held that the Authority clearly had regard to the evidence tendered, and that it was a matter for the Authority to determine what weight to give to the evidence before it. His Honour concluded that this ground was an invitation to engage in impermissible merits review.

29    On the fourth ground, the primary judge found that the Authority took into account both the applicant's religion and his ethnicity, as its reasons expressly refer to both and expressly take them into account.

30    On the fifth ground, the primary judge held that there was no basis for the alleged claim, and that it did not fairly rise on the material before the Authority. Consequently, the alleged claim could not give rise to jurisdictional error.

31    Additionally, the applicant made submissions from the bar table in the Federal Circuit Court. The primary judge said:

[22]    From the bar table, the applicant maintained that he could not go back to Sri Lanka and that his recollection of the events was not good because of the period over which that had occurred some time ago. The applicant also alleged that he was receiving particular treatment and that he needed to stay in Australia for that treatment. No issue of medical treatment was raised before the Authority by the applicant in relation to the applicant's claims. An issue not raised before the Authority is not capable of giving rise to any error by the Authority. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds of appeal

32    The applicant's draft grounds of appeal provide for three grounds. These are as follows:

(1)    The primary judge erred in failing to uphold the review grounds raised by the applicant in relation to the Authority's failure to consider relevant information.

(2)    The Authority erred by failing to consider whether the applicant's wife's affidavit was evidence that supported the applicant's claim that he was the victim of a targeted bombing attack.

(3)    The Authority failed to engage in an active intellectual process of considering the applicant's evidence, and failed to give reasons for its failure to be satisfied that there is a real risk the applicant will suffer significant harm if removed to Sri Lanka.

33    To the extent that ground 3 alleges a failure to give reasons, it was not raised in the Court below and thus requires leave. No application for leave to raise new grounds was made.

34    It can be seen that the appeal grounds are expressed at a very general level. The applicant is self-represented and I have taken that into account, together with his oral submissions, in assessing whether those generalised grounds might obfuscate an argument that the applicant might properly have grounds to pursue.

Consideration

Ground 1

35    The applicant submitted at hearing that he was involved in a bomb blast and the Authority failed to consider a police report he provided as to the alleged blast. This would appear to fall within the ambit of proposed ground 1.

36    The Authority's reasons reveal it considered this issue, but disbelieved the applicant. It stated as follows:

21.    I do not accept that a bomb was thrown at the applicant's house. The accounts provided by the applicant contain multiple inconsistencies:

•    In the entry interview, the applicant stated that the bomb was thrown at the house at 8 pm. However, in the police report provided by the applicant, he claimed that the bomb was thrown at midnight.

•    In his statutory declaration, the applicant stated that the bombing took place in March 2012. However, in the police report and the affidavit of the applicant's wife, it is recorded that the bombing took place on 24 June 2012.

22.    I consider these inconsistencies to be significant. In these circumstances, I consider that the applicant has fabricated his claims of a bombing so as to create a basis for his protection claims.

23.    I note that the DFAT report in the referred material makes the following comments on document fraud:

DFAT assesses that document fraud is prevalent in Sri Lanka. Most official records in Sri Lanka continue to be kept in hard-copy format: government departments lack computerised information databases. Genuine identity documents can be obtained by submitting fraudulent supporting documents. Counterfeit documents are the primary cause of fraud within the issuance process for the NIC, passport or driver's licence. DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual's financial situation.

Attempts to use fraudulent documents are common and other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.

24.    Given the inconsistencies between the accounts provided by the applicant on the one hand, and the police report and his wife's affidavit on the other hand, and given the prevalence of document fraud, I place no weight on either of those documents.

25.    For completeness, given that the applicant claimed in his statutory declaration that a bomb was thrown at his house in March 2012, I do not accept that the applicant would have made a complaint to the police in which he stated that the bombing took place on 24 June 2012. Therefore, I do not accept the claim raised in the IAA submissions that the applicant would face persecution for a false police report in circumstances given that I have not accepted that such report was ever made. I consider that the police report is a fraudulent document produced for the purposes of strengthening the applicant's claims.

26.    The DFAT country report indicates that the military restricts access to some of the more abundant fishing areas. I do not accept that the applicant will be unable to find work as a fisherman if he returns to Sri Lanka, albeit the work he finds may be not as economically beneficial as fishing at the more abundant fishing areas. I do not consider the harm arising from any such discrimination would be so serious as to be serious harm when having regard to the non-exclusive instances of serious harm s.5J(5).

