FEDERAL COURT OF AUSTRALIA

AXX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 758

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 28 June 2019 be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant is a citizen of Sri Lanka of Tamil ethnicity, who came to Australia as an unauthorised maritime arrival in 2012. On 29 December 2016, he applied for a Safe Haven Enterprise (subclass 790) visa (SHEV), claiming that he was a person to whom Australia owed protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). The application was refused on 30 May 2017 by a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The delegate’s decision was a “fast track reviewable decision” under Part 7AA of the Act, and accordingly was referred to the Immigration Assessment Authority (IAA) for review. On 24 January 2018, the IAA affirmed the delegate’s decision.

2    The applicant then applied to the Federal Circuit Court of Australia (FCCA) for an order that the respondents show cause why a remedy should not be granted in under s 476 of the Act. On 22 May 2019 the FCCA dismissed the application for review: AXX18 v Minister for Home Affairs & Anor [2019] FCCA 1373. The applicant had 28 days from the date of judgment to appeal, as provided by r 36.03 of the Federal Court Rules 2011 (Cth) (FCR). On 28 June 2019, 9 days out of time, the applicant filed an application for an extension of time. Accordingly, the applicant requires an order extending the time in which to appeal.

3    In an affidavit filed in support of his application for an extension of time, the applicant provides his explanation for the delay, stating: that he is suffering from Post-Traumatic Stress Disorder (PTSD) as a result of his experiences in Sri Lanka; that he has no knowledge of the law and a very basic understanding of English; and that he became self-represented at the hearing because his retained lawyers did not appear and he was not provided with a copy of the judgment of the FCCA.

4    The application was listed for hearing on 6 November 2019. At the hearing, the applicant represented himself. He sought an adjournment on the grounds that he wished to rely on an amended draft Notice of Appeal and because he wished to be represented by counsel, whom he was able to identify. An adjournment was granted.

5    The applicant now seeks an extension of time to file his appeal on the basis of one proposed ground, namely:

(1)     The IAA made a jurisdictional error by failing to apply the “what if I am wrong test”.

6    The particulars appended to proposed amended ground refer to the test laid down in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; 56 ALD 43. The particulars state that the test required the IAA, in the event that a finding was reached without sufficient certainty, to consider the consequences in the event that the finding was wrong. The particulars then identify aspects of the reasoning of the IAA at [29] and [35] in support of the proposition that the IAA’s findings were sufficiently uncertain to require the application of the “what if I am wrong?” test.

7    The applicant was represented by Mr Oliver Jones of counsel who filed written submissions in advance of the hearing. The Minister was represented by HWL Ebsworth who filed written submissions prior to the November 2019 hearing, and supplementary submissions in answer to the applicant’s submissions in advance of the hearing.

2.    THE DECISION OF THE IAA

8    The IAA summarised the claims made by the appellant as follows (definitions added):

•    He is a Sri Lankan Tamil of the Hindu religion, born in 1992 in [town], in the Jaffna district, Northern Province.

•    In 1994/95, due to the war, his family moved to Mullaitivu district in the Vanni, a former [Liberation Tigers of Tamil Eelam (LTTE)] controlled area.

•    He has three close relatives who were LTTE cadres, two maternal aunts (both deceased, one an LTTE martyr), and one uncle living in Germany. He has several other relatives who were members of the LTTE, however he does not know all their details.

•    His father, who died in [year], worked as a cook at the LTTE base in the Vanni, and he was a member of the LTTE border force known as ‘Ellai Padai’.

•    In 2006 he became good friends with a new school student (P) who was closely related to a senior LTTE cadre, named VM. P lived with VM, his wife, and two children in a house opposite the LTTE run ‘house for the affected children’ (mostly children who had lost their parents due to the war). He went to VM’s house on several occasions.

•    Together with P he attended tutoring at the LTTE run house for affected children.

•    He travelled with P and VM and his family to several locations in the Vanni, including an LTTE base, the LTTE zoo in Kilinochchi, and the Martyrs Cemetery. He attended VM’s children’s birthday parties. He also went on hunting trips with VM, P, and LTTE members.

•    The LTTE attempted to recruit him in 2008 when he was studying for his exams, but his mother convinced them not to take him.

•    From April 2009 to April 2010, the applicant and his family were detained at the Cheddikulam Internally Displaced Persons (IDP) camp.

