SZVYE v Minister for Immigration and Border Protection

Eligibility for a protection visa 3 The principal criteria for the grant of a protection visa appear in s 36(2) of the Act. 4 At the relevant time, the first, contained in s 36(2)(a), commonly referred to as the "refugee criterion", was that the applicant be "a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Article 1A(2) of the Convention as amended defines a refugee as a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 5 At the time of the Tribunal's decision, however, s 91R(1) of the Migration Act provided that Art 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless the reason or reasons for the feared persecution are "the essential and significant" reason or reasons and that the persecution involves "serious harm to the person" and "systematic and discriminatory conduct". Section 91R(2) provided examples of "serious harm". They included "a threat to the person's life or liberty", "significant physical harassment", "significant physical ill-treatment", and "significant economic hardship" or "the denial of capacity to earn a livelihood of any kind" that threatens a person's capacity to subsist. 6 The second criterion, contained in s 36(2)(aa), commonly referred to as the "complementary protection" criterion, is that "the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm". "Significant harm" is exhaustively defined in s 36(2A) to mean any one of the following: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Each of the last three categories is, in turn, defined in s 5(1).

The claim for protection 7 The applicant's position before the Tribunal was apt to cover both criteria. 8 First, the applicant claimed that, as a Christian Sinhalese fisherman, with a profile in Mullaitivu (where he worked) for speaking out against the authorities, he would be targeted by local Tamil fishermen. He claimed that there were disputes between Tamil and Sinhalese fishermen over limited resources, that on one occasion he was beaten by a Tamil fisherman, and that, when he reported the incident to local authorities, he received no assistance. He also claimed that, since coming to Australia, a group of Tamils from Mullaitivu had visited his home in Chilaw, demanding to see him. Consequently, he contended that he feared harm from Tamil fishermen from Mullaitivu and that the authorities would not protect him. 9 Secondly, the applicant claimed that, as a failed asylum seeker who had departed Sri Lanka illegally, he was also entitled to Australia's protection. 10 The Tribunal accepted that the applicant was a Catholic Sinhalese fisherman from Udappu and that his father used to commute to Mullaitivu to fish there with a group of other Sinhalese. It also accepted that, on occasion, there were "highly localised clashes" with local Tamil fishermen over fishing territory and resources. But the Tribunal did not accept that the authorities did nothing about this. Rather, the Tribunal found that "the authorities behaved fairly". Moreover, the Tribunal did not accept the applicant's claim that he had been pursued "all the way back to Chilaw" by a group of Tamil fishermen. It gave weight to what it described as the "unremarkable" circumstances of the applicant's family, to the fact that he and his father were able to earn a living in Chilaw without facing any "relevant harm", and that the applicant was able to move freely in Sri Lanka. It did not accept that any of the applicant's relatives had ever been perceived to have "even a remote link" to the LTTE. 11 In the result, the Tribunal considered that there was nothing to prevent the applicant from living and working safely and with dignity in Chilaw and so found that he did not face a real chance of persecution in Sri Lanka, whether because he is Sinhalese, a Sinhalese fisherman, a Sinhalese police informer, or because of any other characteristic that might be inferred from the applicant's claim to have been involved in complaints to police about Tamil fishermen when he was working in Mullaitivu. 12 The Tribunal accepted that, on return to Sri Lanka, the applicant might be "imputed to have sought asylum in Australia" and therefore might be "imputed to be a 'failed asylum seeker'". Having regard to the most recent UNHCR Guidelines, however, which the Tribunal said did not refer to failed asylum seekers as "persons of concern", it was not satisfied that the applicant would face a real chance of serious harm in Sri Lanka on this account. 13 Since the application in the Federal Circuit Court and the proposed appeal in this Court focussed on certain paragraphs of the Tribunal's decision, I propose to set out in detail what those findings were and to refer to other parts of the decision where these matters were considered. 14 At [18] the Tribunal said: I put to [the applicant] that, according to DFAT, the treatment of illegally-departed returnees to Sri Lanka appeared to involve some checking and questioning, a few hours in remand pending bail on recognisance, a later court appearance and, depending on the court the penalty of a fine as a deterrent against further illegal departure, after which people generally went back to their lives in their home provinces. I put to him that on the evidence, the treatment appeared entirely to be a matter of the Sri Lankan authorities enforcing a law of general application adjusted and appropriate to a legitimate national objective; he did not argue with this. I invited him to suggest how the law might be enforced or manipulated, in his case, in a discriminatory way; he did not suggest any. Rather, he argued that he had heard that some people were held longer in remand and were thus exposed longer to the possibility of being mistreated whilst in detention, either by the authorities or other detainees. He also talked about the possibility of corrupt officials targeting returnees for bribes, and targeting in particular those they saw as having returned from rich countries like Australia where they had been able to acquire wealth over long periods. Generally, he spoke of these as quite random possibilities. 