BCW16 v Minister for Immigration and Border Protection

Federal Court of Australia|2021-09-10|Before: Moshinsky J

The application for an extension of time (filed on 12 November 2020) to file a notice of appeal be dismissed.
The applicant pay the first respondent's costs of and incidental to the application, to be fixed by way of a lump sum.

Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.
In the absence of any agreement: (a) within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN-COSTS); (b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and (c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 6 The following summary of the background facts is substantially based on the reasons for judgment of the primary judge. 7 On 10 May 2010, the applicant arrived in Australia as an unauthorised maritime arrival. 8 There is a lengthy procedural history to this matter. The applicant has been the subject of a Refugee Status Assessment process and an Independent Merits Review process in respect of his Refugees Convention claims. Those processes were ultimately unsuccessful for the applicant. The applicant also sought Ministerial intervention pursuant to s 417 of the Migration Act on 5 November 2012. 9 The applicant's claims were then assessed against Australia's non- refoulement obligations and again the applicant was found not to engage these obligations. The applicant's application was subject to a Post Review Protection Check which also found that no obligations were engaged. 10 On 12 June 2015, an ITOA process was commenced. As part of that process, the applicant (through his lawyers) provided submissions. These included a letter dated 12 January 2016 from Vrachnas and Co Lawyers, on behalf of the applicant, to IMA Protection Victoria. Under the heading "Protection Claims", the letter relevantly stated (at page 2) that if returned to Sri Lanka the applicant "will be a failed asylum seeker who departed Sri Lanka illegally". The letter continued: The Applicant fears returning to Sri Lanka on account that he will be detained indefinitely and tortured because he is perceived of having links to the LTTE and is suspected of assisting the LTTE in the murder of a Sri Lankan Army [soldier]. Upon being detained, he will be at risk of physical assault and torture during his interrogation by the security services. This treatment would amount to serious harm and, in the context of the human rights situation in Sri Lanka, there is no reason to find that his fear is not genuine. 11 The letter stated (at page 29): According to the DFAT Country Report on Sri Lanka, entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 ("I&E Act"), under which it is an offence to depart from Sri Lanka other than via an approved port of departure (such as a seaport or airport). Returnees, such as the Applicant, who departed Sri Lanka irregularly by boat are generally considered to have committed an offence under the I&E Act. (Footnotes omitted.) 12 Further, at page 30 of the letter, it was submitted: Accordingly, on return to Sri Lanka, as a person who departed the country illegally, the Applicant will be questioned at the airport while criminal and security checks are undertaken. The CID and other Sri Lankan authorities in his home area will be notified of his return. If the Applicant is released, it is also when he returns to his home region that it must be considered that the Applicant would face a real chance of serious harm at the hands of the Sri Lankan authorities. 13 Later in the letter, commencing at page 33, the applicant's lawyers addressed the complementary protection criterion. It was submitted: Whilst it is our submission that the Applicant is owed protection under the Refugee criterion contained in s 36(2)(a) of the Act, if you are minded to conclude that he is not a refugee, the information regarding the ongoing commission of human rights and other abuses towards persons in his circumstances supports a conclusion that he may fall within the complementary protection criterion included under section 36(2)(aa) of the Act. 14 It was submitted (at page 34) that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he may suffer significant harm. The following matters were noted, in particular: • Available information supports that the Applicant will be charged and remanded on his return for a criminal offence under Sri Lanka's I&E Act on the basis of the nature of his departure from the country. All returnees who departed Sri Lanka illegally are charged with a criminal offence under section 45(l)(b) of the I&E Act, the particular offences being set out in sections 34 and 35(a). In the Applicant's circumstances, there is then a real risk that he will face arrest and detention on his return; and • Based on available information relating to the treatment of prisoners and individuals held in police custody or prisons in Sri Lanka and the conditions that the Applicant would face on return to the country, there is a real risk of harm that would amount to significant harm for the purposes of the Act. 15 The letter referred to country information relating to the above submission (at pages 34-36 of the letter). It was submitted: We submit that it is highly likely that upon return to Sri Lanka the Applicant will be detained and questioned under the I&E Act. The Applicant faces an increased risk of indefinite detention on account of his perceived links to the LTTE and his past activities in Sri Lanka, during which time the Sri Lankan authorities will interrogate him. During this period of indefinite detention, the Applicant will be at serious risk of physical assault and torture as the authorities attempt to extract information from him. 16 The applicant was invited to attend, and attended, an interview on 4 March 2016 to consider whether his case engaged Australia's non-refoulement obligations. The applicant was represented at that interview and was supported by a Tamil interpreter. 17 On 1 April 2016, the applicant, via his representative, was invited to comment on country information relevant to the applicant's claims. In particular, in relation to the applicant's claim to fear harm as a failed asylum seeker who had left Sri Lanka illegally, the assessor set out DFAT country information from December 2015 which relevantly stated: … no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act… … DFAT assess that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport … 18 The assessor invited the applicant to comment on that country information. 19 The applicant's representative responded by letter dated 19 April 2016. He addressed the situation of a returning failed asylum seeker with a political profile, but did not specifically address any concern that the applicant was at risk of harm during any period he might be in detention on his return.