•    Sometime in 2010, after he was released from the IDP camp, two Tamil males in civilian clothing stopped him while he was riding his bicycle and asked if he knew VM. He said yes, he knew him. He was interrogated by the side of the road and eventually allowed to leave.

•    Towards the end of August 2012, after completing his exams, two men from the [Criminal Investigation Department (CID)] came to his home in search of him. They interrogated him, asking him about VM and if he too was an LTTE member. The men told him they had received information that he had contacts with VM and was seen with him several times. He did not share all he knows about VM. They said if required he may need to be questioned further, and he would need to travel to the CID main office in Colombo.

•    He was afraid he would be imputed with LTTE involvement and this is why he left Sri Lanka in September 2012.

•    After he arrived in Australia he learnt that his older brother was taken by the Sri Lankan army while in [town], and handed over to the CID, detained for four days and interrogated. During the interrogation the CID enquired about him and his whereabouts and his links to the LTTE.

•    His mother has told him that the CID has gone to his home in search of him several times since he left the country.

•    If returned to Sri Lanka the Sri Lankan authorities will seriously harm him and he could be imprisoned because he would be perceived to be an LTTE member as he departed Sri Lanka illegally and claimed asylum.

•    He will also be suspected of LTTE involvement due to: being a young Tamil male who originates from the LTTE controlled Vanni area; several of his relatives were LTTE cadres and some were senior LTTE cadres; his association with VM through P; his father supported and worked for the LTTE and was a members [sic] of the LTTE’s border force; he has attended two LTTE martyrs day celebrations held in Australia; he has attended several LTTE martyrs day celebrations held in Sri Lanka.

9    The IAA accepted that the applicant had close relatives who were LTTE cadres, that his father worked as a cook in the LTTE base and was a member of the LTTE border force, and that the applicant had a close friendship with “P”, who was closely related to a senior, and now deceased, LTTE cadre. The IAA also accepted the applicant’s claims about the LTTE’s attempt to recruit him when he was 16, about being detained with his family at the IDP camp, and about men from the CID coming to his home in 2012 to question him. The IAA considered that the nature of the CID’s brief questioning of the applicant did not indicate that he was of any real interest to them.

10    Most relevantly for the present application, the IAA accepted that the applicant attended LTTE martyr’s day celebrations in Australia, but was not satisfied that the Sri Lankan authorities noted or observed the applicant’s attendance at these events. In this regard the findings of the IAA were as follows (emphasis added):

[29]    I accept the applicant has attended two LTTE martyr’s day celebrations in Australia. I found the applicant’s description of his participation in these events to be convincing. The applicant said he attended these events at the Olympic Park in Sydney in 2015 and 2016, for about an hour, and during the ceremony he lit a lamp for the fallen soldiers and placed flowers and gave respect to them. The applicant said there was media coverage from SBS radio, and that there were various other people at the events but he did not know who they were. The delegate asked if he was identified by the media, and the applicant said people there were “not from our place, no, they don’t know”. He also said there were about 300 people at each occasion. Given the applicant attended at least one such event in the past in Sri Lanka, and considering he has an aunt who is an LTTE martyr, I consider the applicant engaged in these activities for personal reasons, and not for the purpose of strengthening his claims to be a refugee. While there is also no visual or media evidence before me of the applicant participating in these events, I am prepared to accept the applicant’s claims. Additionally, based on the applicant’s verbal account I am not satisfied that the applicant’s presence at these two celebrations in Australia were noted or observed by Sri Lankan authorities, even though I acknowledge the applicant may not be aware of any surveillance at such an event if it had occurred. I note that such surveillance has been reported on by the UK Home Office. In the circumstances, I find the applicant was not personally identified and his presence noted by Sri Lankan authorities operating in Australia, or other sources who could or would make this information known to Sri Lankan authorities.

…

[35]    I have accepted the applicant participated in Martyrs day events in Sri Lanka during the war and in Australia. In relation to the events he attended during the war, that was about ten years ago. In relation to the events in Australia, I have found the applicant was not personally identified and his presence noted by Sri Lankan authorities operating in Australia, or other sources who could or would make this information known to Sri Lankan authorities. In any case, the information before me does not support a finding that attending a Martyrs day event how would be cause for the authorities to target the applicant for harm because there is nothing to indicate any active and public advocacy for a separate Tamil state, and a resurgence of LTTE activity.

