DVQ17 v Minister for Immigration and Border Protection

Background 6 The applicant is a citizen of Sri Lanka, a Tamil and a Christian. The Authority found that the applicant arrived in Australia on 20 September 2012 and applied for the visa on 22 June 2016, following a previous invalid application for a protection visa in 2013. 7 The claims made by the applicant to the delegate were mentioned in the Authority's decision. The Authority's decision indicates that they may be summarised as follows: 1. The applicant is a Tamil Christian who fears being targeted, harassed and beaten by unknown individuals, the authorities and the Sri Lankan Army (SLA) and paramilitary groups due to his involvement with the Tamil National Alliance (TNA), being suspected as a Liberation Tigers of Tamil Eelam (LTTE) member and because he is a young Tamil male from the Eastern province of Sri Lanka. 2. The applicant helped the TNA with advertising and seating arrangements. His father worked in the office of a TNA member of Parliament (MP). In early 2010, when he was assisting with the TNA MP's election campaign, he was chased by unidentified people and when he fled was caught up in the SLA's roundup of Tamil people for security checks. He was beaten and questioned by the SLA and taken to hospital by the TNA. He provided a letter in relation to this event. He said that he had been targeted as a young Tamil male and questioned for suspected LTTE involvement. Although the questioning had been in Sinhalese, he had been asked whether he was an "LTTE" participant. 3. He said he continued to be anxious and fearful and this affected his memory. After the elections he was followed by unidentified persons. He believes these persons were searching for him from early 2010 until he left Sri Lanka and that they were linked to the Karuna group, and he feared kidnapping by them. He was informed "by his boss and friends" that these persons came to his workplace four or five times making enquiries about him. The applicant also stated that the SLA asked his neighbours if he was a member of the LTTE. 4. The applicant believed that because he was politically active shortly after the end of the war he would be considered to have acted against the government of Sri Lanka. 5. The applicant's family home was burnt by Muslims in clashes between 1986 and 1990, and his family had to take shelter in a church. Due to violence and ethnic disturbances the applicant and his family lived in a rehabilitation centre in 1989 and a refugee camp in 1990, as a result of which the applicant's mother suffered mental health issues. They later moved to a town because of problems from Muslims in Sri Lanka and because of his sister's employment. 6. The applicant's previous involvement with the TNA is on record, and that makes him a target for LTTE suspicions. He also fears that he will be imprisoned and tortured by the authorities and suspected of being an LTTE member for having sought asylum, and that if he returns the authorities will think it is because he intended to start trouble. He cannot relocate without his family, and fears that with continued persecution he will develop acute mental illness like that of his mother. The applicant believes that Tamil people are detained longer than others on return to Sri Lanka and in worse conditions. 7. In his statutory declaration of June 2016 the applicant said that although in his detention centre interviews he had stated he was not a member of any political party, that was incorrect due to his involvement with the TNA after the end of the war in May 2009. His lack of memory is due to being stressed, tired and nervous. He has trouble recalling exact dates and his memory has been affected by his experiences. 8. The applicant's school friend (D) was actively involved in the LTTE, and they continued to see each other after D dropped out of school. The applicant was questioned by the SLA about D's movement as they knew he was a friend of D. The SLA took him to an army camp, threatened him with a gun, interrogated him for 3-4 hours at a time and beat him. The SLA continued to threaten him and asked if he was a member of the LTTE. The applicant had heard that D was killed by the SLA in 2010, and that D's family had fled and their home was bombed. At the protection visa interview, however, the applicant claimed that D was killed in 2002. He believed that because of his friendship with D and political activism he would be more of a target than other Tamil males for suspected LTTE involvement. 9. The applicant had not mentioned why he was interrogated by the SLA because he thought he would be suspected as an LTTE person in Australia. 10. If he returned, the applicant would be targeted and attacked by authorities, the SLA and paramilitary groups and found by the unidentified people who were looking for him. In his June 2016 statement the applicant said his parents had told him a few days prior that a village headman was brutally beaten by the SLA. 8 The applicant informed the delegate that he was mentally upset and continued to suffer nightmares, problems with his memory and mental distress. He told the delegate that this mental distress was affecting his memory and should be given consideration when assessing his claims. He stated that he had received counselling in Australia but did not know if this counselling would continue during any imprisonment in Sri Lanka. 9 The applicant's visa application was refused by the Minister's delegate in April 2017 on the basis that the applicant was not credible, and therefore the delegate was not satisfied that the applicant met the statutory-mandated definition of refugee or that there was a real risk the applicant would suffer significant harm on return to Sri Lanka: Authority Decision (AD) at [4].