15 The Tribunal then asked the applicant whether he could think of a reason why he would be subjected to extrajudicial violence in the course, or as a result, of being processed or prosecuted on his return. His response - that anything can happen in Sri Lanka - the Tribunal described as "vague and unsupported". The applicant's adviser submitted that there had been individual cases of arbitrary detention of returnees but, apart from two newspaper articles which apparently concerned individuals involved in "a people-smuggling racket", was unable to provide any material to support the submission. Like the applicant himself, the adviser also suggested he might be a target for bribes and extortion, but the Tribunal said (at [20]) that neither she nor the applicant offered any evidence to back up the claim. The Tribunal later distinguished the applicant's circumstances from those described in the two articles. 16 At [24] the Tribunal said: I accept that on return to Sri Lanka, [the applicant] may be imputed to have sought asylum in Australia, and that he may be imputed to be a "failed asylum seeker". However, having regard to the most recent UNHCR Guidelines, which do not refer to "failed asylum seekers" as persons of concern, I give this fact little weight. I am not satisfied on the evidence before me that [the applicant] would face a real chance of serious harm in Sri Lanka for reasons of being perceived to be a "failed asylum seeker". 17 The Tribunal also accepted (at [25]) that, on his return to Sri Lanka, the applicant would likely come to the attention of the authorities; that, as a former illegal emigrant, he would likely be questioned by police and could be charged under the Sri Lankan Immigrants and Emigrants Act 1949; that his fingerprints might be taken and he might be photographed; that he might be transported by police to the magistrates court "at the first available opportunity after investigations are completed"; that he could remain in police custody at the airport for up to 24 hours or, should a weekend intrude, for three or four days. But the Tribunal found that thereafter the applicant would be bailed and, "on the independent evidence", that he would very likely be granted bail, "as he has no profile at all with the authorities other than having left Sri Lanka illegally". The Tribunal continued: I have duly considered that the conditions in which [the applicant] might be remanded could be very basic and uncomfortable, but having regard to the evidence overall, I am not satisfied that these conditions would amount to serious harm. I accept and give weight to the evidence about bail would likely being (sic) conditional only on personal recognisance. I accept and give weight to the evidence about many people in this situation being allowed to go free even without their families being required to come and collect them. I accept on the evidence before me that [the applicant] would be fined. He has not suggested that being fined would amount to serious harm, and on the evidence before me I do not accept that it would. I am not satisfied on the evidence before me that the fine or any reporting conditions that might follow would be so onerous as to amount to serious harm. 18 At [26] the Tribunal said: On the DFAT evidence before me, I find that the process of interviewing and prosecuting Sri Lankans who previously departed illegally is implemented under laws of general application. I am not satisfied on the evidence that it would be enforced in a discriminatory manner. I am satisfied on the evidence before me that the laws would not be applied, exploited or manipulated in any way as to discriminate against [the applicant]. I accept that. conditions in remand may be crowded and unsanitary for the period during which he is detained or remanded. On the evidence before me I do not accept that his treatment or such conditions on return would amount to serious harm, or that in any other way [the applicant] would suffer serious harm in the course of or as a result of being processed on return and/or prosecuted for illegal departure. In making this finding, I give very little weight to the evidence about the two returnees discussed in the Herald and Age articles as those cases evidently had specific characteristics linking them to people smuggling and I find that [the applicant]'s claim about being jailed and tortured is vague and unsupported. I also give very little weight to [the applicant]'s evidence about having been told by people back in Sri Lanka that he should avoid returning. On the evidence before me, I do not accept that [the applicant] would ever be perceived in Sri Lanka as having played a role in people smuggling. 19 The Tribunal also considered all of the applicant's claims as claims for complementary protection. 20 Having rejected the contention that there was a real chance that the applicant would suffer serious harm on his return to Sri Lanka, the Tribunal proceeded to consider whether "the process of investigation, charging, remanding, prosecuting, and penalising him as an illegal emigrant might amount to significant harm". Based on the UNHCR and DFAT material that informed the Tribunal's earlier findings, the Tribunal found that the applicant would not be subjected to arbitrary deprivation of life, the death penalty or torture from anyone in Sri Lanka. It also found that the process of penalising him for illegal departure would not amount either to cruel or inhuman treatment or punishment or to degrading treatment or punishment. The basis for this latter conclusion was that there was insufficient evidence that the authorities had the requisite intention (a necessary ingredient in the definition of each of these categories of harm under s 5) or that there was a real risk that others would inflict harm on him during the process. Moreover, the fact, as found, of potentially unsanitary and crowded prison conditions did not persuade the Tribunal that the period of time the applicant might spend in custody or the penalty he would be likely to pay for illegal departure would qualify as "significant harm" under the Act. The Tribunal also ruled out a real risk of extrajudicial violence or harm and the risk of bribery or extortion. In any event, the Tribunal found that bribery was not "significant harm" within the meaning of the Act.

