APC16 v Minister for Immigration and Border Protection

APC16 v Minister for Immigration and Border Protection - [2019] FCA 847 - FCA 2019 case summary — Zoe

[4]

The Tribunal's decision 8 On 26 February 2016, the Tribunal affirmed the delegate's decision to not grant the applicant a Visa. In its reasons for reaching that decision (AAT Reasons), the Tribunal: (a) accepted that protests occurred in Sri Lanka in February 2012 and that the applicant attended at least one day of the protests: AAT Reasons at [15]-[18]; (b) did not accept that the applicant was interviewed by anyone after the death of a protester or that subsequent enquiries were made about him from unidentified people: AAT Reasons at [19]-[26]; (c) found that the applicant was not of any interest to the authorities as a result of either his participation in the protest or because he allegedly gave an interview after the protests: AAT Reasons at [26]; (d) found that there was no real chance that the applicant will face serious harm from authorities for reason of an imputed political opinion, or for any other reason, because the Tribunal did not accept that events that would lead to any potential harm actually occurred: AAT Reasons at [26]; (e) did not accept that the applicant was of Tamil ethnicity, and did not accept that he will face a real chance of persecution as a perceived Tamil. The Tribunal rejected this claim on the basis that the applicant had stated, in his application for the Visa and his entry interview, that he speaks Sinhalese and his ethnicity is Sinhalese: AAT Reasons at [27]-[29]; (f) did not accept that the applicant belongs to a particular social group of failed Tamil asylum seekers or that he would be perceived as such by authorities upon return, predominately because the Tribunal did not accept that the applicant was in fact Tamil: AAT Reasons at [30]-[36]; (g) found that the applicant did not engage Australia's complementary protection obligations: AAT Reasons at [40]-[44]; and (h) was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under either ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth): AAT Reasons at [45]-[48].

[6]

Relevant principles 13 The applicant now seeks an extension of time and leave to appeal from the Circuit Court's decision not to reinstate the proceedings in the Circuit Court. The applicant requires leave to appeal because the Circuit Court's decision was interlocutory in nature: Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3]. The applicant also requires an extension of time because any application for leave to appeal should have been filed by 8 October 2018: r 35.13(a) of the Federal Court Rules 2011 (Cth). As the applicant's application was filed on 20 December 2018, it is 73 days late. 14 The principles relevant to determining whether to grant an extension of time were recently stated by Anastassiou J in Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [16]. The Court on such an application is required to consider: (a) the extent and explanation of the delay; (b) whether granting the extension would result in any undue prejudice to the respondent (although the mere absence of prejudice is not sufficient to justify an extension); and (c) the merits of the proposed appeal (or, in this case, the merits of the application for leave to appeal). 15 In respect of leave to appeal, the Court has a discretion whether or not to grant leave. Relevant factors to the exercise of that discretion are clearly identified in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 to include: (a) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 16 The test is cumulative. It will not be satisfied unless the applicant makes out both limbs of the test: Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5]; see also Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; 237 FCR 276 at [12]. The utility or otherwise of granting relief is also relevant to the exercise of the discretion, as is that an interlocutory decision had the practical effect of bringing an end to the proceedings before the Circuit Court: Singh v Minister for Immigration and Border Protection [2016] FCA 611; 240 FCR 1 at [27].

[7]

Applicants' evidence and submissions 17 In his brief affidavit filed in support of this application for extension of time and leave to appeal from the decision of the Circuit Court, the applicant deposed that the following reasons caused his delay in filing his appeal to this Court: 5. I have lack of English knowledge and understanding. Therefore, it took some time for me to file this application. 6. Further, my mother back in Sri Lanka is very sick and I had to attend for her treatment arrangements. 18 The applicant also filed written submissions in support of his application. However, the submissions do not advance the arguments in support of this application. The submissions predominately summarise the factual matters relied upon by the applicant to support his protection claim. The submissions do not address the reasons for the applicant's delay in filing an appeal in this Court nor any legal submissions as to why leave to appeal should be granted. 19 The applicant further addressed the Court at the hearing for this application with the aid of an interpreter. I asked the applicant various questions about the proceedings before the Tribunal and the Circuit Court, his appeal to this Court and his fears about returning to Sri Lanka. 20 In response to my questions, the applicant was unable to name anything wrong with the reasons of the Tribunal. He said that he had provided the Tribunal with "all the evidence" but did not know why the Tribunal reached its decision. 21 The applicant was also unable to point to any particular error made by the Circuit Court in dismissing his application for reinstatement. The applicant told me that the sole reason for failing to attend the judicial review hearing was that his "mother was sick". He said that he was "very upset" and forgot that he had the hearing. This response is on its face similar to that provided in the applicant's affidavit, although that evidence was provided in relation to the delay in filing an appeal to this Court, rather than his failure to attend the judicial review hearing. 22 Consistent with his affidavit, the applicant also told me at the hearing that the reason for the delay in lodging an appeal to this Court was his lack of English knowledge. He said that he "had to have assistance on that" but was unable to point to any specific steps that he took to obtain assistance with the lodging of an appeal. 23 The applicant further explained that, as a Christian, he would face troubles if he returned to Sri Lanka, particularly after recent terrorist attacks. He also made reference to his three children being unprotected. He expressed that he was not requesting a permanent stay in Australia; instead he was only seeking a temporary stay before "the problems get better" in Sri Lanka.

[10]

Leave to appeal 29 The decision in respect of which the applicant seeks leave to appeal is the decision of the Circuit Court not to reinstate the judicial review proceedings in that court. As outlined above at [11], the Circuit Court reached that conclusion on the basis that the applicant had not provided an adequate explanation for his non-attendance at the judicial review hearing, and that, in any event, no jurisdictional error on the part of the Tribunal could be discerned from its reasons. 30 For the reasons stated below, I am of the opinion that the decision of the Circuit Court discloses no appealable error. 31 First, there is nothing in the reasons of the Circuit Court nor in the evidence and submissions provided to this Court that supplies an adequate reason for the applicant failing to attend the judicial review hearing. In this regard, it should be noted that the applicant's explanation at the hearing in this Court for why he failed to attend the judicial review hearing - that his mother was sick - was inconsistent with the explanation that he had provided to the Circuit Court. The reasons of the Circuit Court express (at [4]-[6]) that the applicant told that court that "he did not attend the hearing on 4 May 2018 [i.e. the judicial review hearing] because he thought the final hearing was in August 2018". Those reasons also record that the applicant told the Circuit Court that he had provided that court with a medical certificate to say he could not attend the judicial review hearing (which the Circuit Court nor the Minister had record of). But there was no mention of a medical certificate at the hearing in this Court. 32 Second, having read the AAT Reasons, I agree with the Circuit Court's analysis (at [7]-[20] of its reasons) that there is no aspect of the Tribunal's decision that could amount to jurisdictional error. In particular, there is insufficient merit in the applicant's claims that the Tribunal did not afford him procedural fairness or otherwise apply the wrong legal test. 33 As a result, I agree with the conclusion of the Circuit Court (at [20] of its reasons) that "this is not an appropriate case for reinstatement". It follows that the Circuit Court's decision is not attended by sufficient doubt to warrant its reconsideration by this Court. Leave to appeal is accordingly refused.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)