The Authority's decision 10 In reviewing the decision of the delegate, the Authority had before it the material referred by the Secretary pursuant to s 473CB of the Migration Act 1958 (Cth). No new information was provided to or obtained by the Authority (AD at [3]). 11 The Authority accepted a number of the applicant's claims, including that he was a young Christian Tamil man from the Eastern province of Sri Lanka, that he was displaced from 1986-1990, including in a refugee camp in 1990 for a year due to ethnic disturbances, and that he was also displaced in 2004-2005 after the tsunami. The Authority noted that the applicant had not made any claims of harm in respect of his religion or ethnicity related to Muslim/Christian disturbances since his move to town in 2006 and the Authority did not accept that the applicant had faced harm since then on the basis of his religion (AD at [9]). 12 The Authority also accepted that the applicant's mother had been diagnosed with depression and psychotic illness. It did not accept, however, that the applicant's mother had developed a mental health issue as a result of Muslim attacks from 1986-1990, as the medical evidence relating to the illness related to the 2003 period only, and there was no mention of the mother's ill health "in the Methodist letter about the applicant's family displacement in 1990". The Authority also did not accept that the mother's mental health worsened after unidentified persons began to search for the applicant as there was no medical evidence from the period to support this and, in any event, it did not accept that unidentified persons had in fact been searching for him (AD at [8]). Further, the Authority did not accept that the applicant's mother continued to suffer mental health problems (AD at [11]). 13 The Authority did not accept that the applicant would need to hide or could not make a living due to his inability to understand Sinhalese, as his family had a home and employment and the applicant had been employed for some years until his departure from Sri Lanka (AD at [10]). 14 The Authority did not accept that the applicant had a mental illness or condition, or that his memory had been affected, in the absence of medical evidence to support the claim (AD at [11]). 15 The Authority accepted the applicant's claim to have been harassed and questioned as a young Tamil male during the war, and to have been threatened and "possibly beaten" in 2002 by the Sri Lankan Army (SLA), but did not accept that the applicant had had any interaction with the authorities after 2002 (AD at [12]). 16 The Authority did not accept that the applicant was a credible witness, as he had added to and changed his account and claims, failed to mention key parts of his claims including his involvement with the TNA, his friendship with D, or his frequent interrogations (AD at [13]-[14]). The Authority considered that "even if stressed, tired or nervous or mentally affected" the applicant would have mentioned a key aspect of his claims at the outset or in a subsequent interview or statements. The Authority noted in this respect that the applicant was represented by an agent and there was an absence of medical evidence about his mental health. 17 The Authority did not accept the applicant's explanation that he did not mention the reason that he had been beaten due to fear of being thought to have LTTE connections, bearing in mind that, in his entry interview in 2013, the applicant said he did not know why he was beaten and, later in 2013, he claimed that he had no LTTE connections (AD at [15]). 18 The Authority noted (AD at [16]) that the applicant had not mentioned anything about D in his October 2013 statutory declaration, which was 28 paragraphs long; that the applicant's explanation that he was fearful to mention LTTE connections was at odds with his claims in his 2013 statement that he was harassed due to suspected LTTE connections; and that it was particularly odd that he failed to mention the claims about D in that context. 19 The Authority did not accept the applicant's claims about his friendship with D, which was a key part of his claims overall. The Authority also pointed to inconsistencies in the applicant's account of that friendship (AD at [19]) and suggested that the claim to have kept in contact with D due to his having lived streets away was inconsistent with his claims that the army questioned the applicant about D's whereabouts. The Authority noted that the applicant had not mentioned being interrogated by the army a number of times in respect of D in his protection interview (AD at [20]) although he made this claim in his 2016 statement. The Authority found that the account of the applicant's friend D having been involved with the LTTE and the applicant having been interrogated, beaten, and harassed for this reason was fabricated (AD at [21]). 