FJP17 v Minister for Home Affairs

Principles for extension of time 5 In considering whether to grant an extension of time for an appeal under r 36.03 of the Federal Court Rules 2011 (Cth), the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J). 6 The application before the Court was filed 13 days outside the prescribed statutory period of 21 days. 7 The applicant's explanation for the delay is that he is not familiar with Court proceedings or the appeal process and that he relied upon a volunteer to organise his appeal who, following a delay, informed him that she could not assist him. In order to file his appeal, he was required to seek assistance from other detainees. 8 Whilst lack of legal advice is an insufficient excuse for failure to lodge a notice of appeal within the prescribed time (Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] (Farrell J)), the Minister accepts that there is minimal prejudice to the first respondent as a result of the delay in bringing an appeal and that the delay is not substantial. The main question to be addressed is therefore the merits of the proposed appeal. Proposed ground 9 The draft notice of appeal (particularised in the affidavit in support of the extension application) referred to one ground of appeal, as follows: The primary judge failed to find that the Tribunal erred by failing to determine the applicant's claim for a SHEV according to law. Particulars The Tribunal failed to consider DFAT country information that it was required to take into account under Ministerial Direction No. 56 (made under s.499 of the Migration Act 1958 (Cth)), particularly the DFAT Country Information for Sri Lanka dated 24 January 2017, insofar as it relates to mental health services and facilities. 10 This alleged error on the part of the Tribunal was also raised before the primary judge. Merits of the proposed appeal 11 In considering whether to grant the extension of time, the Court should consider at a 'reasonably impressionistic level' whether the proposed ground of appeal is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has reasonable prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)). 12 The proposed appeal ground is to be considered in the context of those principles. This is not the determination of an appeal. However, it is necessary in order to consider whether the appeal ground could be said to have any merit or any reasonable prospect of success to set out some background to the claim in order to understand the applicant's contentions. Protection claims 13 Before the delegate, the applicant's claims for protection were generally as follows: (1) The applicant and his brothers had to frequently travel to sell their vegetables. They had to pass through check points. Because of their frequent travels, the Sri Lankan security forces suspected them of being part of the Liberation Tigers of Tamil Eelam (LTTE). (2) As the fighting between authorities and the LTTE intensified, the applicant and his brothers stopped supplying vegetables to certain markets because it was not safe to travel. (3) The army would monitor his movements. To get to work he would have to pass through an army checkpoint which was located outside a camp known as Joseph camp. The soldiers would only let him pass after checking his national ID card. The applicant lived in fear of the authorities and the adverse treatment of Tamils. (4) One day the applicant missed his bus. When he was walking toward a checkpoint, the authorities accused him of being in the LTTE. An army vehicle came along and he was put in the back and taken to Joseph camp. He was put in a room, interrogated and struck in the face by two officers. (5) Members of the Karuna group, who were Tamil but worked with the army, came and he was held for three hours. He was released and went home but he was afraid and did not go to the hospital for his injuries. (6) The applicant's auntie helped him leave Sri Lanka and arranged a passport for him. His brother paid the smuggler. The applicant flew to India and then travelled by boat to Australia. (7) He fears being killed, tortured, arbitrarily detained and harassed by the Sri Lankan authorities because of his previous experience, his Tamil race, and his suspected connections to the LTTE. (8) The conditions for Tamils have not improved under the new government and people are still being abducted. The authorities cannot protect him as he fears harm from them and throughout the whole country. 14 However, the delegate additionally identified that the applicant's personal circumstances had been further considered in the context of the ITOA, and in that context the applicant claimed that he suffered from mental health issues that increased his profile and risk of being targeted if he returned to Sri Lanka. The ITOA concluded that there was no evidence the applicant would be targeted for those reasons or that he would be denied medical treatment in Sri Lanka. The delegate expressly noted that such claim was not made as part of the SHEV interview or application and so made no finding on this matter (Part 5 of delegate's reasons). 