EKQ17 v Minister for Immigration and Border Protection [2019] FCA 148 | Case summary

iNTRODUCTION 1 This is an application for an extension of time and for leave to appeal from an order made by the Federal Circuit Court of Australia. On 25 September 2018, the Federal Circuit Court decided that the applicant was unable to advance an arguable case of jurisdictional error by the Immigration Assessment Authority (the Authority) and made an order that the applicant's application for judicial review of the decision of the Authority be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule gives the Federal Circuit Court the power to dismiss an application on the hearing of an application to show cause if the Court is not satisfied that the application has raised an arguable case for the relief claimed. 2 The applicant filed his application for an extension of time and leave to appeal on 15 October 2018. An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or order made (r 35.13 of the Federal Court Rules 2011 (Cth)). The application for leave to appeal is six days out of time. 3 The principles governing an application for an extension of time are well-established. They include a consideration of the length of the delay, the explanation for the delay, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, the merits of the appeal (or leave to appeal) and any public interest considerations (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349). The principles governing an application for leave to appeal are also well-established. They are whether the decision is attended by sufficient doubt to warrant a grant of leave to appeal and whether the applicant will suffer substantial injustice if leave is refused, supposing the decision is wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). 4 The applicant's explanation for the delay is that, although the Federal Circuit Court made a decision and gave reasons orally at the conclusion of the hearing, the written reasons were not forwarded to the applicant's correct email address. The first respondent advanced evidence that the written reasons were forwarded to the applicant's correct email address within two days of the hearing. I do not need to resolve this issue because I have reached the conclusion that the application should be dismissed because the proposed grounds of appeal lack merit. 5 The facts surrounding and leading up to the application are as follows. The applicant claims to be a national of Sri Lanka. On 30 September 2016 he lodged an application for a Safe Haven Enterprise Visa (SHEV) XE-790 (Safe Haven visa). A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 27 February 2017. As recorded in the reasons of the Authority, the delegate accepted that: the applicant was a Sri Lankan Moor; that he departed Sri Lanka illegally and had sought asylum; and that he had participated in a protest in Australia and had posted on Facebook. The delegate was not satisfied that there was a real chance or risk that the applicant would be subject to serious or significant harm on his return to Sri Lanka. The decision was a fast track reviewable decision and the Minister referred it to the Authority. 6 The Authority recorded in its reasons that it received a written submission from the applicant on 21 March 2017. It noted that the submission reasserted claims made to the delegate that had already been made before the Authority. The Authority said that, to the extent that the submission responded to issues in the delegate's decision, those aspects may be considered argument rather than information and that it had had regard to them. The Authority also said: 5. The submission also includes country information with an extract of an article titled, "Sri Lankan Muslims at the Cross Roads - Animal Sacrifice and Other Issues" by Izeth Hussain. The extract is undated and no explanation has been provided why it could not have been prior to a decision being made or why it is credible personal information. I am not satisfied as to the matters in s.473DD(b). Nor am I satisfied that circumstances exist to justify considering this new information. 7 The applicant provided evidence to the delegate of conduct he engaged in in Australia. The Federal Circuit Court referred to the approach taken by the delegate to that evidence and then to the approach taken by the Authority. It said the following in its reasons (EKQ17 v Minister for Immigration & Anor [2018] FCCA 2767) at [19]-[22]: The delegate considered this aspect of the applicant's claims, including at CB 156. The delegate accepted that the applicant participated in a peaceful protest in Canberra in June 2014. The delegate found there was no indication, and the applicant did not claim, that he had taken part in any other public demonstration of his political opinion. Nor was he associated with any political group. The delegate also accepted that the