SZWDH v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time of six days in which to appeal against a judgment of the Federal Circuit Court. 2 The applicant is a Sri Lankan national. He arrived in Australia on 1 August 2012 by boat and was characterised as an "Irregular Maritime Arrival". 3 On 11 December 2012, the applicant applied for a Protection Visa. The Minister's delegate refused that application on 21 February 2014. That refusal was affirmed on review by the then Refugee Review Tribunal (the RRT) on 28 January 2015 as the RRT member was not satisfied that the applicant is a person to whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth). 4 An application for judicial review of the RRT decision was dismissed by the Circuit Court on 12 August 2015. The Circuit Court Judge gave ex tempore reasons for the dismissal. Those reasons were settled and published by the Circuit Court Judge on 2 September 2015. 5 By reason of r 36.06 of the Federal Court Rules 2011 (the FCR), any appeal to this Court against the judgment of the Circuit Court had to be commenced within 21 days, that is, by 2 September 2015. The applicant did not commence an appeal within that time. His application for an extension in time in which to do so was filed on 8 September 2015, six days after the expiry of the 21 day period. 6 The second respondent to the application, originally the RRT but now the Administrative Appeal Tribunal (the AAT), has filed a submitting notice. However, despite the short period of extension sought by the applicant, the published reasons of the Circuit Court Judge not being available to the applicant until 2 September 2015, and the concession that he would not be prejudiced if the extension was granted, the first respondent (the Minister) opposes the grant of an extension of time. 7 The matters bearing upon the exercise of the discretion to extend time are well known. They include the length of the extension sought, the reason for the matter being out of time, the prejudice to the respective parties if the extension is allowed or refused, as the case may be, as well as any other relevant conduct by an applicant. The discretion must be exercised in the context of the rationale for the existence of the limitation period: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553. The 21 day period is not to be regarded as an arbitrary cut off point unrelated to the demands of justice. It represents a judgment by the Court, as expressed in its Rules, that the administration of justice is best served by appeals and applications for leave to appeal being brought in a timely way. Casual disregard of the requirements of the rules is inappropriate: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. 8 The shortness of the period of extension sought and the absence of any prejudice to the Minister if the extension is allowed are not sufficient by themselves to justify the grant of the extension: Parker v The Queen [2002] FCAFC 133 at [6]. 9 The applicant has been unrepresented in this Court but had legal representation in the Circuit Court. In his affidavit, the applicant attributes his failure to commence the appeal within 21 days to his mistaken apprehension that he had 28 days in which to do so and to his poor comprehension of English, which meant that he needed assistance in completing the documents. He deposes to having attended at the Court Registry on 4 September 2015, that is to say, within the period of 28 days. The Minister did not challenge that explanation, but says that it does not explain adequately the applicant's failure to commence the appeal within time. 10 In my opinion, the circumstances of this case are such that, unless the Court be satisfied that the extension of time would be futile because the proposed appeal has no prospects of success, the extension of time should be granted. Accordingly, it is necessary to examine the merits of the proposed appeal. 11 The grounds in the draft notice of appeal are as follows: (1) There is a jurisdictional error in the Federal Circuit Court decision; (2) The reasons provided by the second respondent to the first respondent in support of the second respondent's recommendation that the applicant was not a person to whom Australia had protection obligations were neither logical nor rational; (3) Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 12 Given that the published reasons of the Circuit Court became available only on 2 September 2015, the inclusion of the statement in the third of these grounds is understandable. However, the applicant has not provided any further proposed grounds of appeal, despite the published reasons of the Circuit Court having been available at the time of hearing for some two months. 13 The first ground asserts "jurisdictional error" by the Circuit Court. It is of course not necessary for the applicant to establish "jurisdictional" error by the Circuit Court but that can be put to one side. What is more significant is that, with the exception of the complaint which is implicit in Ground 2, the applicant has not particularised the error or errors imputed to the Circuit Court by Ground 1. 14 This means, in effect, that the applicant cannot be held to have reasonable prospects of success on the appeal unless it is at least arguable that the Circuit Court should have held that the RRT's reasons were neither logical nor rational, being the matter raised by Ground 2. This ground seems on its face to raise the ground for judicial review discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. 