ADN15 v Minister for Immigration and Border Protection

The tribunal decision 9 In a written submission to the Tribunal, the applicant's representatives claimed that the applicant feared harm in Sri Lanka by reason of: (a) his Tamil ethnicity; (b) his membership of a particular social group, namely failed asylum seekers returning to Sri Lanka; and (c) a political opinion imputed to him by reason of his brother's links with the LTTE. 10 The Tribunal accepted that the applicant's brother had been detained in January 2010 for a three month period due to "some suspicion" of involvement with the LTTE. It found that the applicant's brother had been released in April 2010 and that records stated that "there is no necessity for any further inquiry about him". The Tribunal held (at [39] of its reasons) that the chance that the applicant would be imputed with a pro-LTTE opinion or targeted by the authorities or anyone else was "remote". 11 The Tribunal identified inconsistencies in the applicant's accounts of events concerning his brother's activities and movements, it found that the applicant was not a credible witness and that some of the details of his claims were implausible. It determined that although the applicant's brother had been detained on suspicion of involvement with the LTTE, he had not in fact been forced to work for that organisation. 12 The Tribunal then turned to consider the applicant's claim that he feared persecution by virtue of his Tamil ethnicity. It referred to country information issued by the Department of Foreign Affairs and Trade (DFAT) which indicated that the situation for Tamils in Sri Lanka had improved since the ending of the war in 2009. That information stated: 3.11 A number of those intending to leave Sri Lanka and travel to Australia, irregularly surveyed by the Australian National University's Development Policy Centre, cited persecution and torture as reasons for leaving. This included 37 per cent who said they wanted to leave Sri Lanka because of 'persecution in Sri Lanka' and 36 per cent who cited 'torture in Sri Lanka'. DFAT assesses that these fears are significant 'push factors' for external migration. 3.12 However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations' High Commissioner for Refugees' (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was 'no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country'. 13 The Tribunal noted that it preferred that country information over alternative material that had been provided by the applicant's representatives. 14 As to the applicant's claim to fear persecution by reason of being a failed asylum seeker, the Tribunal referred again to country information issued by DFAT concerning the treatment of Tamils. The Tribunal said: [47] The DFAT country information referred to above provides that there is no difference in the treatment of deportees or returnees whether they are Singhalese, Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. [48] I have considered the country information referred to by the agent. Whilst I note there some reports of the mistreatment of Tamil returnees, these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the applicant. I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government. 15 The Tribunal also noted the existence of alternative sources of country information which indicated that failed Tamil asylum seekers were mistreated upon their return to Sri Lanka. However, it determined that those sources highlighted the significance of an actual or suspected affiliation with the LTTE as being a factor that placed individuals at risk of torture or inhuman and degrading treatment. The Tribunal was not satisfied that returnees generally were regarded as having links with the LTTE or as being opposed to the government simply because they have been in Australia. 16 Finally, the Tribunal referred to laws in Sri Lanka which punished persons for having left the country illegally. It held that those laws were of general application and that they were not selectively enforced. It found that there was strong evidence that persons in the applicant's position who contravened the law would not be imprisoned, and that country information issued by DFAT indicated that the applicant would more likely suffer the imposition of a fine. Although the DFAT information showed that the applicant would likely face short-term detention upon his return, the Tribunal was satisfied that the applicant would be released on bail upon family members paying a surety. The Tribunal held that although prison conditions in Sri Lanka were poor, the applicant's short-term detention would not constitute "significant harm" within the meaning of s 36(2A) of the Act.

