BRT15 v Minister for Immigration and Border Protection

Background 16 The applicant is a male citizen of Sri Lanka who arrived in Australia by sea in 2012. The applicant provided a statutory declaration with his protection visa application. He attended an entry interview on 8 October 2012 and a Departmental interview on 24 September 2013. 17 The applicant claimed to fear harm in Sri Lanka for reason of his Tamil ethnicity, an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a member of particular social groups consisting of failed asylum seekers returned to Sri Lanka and Tamils with scarring.

The Tribunal's decision 18 The Tribunal considered the applicant's claim relating to imputed political opinion at [23]-[51] of the decision record. The Tribunal considered the claims under a series of headings as follows: his Tamil ethnicity (see [24]-[25]); his residence in the Northern Province (see [26]-[27]); his father's suspected support for the LTTE (see [28]-[31]); his previous detention by security forces as a suspected LTTE supporter (see [32]-[35]); his scarring (see [36]-[41]); his resistance to extortion (see [42]-[44]); being a failed asylum seeker (see [45]); and other issues (see [46]). 19 It is not necessary for present purposes to refer to the way in which the Tribunal dealt with most of these issues. That is because the applicant's contentions as presented at the hearing of the application for an extension of time focussed on one section of the Tribunal's decision record, namely the section related to the applicant's claims based on his father's suspected support of the LTTE. By way of context, I note that at [10] of the decision record the Tribunal set out the applicant's claims. These included, relevantly for present purposes, a claim that, when he was about seven years of age, his father was killed by the Sri Lankan Army (SLA) because he was a Tamil and was suspected of involvement with the LTTE. This claim was addressed at [28]-[31] of the decision record as follows: 28. It is claimed that the Applicant will be imputed with the pro-LTTE political opinion which was imputed to his father. At the hearing he said that he had no clear recollection of the incident in which his father was killed, in 1995, and knew none of the details. He only knew that other fishermen who were present at the time reported his father had been shot by the Navy because, they believed, he was suspected of involvement with the LTTE. He has given generally consistent evidence about this incident since his arrival in Australia and I accept that it did occur. 29. I accept there is information before the Tribunal, including in the UNHCR Guidelines reporting by DFAT [footnote: DFAT, Country Report - Sri Lanka, 16 February 2016; DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014] and the United Kingdom Upper Chamber decision in GJ v Secretary of State for the Home Department, to indicate that in some circumstances persons who have family links to former LTTE members, or who are dependent on them or otherwise closely related to them, may themselves be at an elevated risk of harm by being suspected of having such links. The UNHCR Guidelines reports states (sic) that although a history of having lived in an area under LTTE control does not in itself give rise to a need for international protection, .. previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or "cadres"; 3) Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. 30. I accept that the UNHCR Guidelines speak of an elevated risk to persons who are perceived to have had substantive links with the LTTE but I believe it is relevant that the Applicant's father did not, in fact have any such connection. The Applicant's evidence about his father at the hearing was notably vague but I am satisfied that if he had been an LTTE member or had played any significant role in the affairs of the LTTE, and was killed because of it, this would be something very well-known within his family including to the Applicant himself. Whatever the perceptions may have been of his father's LTTE links at the time of his shooting, they were thus not based in any actual LTTE activity on his part. I note further that his father's death occurred when the Applicant was a young child and despite the direct family link between them there would clearly have been little or no opportunity for substantive exchanges between them of a kind which might lead the authorities to believe he had absorbed his father's political opinion. Finally, I note that there is nothing in the Applicant's account to indicate that he himself ever came under suspicion as a result of a political opinion imputed to his father or because of the circumstances of his death. There is no suggestion that the authorities were trying to harm the Applicant but were unable to locate him while he was growing up, or that at any subsequent point he was genuinely believed to have had some form of LTTE involvement because of his family connection with his father. 31. On the information before the Tribunal I am not satisfied there is a real chance that the Applicant would now come under suspicion of supporting the LTTE, or would be at risk of harm as a result, because of a family relationship with his father which is now twenty years in the past. 20 In a section headed "Summary - political opinion", at [47]-[51] of the decision record, the Tribunal concluded its consideration of the applicant's claims relating to imputed political opinion. At [48], the Tribunal stated that, considering all of the elements of the applicant's claims, the Tribunal was not satisfied that the applicant had ever been genuinely imputed with a political opinion in favour of the LTTE in the past as a result of (among other things) "his family connection to his father who was suspected of being an LTTE member". The Tribunal referred also to the other factors that had been discussed in the decision record. The Tribunal stated that it was not satisfied that there was reason to believe that these factors, considered both individually and cumulatively, would serve to cast suspicion on the applicant if he were to return to Sri Lanka. 21 It is not necessary for present purposes to refer to the Tribunal's consideration of the applicant's other claims. 22 The Tribunal concluded, at [85], that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, then or in the reasonably foreseeable future, and that it was not satisfied that he was a refugee. 23 The Tribunal then considered the complementary protection criterion, concluding, at [91], that it was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm in terms of s 36(2)(aa) of the Migration Act 1958 (Cth).