The ITOA 20 By letter dated 29 April 2016, the applicant was advised that the ITOA concluded that Australia's non-refoulement obligations were not engaged in his case. The ITOA sets out: (a) a summary of Australia's non-refoulement obligations; (b) the material before the officer conducting the ITOA; (c) a summary of the applicant's claims/information to be assessed in the ITOA; and (d) a summary of the various claims made by the applicant both in written documentation and also in the various interviews attended by the applicant. 21 In the part of the ITOA dealing with the refugee criterion, the assessor identified the bases on which the applicant claimed to fear persecution (at pages 23-24). These bases relevantly included that he was a "failed Tamil asylum seeker who departed Sri Lanka illegally and spent a lengthy period in a Western country". The assessor considered whether this fear was well-founded at pages 34-36 of the assessment. This section concluded: Overall, on the basis of the information before me, I am not satisfied that the claimant faces a real chance of serious harm on the basis of being a 'failed Tamil asylum seeker who departed Sri Lanka illegally and spent a lengthy period in a Western country'. The evidence before me indicates that the claimant is likely to be fined for departing the country illegally in 2007, but will not face further sanction or serious harm. The claimant's overall lack of criminal, racial, religious and political profile indicates that he will be permitted to return to his home region and resume his life in Sri Lanka. He may experience some monitoring by state officials, but I am satisfied that this will not result in serious harm to the claimant. 22 After dealing with the refugee criterion, the assessor considered the complementary protection criterion (at pages 36-38). In this section of the assessment the assessor relied on her earlier findings, stating (at pages 37-38): As outlined previously in this decision record, I have assessed the claimant's claims and have found that there is not a real chance of the claimant being harmed by Sri Lankan authorities. In coming to this conclusion, I have found that the claimant will not be targeted for serious harm on the basis of his Tamil race, Roman Catholic religion, imputed political opinion in favour of the LTTE or Tamil separatists, profile as a young Tamil from the north or profile as a 'failed Tamil asylum seeker who departed Sri Lanka illegally and spent a lengthy period in a Western country'. The claimant has not raised any claims separate from those assessed against the Refugees Convention. I have relied upon the same evidence to find that there is not a real risk of the claimant being significantly harmed or arrested by Sri Lankan authorities. As such, I am not satisfied that there is a real risk that the claimant will be arbitrarily deprived of his life, will suffer torture, suffer cruel or inhuman treatment or punishment, or suffer degrading treatment or punishment by Sri Lankan authorities (for the purposes of paragraph 36(2)(aa) of the Act). (Emphasis added.)

The proceeding in the Federal Circuit Court 23 The applicant applied to the Federal Circuit Court for judicial review of the ITOA. 24 In her reasons for judgment, the primary judge set out the background facts and summarised the ITOA in some detail. Her Honour summarised the applicant's submissions at [24]-[30] of her reasons. As noted in [24], the applicant contended that, although the ITOA assessor had considered, as part of the refugee criterion, the applicant's claim to fear harm as a member of a particular social group, namely a failed asylum seeker who had departed Sri Lanka illegally and had spent a lengthy period in a western country, the assessor had not properly considered the applicant's complementary protection claims. 25 At [40]-[47] of the reasons for judgment, the primary judge set out relevant passages from the ITOA. 26 Her Honour's core reasoning was at [48]-[50]: 48. A fair reading of the assessor's reasoning in the sense discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 leads [one] to conclude that the assessor's findings in this regard [that is, in relation to the complementary protection criterion], must be read in the context of the assessor's reasoning overall and findings in relation to the refugee claims. It is clear that in considering both the applicant's refugee claims and complementary protections claims, the assessor considered whether the applicant faced a real risk of significant harm or a real chance of serious harm if returned to Sri Lanka, including as a result of being tortured, or being exposed to poor prison conditions generally. 49. As in CDY15 v Minister for Immigration and Border Protection [2018] FCA 175, here the assessor has correctly identified the criteria necessary to satisfy the complementary protection provisions of the Act, as compared to the refugee criterion. Moreover, the assessor has considered the evidence in detail and has made factual findings in relation to the claims advanced. In this case, like in CDY15, 'the factual foundation of each claim was the same.' 50. The assessor, clearly was aware of the claim that the applicant feared being detained, tortured and subjected to cruel and inhumane treatment during any such detention. The factual findings made by the assessor namely that on the evidence before the assessor the applicant was 'likely to be fined for departing the country illegally in 2007, but will not face further sanction or serious harm' and that 'he will be permitted to return to his home region and resume his life in Sri Lanka' and that he 'may experience some monitoring by state officials but … this will not result in serious harm to the claimant' were factual findings which supported both the finding made that the claimant did not have a well-founded fear of persecution for the purposes of section 36(2)(a) and the finding that there was no real risk of the claimant being significantly harmed or arrested by Sri Lankan authorities. (Footnotes omitted.) 27 Accordingly, the primary judge dismissed the application for judicial review.

