AYG15 v Minister for Immigration and Border Protection

THE TRIBUNAL 7 The Tribunal hearing took place on 4 March 2015. The applicant was represented by his registered migration agent. 8 Before the Tribunal, the applicant referred to several incidents which supported his claim that he feared harm on the grounds of being suspected to be a supporter of the LTTE, or being imputed as an LTTE supporter because of the activities of his older brother who lived in Jaffna, a Tamil area of Sri Lanka. 9 The applicant claimed that in 2006 he was living in Mannar, Sri Lanka, in an area under the control of the Sri Lanka Army (SLA). He said that his job was to collect crabs from fishing boats. The applicant claimed that one day when he was working he was intercepted by SLA personnel, threatened, beaten and questioned about involvement with the LTTE. He said that the interrogation only ended when his sister-in-law, a Sinhalese woman, intervened and explained who he was and what he was doing there. The applicant said that during the incident he was not asked to, and did not, provide any identification to SLA personnel. 10 The applicant also claimed that in December 2010, he and his younger brother were forced in to a white van and assaulted and interrogated about the whereabouts of their older brother. The applicant submitted that people with white vans were searching for his older brother on suspicion that he was involved with the LTTE. The applicant said he believed that the people in white vans had visited the home of his older brother, but had not found him, as he was in hiding. 11 Further, the applicant claimed that in 2011, people in white vans had come three or four times to his house or place of work in search of him and his brothers. 12 Also, the applicant claimed that he was married to a Sinhalese woman and they lived in a Sinhalese area of Sri Lanka and that there was local gossip that he was a LTTE supporter. Further, said the applicant, after he left Sri Lanka, his wife had been threatened and attacked. 13 The Tribunal accepted that in 2006 the applicant was intercepted, threatened, beaten and questioned. However, the Tribunal considered that the fact of the applicant's release, the fact that the authorities did not ask for identification, and the many years that had elapsed, meant that there was no real chance that the Sri Lankan authorities would regard the applicant as a supporter of the LTTE, or impute him with pro-LTTE views. The Tribunal found that there was no real chance that the fact that his brother had worked in Jaffna in 2002 to 2006, would lead the Sri Lankan authorities to regard the applicant as a supporter of the LTTE or to impute to him pro-LTTE views. 14 The Tribunal found some parts of the applicant's claims about his interrogation and the visits by persons in white vans to be "implausible" and, overall, these claims to be "vague and lacking in detail". The Tribunal also had concerns about the applicant because the applicant expressed some "willingness…to change his evidence in response to matters put by the tribunal". 15 The Tribunal stated that it did not accept numerous parts of the applicant's evidence in support of his claim to fear harm because of being suspected to be a LTTE supporter, or being imputed to be such. These parts were that the applicant was abducted by people in a white van or that people in a white van had come searching for him; that the Sri Lankan authorities had attempted to interrogate him or had interrogated him since 2006; and that the applicant or anyone in his family were suspected of supporting the LTTE. 16 The Tribunal accepted the applicant's claims that, as the applicant's wife was Sinhalese and he was Tamil, there may be some gossip in the village where they lived. The Tribunal also accepted the applicant's claim that his wife had been threatened by a neighbour and had also been attacked. However, the Tribunal considered that it was more likely that his wife had been vulnerable as "she was a woman alone" and that the incidents were not related to the applicant, his Tamil ethnicity or any profile he may have had. 17 The applicant also claimed that if he returned to Sri Lanka he would be detained, beaten and killed because he is a Tamil and, therefore, would be suspected of being a LTTE supporter. The Tribunal did not accept that there was a real chance that the applicant would be seriously harmed if he were returned to Sri Lanka on the basis that the Tribunal had not found that the applicant or his family had any actual or perceived connection to the LTTE. 18 Further, the applicant claimed to fear harm on the basis that he was a failed asylum seeker who had departed Sri Lanka illegally. 19 The Tribunal considered country information to the effect that Sri Lankan returnees were treated according to standard procedures on their return, regardless of religion or ethnicity, and that there was nothing about the applicant that would result in him being scrutinised more closely. 20 In considering complementary protection grounds, the Tribunal accepted that, due to a lack of resources, prison conditions in Sri Lanka were "poor and overcrowded" and that the applicant may be remanded in prison for a short period of time. In determining that the applicant did not satisfy the complementary protection provisions, the Tribunal considered, among other reasons, that "cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation" and that "[m]ere negligence or lack of resources", as in the case of the Sri Lankan prison system, is not sufficient for the intent element. 21 As a result of its findings, summarised above, the Tribunal was not satisfied that the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) on the basis of either the refugee criterion or on complementary protection grounds.

