CIB17 v Minister for Immigration and Border Protection

1. The application for an extension of time in which to bring an appeal from the orders made on 24 October 2018 by the Federal Circuit Court of Australia be refused.
2. The applicant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an application for an extension of time in which to bring an appeal against orders made on 24 October 2018 by a judge of the Federal Circuit Court of Australia. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, also referred to as the IAA. The Authority had, on 3 May 2017, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now known as the Minister for Home Affairs) to refuse the grant of a class of protection visa, namely a Safe Haven Enterprise visa (SHEV). 2 The applicant, a citizen of Sri Lanka, arrived in Australia on 8 September 2012 by boat. In January 2016 he applied for a SHEV on the basis of a claimed fear of persecution and significant harm in connection with his experiences in Sri Lanka with two Tamil organisations in particular: the Liberation Tigers of Tamil Eelam (LTTE) and the People's Liberation Organisation of Tamil Eelam (PLOTE). He also claimed to have been targeted and harassed in the past by Sri Lankan police and had fears about so-called "grease men" who were suspected to be linked to the Sri Lankan authorities and responsible for committing atrocities and attacks on women. 3 While aspects of his claims were accepted by the Authority at a factual level, and he was found, for the most part, to be a credible witness, he was not found to meet the criteria for the grant of a protection visa, largely because the Authority was not satisfied that he was at any risk of harm from the Sri Lankan authorities, from the grease men, or upon his return to Sri Lanka as a failed asylum seeker who had departed from his country illegally. The Authority therefore affirmed the delegate's decision. 4 The applicant filed an application for judicial review of the Authority's decision in the Federal Circuit Court. The Minister's submissions helpfully summarise the burden of what took place in the proceeding before the primary judge, leading to the application before his Honour being dismissed with costs as follows: In the proceedings in the Federal Circuit Court the applicant advanced four grounds. The primary judge interpreted the first ground as a failure by the Authority to consider the applicant's claims cumulatively including by reference to the Authority's failure to consider whether the treatment of the applicant's brother by the PLOTE might have had some impact upon the applicant on his return to Sri Lanka: J [11]. His Honour rejected the ground on the basis that the Authority addressed the issue of the brother's treatment by the PLOTE and the effect this might have had on the applicant, and that in any event the Authority expressly stated that it had considered the claims cumulatively: J [12]-[13]. In the second ground the applicant claimed that the Authority had fallen into error in that the delegate had not put to the applicant that he would be arrested and detained upon return to Sri Lanka. The primary judge rejected the ground finding that not only was there no evidence before the Court of what the delegate had or had not put to the applicant, the delegate's failure would not, in this case, have amounted to jurisdictional error, citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481. The primary judge was not persuaded that the applicant had raised an argument of the kind discussed in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069: J [17]. His Honour found that the applicant had been given the opportunity to address the issue of his family member providing a guarantee to secure release from prison on bail, and determined that there was no error in the Authority proceeding on the basis that such a guarantee might be available or, in fact, would be available if required. In the third ground the applicant sought to raise an argument that could not succeed in light of the High Court's judgment in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936. His Honour rejected the ground on this basis: J [19]. In respect of the fourth ground the primary judge considered the ground difficult to understand as pleaded. His Honour found the premises in the ground to have no logical connection: J [21]. Nevertheless, his Honour discerned from the ground a contention that the Authority had fallen into error in considering new information. His Honour considered the argument by reference to the Authority's assessment of new information at [6]-[8] of its decision record and was not satisfied that the decision record exposed any error in the Authority's approach to s.473DD: J [24]-[25]. 