15 The Tribunal also referred to the further claims for protection the applicant made in the context of the ITOA assessment which were described as follows: (1) The authorities in Sri Lanka will know the applicant has sought protection in Australia because of the data breach (a reference to the data breach by the Department of Immigration in 2014). (2) His cousin was involved in a car accident which the applicant considers was a targeted attack due to the cousin's involvement with the LTTE, and the applicant asserts this adds substance to his claim to have a profile with the LTTE. (3) Two strangers attended the funeral of the applicant's father and asked where the applicant was. (4) The applicant's mental health status as a person with depression, anxiety and post-traumatic stress disorder. 16 The Tribunal asked the applicant about these additional claims during the hearing before it. This is apparent from its reasons as follows: [42] With respect to the applicant's mental health status, the Tribunal asked the applicant if there was any particular reason why he believed treatment options would not be available to him if he were to be returned to Sri Lanka. The applicant conceded that treatment modalities are available in Sri Lanka for people with mental health needs. However, the applicant stated that he feared that he would be persecuted on return to Sri Lanka on account of his LTTE profile and, for this reason, would be unable to access appropriate mental health care. … [46] The Tribunal also asked the applicant if he had anything further to add in relation to his concerns about the data breach by the Department of Immigration in 2014. The applicant stated that he continued to hold concerns about whether or not this data breach might have resulted in him appearing on a Sri Lankan stop and watch list. 17 Put simply, despite raising his mental health status at the time of the ITOA, the applicant did not maintain a claim based on that issue in his application for a SHEV but regardless, the Tribunal raised that matter during the hearing before it. The Tribunal's findings 18 The Tribunal found that the applicant did not have an imputed LTTE profile with the Sri Lankan state. It referred to the findings of the RSA and the IMRs, all of which concluded that the applicant had no such profile. It considered that claims that the Sri Lankan army had visited the applicant's home were late and variable, and so placed little weight on those claims. 19 The Tribunal referred to a DFAT Country Information report for Sri Lanka dated 24 January 2017 (DFAT Report) which supported the view that the security situation in Sri Lanka, particularly with respect to the Tamil population, has improved considerably over recent years. The Tribunal preferred this country information over that supplied by the applicant. 20 The Tribunal found that the applicant's detention at Joseph Camp was not consistent with the treatment reported by Tamil males suspected of genuine involvement with the LTTE. Instead, his treatment and swift release was more consistent with him having no actual or imputed LTTE profile by the authorities in a heightened security situation. Taking those matters into account, the Tribunal found that the applicant did not face persecution on account of an imputed LTTE profile. 21 As to the data breach, the Tribunal found that as the applicant had provided no credible evidence of malevolent actions or intent by the Sri Lankan state towards the applicant or his family since the date of the data breach, there was nothing to suggest that the applicant or his family faced a well-founded fear of persecution for the reason of the data breach. 22 As to the applicant's mental health status, in addition to its statement at [42] as included above (at [16] of these reasons), the Tribunal found: [82] The Tribunal notes that the applicant's mental health status was considered in the context of the ITOA and based on submissions at that time. The ITOA found that this aspect of the applicant's claims did not reach the level of a well-founded fear of harm if the applicant were returned to Sri Lanka. [83] The Tribunal also notes that the applicant did not refer specifically to this issue in either his subsequent [protection visa] or SHEV applications. As discussed above, at the outset of the hearing the applicant stated that he was depressed and anxious because of his separation from his family and his concerns for his sick mother in Sri Lanka, together with his frustrations at having been in immigration detention for such a prolonged period of time. [84] The Tribunal notes that, despite this, the applicant was articulate and able to participate fully throughout the hearing. Given the applicant's prior claims in connection with his mental health status, the Tribunal would have expected the applicant to repeat those claims in either his subsequent [protection visa] or SHEV applications for protection if he intended to continue to rely on them. The applicant has not repeated those claims in the context of these proceedings. [85] The Tribunal notes that it asked the applicant at the beginning of the hearing if he wished to change anything in his application documents or add any claims to those contained within his application for a SHEV. The applicant answered both these questions in the negative. The Tribunal also asked the applicant if the Tribunal could proceed on the basis of the documents in its possession. The applicant responded in the affirmative. [86] Given this, the Tribunal finds that despite being obviously distressed by his personal circumstances and those of his immediate family, the applicant participated fully in the Tribunal's proceedings and was both articulate and competent in all respects. [87] On the basis of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the essential and significant reason of his mental health status now or in the reasonably foreseeable future if he were to be returned to Sri Lanka or the purposes of s.36(2)(a) of the Act. [88] The Tribunal further finds that the applicant does not face a real risk of significant harm if he were returned to Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his mental health status for the purposes of s.36(2)(aa) of the Act. Before the Federal Circuit Court 23 As noted, the primary judge addressed the ground that is also relied upon in this appeal. 