The proceedings in the Federal Circuit Court 17 The jurisdiction of the Federal Circuit Court to review a decision of the Tribunal is conferred by s 476(1) of the Act and equates to that jurisdiction conferred on the High Court under s 75(v) of the Constitution. The remedies that may be granted by the High Court on an application for judicial review under s 75(v) are only available in respect of a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also s 474 of the Act. 18 As explained in Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), an administrative tribunal will make a jurisdictional error if it: … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 19 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ said of the list in Craig (at [82]): [82] Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. 20 In the proceedings before the Federal Circuit Court, the applicant bore the onus of establishing that the Tribunal's decision involved jurisdictional error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (at 616 [67]). 21 The applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court on 11 March 2015. His grounds of review were as follows: 1. The Second Respondent erred in law, with the error being a jurisdictional error; by failing to discern a Convention nexus in teh [sic] Applicant's situation. Particulars (a) The Applicant stated that his elder brother was in the LTTE as a GPRS Operator and Sri Lankan authorities arrested and detained him but the Second Respondent failed to discern and make a finding that the Applicant was linked to the LTTE. (b) There was country information before the Second Respondent that persons like the Applicant, with LTTE links were persecuted in Sri Lanka. (c) Second Respondent 'read into the decision' it's own version of things rather than considering the country information which suggested that persons like the Applicant were at risk of harm in Sri Lanka. (d) The Applicant will endevour [sic] to tender the transcript of the Second Respondent's hearing. 2. The decision of the Second Respondent is so unreasonable that no reasonable person would have made such a decision. (a) There was evidence before the Second Respondent that the Applicant will be harmed on return to Sri Lanka and despite this the Second Respondent made a decision which is adverse to the Applicant. 22 The Federal Circuit Court Judge held that the first ground of review did not disclose jurisdictional error. The learned Judge dealt with each of the three substantive particulars to that ground in turn. The first particular was rejected because the Tribunal had not accepted the applicant's claim that his brother had links with the LTTE. As there was no jurisdictional error affecting that finding, there could be no jurisdictional error in the Tribunal's related finding that the applicant himself was not persecuted by virtue of his brother's involvement with, or his own connections with, the LTTE. 23 In rejecting the second particular, the Federal Circuit Court Judge held that the Tribunal did not make any finding that the applicant had links with the LTTE. 24 The Federal Circuit Court Judge held that the claim in the third particular that the Tribunal "read into the decision its own version of things" was "far from clear": [11] ... It appears to imply that the Tribunal's decision was arbitrary or capricious because proper regard was not had to the country information. I do not accept that proposition. 25 The learned Judge said: [10] Contrary to the third particular of the first allegation the Tribunal did consider country information as its decision record discloses. In paras 43 and 48 it specifically referred to having considered country information provided by the applicant's representatives and at paras 25 to 29 it set out country information it obtained from other sources and which it ultimately preferred. Importantly, the applicant did not identify any particular aspect of the country information before the Tribunal which it had not considered. 26 As to the second ground of review, the Federal Circuit Court Judge held that the Tribunal's findings were open to it on the country information to which it had regard. It could not, therefore, be said that the Tribunal's conclusions were such that no reasonable decision maker could have reached them. The Judge said: [14] As the Minister observed in his written submissions, the Tribunal's decision was based on the individual and cumulative claims made by the applicant, such evidence as it accepted and relevant country information. The relevant country information to which the Tribunal had regard provided probative evidence to support its findings. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 the High Court made it clear that if probative evidence can give rise to different processes of reasoning, and if reasonable minds can draw different conclusions from that evidence, a decision cannot be said to be unreasonable simply because one conclusion has been preferred over another. The conclusions which the Tribunal reached were open to it on the evidence before it and not such that it could be said that no reasonable Tribunal would have reached them. Consequently, the second ground of the application is not made out.

Consideration 27 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348-349) (Hunter Valley), Wilcox J considered the principles applicable upon an application made under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for an extension of time to commence proceedings under that Act. The principles there stated have been repeatedly accepted as guiding the Court's discretion on an application made pursuant to r 36.05 of the Rules for an extension of time in which to commence an appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]. The discretion is to be exercised having regard to: (1) the length of the delay; (2) the adequacy of any explanation for the delay; (3) any prejudice that might be suffered by the respondents or any other person if an extension of time were to be granted; (4) the prospects of success of the appeal sought to be commenced. 28 As Wilcox J observed in Hunter Valley, s 11 of the ADJR Act does not expressly prescribe the factors to be taken into account in the exercise of the discretion. The same may be observed of the discretion conferred by r 36.05 of the Rules. As the discretion is not expressly unfettered, it has been said that the principles stated in Hunter Valley are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] (Griffiths and Edmonds JJ agreeing), citing with approval French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; (1994) 48 FCR 83 at 97. 29 The applicant appeared in this Court as a self-represented litigant. In an affidavit sworn in support of his application, he stated that he was ignorant of the timeframe in which an appeal from the judgment of the Federal Circuit Court should be commenced. This Court has held that ignorance of the time in which to commence an appeal is ordinarily not, of itself, an adequate explanation sufficient to justify the grant of an extension of time: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17. In my view, the effect of the authorities is not to relegate ignorance of timeframes imposed by the rules to the status of an irrelevant consideration. It is relevant that the applicant is a person who is not legally represented and who is not proficient in written or spoken English. At the very least, those issues inform the weight to be accorded the length of the delay in the exercise of the Court's discretion as to whether to extend the time to commence the appeal. 30 The Tribunal filed a submitting appearance. The First Respondent (Minister) properly conceded that the length of the delay in commencing the appeal is not substantial and that he would not be prejudiced in the relevant sense should the application for an extension of time be granted. Notwithstanding that the Minister would not suffer prejudice should the extension of time be granted, I am of the view that the proposed appeal is so lacking in merit that the application for the extension of time should be dismissed. 31 In reaching that conclusion, I have applied the principles stated by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. That case concerned the exercise by the Federal Circuit Court of the discretion conferred by s 477(2) of the Act to extend the time in which to commence judicial review proceedings in that Court. Although that discretion is conditioned upon the Court being satisfied that it be "necessary in the interests of justice" to grant the extension, the same principles have been previously applied by her Honour on applications made under r 36.05 of the Rules. Her Honour said (at [62]): [62] As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave 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 inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

