BAG15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-15|Before: Gleeson J

THE COURT ORDERS THAT:

The application be dismissed.
The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GLEESON J: 1 This is an application for an extension of time to file a notice of appeal from a judgment of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal"): BAG15 v Minister for Immigration [2016] FCCA 2265. The Tribunal's decision affirmed a decision of a delegate of the first respondent ("Minister") not to grant the applicant a protection visa. 2 The applicant did not file written submissions. He appeared before this Court without legal representation, assisted by a Tamil interpreter.

Background to extension of time application 3 The following facts are taken from the written submissions filed on behalf of the Minister. Those submissions were not disputed by the applicant except in one respect, explained below. 4 The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival. He applied for a protection (Class XA) visa on the basis of harm he claims to fear from the Sri Lankan authorities as a Tamil and a Muslim, as a supporter of the Sri Lankan Muslim Congress ("SLMC"), by reason of his departure from Sri Lanka illegally and as a failed asylum seeker.

Tribunal decision 5 The Tribunal did not consider that the applicant was a credible witness in relation to his claimed experiences in Sri Lanka. Further, the Tribunal found that his claims to fear harm as a Tamil Muslim and a failed asylum seeker were not supported by country information. Accordingly, the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a) and/or s 36(2)(aa) of the Migration Act 1958 (Cth) ("Act").

FCCA proceeding 6 Before the FCCA, the applicant relied upon a single ground of review, by which he contended that the Tribunal erred by not inviting him to comment on and respond to "negative information". 7 The FCCA judge dismissed the application. At [3]-[8] of his Honour's reasons, the FCCA judge set out the applicant's claims in a written statement that formed part of his protection visa application. As set out by the FCCA judge, the claims centred on the applicant's role as a member of the SLMC. At [9]-[15], the FCCA judge considered the Tribunal's decision and, in particular, the reasons given by the Tribunal for not accepting the truthfulness of the applicant's claims. At [16]-[23], the FCCA judge addressed the ground of review in the applicant's application for review. 8 The FCCA judge concluded that: (1) the matters raised orally before him by the applicant concerning the ability of the Sri Lankan authorities to find him, having been displaced 65 kilometres from his home, suggested no jurisdictional error or arguable jurisdictional error by the Tribunal (at [18]); (2) there was nothing in the material before him that could reasonably suggest that the Tribunal failed to give particulars of information in accordance with s 424A of the Act (at [20]); (3) the Tribunal properly put the applicant on notice that everything he had said or would say in support of his application was in issue, including issues that were not treated as dispositive by the delegate (at [22]); and (4) the ground of review failed (at [23]).

Proposed appeal to the Federal Court 9 By r 36.03 of the Federal Court Rules 2011, the period within which the applicant was entitled to file a notice of appeal from the judgment of the FCCA expired on 26 September 2017. The applicant filed the application nine days later, on 5 October 2016. In his affidavit, the applicant explains the delay on the basis of his ignorance of the structure of the Australian court system and his appeal rights. 10 The applicant's proposed notice of appeal contains the following grounds of appeal: 1. [The FCCA judge] erred in failing to find that the Tribunal had failed to consider the full integers of the [applicant's] claims under complementary protection and failed to complete the exercise of jurisdiction. Particulars The Tribunal failed to address and deal with this claims put by the appellant, instead dealing with the limited issue relating to the harm he may experience at the airport and from the Government as opposed to squarely raised claim that [the applicant] would face harm from the Government and allied paramilitary groups. 2. [The FCCA judge] erred in failing to find that the Tribunal failed to apply the correct test under s 36(2)(aa) of the Act. Particulars The Tribunal failed to apply the real chance test to the [applicant's] claims and appears to have favoured a balance of probabilities formulation.

Consideration 11 The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Dept of Immigration and Citizenship [2013] FCA 204 at [28] ("DZAAD"). The relevant considerations are: (1) the reasons for and length of the delay. The Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored; (2) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and (3) the merits of the appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; DZAAD at [28].

Minister's submissions 12 The Minister's case was that the application should be refused because the appeal lacks merit. Accordingly, I have proceeded on the basis that the Minister did not contend that the application should be refused by reason of considerations other than merit. 13 The Minister submitted that the proposed appeal grounds are, in substance, simply boiler plate assertions of error, which fail to identify any reasonable basis to doubt the correctness of the FCCA's judgment. 14 In relation to the first proposed ground, the Minister submitted that: [It] advances the vague claim that the Tribunal failed to consider the applicant's claims with respect to "allied paramilitary groups" of the Sri Lankan government. This claim faces the difficulty that the applicant himself never appears to have described any group to the Tribunal as a ''paramilitary group". To the extent that this is intended as a generic description of associates of Mr Amir Ali, including members of the "New (or three) Star group" allegedly managed by Mr Ali (the only nonstate persons or groups that the applicant claimed to fear harm from), the applicant's claims in that regard (which were one of the fundamental pillars of his application for a protection visa) were comprehensively dealt with by the Tribunal. There is nothing which indicates that the Tribunal failed to deal with any claim made by the applicant. 15 In respect of the second proposed ground, the Minister submitted: [T]he applicant fails to specify what in the Tribunal's reasons allegedly gives rise to the appearance that it ''favoured a balance of probabilities formulation" in determining whether the applicant satisfied the complementary protection criterion in s 32(2)(aa) of the Act. In fact, it is clear that the Tribunal correctly understood and applied the "real risk test", which is the same as the "real chance test" .

Applicant's oral submissions 16 The applicant did not make any submissions in support of his application. In reply to the Minister's submissions, the applicant questioned why Mr Ali was described as a "nonstate person" in the Minister's submissions when he is a member of parliament. When the relevant passage of the Minister's submissions was identified, and it was explained that the reference to "nonstate persons" was a reference to the "New (or three) Star group" allegedly managed by Mr Ali rather than Mr Ali himself, the applicant did not make any additional submissions on this issue. 17 The applicant also sought further time to obtain additional information, particularly about the activities of Mr Ali. As there was nothing to indicate that this additional information would be relevant to the application before this Court, I refused this request.

Conclusions 18 In reading the FCCA judge's reasons, I did not detect any possible error on the part of the FCCA judge of the kind identified by the proposed notice of appeal. There is no reason to think that the proposed appeal has any merit and accordingly, it would be futile to grant the extension of time sought by the applicant. 19 Accordingly, I will not grant the extension of time sought by the applicant. The application will be dismissed. Costs should follow the event. I will hear the Minister's application for an order for costs to be fixed pursuant to s 43(3)(d) Federal Court of Australia Act 1976 (Cth). I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Migration Act 1958(Cth)ss 36(2)(a), s

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