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[2015] FCA 1367
Federal Court of Australia
2015-12-04
Murphy J
Original judgment source is linked above.
The application for judicial review to the Federal Circuit Court 24 The application for judicial review contained only one ground, in the following terms: That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error. 25 The applicant was assisted by a migration agent at the hearing before the Federal Circuit Court. He did not particularise the alleged error of law by the Tribunal and the only matter to which he referred in the hearing was an alleged failure by the Tribunal to consider the slapping incident (at [19]). The learned Federal Circuit Court judge was unable to discern any error in the Tribunal's approach to that issue. The primary judge said, correctly in my view, that the Tribunal accepted that the applicant had been subject to a certain level of discrimination because of his Tamil ethnicity but that this did not amount to persecution for a Convention reason or significant harm for the purposes of complementary protection. 26 The applicant did not otherwise specify the alleged "legal error" but her Honour considered the Tribunal's decision overall and found no error of law (at [20]-[22]). Her Honour dismissed the application.
The proposed appeal to this Court 27 The draft Notice of Appeal filed by the applicant does not illuminate the grounds of the proposed appeal to this Court. It alleges only that: 1. The proceeding in the order which the application relates was pronounced [sic] involves a question of law. 2. There is jurisdictional error occurs [sic] in the order. Although the applicant again failed to particularise the alleged jurisdictional error, in the hearing he relied on the slapping incident, as he had in the Federal Circuit Court. 28 The applicant submitted that the Tribunal fell into error because it did not consider his claim that he was assaulted by a Sinhalese person, that he reported this assault to the police, but that the police did not take action and did not offer him any protection. Instead, he said, the authorities harassed, him so he left the country and came to Australia seeking refuge. He alleged that the fact he was not given protection by Sri Lankan authorities was not considered by the Tribunal or by the primary judge. 29 There were, however, some important differences in the way the applicant described the slapping incident, namely the assertions that the applicant complained to the police about the slapping incident, that they took no action, and that instead they harassed him. 30 In his written statement of 6 August 2012 the applicant referred to the slapping incident but he did not state that he had reported it to the police or that the police had harassed him. The statement tends to indicate that the applicant took no action in response to the slapping incident, because he stated: I served the Sinhalese customer and he slapped me. I couldn't talk back to this man as he was Sinhalese and I knew that he would retaliate. The man would most likely come back to the hotel with the gang of other Sinhalese men and beat me if I had tried to do anything back to him. One would think that making a complaint to the police would amount to doing something "back" to the Sinhalese customer, and that if the applicant had been harassed by police following this incident he would have mentioned it. 31 I reminded the applicant that, in his written statement, he did not mention making a report to the police about being slapped. He responded that he had forgotten to include it. I also asked him whether he had mentioned any complaint to the police at his interview with the delegate. He said that he was not sure. The delegate's decision does not mention the slapping incident. 32 It is significant that the Tribunal's decision records the applicant as expressly stating that he did not report the slapping incident to the police. The Tribunal said (at [16]): … The Sinhalese customer slapped the applicant. The applicant felt he could not talk back to him or respond for fear of retaliation. His manager is also a Tamil so he was also afraid to do anything about this incident. There was no point in complaining to the police about the incident. If he did he would possibly be beaten by the police. 33 The judgment of the Federal Circuit Court contains no mention of any assertion by the applicant that he reported the incident to police. Having regard to the primary judge's summary of the applicant's claims I would expect her Honour to have recorded such an assertion, if the applicant made it. 34 In my view there is no basis for concluding that the Tribunal fell into error in its approach to the slapping incident. Other than the applicant's assertion (apparently for the first time before me) there is nothing to indicate that the applicant told the Tribunal that he had reported the slapping incident to the police, there is nothing to show that the police took no steps to deal with any complaint he made, and there is nothing to show that the police then harassed him. 35 The Tribunal was required to correctly identify, construe and consider each claim made by the applicant, give proper consideration to the evidence before it and to each claim that is "a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ). It cannot be said that the Tribunal fell into error by not dealing with a claim that the applicant complained to police and they took no steps to protect him when his evidence to the Tribunal was that he did not complain to the police. 36 The Tribunal accepted that the applicant was slapped by a Sinhalese customer on one occasion, but did not consider the incident constituted serious harm for Convention purposes or significant harm for complementary protection purposes. It was satisfied that there is no real chance or real risk that the applicant would be subjected to similar treatment in the reasonably foreseeable future if he returned to Sri Lanka. Given the relatively minor nature of the assault, and that it was the only physical harm to which the applicant pointed in his 16 years of employment at the hotel restaurant, that conclusion was well open to the Tribunal. 