BGS15 v Minister for Immigration and Border Protection [2016] FCA 1306

FEDERAL COURT OF AUSTRALIA

BGS15 v Minister for Immigration and Border Protection [2016] FCA 1306 Appeal from: Application for extension of time and leave to appeal: BGS15 v Minister for Immigration & Anor [2016] FCCA 1416

File number: NSD 1069 of 2016

Judge: NICHOLAS J

Date of judgment: 1 November 2016

Legislation: Migration Act 1958 (Cth) ss 36, 65 Federal Circuit Court Rules 2001 (Cth) r 44.12

Date of hearing: 1 November 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 16

Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Mr M Wiese of Clayton Utz

Counsel for the Second Respondent: The second respondent submitted save as to costs

ORDERS NSD 1069 of 2016

BETWEEN: BGS15 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: NICHOLAS J DATE OF ORDER: 1 November 2016

THE COURT ORDERS THAT:

1. The application for an extension of time and leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application fixed in the amount of $3,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

NICHOLAS J: 1 This is an application for an extension of time and leave to appeal against a judgment of a Judge of the Federal Circuit Court of Australia (Judge Street) given on 10 June 2016 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal (as it then was) ("the Tribunal") dated 15 June 2015 affirming a decision of a delegate of the first respondent ("the Minister") not to grant the applicant a protection (Class XA) visa pursuant to s 65 of the Migration Act 1958 (Cth) ("the Act"). His Honour dismissed the applicant's application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") on the basis that it did not raise an arguable case for the relief sought. 2 The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 20 June 2012. The applicant applied for a protection (Class XA) visa on 1 March 2013. He claimed to fear harm by reason of his ethnicity, being Tamil, and his imputed political opinion, due to a perceived association (through his involvement in a local fishermens' association) with the Liberation Tigers of Tamil Eelam ("LTTE") and also by reason of being a member of a particular social group, that of a failed asylum seeker who left Sri Lanka illegally. 3 The Minister's delegate refused to grant the applicant a protection visa on 30 September 2013. On 3 October 2013, the applicant applied to the Tribunal for review of the delegate's decision. He appeared before the Tribunal on 14 January 2015 to give evidence and present arguments with the assistance of an interpreter and a registered migration agent. 4 On 15 June 2015, the Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant did not satisfy the criteria for grant of the visa under either s 36(2)(a) or s 36(2)(aa) of the Act. 5 The Tribunal found that the applicant had not been truthful in relation to a number of aspects of his claims. The particular matters relied upon by the Tribunal in finding that the applicant was not a witness of truth in relation to aspects of his claims are set out in paragraphs [41]-[46] of the Tribunal's Statement of Decision and Reasons. Some of these matters, the Tribunal found, were inherently implausible. In particular, the Tribunal did not accept the applicant's account of an alleged incident which he said occurred in 2012 involving his interrogation and beating by the army which the applicant attributed to his membership of the fishermens' association, which he said the army understood to be involved with, or to be supporters of, the LTTE. 6 The Tribunal did not reject all of the applicant's evidence. In particular, it appears to have accepted his account of an incident in 2009 in which the applicant was detained and interrogated by Sri Lankan authorities. The Tribunal accepted that he was detained, interrogated and mistreated at that time. However, the Tribunal was not satisfied that there was a real chance that the applicant would be harmed as a result of his detention in 2009 if he was to return to Sri Lanka now or in the reasonably foreseeable future. 7 The Tribunal also considered the matter of the applicant's Tamil ethnicity. The Tribunal accepted that Tamils "continue to face a level of societal discrimination in Sri Lanka" but was not satisfied that any discrimination that the applicant may experience on return to Sri Lanka would involve serious or significant harm. In support of this conclusion the Tribunal referred to country information which indicated that whether a person was at risk of harm depended upon the nature of his or her links with the LTTE or the diaspora that provided funding and support to the LTTE. The Tribunal was satisfied that the applicant did not have an actual or imputed profile as an LTTE supporter of any sort. Nor was the Tribunal satisfied that the applicant was at risk due to his Tamil ethnicity or his detention in 2009. 8 The Tribunal also considered the possibility that the applicant may suffer harm upon return to Sri Lanka due to his illegal departure and his claim to asylum in a Western country. The Tribunal referred to the possibility of the applicant having to pay a fine, but was not satisfied that the size of it could reasonably be seen as constituting serious or significant harm. In relation to the risk of detention, the Tribunal said at [67]-[68]: [67] Based on the available information, I find that upon return the applicant is likely to be charged, detained for a short period and then released on bail with a family member to provide surety. The evidence suggests that he may be visited by authorities when returned to his village but there is no evidence before the Tribunal that the applicant faces harm as a result of such a visit or visits. The Tribunal is not satisfied that he will be imputed with a political opinion because of his illegal departure or treated differently because he is a member of a particular social group of failed asylum seekers or for any other reason and thus detained for a longer period. I have considered whether the fact that the applicant will be detained for a short period constitutes persecution. [68] The Tribunal accepts that prison conditions in Sri Lanka may be poor due to overcrowding and unsanitary conditions. However a variety of sources indicate that the treatment the applicant might face upon his return applies to all persons, regardless of race or religion. Tamils are not singled out. The Tribunal is not satisfied, therefore, that being questioned, arrested, charged and detained for a short period in poor conditions amount to systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal finds that the processing of returnees and any penalties that may be imposed on the applicant are the result of the non-discriminatory enforcement of a law of general application. 9 In the result, the Tribunal was not satisfied that the applicant was a person who satisfied the protection criteria under either s 36(2)(a) or s 36(2)(aa) of the Act. 10 The applicant sought judicial review of the Tribunal's decision. In his application, the applicant relied on the following ground: If I return to Sri Lanka I will be persecuted as I am a Tamil. RRT did not look at this in great detail. 11 The primary judge ordered that the application be dismissed, pursuant to r 44.12 of the FCC Rules. His Honour concluded that there was no arguable case for the relief sought by the applicant. In particular, his Honour concluded that the applicant had failed to identify any arguable jurisdictional error. 12 The applicant now seeks an extension of time and leave to appeal from the primary judge's judgment. The proposed ground of appeal is not at all informative and merely takes issue with the primary judge's dismissal of the application pursuant to r 44.12 of the FCC Rules. 13 The applicant commenced the present proceeding 11 days outside the time within which he was require to file his application for leave to appeal. Given the modest delay, I would be minded to grant the applicant the extension of time he seeks and to grant leave to appeal were I satisfied that his proposed appeal raises some arguable ground of appeal. In this case, however, it is apparent that the proposed appeal has no prospect of success. 14 The applicant filed a statutory declaration in support of his application for an extension of time and leave to appeal which I have read and taken into account. The matters raised in it concern the Tribunal's findings of fact and include arguments as to why the Tribunal should have accepted that the applicant would suffer torture or other cruel or inhumane treatment if he were to return to Sri Lanka. Nothing in the statutory declaration, when read in conjunction with the Tribunal's reasons, suggests that the Tribunal committed any jurisdictional error. 15 With the assistance of the interpreter the applicant was invited this morning to identify any errors in the Tribunal's decision or the reasons of the primary judge upon which he might wish to rely. There was nothing to which he could point. Having read the Tribunal's decision closely, I do not think that there is any arguable case for holding that its decision was affected by any jurisdictional error. 16 I am satisfied that the primary judge was right to conclude that there was no arguable case of jurisdictional error raised by the applicant's application for judicial review. The application for an extension of time and leave to appeal is refused on that basis. The applicant must pay the Minister's costs of the application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.