Merits of the proposed appeal 32 The proposed grounds of appeal are expressed as follows: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 33 I understand the initials "FM" in paragraph 1 to refer to the Federal Circuit Court. Insofar as the ground of appeal alleges that the Federal Circuit Court Judge "failed to consider" that the Tribunal's decision was "manifestly unreasonable" the ground cannot possibly succeed. The Federal Circuit Court Judge clearly gave consideration to that issue. 34 I proceed on the alternative basis that the ground of appeal intends instead to allege that the Federal Circuit Court erred in that it failed to identify that that Tribunal's decision was affected by legal unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. That articulation of the ground of appeal reflects ground 2 of the grounds of review argued before the Federal Circuit Court. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton), Allsop CJ said: [11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. [12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 35 The relevant principles were emphasised more recently by the Full Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (Eden): [59] Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). [60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ). 36 The Federal Circuit Court Judge held that Tribunal did not ignore "the aspect of persecution and harm" attending the applicant's claims, as alleged in the grounds of review before it, and as now sought to be alleged on appeal. Particularly, the Judge held, in my view, correctly, that s 91R of the Act had no application because the Tribunal did not accept the factual claims the applicant had made about the persecution he alleged he had suffered in the past. The learned Judge held that the Tribunal had made adverse findings as to the applicant's credibility and had drawn conclusions from country information that were open to it, resulting in its critical finding that the applicant's brother had not been a member of the LTTE as the applicant had claimed. The Federal Circuit Court clearly did not err in determining that that was a finding that was open to the Tribunal to make. The grounds of review before the Federal Circuit Court impermissibly sought to have that Court substitute its own view of the merits of the Tribunal's decision in the manner proscribed in the passages from Eden and Stretton to which I have referred above. 37 As to the second proposed ground of appeal, the ground raises issues that were not argued before the Federal Circuit Court. An application for leave to introduce the new ground would be bound to fail insofar as it alleges that the Federal Circuit Court "failed to take into consideration that the Tribunal's decision was unjust". It formed no part of the jurisdiction of the Federal Circuit Court to determine whether the Tribunal's decision was "unjust". If the word "unjust" is intended as a reference to legal unreasonableness, that ground is already advanced in paragraph 1 of the proposed Notice of Appeal and is, as I have said, plainly hopeless. If the word "unjust" is intended to incorporate all conceivable jurisdictional errors, the ground is impermissibly broad and "starkly uninformative": SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165 at 4 [10], (Finn, Emmett and Bennett JJ). 38 Even if the applicant were granted leave to introduce a ground of appeal alleging that the Tribunal failed to take into consideration the "full gravity" and consequences of the applicant's claims, that ground, too, would be bound to fail. The Tribunal correctly summarised the applicant's claims in its reasons. The Tribunal proceeded on the basis that the claims, if found to be true, were arguably sufficient to fulfil the criteria for the grant of a protection visa. However, it rejected the critical fact underpinning all of the applicant's claims, namely that the applicant's brother had been involved with the LTTE and presently remained a person of interest to Sri Lankan authorities. As I have said, the Federal Circuit Court Judge did not err in finding that it was open to the Tribunal to reject that critical aspect of the applicant's claims. Having rejected the claims on questions of fact, the Tribunal was obliged, under s 65 of the Act, to affirm the delegate's decision because there was no basis upon which the Tribunal could be satisfied that the applicant had a well-founded fear of persecution by virtue of a political opinion imputed to him in connection with his brother's activities. Relatedly, the Tribunal held that the applicant would not be discriminated against in the application of laws that imposed consequences upon failed asylum seekers returning to Sri Lanka. 39 When invited to make submissions as to why the proposed grounds of appeal had sufficient merit to justify the grant of an extension of time, the applicant could do no more than to criticise the merits of the Tribunal's factual findings. That is perhaps not surprising, having regard to the applicant's status as a self-represented litigant. Even on an impressionistic examination of the merits of the kind described by Mortimer J in MZABP, the proposed appeal is so plainly hopeless that an extension of time in which to commence it should not be granted.

Conclusion 40 For the reasons I have identified, the application is dismissed. 41 The parties agreed that the applicant should pay the Minister's costs in the event that the application was unsuccessful. Counsel for the Minister drew my attention to item 15.1(b) of Schedule 3 to the Federal Court Rules 2011 (Cth) and submitted that any award of costs should be fixed in the amount of $1,756. I will make an order to that effect. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.