37    Clearly, the Authority considered the evidence but rejected it. It did so based on inconsistencies in the evidence and country information as to the prevalence of fraudulent documents. The weight to be given to the evidence was a matter for the Authority and it provided logical reasons for its rejection.

38    The primary judge correctly found that the weight to be given the evidence including that of the applicant's wife was a matter for the Authority.

39    The reasons do not disclose jurisdictional error in the manner in which the Authority dealt with the evidence relating to the alleged bomb blast and accordingly the primary judge was correct to reject this ground when it was before his Honour.

40    It was difficult to discern which other matters the applicant sought to raise with respect to ground 1. The Minister properly raised two potential matters. One was the matter raised by ground 1 before the primary judge as to an interview conducted with an interpreter who did not speak the applicant's language.

41    However, there is no substance to that complaint. It relates to the quality of interpreting during a first visa interview. There was nothing to indicate that the delegate took that interview into account and the Authority expressly stated that it did not take the first interview into account. There was no evidence of any interpreting issue for the second visa interview. The primary judge properly found that there was no basis to support a contention as to a deficiency in interpretation.

42    Another matter was a claim made before the primary judge that the applicant would face harm on return to Sri Lanka because he witnessed atrocities committed by Sri Lankan soldiers against Tamils. The primary judge found that such claim was not advanced before the Authority. It was unclear whether the applicant sought to pursue that claim in this Court as part of his purported grounds.

43    After the hearing, the Minister provided the Court with a copy of the court book that was before the primary judge. That contains materials that were before the Authority.

44    I have carefully considered those materials. The primary judge's assessment that the matter was not raised squarely before the Authority is in my view correct. Whilst in written submissions to the Authority the applicant's migration agent wrote (in one line) that the applicant 'witnessed the atrocities of army personnel against the Tamils', the statement was not further developed. The submission then set out alleged errors in the delegate's reasons but did not say anything further about the witnessing of conduct of army personnel or LTTE connections. There was nothing in the claim as otherwise explained in the materials before the Authority that suggested that such witnessing of conduct was a head of claim separate to his concern that he would be persecuted on the basis that he was perceived to be a suspected LTTE supporter and so was a target of the army.

45    The Authority noted the applicant's claims that during the war there were executions by the army in the district from which he came. It accepted the applicant's claims that the applicant was coerced to be a deliveryman for the LTTE between 2000 and 2004, and a messenger between the army and the LTTE between 2004 and 2005. However, the Authority was not satisfied that the applicant's Tamil ethnicity and his past activities related to the LTTE would be sufficient now to cause the applicant to be a person of interest to the Sri Lankan authorities: see the reasons summarised above at [18]-[20].

46    Therefore, the primary judge did not err in rejecting any claim of jurisdictional error based on the alleged witnessing of atrocities. As the primary judge found, such a claim was not squarely put and in any event the circumstance of risk to the applicant as a result of an imputed political opinion were addressed comprehensively and in a logical manner by the authority.

Ground 2

47    The matters the subject of proposed ground 2 as to the applicant's wife's affidavit have been addressed by the consideration of proposed ground 1. The ground has no prospect of success.

Ground 3

48    The applicant did not point to particular evidence that he considered fell within the ambit of proposed ground 3. Counsel for the first respondent in any event addressed the matters that the applicant might have sought to raise as to the alleged failure to engage in an active intellectual process, having regard to the manner in which the argument proceeded before the primary judge. In particular, counsel referred to the claim about the bomb thrown at the applicant's house and had regard to the content of and the weight that might be given to the wife's affidavit. As is apparent from these reasons at [35]-[39] above, those matters were in fact given close consideration by the Authority. The primary judge addressed these matters (at [28]-[29]) and no error in his Honour's reasoning is disclosed.

49    Otherwise, the lack of articulation of that evidence which the applicant contends was not actively or properly addressed leads to the inevitable conclusion that the purported ground would not succeed. No application for leave to rely on matters not raised before the primary judge was brought or pursued.

50    The second part of proposed ground 3 suggests, in its reference to 'significant harm', that the Authority did not give adequate reasons for its findings as to complementary protection. The reasons it gave are to be viewed taking into account the findings already made in other parts of its reasons: MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31].

51    In particular, the Authority addressed the consequences that might flow from the applicant's illegal departure from Sri Lanka, finding that any questioning process, brief detention, fine or penalty would not comprise persecution and that the provisions of and penalties under the Sri Lankan Immigrants and Emigrants Act are of general application and not discriminatory. The Authority also addressed whether such consequences might comprise significant harm, having regard to the risk that the applicant may be remanded in custody for a short period at the airport or in prison, but found that the applicant has no specific profile that would result in any longer detention or interrogation. It took into account DFAT information to the effect that the risk of torture or mistreatment for people suspected of an offence under the Immigrants and Emigrants Act is low. Nor did it consider poor prison conditions would comprise significant harm under the Migration Act.

