BNS15 v Minister for Immigration and Border Protection

1. The application for an extension of time be dismissed.
2. The applicant pay the first respondent's costs of the application as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 This is an application for an extension of time to appeal against a judgment of a Judge of the Federal Circuit Court of Australia given on 26 October 2015. By that judgment, the primary judge dismissed the applicant's application for review of a decision of the Administrative Appeals Tribunal ("the Tribunal") dated 7 July 2015 affirming a decision of a delegate of the first respondent ("the Minister") not to grant the applicant a protection visa. 2 The applicant is a citizen of Sri Lanka aged in his late 20s. He belongs to the Tamil ethnic group and comes from Udappu on the west coast of Sri Lanka, north of Colombo. Before the Tribunal the applicant (who was represented by a migration agent) contended that he would, if required to return to Sri Lanka, be persecuted on account of his race and his imputed political opinion because of his membership of a particular social group and because he had applied for asylum in Australia. 3 The applicant claimed that he worked as a fisherman but that there were restrictions imposed upon him and other Tamils which made it extremely difficult for him to make a living as a fisherman. He claimed that if he were to return to Sri Lanka, the authorities would prevent him from making a living as a fisherman because he is Tamil. 4 The applicant also claimed that his father had been falsely accused of stealing and had been in hiding since 2008 and that, in the meantime, the authorities had been visiting his home over a period of years looking for his father and extorting or attempting to extort money from the applicant and his family. 5 The applicant also claimed that he was arrested in May 2012 after being accused of trying to leave Sri Lanka illegally in the company of 112 or 113 other people who were apprehended as they were about to board boats. He claimed that, following his arrest, he was released on bail and that he left Sri Lanka in June 2012 in breach of his bail conditions. He also claimed that the people smugglers who had arranged for him to travel to Australia had made threats against, and sought to extort money from, the applicant's family. 6 The Tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations. In particular, it was not satisfied that the applicant met the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). It did not accept much of the applicant's evidence including, in particular, his evidence relating to extortion by the Sri Lankan authorities, the applicant's arrest, his pending court case, his breach of bail, or demands for money made by or on behalf of the people smugglers. More than once the Tribunal stated that it did not consider the applicant to be telling the truth in relation to these matters. 7 By his application filed on 28 July 2015 in the Federal Circuit Court ("the application"), the applicant sought review of the Tribunal's decision. The application raised the following single ground: The Tribunal erred by applying the wrong test as to what constitutes significant harm by failing to consider whether the enactment of the Immigrants and Emigrants Act ("IE Act") by the Sri Lankan Parliament constituted an act for the purposes of the definition of degrading punishment or treatment in s 5(1) of the Migration Act. 8 In dismissing the application, the primary judge found that the enactment of the Immigrants and Emigrants Act ("IE Act") could not of itself constitute "degrading treatment or punishment" within the meaning of s 5(1) of the Act because it was an "exercise of legislative law making power" and that, with respect to the different matter of enforcement, the Tribunal found that the IE Act was enforced in a non-discriminatory manner. On that basis, his Honour was not satisfied that the Tribunal committed jurisdictional error. 9 The applicant now seeks to appeal from the primary judge's judgment. The proposed grounds of appeal are as follows: (a) The primary judge erred by not acting in accordance with rule of the Federal Circuit Court Rules 2001 (Cth) by not taking the Applicant's application at its highest for the purposes of dismissing the proceedings. (b) The primary judge erred by dismissing the proceedings in circumstances where the appellant was unrepresented. 10 The applicant commenced the present proceeding one day outside the time within which he was required to file his appeal. He made an affidavit, which is before me, which explains this short delay. In the circumstances, I would be minded to grant the applicant the extension of time he seeks were I satisfied that his proposed appeal raises some arguable grounds of appeal. In this case, however, it is apparent that the proposed grounds of appeal relied upon by the applicant have no prospects of success. 11 The first of the two proposed grounds of appeal is difficult to follow. It was not elucidated upon in any written or oral submissions by the applicant. It is important to note that this was not an application for summary dismissal of the applicant's proceeding. There was a trial before the primary judge on 26 October 2015. It is common ground that orders for the filing of any amended application, affidavit evidence and written submissions were made by a Registrar on 3 September 2015, more than six weeks prior to the date of the trial. In his oral submissions the applicant said that this did not allow him sufficient time to obtain legal representation or to prepare his case. It seems to me the time that was allowed to him under this timetable was more than adequate to enable him to do both these things. I do not think there is any substance to the first of the proposed grounds of appeal. 12 As to the second proposed ground of appeal, it is common ground that the applicant did not seek any adjournment of the trial either before or at the trial either to obtain legal representation or for any other purpose. Needless to say, the primary judge cannot be criticised for not adjourning the trial in circumstances where neither party asked him to do so. 13 I should also note that the proposed appeal does not seek to challenge the correctness of the primary judge's reasoning on the single ground that was raised in the application considered by his Honour. In my view, the sole point raised before the primary judge was correctly rejected for the reasons given by his Honour. 14 In the circumstances, I am satisfied this is not an appropriate case in which to grant the applicant the extension of time he seeks. The application for an extension of time will be dismissed. The applicant must pay the first respondent's costs of the application for an extension of time. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.