5 The applicant was represented late in the day by counsel and solicitor. At the hearing, his counsel sought to make his application for an extension of time apply to an amended draft notice of appeal in the following terms: The Federal Circuit Court erred when it dismissed Ground 1 of the Appeal to the Federal Circuit Court, such error amounting to jurisdictional error. Particulars i. The IAA failed to deal with a claim which arose from the material before it that the applicant would face harm due to imputed involvement with the LTTE as a result of suspicions concerning his brother having been detained by PLOTE for a year on suspicion of involvement in the LTTE and released after being threatened that they would destroy his family if they found out he was involved in the LTTE, which facts the IAA accepted (IAA [13]). ii. The Federal Circuit Court considered there were four reasons why Ground 1 had no merit [12] & [13], but did not find the IAA had failed to deal with the above claim; iii. The Federal Circuit Court dismissed Ground 1 notwithstanding Ground b specifically raised the point that the IAA did not address such suspicions and whether it would be imputed to the Applicant (Appeal Ground 1b); iv. The Federal Circuit Court failed to address this aspect of the Applicant's claims in its decision. v. The Federal Circuit Court committed jurisdictional error. 6 The Minister did not oppose reliance upon the amended draft notice of appeal, but maintained his opposition to the grant of an extension of time. In the event that the applicant was granted an extension of time, the Minister submits that the appeal should be dismissed. Thus, the matter proceeded upon the basis of both the extension of time application and an appeal if that was granted. 7 The Minister opposes the grant of the extension of time by reason of: (1) its lateness (only 6 days); (2) the absence of any satisfactory explanation for the delay (being waiting for legal advice, which the lawyer was said then to have declined to provide); and (3) the lack of any realistic prospect of the appeal sought to be brought succeeding such that permitting it to proceed would be an exercise in futility, citing WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]; and also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] to the effect that an extension of time, even for a short period, may be refused if an appeal has no prospect of success. 8 An extension of time application, as opposed to a substantive appeal, should generally be addressed by an "impressionistic reading and consideration" of the proposed appeal grounds, refusing the application if those grounds are hopeless: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [66]. If the appeal sought to be brought is not hopeless considered at that impressionistic level, the extension of time sought is not substantial, or there is a reasonable explanation for it, and there is no other reason to refuse to grant the extension of time, such as prejudice to the Minister, then, in most cases, the merits are better considered in greater detail in the context of a substantive appeal. 9 The applicant relies upon: (1) The following claims made in his statutory declaration that was before the Authority and the primary judge: Why I believe they will harm or mistreat me if I go back: I believe they will harm and mistreat me because I am Tamil. They will continue to suspect me of being involved with the LTTE. Why I think I will suffer significant harm if I go back to my home country: I think I will suffer significant harm if I return to Sri Lanka for the reasons mentioned above. I believe I will continue to be arbitrarily deprived of my life and suffer cruel and inhumane treatment. I believe I will eventually be killed. Why I cannot relocate I cannot relocate in Sri Lanka because I am an easily recognisable Tamil. I will be suspected of LTTE involvement wherever I go. The authorities would still know where I live and come looking for me, especially the Sri Lankan Army. It is not easy for Tamils to relocate in Sri Lanka. We can be easily distinguished from Sinhalese people and the Sinhalese people themselves will report us to the authorities. (2) Paragraph 13 of the Authority's reasons (footnotes omitted): Country information confirms that over the course of the Sri Lanka's civil war, hundreds of thousands of people were internally displaced or fled to neighbouring countries during the war with whole communities were displaced. I accept that the applicant's family but not the applicant lived for a period of time in India. I also accept that one of his brothers was killed by accident in 1986 when authorities were shooting at suspected LTTE members, and that another brother went missing in 1989. I accept the applicant's family has never received confirmation of his death only a 'missing person' certificate. I also accept that his other brother was detained by PLOTE for a year on suspicion of involvement in the LTTE and released after being threatened that they would destroy his family if they found out he was involved in the LTTE. These events happened many years ago and the applicant has not claimed that they have had any ongoing repercussions for him. Accordingly, I am satisfied that the applicant is not at risk of harm on the basis of these past events. (3) Part of [9] of the Authority's reasons, summarising the applicant's claims: • Another brother was taken and detained for a year by the People's Liberation Organisation of Tamil Eelam (PLOTE) on suspicion of being associated with the LTTE because he used to travel into the Vanni which was under Liberation Tigers of Tamil Eelam (LTTE) control. His brother was released with a warning that his whole family would be destroyed if they found out he was involved with the LTTE. • As a Tamil he was targeted by the SLA and associated paramilitary groups on