ALQ16 v Minister for Immigration and Border Protection

1. The Applicant have leave to commence an appeal confined to the ground articulated in paragraph 16 of this judgment, with that leave to be exercised by 24 March 2017.
2. Costs be in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The applicant, a national of Sri Lanka, arrived in Australia by boat on 18 July 2012. On 5 December 2012, he applied for a protection visa. One year later, on 30 December 2013, that application was refused by a delegate of the Minister. 2 The applicant then applied, on 7 January 2014, to the Refugee Review Tribunal for review of the decision of the Minister's delegate. That application was heard in the Administrative Appeals Tribunal (the Tribunal) on 6 and 19 January 2016 and the delegate's decision was subsequently affirmed. 3 The applicant then sought judicial review of the Tribunal's decision in the Federal Circuit Court (the FCC). The FCC Judge dismissed the application, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules): ALQ16 v Minister for Immigration and Border Protection [2016] FCCA 2081. Judgment was delivered on 15 August 2016. 4 Almost five weeks later, on 16 September 2016, the applicant applied to this Court for an extension of time in which to seek leave to appeal against the FCC decision and for leave to appeal the decision. Leave to appeal is required given the interlocutory nature of the FCC judgment - see r 44.12(1)(a) and (2) of the FCC Rules and s 24(1A) and (1D) of the Federal Court of Australia Act 1976 (Cth). 5 The applicant needs an extension of time in which to commence his application because it was filed well after the expiry of the 14 day period fixed for such applications by r 35.13 of the Federal Court Rules 2011 (Cth) (the FCR). 6 The Court has power to grant an extension of time but such extensions are not granted as a matter of course. Limitation periods of the kind fixed by r 35.13 serves several purposes in the administration of justice and those purposes are not to be frustrated by the too ready grant of extensions. The onus is on an applicant for an extension to show that the extension is appropriate. 7 Generally, the Court has regard to five considerations when determining whether to grant an extension of time: the length of the extension sought; the explanation for the application having been filed late; any prejudice to the respondent if the extension is allowed; any prejudice to the applicant if the extension is refused; and the conduct of the parties in the litigation generally. 8 In this case, the period of extension sought (18 days) is not long in absolute terms but is significant when compared with the 14 day period fixed for the making of such applications. 9 The applicant's explanation is not really adequate or complete and much is left to inference. He says only that he was in Rockhampton when the FCC Judge delivered his decision in Sydney; that he was without legal representation and that he had come to the Registry of this Court in Sydney on 5 September 2016 to lodge the application but had been sent away to get a statutory declaration from a friend. I observe that, as at 5 September 2016, the applicant was already out of time and that he has not provided any explanation for the lapse of time between 5 September and 16 September 2016. 10 The Minister does not allege any relevant prejudice. 11 In these circumstances, an important consideration bearing on the application for the extension of time is the prejudice which the applicant will suffer if the extension is not allowed. This turns on whether the applicant would thereby lose the chance to present a reasonably arguable case that the decision of the FCC Judge is affected by error. If the applicant cannot show such a reasonably arguable case, he will not have shown relevant prejudice. 12 The applicant's draft notice of appeal contains two grounds: 1. The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Tribunal erred in law when the Tribunal had reviewed my review application. 2. The Federal Circuit Court failed to find that the RRT erred in law and declined its jurisdiction on the basis of grounds of particulars stated in my Federal Circuit Court Application. 13 As can be seen, these grounds do not articulate a basis for doubting the correctness of the decision of the FCC Judge. They do no more than assert that the FCC Judge was wrong because he failed to find the errors of law by the AAT for which the applicant had contended. 14 The grounds stated in the applicant's application for the extension of time and leave to appeal are: 1. Jurisdictional error 2. Error of law of the face of the RRT decision 3. I still rely on the grounds and details stated in my Federal Circuit Court decision and the application filed. 15 Again, these grounds do not articulate any error by the FCC Judge. Apart from asserting in a generalised way that there was jurisdictional error or an error of law, they indicate that the applicant wishes to re-agitate the matters which he argued in the FCC. 16 However, on the hearing of the application, the applicant's counsel indicated that the applicant sought leave to appeal on one ground only, namely: The Federal Circuit Court Judge should have found that the Administrative Appeals Tribunal erred in applying the "real chance" test when assessing whether the applicant's fear of persecution was well-founded. Particulars (a) The Tribunal reasoned that because the situation for Tamils has improved, the applicant does not have a well-founded fear of persecution, this being an erroneous application of the real chance test; (b) The Tribunal ought to have considered the possibility that allegations of torture and mistreatment suffered by other returnees were true. Its failure to do so involved a misapplication of the "real chance" test. 17 In the Tribunal the applicant sought a protection visa on the following basis. He said that he feared harm if returned to Sri Lanka because of his Tamil ethnic extraction, because of an imputed political opinion that he is pro LTTE, because he is a supporter of the Akhila Ilankai Tamil United Front (AITUF) and would therefore be perceived to be opposed to the Pillayan Group in Sri Lanka, and because he would be a member of a particular social group, namely, failed asylum seekers who have left Sri Lanka illegally. The applicant gave evidence in support his claims and his migration agent made submissions on his behalf (although the agent did not attend a second hearing in the Tribunal on 19 January 2016). 18 The Tribunal member found that many of the applicant's claims were vague and that some were marked by inconsistencies. In particular, the Tribunal member considered that there were "significant inconsistencies" in the applicant's account of an incident said to have occurred in 2011 after the election, noting differences between the applicant's evidence, on the one hand, and the material and documents which the applicant had provided in support, on the other. 