37 Other than the ground relating to the slapping incident, the applicant disavowed any other proposed ground of appeal. Even so, because the applicant did not have the benefit of legal representation, before deciding whether to grant an extension of time it is appropriate that I consider the balance of the Tribunal's decision. 38 Having done so, I can discern no jurisdictional error in the Tribunal having found: (a) that the Sri Lankan authorities' practice of checking identification and registration did not constitute serious or significant harm; (b) that detaining the applicant overnight, without mistreating him, did not constitute serious or significant harm; (c) that the applicant suffered a level of racial discrimination because he is a Tamil, including in the slapping incident, but that it did not rise to the level of persecution or constitute a real risk of serious or significant harm; (d) that his account of having been subjected to extortion demands by officers of the CID should be rejected. The assessment of the applicant's evidence was a matter for the Tribunal and, given the contradictions in his evidence, it was open to the Tribunal to reject his account; (e) on the basis of country information that the applicant did not face a risk of serious or significant harm because of his status as a failed Tamil asylum seeker, and that there was no real chance or risk that the applicant would be imputed with the anti-government or pro-LTTE political opinion; (f) on the basis of country information, particularly the UNHCR Guidelines, that the applicant did not have the profile of a person who faced a real risk of serious or significant harm if returned to Sri Lanka; and (g) that the applicant did not have a well-founded fear of persecution for a Convention reason if returned to Sri Lanka and did not face a real risk that he will suffer significant harm. 39 I respectfully agree with the decision of the learned primary judge. In my view the proposed appeal has no reasonable prospect of success and I refuse the application to extend the time within which to bring the appeal.
Conclusion 40 I have made orders dismissing the application and requiring the applicant to pay the Minister's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
MZZLL
Minister for Immigration and Border Protection
The procedural background 2 On 6 August 2012 the applicant applied for a protection visa. He claimed that he had a well-founded fear of persecution in Sri Lanka and that Australia owed him protection obligations under the 1951 Convention Relating to the Status of Refugees ("the Convention") and complementary protection obligations, pursuant to ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) ("the Act"). 3 On 10 September 2012 a delegate of the first respondent, the Minister for Immigration and Border Protection ("Minister"), refused to grant him a protection visa. On 10 October 2012 the applicant applied to the Tribunal to review the delegate's decision, but on 29 April 2013 the Tribunal affirmed the decision. On 28 May 2013 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The Court dismissed the application on 10 December 2014 (MZZLL v Minister for Immigration & Border Protection & Anor [2014] FCCA 2958). 4 The applicant did not appeal to this Court at that point. Instead he requested the Minister to intervene pursuant to s 417 and 48B of the Act. Under those provisions the Minister (or any Minister appointed as a portfolio minister under s 64 of the Constitution) has a discretionary, non-compellable power to substitute a decision of the Tribunal with a more favourable decision, if doing so is in the public interest. The Assistant Minister for Immigration and Border Protection was so appointed and by letter dated 21 August 2015 the applicant was notified that the Assistant Minister had refused to intervene in his case. 5 On 7 September 2015, his request for Ministerial intervention having been unsuccessful, the applicant filed the application for an extension of time within which to file a Notice of Appeal. Under r 36.05 of the Federal Court Rules 2011 ("the Rules") the applicant had 21 days from the decision of the Federal Circuit Court to file a Notice of Appeal and his application to do so was more than eight months out of time. 6 For the reasons I set out below I have refused the application for an extension of time, essentially because the appeal lacks merit.
The principles 7 As I said in MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [23]-[24] the relevant considerations in an application for extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) at 348-9; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (Murphy J) at [18]; Singh v Minister for Immigration and Border Protection [2015] FCA 483 (Kenny J) at [20]. The factors set out in those authorities are not exhaustive and the outcome of an application to extend time depends on the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J; Edmonds J agreeing). 8 The merits of the proposed appeal are central. I respectfully agree with Jessup J's observation (with whom Gyles and Besanko JJ agreed) in Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 ("Vu") at [14], where his Honour said: …it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time. 9 The salient considerations in the present case are whether there is: (a) an acceptable explanation for the delay; (b) undue prejudice to the respondent arising from a grant of extension of time; and (c) sufficient merit in the proposed appeal to justify an extension of time. I now deal with these three factors.
(2003) 197 ALR 389
(1984) 3 FCR 344