24 Before the primary judge, the applicant referred to [2.13] and [2.14] of the DFAT Report, which provide that health outcomes, particularly regarding mental health, tend to be worse in the north and east of Sri Lanka (the location of the applicant's home) as a result of the destruction of infrastructure during previous conflict. 25 The primary judge noted that Ministerial Direction No 56 requires a decision-maker to take into account a DFAT country information report 'where relevant', and that the Tribunal had referred to the DFAT Report at various points throughout its reasons. 26 The primary judge then considered whether such information was 'relevant' in light of the manner in which the applicant brought his claim. 27 The reasons indicate that the primary judge carefully considered the manner in which the Tribunal had dealt with the applicant's mental health condition. 28 The primary judge referred to the Tribunal's statement that the applicant had not sought to raise his mental health status or any medical requirements before the delegate, and that notwithstanding that limitation, the Tribunal had referred to the claims made in the ITOA that the applicant feared persecution because he suffered from mental health issues and had raised them with the applicant. The primary judge also referred to the delegate's statements. The Tribunal's recording of the delegate's position is accurate. 29 The primary judge also referred to the Tribunal's finding at [42] of it reasons to the effect that, having made inquiries of the applicant, that to the extent that the applicant maintained any claim in relation to his mental health condition, it was a claim based on a fear of discriminatory harm on account of his LTTE profile, not a claim based on differential regional treatment of mental health conditions. 30 Therefore, the primary judge was careful to consider the scope of the protection claim maintained in the SHEV application and before the Tribunal. 31 In circumstances where his claim before the Tribunal was based on fear of persecution because of a perceived profile with the LTTE (a claim that was not accepted), the primary judge found that the issues concerning the applicant's mental health issues and the country information in [2.13] and [2.14] of the DFTA Report were not relevant to the Tribunal's consideration of whether the application was owed protection obligations as a refugee under s 36(2)(a) of the Migration Act 1958 (Cth) (Act). 32 The primary judge then considered whether the information in the DFAT Report was of any relevance to the applicant's claim to complementary protection under s 36(2)(aa) of the Act and the criterion of significant harm, including whether the claimant would be subjected to 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment'. 33 The primary judge found (at [36]-[47]) that it was not relevant to that claim because it was not the basis upon which the applicant brought his claim and further, it was not relevant in that, in any event, it did not support a finding of significant harm. More particularly, the primary judge found as follows: (1) The applicant did not make any claim in his SHEV application that there was a real risk that he would suffer significant harm as defined as a result of his mental condition if he returned to Sri Lanka and the availability of mental health services in the north of Sri Lanka. (2) The applicant had been represented by a migration agent for the purposes of his SHEV application and the agent had made comprehensive submissions to the delegate. Further assistance was provided by volunteers at the Tamil Resource Centre. In circumstances where the applicant did not revisit his ITOA mental health claims in his SHEV application and his submissions to the Tribunal, following the delegate's decision which declined to revisit those claims and in circumstances where the applicant confirmed at the Tribunal hearing that he had nothing further to say, the Tribunal was entitled to conclude that there was no issue for it to resolve in respect of any issue of the adequacy of mental health services in the north of Sri Lanka. (3) In addition to having raised it at the hearing, after the hearing the Tribunal wrote to the applicant in respect of a number of issues and provided him with earlier documentation, including the ITOA assessment which dealt with the applicant's prior mental health claims. The Tribunal sought the applicant's comment and received a submission on 24 October 2017 prepared by the Tamil Resource Centre which was silent on the question of any revival of the earlier mental health claims. (4) The necessary intention for these types of significant harm requires an 'actual, subjective, intent' (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [26] (Kiefel CJ, Nettle and Gordon JJ)). (5) It could not be said that a lack of mental health services in Sri Lanka generally, or in the north of Sri Lanka, is an act or omission by which severe pain or suffering, or pain or suffering which could reasonably be regarded as cruel or inhuman in nature, is intentionally inflicted. Nor could it be said to be an act or omission that causes, and is intended to cause, extreme humiliation that is unreasonable. (6) It could not be said that, to the extent that the applicant may have difficulty accessing mental health services in the north of Sri Lanka, in the event of his return to Sri Lanka, any such difficulty involved any actual, subjective, intent on the part of any person. 