FEDERAL COURT OF AUSTRALIA DUQ16 v Minister for Immigration and Border Protection [2020] FCA 301 Appeal from: Application for leave to appeal: DUQ16 v Minister for Immigration and Anor [2018] FCCA 1983 File number(s): NSD 937 of 2019 Judge(s): GREENWOOD J Date of judgment: 11 March 2020 Catchwords: MIGRATION – consideration of an application for an extension of time and leave to appeal Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 Date of hearing: 26 February 2020 Date of last submissions: 26 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: B Kaplan Solicitor for the First Respondent: Mills Oakley ORDERS NSD 937 of 2019 BETWEEN: DUQ16 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 11 MARCH 2020 THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal filed on 17 June 2019 is dismissed. 2. The applicant pay the costs of the Minister for Immigration and Border Protection of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These proceedings are concerned with an application made under rule 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time, and leave to appeal, from the orders and judgment of the primary judge, Judge Manousaridis, of the Federal Circuit Court of Australia, delivered on 27 July 2018. By those orders, the primary judge dismissed an application made by the applicant to set aside the orders of the primary judge made on 21 May 2018. By the orders of 21 May 2018, the primary judge dismissed the applicant's application for judicial review of a decision of the Immigration Assessment Authority (the "IAA"), on the ground of the applicant's failure to appear at the hearing on 21 May 2018. 2 The brief background to those proceedings is this. 3 The applicant sought judicial review of the IAA's decision by an application filed on 12 December 2016. The matter was listed for hearing on 20 April 2018 and adjourned, at the applicant's request, until 21 May 2018. On that day, there was no appearance by or on behalf of the applicant with the result that the application was dismissed that day due to the applicant's failure to appear. On 7 June 2018, the applicant filed an application seeking orders to set aside the orders of 21 May 2018. A hearing of that application was heard before the primary judge on 18 July 2018. Judgment was delivered, and orders made, on 27 July 2018. Without examining those matters in great detail, it is sufficient to note that the primary judge found that the applicant had not provided an adequate explanation for his non-appearance on 21 May 2018. More importantly, the primary judge observed that the application to set aside the dismissal order of 21 May 2018 would be considered by reference to the merits of the grounds of challenge to the decision of the IAA identified by the applicant. The primary judge concluded that those grounds had no merit and accordingly, the application of 27 July 2018 was dismissed with costs. 4 In the present application to this Court, the applicant seeks an extension of time and leave to appeal from the judgment and orders of the primary judge. 5 It should also be noted that by reason of rule 35.13 of the Federal Court Rules 2011, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order made. The judgment was pronounced and orders were made on 27 July 2018. The application for leave to appeal ought to have been filed by 10 August 2018. The application was filed on 17 June 2019. Thus, the application is filed approximately 10 months out of time. Accordingly, the applicant requires an extension of time to bring the application for leave to appeal. 6 The application is supported by an affidavit by the applicant dated 17 June 2019 which attaches a draft notice of appeal. In that draft notice of appeal, the applicant recites these matters under the heading "Grounds of appeal". 7 First, he says that the "Administrative Appeals Tribunal" failed to consider the applicant's claims. That seems to be a template ground of appeal and, of course, the relevant decision-maker is the IAA. 8 Second, the applicant says that he seeks an extension of time on the footing that he had an accident which significantly affected his capacity to think and his capacity to seek legal assistance. Obviously enough, this issue goes to the question of whether there was an adequate explanation for his failure to appear on 21 May 2018. 9 Third, he says that he wishes to introduce additional grounds of appeal and at least two of those are set out in what is otherwise described as ground 4 of the appeal. As to ground 4, three matters fall within it. The first is a contention that the IAA gave more weight to a signed statutory declaration submitted to the Department in a particular context, and failed to consider the contents of an unsigned statutory declaration attached to the applicant's Safe Haven Enterprise visa ("Safe Haven visa") application. That ground was agitated before the primary judge and rejected as a ground of contended jurisdictional error. The second matter within ground 4 is a contention that the IAA failed to consider the severe discrimination the applicant would suffer in relation to employment in Sri Lanka should he return to Sri Lanka. The third matter within ground 4 is a contention that the IAA failed to consider whether the applicant has the financial means, or whether the applicant's family has the financial means, to provide "surety or guarantee to seek bail in Sri Lanka" should that be necessary upon his return to Sri Lanka as a failed asylum seeker. 10 In DUQ16's affidavit in support of the application before this Court, he says that he seeks an extension of time because he suffered a workplace injury in April 2018 and was hospitalised and since then he has suffered from significant physical and mental health issues. He says that as a result of that, he was not "in the mind of a reasonable minded person to appeal" and he respectfully requests the Court to extend time and grant leave to appeal. 