15 I observe that a complaint in these terms was not a ground of the applicant's application for review in the Circuit Court. That by itself suggests that it would be difficult for the applicant to show that the Circuit Court erred by failing to find that the RRT decision was neither logical nor rational. But even if that consideration is put to one side, the applicant does not establish illogicality or irrationality of the requisite kind. 16 The applicant is of Tamil ethnicity and Hindu. He claimed that he is a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together the Refugees Convention) because he has a well-founded fear of being persecuted for reason of his religion and ethnicity so that the refugee criterion in s 36(2)(a) of the Migration Act is enlivened. The applicant claimed in the alternative that he is a person to whom Australia had protection obligations under the complementary protection criterion contained in s 36(2)(aa) of the Migration Act. 17 The basis for the applicant's claims articulated in the RRT was as follows. The applicant worshipped at a particular Hindu temple, the Munneswaram Temple, and other temples in the Chilaw district in Sri Lanka. He claimed that Buddhist extremists wished to take over the Hindu temples in Chilaw. 18 As evidence of this, the applicant referred to an occasion in 2010 when Hindus were prevented from praying at a temple, and to an occasion in 2011 when Hindus intending to erect a monument at another temple were prevented from doing so. He attributed these circumstances to the activities of Buddhists who were, he claimed, supported by an influential and powerful Sri Lankan politician (the Politician) who engaged and encouraged thugs. 19 This meant, the applicant claimed, that there was a state of conflict in his area between Hindus and Buddhists. 20 The applicant said that, on one occasion, he had been attacked and robbed by a group of drunken men. On another occasion he had seen some of his friends attacked. He attributed both attacks to the Hindu - Buddhist conflict. 21 The applicant referred to a third occasion on which he had come upon two thugs and a Buddhist monk talking to his mother outside his home. He said that the men had been endeavouring to persuade his mother to sign a petition "to stop prayers" in the Hindu temple. The applicant had seized the petition and torn it to pieces. He was then struck by the thugs and he had retaliated in kind. Their Tamil neighbours had gathered around and the thugs and the monk had left. The applicant associated the thugs with the Politician. He said that he was afraid of retribution as he had been the first person to escalate the conflict between the Hindus and the Buddhists into a physical fight. 22 In these circumstances, the applicant claimed that he had a well-founded fear of suffering serious harm if he returned to Sri Lanka by reason of his Hindu religion, his Tamil ethnicity, the force he had used to the Politician's thugs, and because he would be a failed asylum seeker. 23 The RRT member made a detailed consideration of these claims. This included consideration of the evidence and submissions which the applicant had provided, a Department of Foreign Affairs and Trade Report of 3 October 2014, advice from the United Nations High Commission for Refugees (UNHCR), the UNHCR eligibility guidelines, and a suite of country information. 24 The RRT had information that Hindus make up the second largest religious in Sri Lanka (15% of the population) and that the practice of Hindu faith is both recognised and permitted. 25 The RRT member noted that the Munneswaram Temple is a well-known and well-patronised ancient temple. In more recent times it has become known for its practice of ritual slaughter of animals such as goats and chickens. Such slaughter had been made unlawful in 1977 but the practice had continued. This had led to protests by animal rights activists. In September 2011, a Court order was issued suspending the annual animal sacrifice ceremony. It seemed that the Politician had been involved in this litigation and he had in any event intervened to prevent the killing of animals. 26 The RRT member noted that the All Ceylon Hindu Congress had issued a statement in 2010 indicating that cruelty to animals should not be tolerated in a Hindu temple and indicating that sacrifice of animals should not occur. It was evident that such sacrifice was not regarded generally as part of the practice of the Hindu faith. 27 The member considered that the episode in 2010 to which the applicant referred was attributable to attempts to stop the ritual slaughter of animals, and not to any general oppression of Hindus by Buddhists extremists. The RRT's conclusion on this topic cannot be regarded as illogical or irrational. The applicant did not point to any circumstance by which it could be so regarded. 28 In relation to the conduct in 2011 which prevented a Hindu monument being erected, the RRT member referred to material (described as "independent") which indicated that all building work at the temple had been stayed pending the preparation of an archaeological report as to its origins. The report had been commissioned because of a claim that the temple had originally been a Buddhist shrine. As I understand it, the RRT member considered that, in this circumstance, the prevention of the erection of the monument by the Hindus could not be regarded as an instance of religious oppression. In any event, the RRT's reasoning on this topic could not be regarded as irrational. 29 In relation to the incident in which the applicant was attacked and robbed by the drunken men, the RRT member considered that the applicant's account disclosed that the motivation of the men had been robbery and not political, racial or religious in origin. 