SZVGT v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Revised from Transcript) 1 This is an application for an order extending the time within which to seek leave to appeal from a judgment of a Judge of the Federal Circuit Court of Australia (Judge Cameron) dismissing the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal") (see SZVGT v Minister for Immigration & Anor [2015] FCCA 2279). The order for dismissal of the applicant's proceeding was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that it did not raise an arguable case for the relief claimed. The relief claimed included an order setting aside the Tribunal's decision and requiring that it be remitted to the Tribunal for reconsideration according to law. 2 The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat on 19 June 2012. By its decision the Tribunal affirmed a decision made by a delegate of the first respondent ("the Minister") to refuse the applicant a Protection (Class XA) visa. 3 The application for an extension of time and leave to appeal was filed some four days after the time within which the applicant was required to seek leave to appeal. I am mindful that the delay is therefore very short. 4 The applicant was legally represented before the primary judge but not before me. In an affidavit filed in support of the application now before me the applicant indicates that he has not had legal assistance or advice in connection with the proceeding in this Court. He has not filed any written submissions but he did make oral submissions which were, however, directed to factual matters considered by the Tribunal. It is apparent that he disagrees with a number of the Tribunal's factual findings. 5 The material before me includes a copy of the Tribunal's reasons for decision. Those reasons indicate that the Tribunal considered the applicant's claims that he would suffer significant harm at the hands of the authorities and the Sinhalese community because he was a young Tamil male, an Udappu fisherman, a failed asylum seeker and an illegal departee. Each of these claims was rejected by the Tribunal. 6 When considering the Minister's application under r 44.12, the primary judge correctly proceeded on the basis that no such order should be made (at [3]): … except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576). 7 The primary judge set out at [11] of his reasons the single ground of review relied upon by the applicant, namely: 1. The Tribunal made jurisdictional error The RRT has applied the incorrect test pursuant to section 91R of the Migration Act. Particulars a. At paragraph [99] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally; b. At paragraph [100-104)] of the decision, the RRT accepted that the applicant had committed offences under Sri Lanka's Immigrants and Emigrants Act; c. At paragraph [111] of the decision, the RRT "Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanism a lack of reform initiatives and instances of torture , maltreatment and violence" By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant's liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947. 8 The applicant's proposed notice of appeal does not raise any additional issue. 9 The primary judge concluded that the applicant's application for judicial review was not seriously arguable in light of the High Court's decision in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467 which rejected the construction given to s 91R(2)(a) of the Act by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The primary judge's conclusion was correct. 10 An extension of time, even for a short period, may be refused if a proposed appeal has no prospects of success (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed and SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J). In the present case, the applicant's proposed appeal has no prospects of success. Its fate, together with the proceedings heard by the primary judge, is concluded by the High Court's decision in WZAPN. 11 The application for an extension of time will therefore be dismissed. The applicant must pay the Minister's costs as taxed or agreed. 12 Orders accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.