ARS15 v Minister for Immigration and Border Protection

1. The application is dismissed.
2. The applicant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 The applicant applied under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension under r 1.39 of the 21 day period provided by r 36.03 in which to appeal from a decision of the Federal Circuit Court of Australia made on 25 May 2018. On that day, the Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 26 April 2016. 2 The present application was filed on 20 June 2018, five days after a notice of appeal should have been filed. 3 This Court's discretion to grant an extension of time is unconfined and each case turns on its own facts. However, relevant considerations generally include: the length of the delay; the applicant's explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [82]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[39], per Griffiths J (with whom Edmonds J agreed). 4 The Minister properly did not suggest he would suffer any prejudice if an extension were granted. 5 Five days is a short delay and this factor does not weigh against granting an extension. 6 In a supporting affidavit filed on 20 June 2018, the applicant provided the following explanation for the delay of five days: I failed to file my notice of appeal from the Federal Circuit Court within 21 days of 25 May 2018 because I mistakenly thought I had 35 days in which to appeal. 7 The Minister submitted that the applicant's explanation for the delay was unsatisfactory as it did not explain why the applicant thought he had 35 days to appeal. It is at least possible that the applicant's misunderstanding was due to a misapprehension as to this Court's jurisdiction and the nature of the application to be made. Section 477A(1) of the Migration Act 1958 (Cth) provides that an application for a remedy in this Court's original jurisdiction under s 476A(1) must be made within 35 days of the "date of the migration decision". The decision of the Federal Circuit Court was not a "migration decision" within the meaning of s 5 of the Act. It was a decision in exercise of that court's original jurisdiction under s 476 of the Act. The application to this Court from that decision is an appeal in this Court's appellate jurisdiction. The proper way to bring such an appeal is to file a notice of appeal from the decision of the Federal Circuit Court pursuant to r 36.01(1)(a) of the Rules within 21 days as required by r 36.03. 8 Given the brevity of the delay, the lack of a more detailed explanation by the applicant does not weigh strongly against granting an extension. 9 The assessment of the merit of the proposed appeal arises in the context of an interlocutory application and caution is required in assessing the merits at such a stage: Mentink at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]. 10 The merit of the proposed appeal should be considered at a "reasonably impressionistic level" by reference to the grounds of appeal as identified: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [23]; SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [13]; Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 at [23]. An extension of time would not ordinarily be granted if the proposed appeal has no apparent prospect of success. 11 The applicant's affidavit filed on 20 June 2018 attached a draft notice of appeal which contained a single proposed ground of review as follows: The Federal Circuit Court erred in failing to find that the Second Respondent ("the Tribunal") had failed to consider an integer of the appellant's claim. Particulars The Tribunal made no finding on the appellant's claim that the scarring to the appellant's legs may cause the Sri Lankan authorities to consider that the appellant was connected with the LTTE. 12 At J[26], the Federal Circuit Court set out the Grounds of the Amended Application as further amended at the hearing: 1. The AAT committed jurisdictional error by failing to consider an integer of the applicant's claim. PARTICULARS a. At [14], the applicant claimed that his brother was forcibly recruited by the LTTE in 2008. b. Furthermore, at [15], the applicant claimed that his brother had not been seen since and following his brother's disappearance, the applicant and his family were taken away in vehicles by the CID and the military. c. At [66], the AAT accepted that the applicant's brother was recruited by the LTTE in 2008. d. However, the AAT found that the applicant did not face a real chance of harm based on his familial connection. e. In particular, the AAT did not correctly consider the 2012 UNHCR risk profiles which include: i. Former LTTE combatants or "cadres" ii. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles 2. The AAT failed to provide adequate reasoning for its findings. PARTICULARS a. As noted above, the AAT did not accept that the applicant may have been imputed with LTTE links despite having accepted that the applicant's brother was an LTTE cadre. b. At [66], the AAT noted, in its reasoning, that the applicant could not be imputed with a pro-LTTE profile because he and his father were cleared of LTTE links in 2009 i. However, the AAT failed to consider the totality of the applicant's evidence especially in relation to the constant questioning of his family after 2009 as well as the potential repercussions of his family's presence at the shelling incident in 2009. c. The AAT failed to provide adequate reasons as to why it came to the conclusion that the applicant did not face a real chance of harm despite accepting that the applicant's had familial connection with an LTTE recruit. 