20 The Authority also considered that the applicant's claims to have been involved with the TNA were fabricated. In this respect, it noted that the applicant had made no mention of TNA involvement before his statutory declaration in October 2013, and found that he would have done so even if stressed, nervous or tired or having mental ill health if these claims were true (AD at [22]-[23]). The Authority also found that the applicant's lack of knowledge and understanding of the TNA was limited, and that it was implausible that the applicant would not know how his father knew the member of Parliament whom he claimed to support (AD at [24]-[25]). The Authority placed little weight on the letter provided by that member of Parliament as it found the letter was general, and inconsistent with his claims in that it referred to "being subjected to searches and threats to his life" rather than being "followed and chased" as the applicant had claimed (AD at [26]). 21 The Authority found that the applicant's claims to have been followed, searched for or beaten had changed through the application process and were inconsistent (AD at [27]-[28]). It further found, relying on DFAT country information, that a letter provided by the applicant in respect of treatment for injuries in 2010 was not authentic (AD at [29]). 22 The Authority did not accept that unidentified persons, the authorities, the Karuna group, or anyone else, had followed or chased the applicant. The Authority stated in this respect that the applicant's account had changed over the application process, as he had stated in his protection interview that he had no interaction with the Karuna group, and had not mentioned fear from harm in his entry or January 2013 interviews, but later in his protection interview had claimed that the Karuna group had forced him to help build a camp in 2002 or 2003 (AD at [31]). The Authority also noted that the applicant had lived and worked in the same area for significant periods of time and that it was not credible that he could not be found if people were searching for him (AD at [32]). 23 Further, referring to country information that indicated that the applicant would have been sent to a rehabilitation camp had he been suspected of LTTE involvement and to the fact that he was issued a pre-employment departure certificate in 2011 by the Ministry of Foreign Affairs, the Authority did not accept that the applicant was wanted by the authorities or perceived as anti-government or having an LTTE profile (AD at [36]). 24 Having regard to these findings and the country information, the Authority was not satisfied that the applicant had a profile of a person connected or perceived to be connected to the LTTE that would bring him to the attention of the authorities (AD at [41]). The Authority considered that the applicant's minor incident in 2002 and residence in a former LTTE-controlled area was not sufficient to cause him to be a person of concern to the authorities, the Karuna group, or anyone else (AD at [43]). It found this conclusion was further supported by not having been arrested or detained by authorities on suspicion of being LTTE after the war (AD at [46]). The Authority also did not consider that monitoring by the authorities on the basis of being Tamil amounted to serious harm (AD at [47]). 25 Accordingly, the Authority was not satisfied that on return to Sri Lanka, the applicant would face serious harm on account of his Tamil ethnicity, Christian religion, membership of a particular social group, an imputed pro-LTTE or anti-government opinion, or support for the TNA (AD at [54]-[57]). The Authority also found that, having regard to country information and the applicant's lack of profile, the applicant did not face serious harm on account of being a failed asylum seeker or illegal departee from Sri Lanka (AD at [62], [68], [69]). 26 In relation to his illegal departure, the Authority accepted that the applicant had committed an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka) for which he would be fined. Having regard to the applicant's circumstances, however, it found that a fine or any questioning or brief detention would not amount to serious harm, as he had earned a livelihood previously and he was in regular contact with his family. It further found that in light of its previous findings concerning his profile, the applicant would not face a real chance of torture, interrogation or mistreatment on arrival or during questioning on his return to his home area. The Authority further found that, as the Immigrants and Emigrants Act was a law of general application, it did not disclose discriminatory intent and its enforcement did not amount to persecution (AD at [63]-[72]). 27 The Authority made analogous findings in its complementary protection assessment (AD at [74]-[84]). 28 Accordingly, the Authority found that the applicant did not meet the statutory requirements of ss 36(2)(a) or 36(2)(aa) of the Migration Act.

