SZWBZ v Minister for Immigration and Border Protection [2016] FCA 222

FEDERAL COURT OF AUSTRALIA

SZWBZ v Minister for Immigration and Border Protection [2016] FCA 222 Appeal from: Application for extension of time: SZWBZ v Minister for Immigration & Anor [2015] FCCA 1410

File number: NSD 1124 of 2015

Judge: DOWSETT J

Date of judgment: 10 March 2016

Catchwords: PRACTICE AND PROCEDURE - extension of time for leave to appeal

Cases cited: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00314 (IAC)

Date of hearing: 16 February 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the First Respondent: Mr J Pinder of Minter Ellison

Solicitor for the Second Respondent: The Second Respondent did not appear

ORDERS NSD 1124 of 2015

BETWEEN: SZWBZ Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 10 MARCH 2016

THE COURT ORDERS THAT:

1. the application for an extension of time be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J: 1 This is an application for an extension of time in which to appeal against a judgment and accompanying orders of a Judge of the Federal Circuit Court. The orders were made on 29 May 2015. The present application was filed on 21 September 2015. Pursuant to r 36.03, any notice of appeal was to be filed within 21 days after pronouncement of the judgment. The second respondent has filed a submitting appearance. 2 In considering such an application the Court considers the length of the delay, the reasons for it and the viability of the proposed grounds of appeal. In so doing, the Court seeks to ensure a just outcome. Both at first instance and on the present application, the applicant appeared in person. Although he spoke at some length about his concerns, he did not seek to identify any error in the primary Judge's reasons. The draft notice of appeal identifies the following proposed grounds: 1. That there is a jurisdictional error in the Federal Circuit Court's decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant 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. 3 These proposed grounds offer no viable basis for allowing the appeal. Hence it would seem that no point would be served by extending time in which to appeal. The primary Judge found no error in the approach taken by the Tribunal or in its conclusion. However, at [21]-[24], his Honour identified one possible area of concern, observing that: 21 [A]t [59] of its reasons, the Tribunal accepted that the applicant was unable to obtain the necessary pass to enable him to start fishing in order to earn money. It will be recalled that the reason for which the applicant claimed that he was denied such a pass was that the EPDP informed the Navy that he was a former LTTE member. However, the Tribunal did not expressly reject that claim. That fact raises the possibility that the Tribunal had either overlooked that aspect of the applicant's claim or considered that the denial of a pass in order to be able to go fishing could not amount to persecution. This was not a matter raised by the applicant before me; however, as the applicant was unrepresented, I raised it with the Minister and gave the parties leave to file written submissions in respect of it. 22. The Minister submitted that the critical finding by the Tribunal in respect of this issue was that when the applicant returned from India to Sri Lanka in 2012 he was not at risk of harm from the EPDP. This finding was based upon the applicant's own claims that when he returned to Sri Lanka he approached the EPDP seeking the release of his brother and brother-in-law. Importantly, not only did the EPDP comply with the applicant's request, but after that time there was no further harassment of his brother, his brother-in-law or himself. The Minister submitted that those findings provided a logical basis for the Tribunal's conclusion that the applicant did not face a real chance of serious harm from the EPDP upon return to Sri Lanka. 23. The matter that concerned me was that the Tribunal appeared to have left open the possibility that the applicant would again be denied a pass to enable him to go fishing and thus to earn a livelihood and to support his family. However, I accept the Minister's submission that the basis of that possibility was conclusively dealt with by the Tribunal's finding that the applicant did not face any risk of harm from the EPDP and, just as importantly, that that finding was open to it on the basis of the applicant's evidence about what had occurred when he returned from India to Sri Lanka in 2012. 24. For those reasons, although the Tribunal's reasons could have been better articulated, I find that the Tribunal properly addressed itself to the questions raised on the review and that it did not fail to consider any part of the applicant's claims. The acronyms cited refer to the Eelam People's Democratic Party ("EPDP") and the Liberation Tigers of Tamil Eelam ("LTTE"). 