30 In relation to the attack on the applicant's friends, the RRT member noted that the information which the applicant had provided regarding the incident was limited. He concluded that it was a matter of conjecture as to whether there was any racial, political or Refugee Convention related element in the attack. It could, he considered, just as easily have been an altercation between youths. In this respect, the RRT member referred to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 at which the plurality said: Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. 31 The applicant did not point to any basis upon which the RRT's conclusion concerning this episode could be regarded as illogical or irrational, and none has been identified. 32 The RRT member rejected the applicant's account of the incident involving his mother. He regarded that account as implausible for two reasons. First, the RRT member considered it probable that anyone wishing to organise a petition against the continuance of prayers by Hindus would seek support for that petition among the Buddhist community and not amongst the Tamil Hindu minority. Secondly, the member considered it improbable that the monk and the two men would to go an area seeking support for a petition when they did not speak the language and would probably be outnumbered in the event of conflict. 33 The RRT member was not obliged to accept, uncritically, all that he was told by the applicant: Randhawa v The Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. Nor was the RRT member bound to accept the applicant's account simply because there was no evidence to the contrary. It was open to the RRT member to conclude, as he did at [155], that the applicant's account of the incident involving his mother and grandmother was false. 34 The decision in SZMDS indicates that a finding of illogicality or irrationality is not readily to be made. In my opinion, the applicant has not demonstrated a basis upon which it is even reasonably arguable that the RRT's reasons could be characterised in that way. 35 The RRT member accepted that religious tension does exist and that, to an extent, those tensions have increased in recent years. The member considered however, that those tensions did not affect the applicant adversely, as he worships at a well-known Hindu temple and in circumstances in which his right to practice his faith has not been compromised. 36 The RRT member also addressed the applicant's claims that he would be at risk of serious harm because of the political opinions imputed to him, arising from his opposition to the Politician and because he had sought asylum in Australia. As to the first, the RRT member noted that the applicant did not have a political profile in Sri Lanka or in his local area, not having been involved in any political organisations or political situations. The member also considered that any interactions between the applicant and the Politician had occurred when large numbers of other persons were also present so that it was unlikely that he, as an individual, had come to notice of the Politician. 37 The RRT member also noted that in elections held on 8 January 2015, a few days before the RRT hearing, the party of which the Politician was a member, had lost power in Sri Lanka. The applicant submitted that it could not be inferred from this that the Politician's personal power or influence in his local area had been diminished and seemed to suggest that it had been irrational for the RRT to reason to the contrary. It is not clear that the RRT member did engage in reasoning of this kind, but even if he did, it cannot be described as irrational in the relevant sense. Further, and in any event, it was one of only many factors to which the RRT member referred. 38 Finally, the RRT member accepted that it was likely that, if returned to Sri Lanka, the applicant would face identity checks immediately upon his arrival which may lead to him being detained for some hours and may face charges associated with his unlawful departure from Sri Lanka. Those charges may result in him being detained for approximately two weeks. The RRT member considered however, that this would not result in him suffering serious harm of the kind to which s 91R(2) of the Migration Act refers. Given the decision in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 89 ALJR 639 that conclusion cannot be regarded as illogical or irrational. 39 The RRT member also considered separately whether or not the circumstance that the applicant would be a failed asylum seeker will give him a profile attracting adverse action in Sri Lanka. He considered, having to regard to the large numbers involved, that this was unlikely. Again, this conclusion cannot be regarded as illogical or irrational. 40 The RRT's reasons can fairly be described as extensive and considered. They comprise some 264 separate paragraphs. The applicant has not particularised the illogicality or irrationality for which he contends. None is apparent on the face of those reasons. 41 In these circumstances, it cannot be concluded that the applicant's proposed appeal has prospects of success. On the contrary, on the grounds presently articulated by the applicant, any such appeal would be futile. That being so, I consider that the applicant does not establish the basis for a favourable exercise of the discretion to extend time. Accordingly, the application for an extension of time in which to commence the appeal is dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.