suspicion of having LTTE involvement. He was often stopped on the street and questioned about his involvement with the LTTE. On one occasion in Jaffna in 1989 he was detained and beaten by the Eelam People's Revolutionary Liberation Front (EPRLF). • On more than one occasion in Colombo he was arrested and detained by the police on suspicion of being involved with the LTTE. No charges were laid; he was eventually released after paying a bribe. • In 2000 he was arrested and detained by the police for almost a month. • He was rounded up with other Tamil people by the SLA in 2003. They were all arrested and detained for questioning, and taken to court but released without charge. • He was arrested and detained many times by the SLA on suspicion of being involved with the LTTE. • In 2007 after Poora Thivu came under SLA control, he was displaced and lived in Negombo. After the SLA resumed control, he was questioned before being allowed to return about connections to the LTTE because he was living with his wife in Poora Thivu but his identity card showed he was from Vavuniya. He was questioned many times after this. On one occasion, his shoulder was hurt when he was hit by a rifle butt. (4) Paragraph 18 of the Authority's reasons: For the same reasons and noting the extensive powers of the security services under the Prevention of Terrorism Act (PTA) to arrest and detain individuals for extended periods without charge, I also accept his claim to have been detained by police in 2000, mistreated over three days after which he was sent to Welikada prison for a month during which time he was not mistreated, that he was rounded up with other Tamil people in 2003, arrested and detained, taken to court and released without charge, and that he was also detained for a further two weeks in 2006 in Batticaloa. I also accept that in 2007, he and his family were displaced from their home area and lived in Negombo for around 2 to 3 months, before being allowed to return to Poora Thivu and that he was questioned because his identity card showed he was from Vavuniya. The applicant claimed in his TPV interview, after they returned to Poora Thivu, every time there was a change in security forces personnel, he would be questioned because of his identity card and that on one of these occasions he was hit with the butt of a rifle, he jerked and the rifle butt hit his shoulder, causing him an injury for which he may still require surgery. In light of the country information, I consider it plausible that the applicant was injured during an incident of questioning by the authorities. (5) Paragraphs 12 and 13 of the primary judge's reasons: First, at [13] the Authority explained that while it accepted the claim that the applicant's brother had been detained by PLOTE, it was satisfied the applicant was not at risk of harm on the basis of those events. That was for two reasons: first, because the events happened many years ago; and secondly, that the applicant had not claimed that they had had any ongoing repercussions for the applicant. In light of those firm findings, it was unnecessary for the Authority to return later to the possibility that there might have been such repercussions: see Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188 at [34]. Further, in any event, the Authority repeated its finding about the absence of any profile of the applicant at [37], and if it be necessary to go further, at [44] expressly stated that it had cumulatively considered the applicant's claims. The first ground has no merit and is rejected. 10 Based upon the above material, the applicant submits that he raised the fear of harm from being suspected of being a member of the LTTE, which, he asserts, clearly included a claim that he would be imputed with LTTE involvement through his brother. I take that to be a reference to his brother's detention. 11 The Minister submits that, even taken at an impressionistic level, the case sought to be brought is hopeless. That is because, the Minister in substance submits, the primary judge at [12] clearly understood that the Authority had addressed what the applicant had raised about his brother's detention, and had found that no claim had been made of any repercussions flowing to the applicant from that detention. 12 I agree with the Minister. Taken on the most superficial reading, it is not possible to say that a claim was not dealt with of the kind alleged, because the Authority has clearly found that no such claim was made. Moreover, no such claim was made in any of the passages of the statutory declaration relied upon. If not even the faintest basis can be advanced for a claim having been made can be shown, the argument that such a claim was not dealt with by the Authority, and overlooked by the primary judge, is inherently hopeless. 13 Although not strictly necessary, for completeness I add that, had I granted the extension of time, the appeal would have failed for the same reason. The asserted claim was not made, and accordingly there could not have been a failure to deal with it by the Authority. It follows that the primary judge could not have failed to detect any jurisdictional error from failing to address such a claim. 14 The application for an extension of time should therefore be dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.