19 The Tribunal member also considered that the applicant's claims to fear harm in relation to the Pillayan were "very vague" as the applicant had acknowledged that he had not experienced direct difficulties with the Pillayan Group before he left Sri Lanka. Instead, the applicant relied on a claim that a student leader in the AITUF had had some difficulties with the Pillayan and his own membership of the same political supporters' group. 20 Likewise, the Tribunal considered that the applicant's claim about an incident involving five men which was said to have occurred in 2012 was "vague". 21 Having regard to these and other matters, the Tribunal member was not satisfied that the applicant was a credible witness and was not satisfied as to the credibility of a number of his claims. The member noted that the country information indicated that the security situation in Sri Lanka had "greatly improved" since the end of the conflict in 2009 and, likewise, that the monitoring and harassment of Tamils in day-to-day life had "generally eased". He accepted that information. On this basis, the Tribunal member found that the applicant did not have well-founded fear of persecution on the basis of his Tamil ethnicity. 22 The Tribunal member accepted that those with a real or perceived link to the LTTE may be at risk. He also accepted the applicant's account of having been detained for one day in 2009, questioned about his support of the LTTE and mistreated on that account. However, the member did not accept that the applicant had thereafter suffered any detriment on account of his support for the LTTE or that he would suffer such detriments in the future. In fact, the Tribunal member did not accept that the applicant had such a link which would place him at risk if he returned to Sri Lanka. 23 In relation to the applicant's membership of the AITUF, the Tribunal did not accept the applicant's account. 24 Finally, having regard to country and UNHCR information, the Tribunal accepted that if returned to Sri Lanka, the applicant may face a short period of detention and a fine (by reason of having left Sri Lanka illegally) but did not accept that he would face significant harm by reason of being a failed asylum seeker. 25 In the FCC, the applicant advanced three grounds of judicial review. Given that the applicant confined his present application to one ground, it is not necessary to outline Grounds 1 and 2. 26 Ground 3 alleged that the Tribunal member had failed to apply the "real chance" test when assessing whether the applicant's fears were well-founded. It was expressed as follows: The AAT failed to apply the real chance test when assessing if the applicant's fear was well-founded. Particulars (i) The AAT accepted at [37]: … The reports also noted that the Department assessment was that there were credible reports of torture carried out by Sri Lankan security forces and the reports came from a wide range of actors and including … from people held on suspicion of LTTE connections. It is submitted that the AAT failed to consider the real chance of the applicant being seriously harmed for reasons of suspected LTTE connections as occurred in the past which has been accepted by the AAT as an incident that did occur [50]. (Emphasis added) As can be seen, the focus of the applicant's contention concerning the application of the "real chance" test had been on his perceived LTTE connection. 27 The FCC Judge considered that this ground was not made out. He concluded that the Tribunal had made an assessment of the applicant's evidence and claims and of the country information and that the Tribunal had identified and applied the relevant test. 28 In his submissions in this Court, counsel referred to the authorities indicating that a "real chance" is one which is not remote even though it may be unlikely to occur. See, for example, Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398 and 429; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. In the latter case, the majority said: [A] substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. 29 The same test applies with respect to the concept of "real risk" in s 36(2)(aa) of the Migration Act 1958 (Cth) in relation to complementary protection: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505. 30 Counsel for the applicant submitted that it was reasonably arguable that the Tribunal member had applied the wrong test, or had misapplied the appropriate test. This was so, it was said, because the circumstance that the situation for Tamils had improved did not, without more, mean that Tamils did not face a real chance of persecution in the sense discussed in the authorities, and the Tribunal had not addressed that question. 31 A difficulty for the applicant with this submission is that it cannot reasonably be regarded as within Ground 3 argued in the FCC. As already seen, the applicant's complaint in the FCC concerning the Tribunal member's application of the real chance test was confined to his claimed LTTE connection. But the Tribunal member did not accept that the evidence indicated that the applicant had "a real or perceived link to the LTTE that could place him at risk if he returned to Sri Lanka", at [46]. That was a finding of fact open to the Tribunal. The applicant does not seek to impugn the finding. Accordingly, whether or not the Tribunal member applied the real chance test appropriately in relation to the applicant's perceived LTTE connection is immaterial because the factual finding necessary for the ground of appeal to be arguable was not made out. 32 There remains, however, the applicant's like contention which in the submissions before me was based on his Tamil ethnicity. This argument had not been advanced in the FCC. The circumstance that an applicant wishes to agitate on appeal a matter not argued at first instance is not necessarily fatal to a grant of leave. There are cases in which an appellant may be permitted to do so: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51 at [154]-[166]; Haritos v Federal Commissioner of Taxation [2015] FCAFC 92, (2015) 233 FCR 315 at [63]-[83]. 33 It is of course pertinent that the applicant had legal representation in the FCC, and no explanation has been provided for the point not having been agitated at first instance. However, I do not think that I should conclude at this stage that, in the circumstances of this case, the applicant may not obtain a grant of leave to raise the new matter on appeal. I note that it involves a question of law only, with the applicant proposing to rely on the same material which was before the FCC Judge. 34 I am willing to accept that, at the least, the first limb of the applicant's proposed ground of appeal may be reasonably arguable. 35 In these circumstances, I consider that the application for the extension of time should be allowed. This makes it unnecessary to consider the second limb. 36 The order of the Court is that the applicant have an extension of time to 24 March 2017 in which to commence an appeal on the ground referred to in [16] of these reasons. The costs of the application are to be costs in the cause. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.