34 Accordingly, the primary judge found that the Tribunal was not bound to take into account the particular mental health information in the DFAT report and was entitled to conclude that there was no issue for it to resolve in respect of the adequacy of mental health services in the north of Sri Lanka. Determination 35 The applicant did not file written submissions but I have reviewed the primary judge's reasons taking into account the proposed ground of appeal included in the application. I have also taken into account the applicant's oral submissions at the hearing before me, made with the assistance of an interpreter. 36 The applicant stated that he raised the issue of mental health before the Tribunal but that the interpreter did not interpret it. Additionally, the applicant states that he raised this issue before the primary judge, but that it was not taken into account. There was no evidence as to any issue with an interpreter before the Tribunal or of that matter being raised before the primary judge. Based on the Tribunal's reasons, the issue of mental health was clearly considered by it. It is not an issue that was overlooked. It was noted, raised by the Tribunal and addressed. I do not consider a ground of appeal based on an interpreting issue has any prospect of success. 37 The applicant also asked me to take into account the impact of the data breach of 2014. That matter was dealt with by the Tribunal and not raised as an appeal ground before the primary judge. I would not grant leave to raise it by way of a new ground of appeal in circumstances where it was not raised before the primary judge, was not particularised or explained in any way before this Court and, in any event, the Tribunal found that as the applicant had provided no credible evidence of malevolent actions or intent by the Sri Lankan state towards the applicant or his family since the date of the data breach, there was nothing to suggest that the applicant or his family faced a well-founded fear of persecution for the reason of the data breach. The Tribunal was not satisfied as to the claim about the data breach, having given it reasoned consideration. A ground of appeal based on the data breach would accordingly have no prospect of success. 38 The applicant also asked me to take into account a change in government in Sri Lanka since the delegate's decision, and what he perceived to be an increased risk of harm as a result of that change. The applicant did not seek to adduce any evidence to support his submission. Such an attempt on an appeal would no doubt have comprised an attempt to impermissibly adduce fresh evidence which would not be admissible. The request would be in effect a request to give evidence comprising country information based on events subsequent to the Tribunal's decision that falsified the Tribunal's factual decision. Post-Tribunal evidence in relation to a question of fact sought to be relied upon for the purpose of inviting the Court to disagree with a factual finding of the Tribunal is not admissible: Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 (Marshall J); SZOIG v Minister for Immigration and Border Protection [2016] FCA 547 at [26]-[27] (Perry J); SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [56]-[57] (Greenwood J). Accordingly, I do not consider a ground of appeal based on the claim as to new country information has any prospect of success. 39 This is a case where the question of the applicant's mental health status was given close attention by both the delegate and the Tribunal. As appears from its reasons, the Tribunal was at pains to ensure the applicant had a chance to repeat the claims that had been addressed as part of the ITOA process. However, as the Tribunal recorded, the applicant did not do so. The Tribunal did not ignore the DFAT Report. It referred to it in its reasons. In my view, the Tribunal properly considered the claims before it and did not mischaracterise them. It undertook an independent and reasoned consideration of those claims by reference to the material before it. The primary judge's assessment of the manner in which the Tribunal dealt with the applicant's claims before the Tribunal, including as to his mental health condition, was accurate. The primary judge's reasons as to the claims based on mental health and the lack of relevance of the particular paragraphs in the DFAT Report do not disclose any error and I agree with them. 40 In the circumstances, I do not consider the applicant has any real prospect of succeeding on the proposed ground of appeal, or the matters raised by submissions before me. There is no real prospect of establishing that jurisdictional error is disclosed by the manner in which the Tribunal dealt with the applicant's claims, and no real prospect of establishing appealable error in the primary judge's determination. 41 It follows that the application for an extension of time is dismissed, and the applicant should pay the first respondent's costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.