The proceeding in the Federal Circuit Court 24 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. His grounds of appeal as relied upon at the hearing before the primary judge were set out at [30] of the Reasons. Ground one is not relevant for present purposes. Ground two was as follows: Ground 2 The AAT committed error because it failed to properly consider an integer of the applicant's claim. PARTICULARS (i) The applicant relies on the particulars from Ground 1 above. (ii) The applicant plainly raised the claim that he was at risk given his father's death at the hand of the navy; (iii) The applicant alleged that his father was killed due to perceived LTTE links; (iv) In the context of the particulars for Ground 1, the AAT constructively failed to address the claim of risk to the applicant that arose by reason of the applicant's relationship to his father, a person with previous perceived links (admittedly not real or substantive) to the LTTE. 25 The primary judge dealt with ground two at [34]-[41] of the Reasons. As recorded in [34], the applicant submitted to the primary judge that: he had plainly raised before the Tribunal a claim that he was at risk because of his father's death at the hands of the SLA; he had claimed that his father was killed because of perceived links to the LTTE; and the Tribunal had constructively failed to address this claim. The primary judge set out [28]-[31] of the Tribunal's decision record. The primary judge considered this appeal ground at [36]-[41] of the Reasons as follows: 36. In my opinion, the Tribunal did adequately consider this integer of the applicant's claims. 37. The Tribunal acknowledged at [30] of its decision that persons who are perceived to have had a substantive LTTE link have an elevated risk of harm. The Tribunal went on to find that the applicant was not at risk of harm because of the following factors: a) the applicant's father did not have actual LTTE links; and b) the applicant's father died when he was very young, and there would have been little opportunity for them to have substantive exchanges of a kind which might lead the authorities to believe he had absorbed his father's political opinion. 38. There was no evidence to suggest that the applicant was ever under suspicion himself as a result of his father's death 20 years previously. 39. The Tribunal found that because the applicant's father died when he was very young, there was no real chance that the applicant would come under suspicion or would be at risk of harm as a result [footnote: see [31]]. 40. The applicant now seeks to link the Tribunal's findings that the applicant was questioned by authorities and accused of being an LTTE member with his father's perceived LTTE membership or association. In my view, this is an example of the reconstruction of a claim after the event. The Tribunal concluded at [35] that it was not satisfied that the Sri Lankan police or army ever held a genuine belief that the applicant was a member or sponsor of the LTTE. This finding was based on other findings that if the applicant was in fact suspected of LTTE connections, he would not have been released after such a brief period [footnote: see [35]]. 41. I see no error in the Tribunal's approach. This ground fails. 26 The primary judge concluded that the applicant had failed to establish that the decision of the Tribunal was affected by any jurisdictional error. Accordingly, the application was dismissed.

The application for an extension of time 27 The applicant applies to this Court for an extension of time to file a notice of appeal. 28 As referred to above, although the amended draft notice of appeal contains two grounds of appeal, only the first of these is pressed. That ground has been set out at [12] above.

Applicable principles 29 The principles applicable to an application for an extension of time are well established. The factors that the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.