THE FEDERAL CIRCUIT COURT 22 On 4 June 2015, the applicant sought judicial review of the Tribunal decision pursuant to s 476 of the Migration Act. The applicant was legally represented before the Federal Circuit Court. 23 In substance, the applicant sought to rely on five grounds of review; two of which were contained in the applicant's notice of review and three of which were gleaned from the applicant's lawyer's oral and written submissions. The grounds of review were as follows: (a) the decision of the Tribunal was affected by legal error; (b) the Tribunal did not consider relevant information; (c) the Tribunal took into account irrelevant considerations; (d) there was no evidence to support some of the findings made by the Tribunal; and (e) the Tribunal's decision on some matters was unreasonable, illogical or irrational. 24 On 8 July 2016, in a detailed and thorough judgment, the Federal Circuit Court dismissed each of the applicant's grounds of review.

THE APPlication in this court 25 On 26 August 2016, the applicant lodged an application for an extension of time to appeal in this Court, and it was accepted for filing on 30 August 2016. 26 The notice of appeal should have been filed and served within 21 days after the date of the Federal Circuit Court's judgment, namely, by Monday, 1 August 2016 (r 36.03 of the Federal Court Rules 2011 (Cth)). Accordingly, the application for an extension of time was sought to be filed 25 days after the expiry of the appeal period. 27 In support of his application for an extension of time, the applicant deposed in an affidavit dated 15 August 2016 that he had "been struggling the last few weeks to get assistance to lodge a court appeal on time" for reasons which included that he had limited English language skills, was detained in immigration detention and had limited access to legal advice and to persons with the ability to witness documents. 28 Further, the applicant's affidavit annexed a draft notice of appeal which identified the following proposed grounds of appeal: 1. That there is a jurisdictional error in the Federal Circuit Courts decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 29 The hearing of the application was adjourned for approximately 11 months pending the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (SZTAL). This was because before the Tribunal the applicant had relied on a complementary protection claim that he would suffer significant harm by being imprisoned in poor and overcrowded conditions if he were returned to Sri Lanka. There was, therefore, a possibility that the applicant's case might be affected by the High Court decision in SZTAL. 30 In SZTAL, the High Court held by majority, that a person will not satisfy the criteria for complementary protection only because he or she may be imprisoned in poor prison conditions upon their return to their originating country. Relevantly, the High Court majority said that the phrase "intentionally inflicted" in the definition of "cruel or inhuman treatment or punishment" connotes the existence of an actual, subjective, intention on the part of a person to bring about suffering by his or her conduct. The decision of the High Court is consistent with the reasoning of the Tribunal in this case, referred to at [20] above, and, therefore, SZTAL would not assist the applicant even if an extension of time was to be granted and an appeal ground formulated which raised this as an issue. 31 Despite the applicant foreshadowing in his draft notice of appeal his intention to provide further grounds of appeal, no further grounds have been provided to the Court. 32 At the commencement of the hearing, the applicant applied for an adjournment in order to obtain legal advice. 33 I refused the application on the grounds that this application had been adjourned for some considerable period of time and that the applicant had had more than adequate time to obtain legal advice; and further, there was no evidence before the Court that there was any prospect that he would obtain such advice. 34 The draft grounds of appeal on which the applicant proposed to rely did not identify any error on the part of the primary judge. I invited the applicant to identify any error by the primary judge upon which he would seek to rely. The applicant, however, was unable to articulate any such error. Rather, the applicant made submissions going to the merits of his application for a protection visa. Accordingly, in the absence of the identification of an error by the primary judge in the draft grounds of appeal, there are no sufficient prospects of success to warrant an extension of time for the applicant to appeal from the decision and orders of the primary judge. 35 However, notwithstanding that the applicant did not identify any error by the primary judge in his draft notice of appeal, I have had regard to the detailed decision of the primary judge to determine whether there was any basis upon which a viable proposed ground of appeal might have been formulated by the applicant. I did not discern any such arguable error by the primary judge. 36 Before the primary judge the applicant raised three main contentions. 37 First, the applicant, who, as I have said, was legally represented before the primary judge, complained that the Tribunal had taken into account irrelevant considerations and failed to take into account relevant considerations in finding that his claim to fear persecution on the grounds of being imputed as a LTTE supporter was not well-founded. The primary judge found that these contentions in reality constituted an attempt to overturn the factual findings of the Tribunal. In my view, there is no arguable basis on which to contend that the primary judge erred in making those findings. 38 Further, the applicant contended that the Tribunal fell into jurisdictional error on the grounds that its decision was unreasonable or illogical. The applicant argued that it was unreasonable or illogical for the Tribunal to find that the applicant had been detained in 2006 and then not find that he was entitled to a protection visa on the basis that he had been persecuted. The primary judge found that this contention misconceived the question for the Tribunal which was whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future if he was to return to Sri Lanka; and the fact that the applicant had been detained for a number of days in 2006 was not sufficient to satisfy that standard. There is no arguable basis upon which to contend that the primary judge erred in coming to this conclusion. 39 The third contention the applicant made before the primary judge was that the Tribunal had made several findings in respect of which there was no evidence. The primary judge rejected these contentions on the basis that it was open to the Tribunal to make the impugned findings by drawing inferences from other factual findings. In my view, there is no arguable basis on which to contend that the primary judge erred in coming to that conclusion. 40 Accordingly, the applicant's application is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.