AZAEK v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The Federal Circuit Court (the FCC) refused the applicant's application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal (RTT) made on 15 November 2013: AZAEK v Minister for Immigration and Border Protection [2014] FCCA 1746. The applicant now seeks an extension of time in which to appeal against the decision of the FCC. 2 The FCC delivered an ex tempore judgement on 9 May 2014. Any appeal against that decision should have been commenced within 21 days: r 36.03 of the Federal Court Rules 2011 (Cth). The applicant filed his application for an extension of time on 4 August 2014, some 65 days after the expiry of the 21 day period. 3 The applicant was unrepresented on the present application as he was in the proceedings in the FCC. 4 The applicant is a citizen of Sri Lanka who arrived on Christmas Island on 21 May 2012 as an unauthorised maritime arrival. On 14 September 2012, he lodged an application for a Protection Visa. His claim for protection was based in part upon his being Tamil, in part on his fear that he would be treated like his father who had been subject to torture and ill treatment by members of the Sri Lankan Army (SLA) because of their belief that he was a supporter or sympathiser of the Liberation Tigers of Tamil Eelam (LTTE) and, in part, on the circumstance that, if his application was refused he would then be a member of a particular social group, namely failed Tamil asylum seekers. 5 The applicant referred to the ill treatment his father had suffered at the hands of members of the SLA in August 2007 and December 2007 and to the attempts which members of the SLA had made to locate his father in mid-2011 and again between September 2011 and February 2012. He also referred to another incident after he left Sri Lanka in May 2012 in which again his father had been physically beaten and enquiries had been made about his (the applicant's) whereabouts. The applicant said that he feared being detained, tortured, abused or killed by reason of being a young male Tamil and by reason of the political opinions which are imputed to him by virtue of the perceptions of his father's beliefs. 6 On 7 January 2013, a delegate of the Minister refused the grant of a visa and, on 15 November 2013, that decision was affirmed by the RRT. 7 The RRT accepted the applicant's evidence that his father had been questioned and beaten on two occasions in 2007 by members of the SLA. It accepted that, on the second occasion, the applicant's father had been taken away, questioned, tortured and both his legs damaged. The RRT found that these incidents had occurred at a time of intense activity between the LLTE and the Sri Lankan forces. It also considered, however, that the applicant had embellished his account of these events in an effort to indicate that his father was of greater interest to the authorities than was actually the case. 8 The RRT concluded (on the applicant's own evidence) that his father had not been the subject of any further attention by the Sri Lankan forces for the four years after 2007, by which time the LTTE had been defeated, some of its members held in detention centres and some rehabilitated. It accepted that the applicant's father had been questioned again in 2012 but considered that this was of an unexceptional and routine kind. The RRT found that the applicant himself had never been of concern to the SLA or to any other authority and concluded: At no time, by his own account, has the applicant ever been of concern either because of his membership of a group of young Tamil males, any perceived political opinion or for reasons of association with his father. On that basis, the RRT found that the applicant did not face a real chance of harm by reason of his Tamil ethnicity, his relationship with his father, or because of his membership of a particular social group, namely, young Tamil males. 9 A decision to grant an extension of time to appeal involves a discretionary judgment. The matters bearing on the exercise of that discretion are well established. They include the length of the extension of time which is sought, the explanation for the appeal not having been commenced in time, any prejudice to the respondent which would be occasioned by the grant of the extension, the prejudice to the applicant if the extension is refused, the apparent merits of the proposed appeal and any other relevant matter, such as other action taken by the applicant in the period of the delay. 10 The period of the extension sought by the applicant (some 65 days) is significant but not substantial. The applicant provides two reasons for not filing an appeal within the stipulated 21 day period: first, his lack of awareness of the 21 day limitation period, and secondly, the additional difficulties occasioned by his being resident in a country town (Bordertown). In his oral submissions he said that the distance from Adelaide made it difficult for him to get access to appropriate advice regarding the remedies available to him. In addition, it is pertinent to an understanding of the applicant's delay to note that he has only limited English (he made his submissions on the present application with the assistance of an interpreter). The Minister does not allege any prejudice resulting from the lapse of time and the RRT has filed a submitting appearance. 11 There are some shortcomings in the applicant's explanation of the circumstances, including the fact that he does not explain when and how he first became aware of the ability to appeal to this Court, nor the action, if any, which he took between the ex tempore judgment of the FCC on 9 May 2014 and lodging his application in the Court on 4 August 2014. Nevertheless, the matters I have mentioned may point in favour of the grant of an extension if it appears that the applicant would otherwise be denied the opportunity to pursue reasonably arguable grounds of appeal. That is especially so having regard to the consequences for the applicant if he is not able to pursue an arguable claim for judicial review. 12 This makes the merit of the proposed appeal the prominent matter to be considered on the application. Most of the submissions made on the Minister's behalf were directed to this issue. 13 The grounds of the applicant's application under s 476 to the FCC were as follows: 1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error. 2. More details will be provided by the legal representative. However, the applicant was not represented in the FCC and no further grounds were provided. The FCC Judge noted that, in those circumstances, it was for that Court to examine the matter generally with a view to identifying any arguably available ground for judicial review. The Judge said that he had made such an examination. He concluded that there was no jurisdictional error and accordingly dismissed the application. 14 The application for the extension of time does not identify any ground of judicial review. In his supporting affidavit, the applicant says (relevantly): 9. I rely on [the] facts and grounds of review stated in my draft Notice of Appeal. 10. I still fear persecution in my home country and I do not want [to] lose this appeal right given by law. 11. I seek justice and mercy. I want an opportunity to make oral submissions. I offer my apologies as I could not lodge my appeal within the time as my circumstance were beyond my control. 15 The proposed Notice of Appeal contains the following ground: The RRT did not consider my potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm. The RRT has accepted that I will be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(a). Therefore, the RRT did not exercise its jurisdiction. 16 Prima facie this seems to be a complaint that the RRT did not consider the applicant's claim for complementary protection. Understood in that way, the reference to s 36(2)(a) should in fact be a reference to s 36(2)(aa) of the Migration Act. Counsel for the Minister submitted that this is how the ground should be understood. 17 However, it is also possible to understand the formulated ground as intending to raise two distinct grounds: a failure by the RRT to consider the claim for complementary protection (s 36(2)(aa)) and a failure by the RRT to apply the correct test in relation to his claim for protection under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively the Refugee Convention). A complaint of that kind would invoke s 36(2)(a), so that the applicant has given the correct statutory reference. 18 Given the uncertainty and the fact that the applicant was self-represented, it is appropriate to consider both alternatives.