11 As to the workplace injury in April 2018, the applicant gave further information about that matter to the Federal Circuit Court in the form of an affidavit in which he says that while working at a worksite in Hurstville, he was injured when a nail pierced his helmet and entered his skull penetrating into his brain. He was hospitalised as a result of the injury and suffered much pain. He said in that affidavit that he continues to suffer from pain and requires ongoing medical treatment. As to these matters, the primary judge accepted that the applicant had been involved in an accident and that he had sustained the injuries he described. The primary judge also accepted that the applicant is subject to the consequences described in the medical evidence provided by the applicant. The primary judge also accepted that the applicant's injuries and the consequences of those injuries may well have "contributed significantly" to his failure to attend the hearing on 21 May 2018 before that Court. The primary judge, however, was not satisfied that the explanation was an adequate one for failing to appear at the hearing on 21 May 2018. However, the primary judge expressly elected to decide the question before his Honour entirely on the footing of whether or not the grounds upon which the applicant sought to rely in seeking to demonstrate jurisdictional error on the part of the IAA were "reasonably arguable". 12 As mentioned, the primary judge found that the contended grounds were not reasonably arguable. 13 The matters in issue in this application raise relatively short points. Some background matters should be mentioned. 14 The IAA summarised those matters, as put to it by DUQ16, in this way: • During the Sri Lankan civil war, as a young Tamil male, he was always targeted for harassment by the Sri Lankan armed forces and questioned about his connection to the LTTE. He was caught up in house checks and round-ups. • He worked in Qatar from 2002 to 2006. • After the end of the Sri Lankan civil war, the Sri Lankan army numbers increased in his home town. The army worked with Tamil paramilitary groups to find former LTTE members and supporters. There is still an army camp near his family home. This restricted his movements. • In June 2011, two soldiers took the applicant from his home to the army camp. He was threatened at gunpoint and questioned about his links to the LTTE. He was released after eight hours, but required to report to the army base when required. He had to report four times and was forced to do unpaid labour. • In April/May 2012, while the applicant was working in another town in Northern province, a friend of the applicant told him the Criminal Investigation Department ("CID") were looking for the applicant at a market. • In June 2012, after travelling back to his home town, a local shopkeeper told the applicant the CID were looking for him and Mr S1. Mr S1 was a former member of the LTTE, but had resigned many years ago. The next day, Mr S1 was abducted in a white van and remains missing. • In July 2012, Mr S2 was shot dead in the applicant's home town. Mr S2 was also a former member of the LTTE who had resigned for many years. • Although he was not a former LTTE member, the applicant feared he too would be targeted as a suspected member of or spy for the LTTE. He left Sri Lanka illegally to come to Australia. • He will be asked questions on return to Sri Lanka. Friends of his who had returned to Sri Lanka had been extorted by the Sri Lankan authorities. 15 The applicant told the IAA that he fears that if he returns to Sri Lanka, he will be harmed by the Sri Lankan authorities because they suspect he is a former member of the LTTE; he is a Tamil from the Northern Province; and he is a failed asylum seeker returning to Sri Lanka who departed Sri Lanka illegally. 16 At para 9 of the IAA's decision, the decision-maker says that he is willing to accept that the applicant experienced harassment from the Sri Lankan authorities in the past and that his claims were generally consistent with country information in reports of the Department of Foreign Affairs and Trade. 17 At para 10, the decision-maker observes that other aspects of the applicant's claim are "more problematic". Relevant to one of the grounds is the observation that the applicant had provided a signed statutory declaration with an earlier invalid application for a protection visa in August 2013. The decision-maker says that the applicant provided an unsigned version "of the same statutory declaration" with his application for a Safe Haven Enterprise visa ("Safe Haven visa"). The decision-maker says that he has "given more weight" to the signed declaration than the unsigned declaration. Nevertheless, it is perfectly plain that the decision-maker has looked at both declarations, observed that the content of each declaration is the same and has simply recognised that because the earlier declaration is signed, he has attached weight to that document. There can be no suggestion that the decision-maker has not considered both documents. 18 As to the general range of claims reflected in the matters quoted at [12] of these reasons, the IAA addressed those matters at paras 11, 12 and 13 particularly. Reference is made to DFAT reports at para 14. The topic of the applicant returning to Sri Lanka as a failed asylum seeker is addressed at 16 to 18. It is not necessary, having regard to the contended grounds of appeal, to recite all of those matters in these reasons. It is sufficient to note that the IAA identified what it considered to be many inconsistencies between the factual assertions set out in the statutory declarations and the things the applicant said in his Safe Haven visa interview and that was particularly true in relation to the shooting of Mr S2. 