52    The Authority also considered the question of whether there is a level of societal discrimination against Tamils in Sri Lanka or against fishermen, but concluded that it was not satisfied that there was a level of discrimination such that it would comprise significant harm. The Authority had addressed earlier in its reasons the question of discrimination on the basis of being a Tamil or a fisherman. On the basis of country information and taking into account that the applicant would not be prevented from engaging in work if he returned to Sri Lanka, the Authority was not satisfied that the applicant would be subjected to discrimination or hardship that would threaten his capacity to subsist or comprise serious harm.

53    The Authority considered whether the applicant would face a real risk of significant harm if he is removed to Sri Lanka having regard to his claim to be imputed with a pro-LTTE political opinion or anti-Sri Lankan government political opinion, or because he would return to Sri Lanka as a failed asylum seeker. The Authority was not satisfied that the applicant faced such a risk, for the same reasons upon which it based its findings that the applicant did not face a real chance of persecution or harm for the purpose of its refugee assessment. The Authority was entitled to reason in this way. It was entitled to rely upon Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, in which it was held that 'real risk' is an equivalent test to 'real chance' (at [246]).

54    In my view the Authority quite clearly addressed the applicant's complementary protection claim and gave logical reasons that supported its findings. As the issue of allegedly inadequate reasons was not raised below, leave would be required to raise it on any appeal. I do not consider there is any prospect that leave would be granted, as the ground has no prospect of success.

Conclusion

55    For the above reasons, and having had careful regard to the claims that, expressed at their highest, might be pursued by the applicant, I do not consider that he has any real prospect of success on an appeal from the primary judge's orders.

56    Accordingly, even accepting that the primary judge's delay in providing reasons explained in large part the relevant delay, it is not appropriate that an extension of time be granted and the application is dismissed.

New evidence

57    The applicant sought to rely on evidence that was not before the Authority.

58    The Minister opposed the admission on the basis of s 55(1) and s 56(2) of the Evidence Act 1995 (Cth). These sections provide, in effect, that evidence is not admissible unless, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

59    First, the applicant sought to adduce a medical report providing that he had undergone three kidney operations in Australia. He submits that this is relevant to his visa application because he may have to undergo another kidney operation, and Sri Lanka lacks the necessary facilities for him to undergo such an operation.

60    The medical report is dated 12 September 2018 and therefore postdates the Authority's decision of 18 August 2017. Additionally, there is no evidence on the face of the Authority's decision to suggest that the applicant's medical issues relating to his kidney were before the Authority. The primary judge's findings (at [22]) are consistent with an absence of any such material. The applicant has not established otherwise.

61    The Minister submits that because it is no jurisdictional error for the Authority to fail to have regard to evidence or claims that were not before it, the medical report, if accepted, could not affect this Court's finding on whether the Authority committed jurisdictional error. I accept this submission and so refuse the application to rely on the new medical evidence. I sympathise with the applicant's serious concerns as to his ill-health, but his ill-health does not establish jurisdictional error on the part of the Authority or error on the part of the primary judge.

62    Second, the applicant sought to adduce a bundle of six letters ranging in date from 29 August 2018 to 15 October 2018, and that relate to a new incident that allegedly occurred in August 2018. He submitted that these letters help explain the situation in Sri Lanka at the present time.

63    The applicant appears to rely on these letters as evidence refuting the factual finding made by the Authority that the applicant does not face a real chance of serious harm or a real risk of significant harm if he were to be returned to Sri Lanka.

64    The Minister opposed the admission of the letters on the basis that they were being tendered to refute a finding of fact made by the Authority, contrary to the ruling in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (cited in, for example, AIM15 v Minister for Immigration and Border Protection [2017] FCA 734 at [31]). The Minister asserts that the documents are only relevant to the merits of the applicant's claim before the Authority, as opposed to being relevant to any allegation of jurisdictional error.

65    I accept that the documents relate to the issues of fact determined by the Authority and that the applicant would be seeking merits review in inviting this Court to make determinations based on those documents: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [55].

66    Further, it is not open to the applicant to rely on subsequent developments to falsify the findings of the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [15].

67    The documents were not before the Authority and do not provide any basis for alleging error on the part of the Authority or the Federal Circuit Court.

Orders

68    The applications for an extension of time to appeal and to adduce new evidence are dismissed with costs.

Associate:

Dated:    20 December 2019