Consideration 30 As noted above, the period of delay in the present case is approximately three months. This is a substantial period of time. In his second affidavit, dated 13 February 2018, the applicant deposes that: he apologises for the delay in filing his application; this was due to circumstances beyond his control, but he accepts responsibility for the delay; he has a number of health issues (which were briefly described in the affidavit); he does not have knowledge of the Australian legal system and cannot speak English; he understands that the primary judge gave judgment on 11 November 2016, but he was not informed of this by his then solicitors until early December 2016; he was not told when he needed to file an appeal by his former solicitors; he was unable to obtain financial assistance to retain new lawyers; and he was unable to obtain the services of a barrister until February 2018. I note that the affidavit provides relatively little detail as to how the medical issues related to the delay in filing the application in this Court. Further, although the applicant was informed of the Federal Circuit Court decision in early December, he did not file the application for an extension of time until 1 March 2017. No specific explanation is provided in relation to this period of time. Even if one puts aside the period between 11 November 2016 (the date of the Federal Circuit Court orders) and early December 2016 (when the applicant was informed of the decision), the period of delay is still substantial. It is doubtful whether the explanation for the delay is adequate. However, it is not necessary to decide the matter on this basis, in light of the conclusion I reach, below, as to the merit of the proposed appeal. 31 I now turn to consider the merit of the proposed appeal. Although the proposed appeal ground refers to a misdirection with regard to the significance of certain country information, the substance of the ground appears to be a contention that the Tribunal failed to consider an integer of the applicant's claim concerning the risk of harm from being imputed with his father's imputed political opinion as a (perceived) LTTE sympathiser. This is consistent with the way in which a similar ground was advanced in the Federal Circuit Court. 32 In his further outline of submissions on the appeal, the Minister accepts that, in appropriate cases, a tribunal may commit a jurisdictional error by failing to consider an integer of a claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [1], [42]. Thus there is no dispute between the parties as to this principle. 33 In my view, there is no merit in the contention that the Tribunal failed to consider an integer of the applicant's claim. I consider that the primary judge was correct to reject this contention. The Tribunal's reasons addressed the applicant's claim that he would be imputed with a pro-LTTE opinion that had previously been imputed to his father. The basis for this claim was that the applicant's father had been killed by the SLA because he was a Tamil and suspected of being involved with the LTTE. The Tribunal accepted, at [28] of the decision record, that "it did occur". It is perhaps ambiguous whether, in saying this, the Tribunal was accepting: (a) that the applicant's father had been killed; or (b) that the applicant's father had been killed because he was suspected of involvement with the LTTE. However, I do not consider that anything turns on which interpretation of the Tribunal's reasons is correct as the Tribunal effectively proceeded, at [30], on the assumption that the applicant's father was killed because he was suspected of involvement with the LTTE. 34 In [29] of the decision record, the Tribunal referred to certain UNHCR Guidelines (the Guidelines). These indicated that "in some circumstances" persons who have family links to former LTTE members … may themselves be at an elevated risk of harm by being suspected of having such links". This sentence was expressed in general terms that might or might not apply in an individual case. The Tribunal then referred to other statements in the Guidelines. These included that "previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case". Again, this was expressed in general terms that might or might not apply. The applicant in his further written submissions on the appeal treated the Tribunal as having reached a "pre-emptive conclusion" that those with previous (real or perceived) links to the LTTE may be at elevated risk of harm. As I understand the submission, it was to the effect that the Tribunal, in [29], reached a presumptive conclusion that the applicant fell within the categories described in the Guidelines. However, I do not consider that the Tribunal can be said to have reached such a conclusion. It merely referred to the Guidelines as material to be taken into account. In any event, the Guidelines merely identify in general terms circumstances where a person may be at risk, it being necessary to consider the circumstances of the individual case. 35 Having referred to the Guidelines, the Tribunal analysed the applicant's claim at [30-[31]. The Tribunal's reasoning was essentially as follows: (a) if the applicant's father had been a member of the LTTE or had played a significant role in the LTTE, and been killed because of it, this was something that the applicant and his family would have known about. The applicant's father did not have any actual link to the LTTE. (b) the applicant's father died when the applicant was young and there would have been little or no opportunity for substantive exchanges of the sort that might lead the authorities to conclude that the applicant had embraced any imputed political opinion; (c) nothing in the applicant's claims or evidence indicated that the applicant ever came under suspicion as a result of an imputed political opinion of the applicant's father or the circumstances of his death; (d) there is nothing to suggest the authorities were trying to harm the applicant but unable to locate him or that at any point after the applicant's childhood he was genuinely believed to have some form of LTTE connection by reason of his father (whose death was now 20 years in the past). 36 This reasoning reflects a clear engagement on the part of the Tribunal with all aspects of the applicant's claim. The Tribunal addressed both the consequences of any perceived link that the applicant's father had with the LTTE (the applicant would not suffer any harm and would not be the subject of any mistreatment by reason of the perceived link) and the tenuous connection that the applicant's father actually had with the LTTE (undermining any suggestion that the applicant had any actual link or any perceived link). 37 In the applicant's further written submissions and in his oral submissions on the hearing of the appeal he sought to, in effect, raise a new proposed ground of appeal based on illogicality or irrationality as discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1. Apart from the difficulty that this proposed ground was not raised before the primary judge, and hence leave would be required to raise it on appeal, I do not consider that it has merit. The gist of the argument was that the Tribunal's findings that the applicant would not be perceived as having links with the LTTE was illogical or irrational (in the requisite sense) in light of its earlier findings at [28] and [29]. In my view, the Tribunal's path of reasoning, as outlined in [35] above, was logical and open to it on the material. 38 In his further written submissions, the applicant also raised a proposed new ground of unreasonableness. This was not pursued in oral submissions. It suffers from the same difficulties as the contention based on illogicality or irrationality. 39 For these reasons, I consider that the proposed appeal lacks merit. Accordingly, it would not be appropriate to grant an extension of time.

Conclusion 40 The application for an extension of time will therefore be dismissed. There is no apparent reason why costs should not follow the event. Therefore, there will also be an order that the applicant pay the Minister's costs of the application. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.