applicant had put a photograph of his attendance at the protest on his Facebook account. The delegate recorded the applicant's claim that he used his Facebook page to raise awareness about the Sri Lankan Muslim plight and regularly received abusive messages and threats from Singhalese persons, through comments on Facebook. The delegate found that, although there was no evidence before the delegate that the applicant was active on social media over a longer period of time, the delegate accepted that the applicant may have received some abusive comments on Facebook, as well as positive comments. The delegate found that there was no evidence to indicate that the applicant had suffered any harm due to his comments. The delegate found: While I accept that groups such as Bodu Bala Sena use social media to spread their racial views, I am not satisfied there is likelihood the applicant will be subject to serious harm by this group due to his comments on Facebook. Even if he continues to use social media occasionally as he did in Australia, it is reasonable to expect that the applicant will take precautions in respect to disclosing his identity and whereabouts. I consider the likelihood that the applicant will be identified and seriously harmed by Bodu Bala Sena, if he were to return to Sri Lanka, as a person who participated in the protest against the killing of Sri Lankan Moors that took place in Canberra in June 2014 to be remote. The delegate considered the applicant's claimed fear of harm because of his political opinion as someone opposed to the Sri Lankan regime, on account of his political activities in Australia. The delegate stated: The applicant claims that his participation in the protest against the killing of Sri Lankan Moors, in Canberra in June 2014, would bring him to the adverse attention of the Sri Lankan authorities. While I accept that the applicant participated in the protest in June 2014, I consider that such activity is not necessary to come to the adverse attention of the authorities in Sri Lanka, particularly not after the Rajapaksa's government lost power in 2015. The above cited country information indicate that the 2014 riots against Muslims were condemned in Sri Lanka and the worldwide. The applicant has not taken part in any other public demonstration nor has he criticized the current government. There is no indication that the applicant was a person of adverse interest to the authorities when he was in Sri Lanka and there is no reason to believe that his mere attendance to the peaceful protest in Canberra would put him at the risk if he were to return to Sri Lanka. On this basis, I am not satisfied that there is a real chance that the applicant would face persecution at the hands of the Sri Lankan authorities for the reason of his political opinion in the foreseeable future upon return to Sri Lanka. The Authority's reasons of relevance to the applicant's conduct in Australia are as follows: The applicant has claimed that since he has been in Australia, he participated in a protest in July 2014 against the killing of Sri Lankan Moors. He said that it was held in front of Parliament house and the Sri Lankan Embassy in Canberra and that it was reported in the media in Sri Lanka. The applicant has submitted a photograph of himself holding a "Sri Lanka! Stop Genocide of Muslims" sign. The photograph does not show the location of the applicant. He has also provided a screenshot of his Facebook account which he claims that he uses to raise awareness about the situation of the Moors in Sri Lanka and that he has received a lot of abuse from Sinhalese through comments on his Facebook. The screenshot is of a comment he made that is untranslated with a response from a person of an emoji of a cartoon dog crying. The post is dated 14 November 2016 some nine months following his SHEV interview. I accept that the applicant participated in a protest against the killing of Sri Lankan Moors in Sri Lanka in 2014 and that more recently he posted a comment on Facebook. The post on Facebook is untranslated and I am unable to ascertain what it says. Even if I were to accept that the Facebook post was written to give awareness regarding Sri Lankan Moors, given my above credibility concerns I am not satisfied that the applicant participated in the protest and posted on Facebook otherwise than for the purpose of strengthening his protection claims and I have disregarding this conduct pursuant to s.5J(6) of the Act. (footnotes omitted) 8 It can be seen from these passages that both the delegate and the Authority accepted that the applicant participated in a protest in Australia and posted material on Facebook. The delegate found that that activity did not increase the risk of persecution, whereas the Authority found that s 5J(6) of the Migration Act 1958 (Cth) (the Act) was engaged and the applicant's conduct in Australia was to be disregarded.