4 Before consider that matter, I should say something about the way in which the Tribunal dealt with other aspects of the applicant's claim. The Tribunal set out the law relating to entitlement to a protection visa and the complementary protection criteria and found that the applicant is a citizen of Sri Lanka, born on 18 December 1977, in Jaffna. He is married and has three children. At [10]-[15] his Honour summarized the Tribunal's findings as follows: 10. The Tribunal made the following findings: a) the applicant was detained by the army in the North of Sri Lanka in the period from April to September 1997 during which time he was regularly beaten; b) the applicant was prosecuted with being a member of the LTTE but that prosecution was not successful; c) the applicant was detained by the LTTE upon return to the North of Sri Lanka but was released after a month and the LTTE had no further interest in him after his release; d) the applicant was not, as he had claimed, required to report regularly to the army and was not beaten by the army rather, he was of no interest to the Army after 2000; e) in the period 1999 to 2007 the applicant was not detained and tortured by the EPDP or taken by them in a white van as claimed; f) it did not accept that, in August 2011 upon return from India, he was unable to return to his work because the EPDP refused to allow him to do so; g) the applicant subsequently bought two boats in order to start fishing but was unable to obtain the necessary pass to enable him to do so; h) the applicant returned to India on 30 January 2012 and then returned to Sri Lanka one month later; i) the applicant's return to Sri Lanka at this point was inconsistent with his claimed fear of harm from the authorities; j) it accepted that the applicant returned to India one month after his boats were confiscated, that his brother and brother-in-law had been arrested, that he returned to Sri Lanka to help them out, that he reported to the EPDP on his return and that the brother and brother-in-law were released, and that after their release there was no further harassment of them; and k) the applicant had not been harassed by the Army or the LTTE for supplying water to both sides at different times. 11. The Tribunal referred to information contained in reports from the Department of Foreign Affairs and Trade to the effect that the risk to Sri Lankan Tamils had substantially reduced since the end of the civil war and then stated at [64]: The applicant was last detained by the Army in 1997; he was last detained by the LTTE in 2000; he was able to work in [the North of Sri Lanka] with (sic: without) any significant problems from 2000 to 2007; he has no criminal or political profile; he has a court document demonstrating that a charge of being a member of the LTTE did not succeed. I do not find that there is anything about the applicant's profile which suggests that, as a Tamil, he faces a real chance of serious harm if he returns to Sri Lanka. I find that this is supported by the country information referred to above. 12. The Tribunal went on to state that as the applicant's only link to the LTTE was that he had been forced to work on an occasional basis from about 1992 to 1997 and, as that was over 15 years ago, he had no fear of persecution for reason of being an imputed supporter of the LTTE. 13. The Tribunal also found that the applicant did not have a well-founded fear of persecution for reason of being a member of any of the posited particular social groups in light of the information about such groups and that, in respect of the applicant's illegal departure from Sri Lanka, any harm that he might suffer upon return would be as the result of the non-discriminatory enforcement of the law of general application. In particular the Tribunal found that there was nothing about the applicant's profile which suggested that, as an illegal deportee or a failed asylum seeker, he faces a real chance of serious harm upon return to Sri Lanka. 14. The Tribunal then considered each of the applicant's fears of serious harm both individually and cumulatively and concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in Sri Lanka and that he did not satisfy the criterion under sub-s.36(2)(a) of the Act. On the basis of the same factual findings, the Tribunal concluded that there was no real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka and so failed to satisfy the criterion in sub-s.36(2)(aa). 15. For those reasons, the Tribunal affirmed the decision of the delegate of the Minister. 5 The summary at [10] is incomplete. It does not record the fact that between 1997 and 2007 the applicant worked as a plumber with the Jaffna Municipal Council. Between December 1999 and January 2000 he was detained for questioning. The applicant claimed that he went to India in 2007 to avoid ongoing harassment, returning in 2011. This period apparently co-incided with the civil war in Sri Lanka. The Tribunal rejected his claims to have been regularly harassed between 1999 and 2007. The Tribunal also rejected his claim that on return in 2011, he was prevented from returning to his employment at the Jaffna Municipal Council by EPDP, a local political party, because of his membership of LTTE. The Tribunal placed some considerable weight upon the fact that he had documentary evidence which demonstrated that in 1997, proceedings against him for alleged LTTE membership were dismissed. 6 Concerning his subsequent conduct the Tribunal said at [59]: I accept that he subsequently bought two boats so that he could start fishing to earn money, and that he wanted to work on the boats with a brother and a brother-in-law. And I accept that he was unable to obtain the necessary pass to enable him to do so. I accept that he returned to India in January 2012, but that he returned to Sri Lanka one month later. However I find that returning to Sri Lanka is inconsistent with his claimed fear of harm from the authorities. He told me that he returned to Sri Lanka a month after the boats were confiscated and his brother and brother-in-law arrested. He told me that he returned to help them out, reported to the EPDP on his return, and the brother and brother-in-law were released. After this there was no further harassment of his brother and brother-in-law. I accept that these events occurred. I find therefore that he was not at risk of harm from the EPDP whom he approached and arranged for the release of his brothers. In doing so the applicant was not detained nor was he harmed in anyway. (Footnotes omitted.) 