…

[37]    … while the applicant attended Martyrs Day events in Australia, there is no evidence he was personally identified at these events, and no evidence the applicant has actively engaged in Tamil separatist activities since living in Australia, which might attract adverse attention for national security reasons. I have also found the authorities were not interested in the applicant based on his close family links to former LTTE combatants (his father and aunties now deceased and his uncle living in Germany).

11    The IAA did not accept that the CID had gone to the applicant’s home in Sri Lanka in search of him, or that the applicant’s older brother was detained and questioned as claimed. Having made those findings, and based on country information, the IAA reached the following conclusion:

[46]    I have concluded that there is not a real chance the applicant will be targeted by the Sri Lankan authorities for any harm for reasons of his Tamil ethnicity, or for an imputed political opinion in connection with the LTTE based on his close family links to former LTTE combatants and members and his association with a now deceased senior LTTE cadre and his family and his participation in martyrs day events, both in Australia and during the war. I have also found there is not a real chance the applicant will face harm because he is a failed Tamil asylum seeker. I am similarly not satisfied that there is a real risk of any harm, including significant harm on these bases.

12    IAA found that the applicant is not a refugee within the meaning of s 5H(1) of the Act, and does not meet the requirements of either s 36(2)(a) or s 36(2)(aa) of the Act.

3.    THE DECISION OF THE FCCA

13    The applicant advanced five grounds of review before the primary judge in the FCCA. None are presently replied upon by the applicant, and it is not necessary to address them here. Suffice to say that the grounds were rejected by the primary judge.

4.    THE PRESENT APPLICATION

14    In an application such as the present one, the Court has regard to the following factors when considering whether to grant the extension of time that is sought: the extent of the delay; the explanation for the delay; any prejudice a respondent might suffer because of the delay; and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41], [62] – [63].

15    The delay in filing the application for an extension of time in the present case was 9 days. I have summarised the applicant’s explanation for the delay above at [3]. The contention that the applicant was disadvantaged at the hearing because his legal representative did not attend is supported by a decision of the primary judge in a costs decision, which required the applicant’s former legal advisors to pay the Minister’s costs for failing to attend a hearing: see AXX18 v Minister for Home Affairs & Anor (No. 2) [2019] FCCA 1399. I note that the FCCA’s judgment was delivered ex tempore, in circumstances where the applicant was self-represented and required an interpreter. The ex tempore reasons were published 56 days after delivery, and 19 days after the applicant had filed his application for an extension of time. The applicant’s claim to be suffering from PTSD is unsupported by any medical evidence and must be discounted. The Minister does not contend that he would suffer any prejudice in the event that an extension of time is granted. On the other hand, in the event that the applicant is refused leave he is likely to suffer considerable prejudice. The question then becomes whether it is in the interests of justice for leave to be granted, having regard to these matters and also the merits of the grounds of appeal proposed.

16    In addition, the ground now advanced in the proposed amended draft notice of appeal was not raised before, or dealt with by the learned primary judge, and accordingly the applicant requires leave in order to advance that ground, having regard to the considerations not dissimilar to those relevant to the grant of an extension of time: see SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [28]. The Court will also consider whether there is an adequate explanation for the failure to take the point in the court below, and may grant leave if the point clearly has merit: SZLPH at [28].

17    The applicant submits that the failure to take the point in the court below is because counsel in these proceedings was not involved in the proceedings in the court below, and the applicant was ultimately unrepresented before the primary judge. However, although ultimately represented at the final hearing, the pleadings in the Court below were drafted by a solicitor who was then acting for the applicant.

18    The proposed ground of appeal is that the IAA made a jurisdictional error by failing to apply the test in Rajalingam. The applicant submits that the so-called “what if I am wrong?” test requires the IAA, in the event that on a fair reading of its decision it had a real doubt as to a particular finding of fact, to consider the consequences in the event that the finding was wrong. He submits that at [29] of its decision the IAA was required to apply the test, because it was not satisfied that the applicant’s presence at public gatherings in Australia was noted by Sri Lankan authorities, “even though” the IAA acknowledged that “the applicant may not be aware of any surveillance at such an event if it had occurred”. The IAA also noted “that such surveillance has been reported on by the UK Home Office” and then decided that “[i]n the circumstances” the applicant’s presence at public gatherings in Australia was not noted by Sri Lankan authorities. He submits that fairly read, the IAA expressed a real doubt such that the applicant’s presence could have been noted by the Sri Lankan authorities. It should accordingly have considered the position that would arise if the applicant’s presence had been so noted. Had the IAA considered that position, the applicant submits that the application of the “what if I am wrong?” test was material to the outcome in that it could have led to a different result, because the IAA could have considered the detection of the applicant’s presence in combination with other matters, most notably his family’s links to the LTTE. Accordingly, the failure on the part of the IAA was material to the result: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45].