The Proposed GROUNDS OF Appeal 9 The applicant appeared before me in person. He had the assistance of an interpreter. He did not file a written outline of submissions in support of the application. 10 The proposed grounds of appeal are as follows: 1. The Authority has not complied with section 424A of the Migration Act by not providing adverse information to the appellant and the learned judge erred in holding with the Authority that such information falls within the exception specified in section 424A (3) of the Act, which was not correct. 2. The learned judge erred at paragraph 15 of the reasons for judgment that it would not be unreasonable for the authority not to invite comment or information from the appellant. such a reasoning was so illogical and irrational which would trigger jurisdictional error. Reference is drawn from Minister for Immigration and Citizenship -v- SZMDS {2010} HCA 16, also in SGLB {2004} 78 ALJR 992. 3. The learned judge erred at paragraph 25 of the reasons for judgment that the authority has not failed to consider its discretionary power in s.473DC(3) of the Act. The Authority's finding that the appellant participated in the protest and posted on Face book to strengthen his claim was not supported by evidence. Such finding was so unreasonable and irrational which triggered jurisdictional error. 11 With respect to Ground 1, the Authority was not required to comply with s 424A of the Act. The section does not apply to the Authority. Insofar as this ground is to be taken as referring to s 473DE of the Act, that section was not engaged because none of the applicant's particulars identify any new information as that term is defined in s 473DC of the Act. As the first respondent submits, if there was new information before the Authority, it was information from the applicant himself. Section 473DE(1) of the Act does not apply to new information that is prescribed by regulation for the purposes of paragraph 473DE(3)(c). Regulation 4.41 of the Migration Regulations 1994 (Cth) provides as follows: For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority's review of a fast track reviewable decision in relation to the referred applicant is prescribed. 12 Ground 1 of the proposed Notice of Appeal is without merit. 13 With respect to Ground 2, the Federal Circuit Court said in [15] of its reasons, the following: In the circumstances, much of the jurisprudence concerning the procedural fairness obligations on the Tribunal is inapplicable to the Authority. It may be that in a particular case where the Authority's approach is fundamentally different to that of the delegate, it would be unreasonable for the Authority to not invite comment or information from an applicant. This is not such a case. The differences in approach as between the delegate and the Authority are relatively minor. Both focused in part and relevantly on the applicant's activities in Australia. While the delegate was content to find that those activities did not support the claim for protection, the Authority took the view that the activities were engaged in solely to enhance the applicant's claims for protection. The Authority found that it could not take those activities into consideration pursuant to s.5J(6) of the Migration Act. As was pointed out by the solicitor for the Minister, however, the Authority did take those activities into consideration in dealing with the complementary protection criteria. 14 Both the delegate and the Authority found that the applicant had attended a protest in Canberra and made political posts on social media and, as I have said, the delegate found that those activities did not support the applicant's claim for protection, whereas the Authority found that those activities were engaged in solely to enhance the applicant's claims for protection. The Authority's finding meant that the applicant's conduct in Australia was to be disregarded (see s 5J(6) of the Act). 15 The first respondent submits that there is no arguable case of legal unreasonableness in the Authority not inviting the applicant to give new information. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (DGZ16) at [75]-[76], the Full Court of this Court said: There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 16 I agree with the first respondent's submission. There is no merit in Ground 2. 17 With respect to Ground 3, the Federal Circuit Court said in [25] of its reasons: The present case is not one in which any failure by the Authority to consider the exercise of its discretionary power in s.473DC(3), or to exercise that power, was legally unreasonable. The applicant had the opportunity to advance his claims concerning his conduct in Australia before the Minister's delegate. He did so, including in the statement provided in support of his SHEV application, and in the post-interview submissions by his representative. This is not a case in which the Authority knew that it did not have, but the applicant was likely to have, necessary material on a new issue. Rather, like DGZ16, the Authority simply reassessed the material that the delegate considered and made some different findings. SZILQ v Minister for Immigration is distinguishable; that case turned on the provisions of the significantly different statutory regime there in issue and, in particular, s.422B and s.425 of the Migration Act. (Footnotes omitted.) 18 I agree with the first respondent's submission that this case is similar to DGZ16 in that the Authority simply reassessed the material that the delegate considered and made some different findings. It was not a case in which the Authority knew that it did not have, but the applicant was likely to have, necessary material on a new issue. The decision in SZILQ v Minister for Immigration (2007) 163 FCR 304 is distinguishable in that that case turned on the provisions of a significantly different statutory regime there in issue and, in particular, ss 422B and 425 of the Act. 19 There is no merit in Ground 3.

EKQ17 v Minister for Immigration and Border Protection

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