7 The Tribunal referred extensively to information provided by the Department of Foreign Affairs and Trade ("DFAT") concerning the situation of Tamils in Sri Lanka. In particular the country information indicated that: 3.10 Many Tamils, particularly in the north and east, express a fear of monitoring, harassment, arrest and detention by security forces. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. This was largely due to LTTE members and supporters almost all being Tamil. However, there were also likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity (see also October 2014 Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam). There are no published statistics on the numbers or ethnicity of those arrested under the PTA However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. … 3.12 However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally cased since the end of the conflict. According to the United Nations' High Commissioner for Refugees' (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was 'no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country'. 8 The Tribunal observed that the applicant was last detained by the army in 1997, and detained by the LTTE in 2000. From 2000 to 2007 he had been able to work in Jaffna without significant problems. He had no criminal or political profile and possessed a court document which indicated that a prosecution arising out of his suspected membership of LTTE had not succeeded. The Tribunal concluded at [64]: I do not find that there is anything about the applicant's profile which suggests that, as a Tamil, he faces a real chance of serious harm if he returns to Sri Lanka. I find that this is supported by the country information referred to above. 9 As to the possibility that he might be, or be perceived to be an LTTE member, the Tribunal pointed out that the United Nations High Commissioner for Refugees ("UNHCR") had, on 21 December 2012, issued guidelines which stated, in effect, that Tamil ethnicity of itself did not establish a "group-based protection mechanism" for Tamils, and that something more was needed such as actual or imputed links to the LTTE. The country information recorded that: 2.9 The United Nations High Commissioner for Refugees' (UNHCR's) December 2012 Eligibility Guidelines for Sri Lanka note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include: 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combatants or "cadres"; 3) Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. 2.10 Accurately identifying people according to these categories can be difficult. However, depending on their risk profile, former LTTE members may be subject to monitoring, arrest, detention or prosecution by Sri Lankan authorities. 10 At [66] the Tribunal referred to a decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00314 (IAC) of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) which suggested that a Tamil with LTTE connections or sympathies would not necessarily be at risk from the Sri Lankan government. The Upper Chamber identified that those at risk of persecution or serious harm on return to Sri Lanka were: (a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka; (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such an order or warrant. 11 At [67]-[69] the Tribunal observed: 67 I have considered whether there is a real chance that the applicant will be harmed because of imputed links to the LTTE. In circumstances where the applicant was not a member of the LTTE or a supporter, and his only link to the LTTE was his forced work for it on an occasional basis from in the period from about 1992 to 1997, that is over fifteen years ago, I find that he has no fear of persecution upon return to Sri Lanka for reason of his imputed support of the LTTE. 68. The applicant has referred to a variety of country information and other reports relating to the treatment of Tamils in Sri Lanka. I have considered this information and do not accept that the applicant will face harm in Sri Lanka simply on account of his being a Tamil. In my view the DFAT reports I have referred to should, on account of their recency, be accepted and treated as reliable. 69. The available information does not suggest that the applicant has a well-founded fear of persecution for reason of his Tamil ethnicity, or because he will be perceived to be a supporter of the LTTE. I find therefore that the applicant does not have a well-founded fear of persecution for these reasons. The country information certainly supports such an approach to the question of prior involvement with LTTE. 12 The applicant had also sought to establish refugee status by virtue of membership of one or more social groups, namely: Sri Lankan Tamils; Tamils from the north or east of Sri Lanka; and Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia. 13 At [75] the Tribunal set out the following extract from the DFAT country report: Torture or mistreatment of returnees 4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties. 4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment ... Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention. … 14 This reasoning led the Tribunal to conclude that it did not accept that any of the Convention reasons would be an essential and significant reason for the applicant being harmed if he returned to Sri Lanka. At [78] it concluded: I have considered each of the applicant's fears of serious harm amounting to persecution both individually and cumulatively. I do not consider that the applicant has real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that I am not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that I am not satisfied that the applicant is a refugee under s.36(2)(a) of the Act. 15 The primary Judge found no merit in the specific grounds advanced by the applicant in seeking review of the Tribunal's decision. The applicant does not now challenge the primary Judge's decision concerning those matters. Rather, the applicant seeks to rely upon the ground identified by the primary Judge but dismissed by him, namely, the applicant's inability to acquire a pass which would enable him to start fishing in order to generate an income. The applicant attributed his failure to obtain such pass to the fact that the EPDP had told the navy that he was a former LTTE member. 16 At first instance, the Minister submitted that the Tribunal had found that upon his return from India in 2012, the applicant was no longer at risk of harm from the EPDP. This conclusion seems to have been based on his capacity to obtain the release from prison of his brother and brother-in-law, and the absence of any other difficulty. The primary Judge's concern was that the inability to obtain a pass might have deprived the applicant of a capacity to earn a living and, on that basis, amount to persecution. There is no evidence to support the proposition that inability to earn an income from fishing would lead to his being unable to earn a living in some other way so as to support his family. In those circumstances, and given that the applicant did not claim to fear such persecution or serious harm, I doubt whether the point really arose for consideration by the Tribunal. In any event, as the Tribunal pointed out, he returned to Sri Lanka from India in early 2012, after departing Sri Lanka following his failure to obtain a pass. Such return strongly suggests that he saw no reason to fear that he would be unable to earn an income. 17 It may be that the point is at best marginal. It was not raised by the applicant who is, after all, the person best able to identify his own fears. His failure to raise the point re-inforces the Tribunal's reliance on his return from India in 2012, notwithstanding his prior failure to obtain a pass. There is no reason to believe that when the Tribunal spoke of serious harm, it was referring only to physical harm or loss of liberty. The Tribunal clearly considered that the applicant's inability to resume his employment with the Jaffna Municipal Council was a relevant area of inquiry. That matter was discussed in close proximity to the Tribunal's discussion of the fishing pass. It seems most unlikely that the Tribunal failed to appreciate the possible problems associated with his inability to obtain a pass. However the finding that he had not been prevented from returning to his employment with the Jaffna Municipal Council really meant that he was capable of earning income in some employment other than fishing. In those circumstances, the primary judge correctly concluded that the matter had been relevantly considered. 18 In any event, in my view, whilst the point may have been arguable in theory, it had virtually no prospects of success. The lack of any real prospect of success must be seen against the background of delay. The period of delay is neither short nor adequately explained. The delay in commencing the appeal is from 29 May 2015 until 21 September 2015, a period of about three months after the prescribed date for such commencement. The only explanation appears to be a report from an "Accredited Mental Health Practitioner". Without wishing to be discourteous or unduly dismissive of that person's views, it is a little difficult to identify his or her status and expertize. The applicant asserts that he has been mentally unwell and relies upon the letter from "my psychologist". It may well be that the person in question is a psychologist. However, as counsel for the Minister points out, the report identifies the symptoms described by the applicant but does not really offer any diagnosis or prognosis. At best, it seems to assume that the applicant is depressed. This condition apparently emerged following his failure to obtain a protection visa "after an appeal for the second time", perhaps referring to the proceedings in the Tribunal and those in the Circuit Court. He reported that he had not been able to remember the deadline to lodge the appeal, "due to his worsening feelings of hopelessness and worthlessness". Notwithstanding this statement, in the course of his submissions on appeal, he indicated that he had not been aware of the relevant time limit, rather than that he had been unable to remember it. If, as is suggested, his position has worsened over time, it follows that it was less acute, during the three week period following the judgment, than it is now. Hence it is difficult to identify the extent to which his declining condition may have attributed to his failure to lodge his notice of appeal. 19 The report asserts that the applicant is engaging in regular counselling, focussing on psycho-education for his alcohol abuse and coping with his emotional distress and depression. He claims to be forgetful, preoccupied and to have flashbacks about torture and trauma. The report certainly stops well short of offering support for the proposition that in the three weeks following the delivery of the judgment, he was so disabled as to be unable to lodge his notice of appeal. 20 The applicant's delay has not been sufficiently explained. Further, the proposed ground of appeal is barely arguable. In those circumstances I refuse the application for an extension of time in which to appeal. I shall hear submissions as to costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.