3. The AAT committed jurisdictional error by failing to give adequate reasons for its decisions, or otherwise giving reasons that were illogical and/or not based on the evidence provided. PARTICULARS a. At [17], the applicant claimed that his brother had been taken by the CID in 2013 and his mother and sister were questioned about the applicant's whereabouts. i. The applicant further claimed that his brother was released on 28 April 2013 and that he was questioned about the injury to his leg as well as about the applicant's whereabouts and involvement with the LTTE. b. At [26], the applicant claimed that the same brother that was kidnapped in 2013 was forced to report to the CID once a month over the three to four months before the Tribunal hearing. c. At [23], the applicant claimed that his other brother had been taken away and detained in October 2015 and was released in January 2016. d. At [66], the AAT considered that the applicant had exaggerated his claims in relation to the incidents with his brothers in 2013 and 2015-16. e. Furthermore, at [67], the AAT does not accept that the applicant's brother had been forced to report to the CID once a month. f. However, the AAT does not provide any reasons for rejecting these claims other than the gaps in the applicant's knowledge in relation to the particular details of what occurred while his brothers were arrested. 13 The applicant was represented before the Federal Circuit Court. The reasons for judgment included (at J[27]): At the hearing in this Court on 12 July 2017 Mr Hodges appeared for the Applicant and Mr Reilly of Counsel appeared for the Minister. In the result Mr Hodges made submissions only in support of Ground 1 and advised that Grounds 2 and 3 need not be dealt with as separate identifiable Grounds. In substance Mr Hodges' submissions in support of Ground 1 were to the effect that the Tribunal did not correctly consider paragraph A.1(6) of the UNHCR Guidelines in connection with the Applicant's brother Prathees, whom it had been claimed was forced to join the LTTE in 2008 and had disappeared and not been seen since 2009 (see [4(d)] above). 14 It is apparent that the Federal Circuit Court was not asked to find jurisdictional error on the basis now contended. Accordingly, leave would be required to argue the ground, should an extension of time in which to appeal be granted: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599. 15 In any event, the Tribunal did consider the scarring to the applicant's legs referred to in the particulars to the proposed ground of review. The Tribunal's reasons included (emphasis added): CLAIMS AND EVIDENCE … 14. He provided a statutory declaration dated November 2012 in support of his protection Visa application. In that declaration, in summary, he set out the reasons why he claimed to fear harm if he returned to Sri Lanka and also referred to his personal circumstances and family background. … He said on 23 March 2009 the family was at a place which was attacked and that a number of family members were killed and that he suffered permanent leg injuries. He claimed because of those injuries he would always "be considered to be a LTTE fighter. I have big scars on my legs." He said his mother also suffered injuries and that his sister still has shell pieces inside her body and cannot work as a result. … 16. He claimed that this harassment took place because his family was suspected of being connected to the LTTE and they were asked about where they hid the weapons and the money. He said his whole life had been in areas controlled by the LTTE and that's why he was under suspicion and the authorities also knew that his brother had been in the LTTE. He claimed the authorities also saw the scars on his legs and he was asked about which fighting he had engaged in as a result of the authorities seeing his scars. … 17. … The applicant said that his brother was released on 28 April 2013 and that his brother had been told that he had to report to the authorities when he was called. The applicant claimed that he spoke to his brother after he was released and that his brother had said he had been kept in a room and questioned about the injury on his leg and that he was also questioned about the applicant in terms of where the applicant was hiding and whether the applicant was an LTTE member. The applicant said that incident showed that the ClD was still interested in him and that he would be at risk if he returned to Sri Lanka. A number of documents were provided by the applicant in support of his application and they included identification documents and his birth certificate and a school certificate and documents indicating the applicant's involvement in athletics. Documents were also provided in relation to the applicant's familes [sic] residence in a displaced persons camp in Sri Lanka and a medical document dated 26 October 2010 in relation to the injuries that the applicant had suffered during shelling and air raids during the war. … TRIBUNAL HEARING … 28. … He had suffered leg injuries and the Tribunal referred to a medical document dated 2010 relating to the applicant's injuries. That document had been provided in support of the applicant's protection Visa application. … 32. The Tribunal found it difficult to get details from the applicant and had to ask him specific questions about his claims as to what happened to him when he claimed he was taken away and questioned. He told the Tribunal that he would be questioned about being associated with the LTTE and where weapons were hidden and any training that he had undertaken. He claimed his sister and brothers were asked about him. He claimed that he was not asked about his brother who had been fighting with the LTTE but the applicant claimed he was asked about his scars on his legs. … … 38. … The Tribunal also noted that the applicant had obtained a medical document to show that the scarring on his legs were not due to any fighting with the LTTE. In those circumstances the Tribunal indicated its concern that the applicant claimed he was of interest to the authorities in terms of being connected to the LTTE. The Tribunal noted that the applicant had been able to obtain his passport in Sri Lanka without difficulty and that had occurred after he claimed he had been questioned by the army and the CID in 2010. The Tribunal noted that other members of his family had also suffered injuries from the war but yet the applicant claimed that he was the focus of enquiries by authorities. In response the applicant said that the authorities had more recently focused on his other brother who remained in Sri Lanka. … … 56. The Tribunal raised concerns that it had with the applicant about his claims and his evidence. The Tribunal indicated that it had a concern