The Federal Circuit Court decision 29 The applicant applied for judicial review of the Authority's decision to the Federal Circuit Court on 28 August 2017. That application was rejected by a judge of that Court in a judgment delivered ex tempore on 22 November 2018. The reasons of the primary judge, to the extent relevant, are referred to below.

The parties' submissions 30 The applicant filed an affidavit on 21 June 2019 in support of his application for an extension of time. In that affidavit he stated that, despite having been told that he would receive a copy of the Federal Circuit Court decision at his notified address, which remained the same, he had not received the decision from the Court or from the Minister's lawyer. The affidavit stated that, on 13 June 2019, he went to the Federal Court Registry and obtained a copy of the decision from an officer there. He was then told by a friend that he could appeal the decision. 31 The affidavit further stated that as he is a person with no knowledge of the law, he did not know he had to appeal within 21 days of the date of the decision; that he has done so as soon as possible; and that there is no prejudice to either of the respondents. No further written submissions were filed by the applicant in support of his application. 32 At the 3 February 2020 hearing in this Court, the applicant repeated the substance of his claims in support of his visa application, as he had stated them to the delegate and the Authority. The applicant further submitted that the decision of the Authority was not made in accordance with the definition of a refugee under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Refugees Convention). 33 The Minister relied on an affidavit sworn by his solicitor, Adam Cunynghame, on 20 January 2020, as well as on written and oral submissions. This affidavit relevantly stated that, on 19 December 2018, the Federal Circuit Court sent a copy of its decision to the parties, including to the email address earlier provided by the applicant. 34 In written submissions filed on 20 January 2020, the Minister opposed the application for an extension of time. The Minister submitted that the applicant, who was present at the proceedings before the primary judge, including at the delivery of judgment, could have filed a notice of appeal at any time from this date. 35 The Minister accepted that there was no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to the appeal, and the public interest in the finality of decision making. The Minister submitted, however, that the applicant's explanation for the delay was insufficient. Further, the Minister contended that, in light of the lack of merit of the applicant's proposed grounds of the appeal, the application for an extension of time should be refused. 36 The Minister also sought costs in a fixed amount, which he submitted was appropriate in circumstances where costs sought are less than the amount that can be claimed in a Short Form Bill for an appeal involving a migration decision, and the amount sought is reasonable and proportionate to the nature, including the complexity, of the case, citing BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]-[30]. The Minister's legal representative submitted at the hearing that costs should be fixed in the amount of $3000. 37 In oral submissions, the Minister in substance repeated his written submissions in opposing the grant of an extension of time.

Applicant's proposed grounds of appeal 38 The applicant's proposed grounds of appeal were set out in the applicant's extension of time application. Nothing turns on the fact that this was not in conformity with the usual practice and the applicable Rules of Court. The stated grounds were as follows: 1. The decision of the Federal Circuit Court is affected by jurisdictional error. a. The Federal Circuit Court erred in relation to appellant could face prison for his illegal departure. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s 36(2)(aa), the Second Respondent has taken into consideration that the applicant may be detained in a Sri Lankan prison. However, it then should have considered if it could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words it should have evaluated the nature and gravity of that loss of liberty and the Court should have addressed that issue. b. The IAA's finding at paragraph 16 was illogical and irrational and not supported by evidence and Court erred by accepting that finding. 39 The Minister accepted that ground 1(a) was broadly consistent with ground 4 in the proceedings in the Federal Circuit Court and that ground 1(b) was consistent with ground 1 in those proceedings. Nothing turns on any differences between the way the grounds for judicial review were put before the primary judge and in support of the proposed appeal in this Court. 40 In relation to the merits of the proposed ground of appeal, the Minister submitted, in relation to ground 1(a), that it was open to the Authority to conclude that any detention would not involve the intentional infliction of pain or suffering and therefore would not constitute serious harm, citing SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [26]-[27]. 41 In relation to ground 1(b), the Minister submitted that it was open to the Authority to find (AD at [16]) that the applicant's explanation for omitting to mention his relationship with D in his 2013 statutory declaration was insufficient, and that the finding could not be said to lack a logical connection with the evidence or to be illogical or unreasonable.

