BML18 v Minister for Home Affairs

1. The application for an extension of time be refused.
2. The applicant pay the first respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an application for an extension of time to appeal from orders made by the Federal Circuit Court of Australia. The application for an extension of time is dated 30 August 2018 but was not filed until 3 September 2018. The orders of the Federal Circuit Court were made on 1 August 2018. Under r 36.03 of the Federal Court Rules 2011 (Cth), an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The Court has the power to extend the time. On the face of it, the appeal is 12 days out of time. The application for an extension of time is supported by an affidavit from the applicant. The applicant attaches to his affidavit a copy of the orders made by the Federal Circuit Court and a draft notice of appeal. I will return to the draft notice of appeal in a moment. In his affidavit, the applicant states that the delay was because of the following reasons: (a) The FCC Judge did not publish his reasons for rejecting my case (b) It was not possible to seek legal representation as the decision has not been published. 2 The considerations which are relevant in determining an extension of time are well-established. They include the following: the extent of the delay; the explanation for the delay; the merits of the proposed appeal; the prejudice the applicant will suffer if an extension of time is refused; the prejudice a respondent might suffer if an extension is granted; and any public interest considerations (see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]-[23]). 3 The first respondent states that, although the application was filed 12 days out of time, he would not be prejudiced by an extension of time. It seems that the Court's reasons were not published on 22 August 2018 and the applicant filed the application for an extension of time 12 days later on 3 September 2018. The first respondent accepts that, in these circumstances, the applicant's delay is understandable. However, the first respondent contends that the draft notice of appeal has no reasonable prospect of success and the Court should refuse an extension of time on that basis. In my opinion, that submission is correct. The application for an extension of time and draft notice of appeal identify two proposed grounds of appeal. They are as follows: Ground 1 The Federal Circuit Court Judge committed appealable error when he dismissed the application. The Authority adopted a narrow understanding of the phrase exceptional circumstance. Ground 2 The FCC Judge failed to find that the Authority did not give weight to medical evidence before it when it considered if the applicant would suffer harm. 4 The facts leading up to this application are as follows. The applicant is a citizen of Sri Lanka and he arrived in Australia on 3 October 2012. He is an unauthorised maritime arrival. The Minister exercised his discretion under s 46A(2) of the Migration Act (Cth) (the Act) allowing the applicant to make a valid application for a specified visa. The applicant applied for a Safe Haven Enterprise (Subclass 790) Visa (SHEV) by a letter dated 16 September 2016. On 8 August 2017 a delegate of the Minister for Immigration and Border Protection refused the applicant's visa. The delegate's decision was a fast track reviewable decision and it was referred to the Immigration Assessment Authority (the Authority) as required by the Act. 5 On 8 March 2018, the Authority affirmed the delegate's decision not to grant the applicant a protection visa. The applicant claimed to fear harm as a young Tamil male from the Northern Province of Sri Lanka who had past involvement with the Liberation Tigers of Tamil Eelam (LTTE), gathering information about the Sri Lankan Army (SLA). He claimed that in 2003 he was arrested and taken to an SLA camp on suspicion of smuggling weapons for the LTTE, where he was tortured and detained for two weeks. The applicant claimed that after he had been released, he was required to report to the SLA camp on a regular basis and was subjected to questioning about the LTTE. 6 The applicant claimed that his cousin was a major in the LTTE and was killed in combat with the SLA in 2000. The applicant claimed that in 2012 he was concerned the SLA would obtain information about his past involvement with the LTTE and he decided to leave Sri Lanka before being arrested and killed by the SLA and intelligence services. The Authority accepted parts of the applicant's claims. In the first respondent's written outline of submissions, there is a convenient summary of the matters accepted by the Authority. They are as follows (at [7]): (a) the applicant undertook information gathering/surveillance for the LTTE for a period of 6 to 18 months from 1988 to 1991; (b) the applicant was detained, questioned and beaten in 2003 on suspicion of smuggling weapons for the LTTE and was required to report daily after his release for a period of three months; (c) the SLA continued to harass the applicant after he was released in 2003; (d) in 2012 the SLA continued to harass, arrest and/or detain people connected to, or suspected of being connected to, the LTTE; and (e) some of the applicant's former LTTE comrades could have been arrested and disappeared. 7 The Authority did not accept that if the SLA believed, or continued to suspect that, the applicant was smuggling weapons for the LTTE, he would have been released because his wife and people from his home went to the SLA camp and pleaded and cried for the applicant's release. 8 The Authority did not accept that the applicant's cousin was a major in the LTTE and killed in combat with the SLA in 2000. The Authority did not accept that the Eelam People's Democratic Party (EPDP), the Eelam People's Revolutionary Liberation Front (EPRLF) and the Criminal Investigation Department (CID) were involved during the applicant's detention as described in [13] of the Authority's reasons. The Authority concluded that the applicant's involvement with the LTTE was for a short period of time and was not a significant role. It said that the chance of an informant telling the SLA about the applicant's involvement in the LTTE was remote. It said that there was no credible evidence before it to indicate that the applicant would be perceived to have had a significant role in the LTTE or perceived to be active in post-conflict Tamil separation. 