19    In Rajalingam, Sackville J said (North J agreeing):

[62]    In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.  Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.  Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

20    In addressing the same point, Kenny J said:

[137]     In deciding whether or not it is satisfied that an applicant has a well-founded fear of persecution for a Convention reason, the RRT may well, it seems to me, consider a range of matters, depending on the circumstances of the particular case.  After consideration of the material before it, the RRT may be of the view that a claimed event relied on by the applicant did not occur (or not for the reason alleged), although it is “only slightly more probable than not” that it did not occur as alleged.  In that case, the Tribunal must take account of that uncertainty in considering whether it is satisfied, having regard to all the material before it, that the applicant has a well-founded fear of persecution.  On the other hand, if the Tribunal is of the view that a claimed event did not occur and that it is unlikely to be wrong in that view, then the Tribunal must exclude that event from its consideration of whether it has the relevant satisfaction.  Nor can the Tribunal, in the latter circumstance, be required to take into account any remaining uncertainty, albeit slight, that it might have about the happening of the claimed event, because it would have none that mattered.  See Guo, at 576; Chand v Minister for Immigration and Ethnic Affairs (unreported, von Doussa, Moore, Sackville JJ, 7 November 1997) [1997] FCA 1198; Zuway v Minister for Immigration and Ethnic Affairs (unreported, Katz J, 31 December 1998) [1998] FCA 1738.

21    The first aspect of the applicant’s argument relies on construing the reasoning of the IAA such that it may be said that fairly read, it evinces that the IAA had a real doubt as to whether or not the applicant was identified by the Sri Lankan authorities as attending the two martyrs day celebrations in Australia. At [29] the IAA accepted the applicant’s evidence that he attended the celebrations. It found, based on the evidence of the applicant, that the applicant’s presence at these two celebrations in Australia were not noted or observed by Sri Lankan authorities. It did accept that there was room for doubt having regard to the fact that the applicant may not be aware of any surveillance at such an event if it had occurred, and that there had been reports in country information of such surveillance taking place. However, having summarised the evidence, the IAA then concluded that the applicant was not personally identified and his presence was not noted by Sri Lankan authorities operating in Australia, or other sources who could or would make this information known to Sri Lankan authorities.

22    I am unable to accept the applicant’s submission that the words “[i]n the circumstances” in the final sentence of the paragraph reflects that the IAA had a real doubt about whether or not his presence was noted by the authorities. In my view the circumstances to which the opening words refer are all of those which have been recited in that paragraph, including observations as to the size of the gatherings and that the only media coverage was on radio. Furthermore, it is appropriate to read the whole of the reasoning of the IAA to understand its conclusions. In [35], it returns to the subject of his attendance at the martyr’s day events and says that it has found the applicant was not personally identified or his presence noted by Sri Lankan authorities operating in Australia. A similar statement is in the opening sentence of [37]. Taken as a whole, it appears to me that the IAA did not have a real doubt, after assessing the evidence, in its conclusion that the applicant was not observed by the Sri Lankan authorities. Accordingly, the IAA was not required to apply the “what if I am wrong?” test and the error identified by the applicant does not arise.

23    Furthermore, in [35] the IAA found that the information before it did not support a finding that attending a martyrs day event would be cause for the authorities to target the applicant for harm. At [46] it expresses a similar conclusion, having regard to all of the circumstances of the applicant’s claims. That is, the IAA concluded that the applicant would not be owed protection obligations even if the applicant had been identified at the martyrs day events. As a consequence, the question of materiality having regard to the reasoning in SZMTA cannot be determined in favour of the applicant.

24    In light of these matters, and having regard to the delay, the explanation for it offered, the relative prejudice that would be occasioned by the delay, the failure to take the point in the court below, and my evaluation of the prospects of success of the proposed ground of appeal, in my view the application for an extension of time must be dismissed with costs.

Associate:

Dated:    3 June 2020