Consideration 42 The principles applicable to the exercise of the Court's discretion to grant an extension of time are well established. Generally speaking, the Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 as relevant to a decision whether to extend time in which to appeal under r 36.05 of the Federal Court Rules. The factors that fall for consideration include the length of the delay and the explanation for it, any prejudice to the respondent if the extension is allowed, and whether there is sufficient merit in the proposed appeal to justify an extension of time. These considerations are not exhaustive, and the outcome of an extension of time application will always depend on the particular circumstances of the case. 43 The applicant has provided some explanation for the delay. As I indicated at the hearing, I accepted that, as the applicant said, he was unfamiliar with the legal system and the procedural requirements for the institution of an appeal. The delay here is not so great as to weigh heavily against an extension of time. Bearing in mind these matters and the Minister's acknowledgment that he would not suffer any prejudice if the Court were to grant an extension of time, beyond the cost of responding and any prejudice to the public interest in the finality of decision-making, it seems to me that whether an extension of time should be granted turns principally on the merits of the proposed appeal. 44 In relation to ground 1(a), the primary judge found that the Authority had applied the correct test in considering whether the impact of imprisonment on returning to Sri Lanka after illegal departure amounted to significant harm for the purposes of the Migration Act: see AD at [78]. 45 As already noted, the Authority addressed the likely harm that the applicant would be subject to on his return to Sri Lanka as an illegal departee. It accepted that the applicant had, by reason of his illegal departure from Sri Lanka, committed an offence under the Immigrants and Emigrants Act (Sri Lanka) and that, on the basis of the country information, he would be charged, bailed and fined up to 50,000 rupees, but that this did not amount to serious harm (or significant harm: see [49] below). This was said to be because he "would be able to pay the fine because he had earned income in Sri Lanka previously and there is no reason he could not do so in future". The Authority found that, given his circumstances and the country information he would be bailed and, if needed, his family could provide surety. 46 The Authority held that the Immigrants and Emigrants Act (Sri Lanka) was a law of general application; that it did not disclose discriminatory intent; and that its enforcement did not amount to persecution. It further stated that "[b]ased on country information and the applicant's circumstances", it did not accept that the applicant faced "a real chance of torture, interrogation, mistreatment on arrival in Sri Lanka or during the questioning process to establish identity and bail". It did not accept that the applicant faced a real chance of harm as a result of authorities checking with his home area about his identity as it had found that the applicant was not of adverse interest to the authorities or anyone else. It did not accept that he would be treated harshly because, as it had found, he did not have an LTTE profile. It did not therefore consider that the applicant faced a real chance of serious harm. 47 The Authority also accepted that the applicant could be placed in remand if he arrived over the weekend and that he might be detained in this way for a few days but found that this would not amount to serious harm. It further found that Tamils were not held longer than others. It did not accept that the applicant faced a real chance of torture, assault or mistreatment if held on remand as the applicant did not have an LTTE profile. 48 As to the complementary protection provisions, the Authority found in substance that it was not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined in the Migration Act. 49 The Authority found that the likelihood that the applicant would be held in prison was remote, although if he was so detained, then he "may experience poor prison conditions during his detention". It found that these conditions were due to "overcrowding, poor sanitation and lack of resources"; and there was no real risk that the applicant will be arbitrarily deprived of his life or tortured. It found, furthermore, that there was "no intention to inflict pain or suffering, severe pain or suffering or extreme humiliation" and in these circumstances, "the poor prison conditions to which the applicant may be subject, and the fine imposed, do not of themselves constitute significant harm as defined under the Act". 