The application for an extension of time 28 The applicant applies for an extension of time to file a notice of appeal. His draft notice of appeal contains a single ground, which is as follows: 1. The learned judge erred in finding that the International Treaties Obligation Assessor (the Assessor) did not commit jurisdictional error by: a. failing to consider the applicant's claim that as a necessary and foreseeable consequence of returning to Sri Lanka he was at real risk of significant harm within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) due to having departed Sri Lanka illegally. Particulars The ITOA was conducted to assess if Australia owed any international non-refoulement obligations in relation to the applicant. In making its assessment the Assessor relied on the codification of Australia's international non-refoulement obligations in the Act: the refugee criterion in s 36(2)(a), and the complementary protection criterion in s 36(2)(aa). The ITOA was required to afford the applicant procedural fairness, this included considering the applicant's claims to face a real risk of significant harm under the complementary protection criteria (Minister for Immigration and Border Protection v SZZSJ [2016] HCA 29; 259 CLR 180, [75] - [79]). In a submission dated 12 January 2016 the applicant claimed that upon return to Sri Lanka he would face a real risk of significant harm within the meaning of s 36(2)(aa) of the Act due to having departed Sri Lanka illegally. The relevant components of the claim were: i. it is a criminal offence to depart Sri Lanka illegally, the applicant would be arrested for the offence of illegal departure on return to Sri Lanka; ii. the applicant would be held in police custody and then remand prior to being brought before a magistrate; iii. the applicant would face a real risk of torture and physical assault during any interrogation while in police custody; and iv. the applicant would face a real risk of torture or cruel inhuman or degrading treatment during the period he was held on remand due to poor prison conditions. The Assessor found that the applicant would not face a real chance of persecution within the meaning of s 36(2)(a) of the Act for having departed illegally because the prohibition on illegal departure is a law of general application. The Assessor failed to consider if the applicant would be at real risk of significant harm while being held in police custody or remand for having departed illegally. 29 In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] per Perram, Farrell and Perry JJ. 30 In his outline of submissions, the Minister states that he does not submit that he has been prejudiced by the delay. He accepts that the period of the delay is short and that the circumstances include that the applicant is an unrepresented litigant. However, the Minister submits that the ground lacks sufficient merit to justify the grant of an extension of time.

Consideration 31 The period of delay in the present case is very short (only three days). Further, I consider that the applicant has provided an acceptable explanation for the delay, namely that: the lawyers who had assisted him with his Federal Circuit Court application advised that they could no longer assist him due to their pro bono practice not having capacity; he did not know how to prepare the appeal application by himself; and, in circumstances where he was unable to find alternative legal assistance, his previous legal representatives assisted him to prepare the court documents. 32 While those matters support an extension of time being granted, in my view the proposed appeal ground has insufficient merit to justify an extension of time being granted. 33 The applicant did not file an outline of submissions in advance of the hearing. At the hearing of the application, the applicant made brief oral submissions. In circumstances where he is not legally represented, it is understandable that they were directed to the merits of his protection claims and did not point to any error in the reasoning of the primary judge. 34 In my view, it is clear that the ITOA assessor did consider, in the context of the complementary protection criterion, the applicant's claim that if he were returned to Sri Lanka he would face a real risk of significant harm due to having departed Sri Lanka illegally. While it is true that the claim was not considered in detail in the section of the ITOA dealing with complementary protection, a comparable claim was considered in detail in the part of the ITOA dealing with the refugee criterion, and the findings in that regard were adopted in the section dealing with complementary protection. In the circumstances of this case, where the factual basis of the claims was essentially the same, it was open to the assessor to rely on her earlier findings in connection with the refugee criterion: see DQU16 v Minister for Home Affairs (2021) 388 ALR 363 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ. 35 For these reasons, I consider the proposed appeal ground to have insufficient merit to justify an extension of time.

Conclusion 36 For these reasons, the application for an extension of time is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore order the applicant to pay the Minister's costs of and incidental to the application, to be fixed by way of a lump sum. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

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