that the applicant actually had a well-founded fear of harm if he returned to Sri Lanka and the Tribunal indicated that the evidence and country information was not supportive of many of the applicant's claims. … The Tribunal noted that the applicant had been able to obtain his passport without difficulty after he had received a medical report in relation to his injuries and after he had been released from the displaced persons camp and had been cleared of LTTE connections. He had received his passport in 2011 and he claimed that his problems with the CID and army had commenced around March/April2010. The Tribunal indicated that the fact that he had been able to obtain his passport did not suggest that he was of any interest to Sri Lankan authorities. In that regard the applicant said that the army and the CID were different organisations from the passport office and, by implication, that was why he was able to obtain his passport without difficulty. … CONSIDERATION OF CLAIMS AND EVIDENCE … 61. He told the Tribunal that he obtained a medical report to show to authorities in an effort to dispel their concerns the injuries to his legs may have been caused because he was serving with the LTTE. He did that in an effort to ensure that he would not be accused or suspected of being connected to the LTTE. He told the Tribunal that one of his brothers had been conscripted by the LTTE in 2008 and that brother had disappeared in the final days of the war in early 2009. As indicated the applicant said he and his father were cleared of LTTE connections while in the displaced persons camp in 2009. … 63. The Tribunal has considered the totality of the evidence and the country information and the submissions made on the applicant's behalf. The Tribunal notes the two recent and fresh claims that the applicant made at the Tribunal hearing in relation to his claims that two of his brothers have apparently come under the scrutiny of Sri Lankan authorities. The Tribunal notes that the applicant provided a further statutory declaration in May 2013 in which he claimed that one of his brothers had been taken and detained in April 2013 by the CID and that brother was questioned about an injury on his leg and was also questioned about the applicant in terms of whether the applicant was an LTTE member. … 65. In essence the applicant claims that he, in particular, and to a lesser extent his brothers remain the subject and focus of concerns by Sri Lankan authorities and that he and at least one of his brothers are perceived to be connected to the LTTE. … The applicant's evidence is that he was cleared of any suspicion of LTTE connections while he was in the displaced persons camp with his father in 2009. As indicated he obtained his Sri Lankan passport in 2011 without difficulty. He never spent any time in a rehabilitation camp and he was never charged with any offences or imprisoned or taken before any courts in Sri Lanka. He was never charged under the Prevention of Terrorism Act in Sri Lanka. 66. The Tribunal has considered the totality of the evidence and the applicant's claims and the country information and the written submissions made on his behalf. The Tribunal finds after considering the totality of the evidence that the applicant has sought to exaggerate his claims for protection by claiming the recent incidents involving two of his brothers that he referred to at the Tribunal hearing. … The overall evidence before the Tribunal and the country information does not support the credibility of the applicant's claims that he and other members of his family are suspected of having LTTE connections. As indicated elsewhere in these reasons the applicant told the Tribunal that he and his father had been cleared of LTTE connections when they were in the displaced persons camp in 2009 and they were released into the community. The Tribunal is prepared to accept that one of the applicant's brothers was recruited into the LTTE in 2008 and is prepared to accept that brother disappeared in early 2009. The Tribunal does not accept that issue would cause the applicant or other members of his family to be regarded as being connected to the LTTE by Sri Lankan authorities. The Tribunal has referred to the totality of the evidence and the country information and the submissions made on the applicant's behalf in relation to a number of his claims. 16 The Tribunal rejected all of the applicant's claims, stating at [73]: The Tribunal after considering the totality of the evidence and the country information and the materials provided by the applicant and the written submissions made on his behalf does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his Tamil ethnic extraction or on the basis that he would be perceived to have an imputed political opinion of supporting the LTTE. The Tribunal does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his membership of a particular social group of young Tamil males from the north of Sri Lanka. The Tribunal does not accept that the evidence and available and relevant country information that has been considered and discussed in these reasons supports the applicant's claims in relation to these issues. The Tribunal after considering these claims and the evidence both individually and cumulatively does not accept that the applicant faces a real chance of serious harm on the basis of these claims should he return to Sri Lanka either now or in the reasonably foreseeable future. 17 The Tribunal did consider that integer of the applicant's claims identified in ground 1 of the draft notice of appeal, but rejected it. 18 In oral submissions, the applicant referred to the recent changes in government in Sri Lanka and indicated that his safety could not be guaranteed. That matter is not relevant to the determination of whether the Federal Circuit Court erred in concluding that the Tribunal had not committed a jurisdictional error. 19 Notwithstanding the short delay in seeing to appeal, the fact that there is no prejudice to the Minister and the partial explanation for the delay which has been provided, there is insufficient prospect of an appeal being successful to warrant the exercise of discretion in favour of extending time.