50 The Authority also assessed in this connection whether the conditions that the applicant might face on remand constituted significant harm in light of any mental distress suffered by him. 51 The Authority stated its conclusions as follows: I am not satisfied that the treatment and penalties [the applicant] may face as an illegal departee amount to severe pain or suffering that is cruel or inhuman in nature or extreme humiliation. I am not satisfied that he will be subject to the death penalty, arbitrary deprivation of life, or torture. Further, I do not accept that the applicant has a mental illness or condition or that his mental distress or having received former counselling or having nightmares means he faces a real risk of significant harm if imprisoned. … I am not satisfied that, individually or cumulatively, any processes or penalties the applicant may encounter under the [Immigrants and Emigrants Act (Sri Lanka)], would constitute significant harm as exhaustively defined under ss 36(2A) and 5 of the Act. 52 The Authority also found that the applicant did not face a real risk of significant harm in terms of discrimination or harassment or monitoring as defined under ss 36(2A) and 5 of the Migration Act. 53 The applicant's claim that the Authority failed to consider the nature and gravity of any possible loss of liberty as a result of his detention on return to Sri Lanka must be rejected. As indicated above, the Authority plainly considered these matters in forming the view that any possible brief detention did not amount to serious harm, or significant harm under the complementary protection provisions. Furthermore, the applicant's claim that the Authority failed to consider whether any pain and suffering inflicted on him due to the poor prison conditions was intentionally inflicted must also be rejected. As indicated at [49] above, it is clear that the Authority did in fact address the question of intention and that it did so consistently with the holding of the majority in SZTAL at [26]-[27]. 54 In respect of the applicant's submission that the decision of the Authority was not made in accordance with the Refugees Convention, the law in Australia is that, in an appeal such as this from a judgment of the Federal Circuit Court, this Court is bound to apply the provisions of the Migration Act in the event of any inconsistency between that Act and the Refugees Convention: see, eg, Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; 231 CLR 1 at [33] per Gummow A-CJ, Callinan, Heydon and Crennan JJ. As I have found, there is no indication that the Authority did not address itself to the task required in making its decision under the Migration Act. 55 Accordingly, there is little or no merit in proposed ground 1(a) and the reasons of the primary judge disclose no error in this respect. 56 The primary judge found, in relation to ground 1(b), that the Authority's reason for disbelieving the applicant's later version of events was sufficiently logical, in light of the applicant not having mentioned his friend D at his entry interview or in his statutory declaration. The primary judge held that the Authority could not be said to be in error for this reason. 57 As already indicated, the Authority found that the applicant had significantly added to his evidence over time and that given the importance of this connection to his claims, it was not credible that he would have done so either for reasons of mental ill health or because of his fearfulness of disclosing an LTTE connection. I accept that it was open to the Authority, in relation to the changed evidence provided by the applicant to the Department, to take this into account in coming to the conclusion that the applicant's later version of events should not, for this reason, be believed. 58 Again, I can discern no tenable basis to impute error to the primary judge for concluding that the Authority had not engaged in an unintelligible, irrational or unreasonable process of reasoning. There is therefore little or no merit in proposed ground 1(b). 59 For the reasons stated, neither proposed ground 1(a) or 1(b) have sufficient merit to justify the grant of an extension of time to file the proposed appeal and the application should be refused. 60 The Court sought to explain to the applicant at the hearing that the nature of the review conducted by the Federal Circuit Court was one of judicial review, with an eye here to the identification of jurisdictional error, and not a rehearing of the merits of his application. With this in mind, the Court sought to explain that, on an appeal such as this from a judgment of the Federal Circuit Court, this Court was also unable to conduct a rehearing of the merits of the applicant's visa application. This meant that the Court could not rule on the applicant's submissions on the merits of his visa application. 61 For the reasons stated, I would refuse the applicant's application for an extension of time, with costs fixed in the amount of $3000. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.