19 I have already addressed ground 1 of the grounds the applicant would seek to rely upon. 20 Ground 2 asserts that the IAA failed to consider the discrimination the applicant would face in relation to his employment should he return to Sri Lanka. At [14], the IAA refers to DFAT country reports. The decision-maker says this: The DFAT country report further states there is a moderate level of societal discrimination against Tamils still present in Sri Lanka, but there is no evidence of official laws or policies that discriminate based on ethnicity or language, including in the context of access to education, employment and housing. Both DFAT and the most recent UNHCR guidelines assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE or who had family members that are former members of the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained and prosecuted. [emphasis added] 21 Having considered those matters, the decision-maker was not satisfied that the applicant faces a real chance of serious harm from Sri Lankan authorities due to imputed pro-LTTE or anti-Sri Lankan government political opinion or because he is a Tamil from the Northern province, now or in the reasonably foreseeable future, should he return to Sri Lanka. 22 As to discrimination, the decision-maker accepted that Tamils are subject to societal discrimination in Sri Lanka. However, on the evidence, the decision-maker was not satisfied that the level of societal discrimination is such that it would constitute significant harm for the purposes of s 36(2A) and s 5 of the Migration Act 1958 (Cth). Although it is true that there is no greater elaboration of possible discrimination in the context of the applicant's employment, I am satisfied that this particular aspect of the applicant's claims are addressed within the IAA's general findings that the applicant would not face serious or significant harm on account of any discrimination he might face upon return to Sri Lanka: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, French, Sackville and Hely JJ at [46] and [47]. 23 As to ground 3, the applicant contends that the IAA failed to consider whether either the applicant or the applicant's family has the financial means to provide the capacity to act as surety or guarantor should the applicant wish to seek bail in Sri Lanka in the event that he is incarcerated upon his return as a failed asylum seeker. 24 The Minister says that in the absence of any indication from the IAA that the provision of surety would require the payment of money, it cannot simply be assumed that surety from the applicant or a family member would involve a payment of money. 25 The issue of surety arose in the context of the IAA's discussion of the applicant's "illegal departure" from Sri Lanka and the possibility of his subsequent return. The IAA accepted that the applicant had departed from Sri Lanka without a passport when coming to Australia and for that reason he committed an offence under the Sri Lankan Immigrants and Emigrants Act 1949 (the "IAEA"). 26 The IAA at para 21 notes that if the authorities suspect that the applicant has departed Sri Lanka illegally, he may be charged under the IAEA. He may be transported by police to the closest Magistrates Court. That Court would then make a determination as to the next steps to take place in relation to the individual. Those arrested can remain in police custody for up to 24 hours. In the event that a Magistrate is not available due to weekends or public holidays, those persons charged under the IAEA may be held at a nearby prison. Penalties can include up to five years imprisonment and fines. 27 The IAA refers to DFAT advice that, in practice, penalties are applied on a discretionary basis and "usually in the form of a fine". DFAT reports suggest, on the basis of advice from Sri Lanka's Attorney-General's Department, that no returnee who left Sri Lanka unlawfully as a simple passenger has been given a custodial sentence for breach of the IAEA. Fines are common. However, the amount varies depending upon the circumstances of the case "and are typically on the lower end": IAA, para 22. 28 The IAA, at para 23, concludes that on return to Sri Lanka, the applicant would likely be charged and fined under the IAEA and then released. The IAA concludes that in the event that the applicant elects to plead "not guilty" to the offence under the IAEA, he would either be granted bail on personal surety or on the surety of a family member. At para 23, the IAA says this: The evidence before me is the applicant's wife, children and siblings are in Sri Lanka. There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is likely that he will be fined. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against low profile illegal departees. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face such a period of detention or imprisonment. 29 At para 25, the IAA also concludes that the IAEA reflects laws of general application that apply to all Sri Lankans equally and that there is no country information before the IAA that suggests that the law is applied in a discriminatory manner or that it is selectively enforced. 30 I am not satisfied that the IAA has failed to consider the position of the applicant upon his return to Sri Lanka in the context of the possible consequences arising out of the application of the IAEA. In particular, I am not satisfied that the IAA failed to consider issues in relation to surety or guarantees to be given either by the applicant or a family member. 31 Since none of the three grounds the applicant would seek to agitate, should an extension of time be given for leave to appeal, have any arguable merit, the application for an extension of time and for leave to appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 11 March 2020