The proceeding in the Federal Circuit Court 21 The application before the court below raised three alleged errors on the part of the Tribunal. First, the applicant contended that the Tribunal erred by failing (at [24] of its reasons) to consider his claims "in accordance with [his] particular social group of 'failed asylum seekers who departed Sri Lanka illegally'". Secondly, the applicant contended the Tribunal erred by failing (at [26]) to consider and apply the correct test for a law of general application. Thirdly, the applicant contended the Tribunal erred by asking itself the wrong question (at [18] and [25]) "that a threat to liberty by 'some checking and question, a few hours in remand' is not serious harm". 22 The applicant, who was unrepresented then as he is now, raised some other concerns when he addressed the court but it is not necessary to canvass them here. 23 The primary judge considered that the applicant's grounds were based on the reasoning in WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477. In that case North J held at [30] that a threat to life or liberty was serious harm for the purposes of the refugee criterion, regardless of the severity of the consequences to life or liberty. The primary judge noted that the judgment had been set aside by the High Court on appeal in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610. While his Honour did not explain why he had reached this conclusion (namely as to why he considered the applicant's claims to be based on the reasoning of North J), he did go on to consider each of the applicant's grounds. 24 As to the first ground, his Honour held that the Tribunal had specifically considered the claims at [24]-[26] and [34] of its reasons. As to the second and third grounds, his Honour noted that the applicant had made no submissions as to what he contended was the correct test for a law of general application. In the absence of any such submissions, his Honour considered that, unless these grounds were meant to refer to WZAPN (presumably the judgment of North J), they were unintelligible. 25 Having disposed of the grounds in the notice of appeal, the primary judge went on to consider whether there might have been any other reason to believe that the Tribunal's decision was affected by jurisdictional error, the only basis upon which the relief sought could have been granted. His Honour held that there was not and therefore dismissed the application, ordering the applicant to pay the Minister's costs in a fixed amount.

The application in this Court 26 The application in this Court was accompanied by a draft notice of appeal which identified a single ground of appeal in the following terms: 1 His Honour erred by not finding that the Tribunal failed to consider the Applicant's particular social group. Particulars (a) At [24]-[27] the Tribunal only considered the particular social group claim in terms of the Sri Lankan Immigrants and Emigrants Act; and (b) At [27], his Honour only considered the ground as based on the reasoning of North J in WZAPN and since that was held to be incorrect by the High Court in Minister for Immigration vs WZAPN and the Full Federal Court in SZTEQ; and (c) His Honour failed to give due consideration to the ground. 27 The application was supported by an affidavit affirmed by the applicant on 15 September 2016.

General principles 28 The Federal Court Rules 2011 (Cth) prescribe a 21 day period within which to lodge an appeal, which runs from the date of judgment or order, but give the Court the power to extend the period: see r 36.03. In other words, the Court has a discretion to allow the appeal to be filed. The discretion must be exercised judicially and, in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth), in the way that best promotes the overarching purpose of the Rules, namely, the just resolution of disputes as quickly, inexpensively and efficiently as possible. As I observed in AJS16 v Minister for Immigration and Border Protection [2016] FCA 1295 at [13], however: Ultimately, the question will always be whether it is just to exercise the discretion in the applicant's favour or, as the Full Court put it in Parker v The Queen [2002] FCAFC 133 at [6], whether it is fair and equitable in all the circumstances to do so. The Court will have regard to all relevant considerations. Generally speaking, however, and in the present case, the following considerations are material: the extent of, and explanation for, the delay, any prejudice to the respondent, and the merits of the appeal. 29 In this case, too, these are the material considerations. Certainly, neither party raised any other relevant factors.