9 The Authority concluded that the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet the requirements in s 36(2)(a) of the Act. The Authority also considered complementary protection. It concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm. In those circumstances, the applicant did not meet the requirements of s 36(2)(a). I turn now to the two grounds of appeal. 10 The first ground complains of the Authority's approach to the meaning of "exceptional circumstances" in s 473DD of the Act. That section provides as follows: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 11 The Authority recorded the fact that after the matter had been referred to it, and on 18 September 2017, the applicant's representative provided submissions and the following documents: (1) a report entitled "Committee Against Torture Fifth Periodic Report" dated November 2016; (2) a report entitled "Sri Lanka: Tamil Separatism. Version 5" dated June 2017; (3) a report entitled "Sri Lanka: COI Compilation" (ACCORD) dated 31 December 2016; and (4) a report entitled "Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on his Mission to Sri Lanka" dated 21 December 2016. 12 The Authority noted that under s 473DC of the Act, it is not required to accept the new information. It referred to the provisions of ss 473DC and 473DD of the Act. The Authority said that to the extent that the submissions provided on 18 September 2017 argue errors and/or omissions in the delegate's decision, based on the information that was before the delegate, the Authority had had regard to it. In a similar way, with respect to the articles referred to in (3) and (4) (at [11] above), the Authority said that to the extent that those articles were before the delegate, it had had regard to them. 13 However, with respect to the articles referred to in (1) and (2) (at [11] above), the Authority noted that both predate the delegate's decision and could have been provided before the decision was made. It further noted that the articles were of a genuine nature and did not contain credible personal information. In those circumstances, the new country information did not meet the requirements of subss 473DD(b)(i) and (ii). The Authority said that, in addition, it was not satisfied that there were exceptional circumstances to justify considering the information. It said that it was not able to consider the new information. 14 The applicant appeared in person before me. He had the assistance of an interpreter. He made brief oral submissions, but they were not directed to the proposed Ground 1 of the notice of appeal. This matter was raised before the Federal Circuit Court. That Court decided that there was no merit in this ground and the Court said (at [11]): I do not consider that the Authority has erred in the exercise of its discretion, or in performing its duty pursuant to the provisions of the Act in respect of the non-regard being had by it to the new information. 15 The Federal Circuit Court referred to the decision of the High Court in Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16, and the decision of the Full Court of this Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. I am unable to discern even an arguable error in the Authority's approach to the publications which it said it was unable to consider as new information. It seems clear that on any view, those publications did not meet the requirements of subss 473DD(b)(i) or (ii). Furthermore, there does not seem to be any error in the Authority's approach to the concept of exceptional circumstances. 16 With respect to Ground 2, the Authority made reference in [10] and [11] of its reasons to the applicant's arrival interview and then turned to consider the applicant's SHEV interview in [12]. It noted that in post-SHEV interview submissions, the applicant's representative submitted that the applicant's inconsistent evidence provided during the SHEV interview was due to the applicant's health issues and obvious difficulties with concentration. A medical certificate dated 13 March 2017 was produced and it contained a statement that the applicant presented with episodes of collapsing on and off for the last two to three months and queried fits. The medical practitioner stated that the applicant said his episodes of collapsing were worse when he thought about his problems and queried whether the applicant had depression and anxiety. The medical certificate referred to various medical conditions which I do not need to outline. 17 The Authority said that the medical evidence before it was scant. It said that it indicated that the applicant had reported a history of collapsing, had abnormal blood results and was educated about safe levels of drinking alcohol. It contained a statement as to the further investigations which are necessary. The Authority said that, based on the medical evidence before it, it was not satisfied that the applicant had or has a medical condition that affected his memory or concentration during the SHEV interview. It would seem that the medical evidence was put before the Authority in order to explain inconsistent evidence given by the applicant. In that context, there was no jurisdictional error in the approach taken by the Authority. 18 In Ground 2, the applicant seeks to argue that the Authority did not give weight to the medical evidence before it when it considered if the applicant would suffer harm. The Federal Circuit Court addressed this issue and said (at [20]-[21]): Additionally, it was clear that the Authority was not satisfied that the applicant had a medical condition that affected his memory or concentration during the SHEV interview. It was prepared to accept other aspects of the factual information put before it, and the delegate, and, in all the circumstances, appeared to adopt an even-handed approach in that regard. I accept the submission on behalf of the first respondent that it was unnecessary for the Authority to consider whether the applicant would face harm for the reasons contended for by the applicant, and, further on the basis that the Authority's findings were dispositive (see court book page 526 at [29]). Accordingly, the second ground is without merit and is dismissed. 19 In my opinion, that approach by the Federal Circuit Court is correct and no arguable error has been identified. The proposed appeal lacks merit and, in my opinion, the application for an extension of time should, in those circumstances, be refused and I so order. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.