The applicant's submissions 30 The applicant did not file written submissions. At the hearing he confirmed that the reference to the particular social group in the draft notice of appeal was to the group of failed asylum seekers who had left Sri Lanka illegally. He expressed concern that the primary judge had not made the correct decision and appeared puzzled by the outcome of both the court case and the Tribunal hearing. He reiterated his belief that he would be subjected to harm if he were forced to return to Sri Lanka and submitted that the Tribunal had not considered what he had said about the matter. He was critical of the primary judge for failing to "thoroughly" consider the circumstances he maintained he would face in Sri Lanka. He insisted that only a person who goes to Sri Lanka can understand the situation there. Despite the Tribunal's conclusions, the applicant said he was not convinced that he would not face "trouble" when he returns.

Should an extension of time be granted? 31 The delay in the present case is not inconsequential. But it is not lengthy. The Minister's position was that he has suffered "minimal" prejudice, "beyond being required to defend an unmeritorious application". He conceded, however, that this was not relevant prejudice: if he is right in his assessment of the merits of the application, he is in no different position now than if the appeal had been filed within time. The explanation given by the applicant in his affidavit is that he was unrepresented in the court below and, despite having had an interpreter, he did not "clearly" understand the proceedings. Although judgment was delivered on the day of the hearing and in his presence, he said, in effect, that he expected to receive a copy of the judgment at his home but that he never did. He stated that on 14 September 2016, at an appointment at the offices of the Minister's Department, he was told that his matter was "finished" and that, "since [he] had no further pending business with the Department, [he] should prepare to leave Australia". He said that he asked for help and "discovered on the internet" that his application had been decided on the same day as the hearing (1 August 2016) but that the judgment had not been "posted on the internet" until 15 August 2016. He emphasised: I genuinely thought that I would be advised on paper about the outcome of my matter, especially given my position as a non-English-speaking litigant. 32 The Minister submitted that this was an unsatisfactory explanation for the delay as the applicant had the assistance of the interpreter at the hearing and it "was open to [him] to seek clarity as to whether his judicial review application had been resolved". Further, the Minister contended that it was up to the applicant to make the necessary enquiries "as to the status of his matter" and to find out the time for filing an appeal. 33 There is something to be said in favour of the Minister's submissions but, on balance, I consider that the applicant has provided a satisfactory explanation for the delay. Judgment was delivered ex tempore. The applicant was unrepresented. Even if it had been accurately interpreted, he is unlikely to have grasped the detail of the reasons sufficiently to enable him to draft a notice of appeal. It was not unreasonable for him to expect the judgment to have been posted to him. After all, that is the way he received the Tribunal's decision. He filed his application for an extension of time to appeal only a week after he saw the judgment on the internet. 34 The real problem with his application is the substance of the proposed appeal. 35 On an application of this kind it is inappropriate to undertake a full investigation of the merits. All other things being equal or in the applicant's favour, a weak, but not hopeless, case is not to be weighed against the applicant, although a strong case may weigh in the applicant's favour: see Mentink v Minister for Home Affairs [2013] FCAFC 113 at [37]-[39] per Griffiths J, Edmonds J agreeing at [2], and the cases referred to there. 36 Here, while the applicant's concerns are understandable, the proposed appeal appears to be hopeless. 37 First, as the above extracts from the Tribunal's decision make clear, the Tribunal did not only consider the applicant's "particular social group claim" in terms of the Sri Lankan Immigrants and Emigrants Act. Second, the primary judge did not consider the ground solely on the basis of the WZAPN point. Third, while the primary judge's reasons were brief, I am not of the opinion that it is reasonably arguable that his Honour failed to give "due consideration to the ground". The applicant's concerns, as ventilated at the hearing before me, seemed to rest on the mistaken belief that the court was obliged to consider the merits of his claim. Not only was this not the court's obligation but it was not entitled to review the merits. As Brennan J said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power [in this case, the Tribunal] and, subject to political control, for the repository alone. 38 For these reasons, I am not satisfied that it would be in the interests of justice to extend the time to appeal. Accordingly, the application should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.