CKM16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 May 2019
• Neutral Citation: [2019] FCA 729
• Date: 21 May 2019

FEDERAL COURT OF AUSTRALIA

CKM16 v Minister for Immigration and Border Protection [2019] FCA 729

Appeal from:	CKM16 v Minister for Immigration & Anor [2018] FCCA 3076
File number(s):	NSD 210 of 2019
Judge(s):	BROMWICH J
Date of judgment:	21 May 2019
Catchwords:	MIGRATION – application for an extension of time to appeal orders of the Federal Circuit Court of Australia – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 473DC, 473DD
Cases cited:	MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
Date of hearing:	21 May 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Ms J Strugnell of MinterEllison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 210 of 2019
BETWEEN:	CKM16 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	21 MAY 2019

THE COURT ORDERS THAT:

1. The application for an extension of time in which to bring an appeal from the orders made on 31 October 2018 by the Federal Circuit Court of Australia be refused.

2. The applicant pay the first respondent’s costs as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1. This is an application for an extension of time in which to bring an appeal against orders made on 31 October 2018 by a judge of the Federal Circuit Court of Australia. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, also referred to as the IAA. The Authority had, on 9 August 2016, affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (at that time known as the Minister for Immigration and Border Protection) to refuse the grant of a class of protection visa, namely a Safe Haven Enterprise visa (SHEV).

2. The extension of time application, dated 18 February 2019, does not contain or refer to any proposed grounds of appeal. The applicant’s supporting affidavit affirmed 18 February 2019 does not annex any draft notice of appeal, nor identify any grounds of appeal. However, on 18 March 2019 the applicant electronically lodged a draft notice of appeal. It is clear that someone with legal training has been involved in drafting the grounds sought to be relied upon.

3. The applicant is not legally represented and did not provide any written submissions in support of his application. He appeared for himself at the hearing of the application, with the assistance of an interpreter. He did not address his proposed grounds of appeal. He gave as the reason for the late commencement of this proceeding being upset and being encouraged to do so by friends by reason of worsening circumstances in his country of origin, Sri Lanka.

4. The background to this application is helpfully summarised in the Minister’s written submissions as follows:

The applicant is a citizen of Sri Lanka, who arrived in Australia on 1 September 2012. The applicant applied for a SHEV on 9 November 2015. The applicant claimed to fear harm from the Sri Lankan Army (SLA) because of his Tamil ethnicity, his imputed political opinion and as a failed asylum seeker who departed Sri Lanka illegally.

On 4 July 2016, a delegate of the first respondent (the delegate) refused to grant the applicant a SHEV. The delegate's decision was referred to the Authority for review.

On 9 August 2016, the Authority affirmed the delegate's decision: CB 198. The Authority considered the material referred to it pursuant to section 473CB of the Migration Act 1958 (Cth) (the Act), at [3]. It identified the applicant's submission to it, received 8 August 2016. To the extent that the submission addressed the delegate's findings and referred to information before the delegate, the Authority had regard to it, at [4]–[5]. The Authority identified aspects of the submission that constituted ‘new information’ and, for the reasons given at [6]–[8], did not have regard to the new information.

The Authority accepted aspects of the applicant's claims concerning past events. These included his claims to have been detained and beaten on suspicion of Liberation Tigers of Tamil Eelam (LTTE) involvement during the civil war, at [15], to have been displaced and taken to an internally displaced persons camp, at [20], and to have faced a level of harassment, at [26]. The Authority also accepted the applicant's claim concerning an incident arising from the fishing pass system, at [28], and that the applicant had general involvement with the Sri Lankan Red Cross and Tamil National Alliance, at [31] and [33]–[34].

The Authority did not accept that the Sri Lankan authorities visited the applicant's family to inquire after the applicant, subsequent to the applicant's departure from Sri Lanka, at [37]. It found that the application of the fishing pass system to the applicant did not constitute serious harm, at [48]–[49], and was not satisfied that the applicant faced a real chance of persecution for reason of his being a Tamil fisherman from Jaffna in the north of Sri Lanka, at [51].

The Authority accepted the applicant’s evidence that he did not have actual LTTE links, other than having performed forced labour for the LTTE, and did not teach karate to the LTTE. The Authority repeated that it had accepted aspects of the applicant's claims but found the authorities’ interest in the applicant occurred during the war, and continued in the immediate aftermath of the war and the applicant’s release from the camp, up to 2010. The authorities only became interested in the applicant again in 2012, for a very short time, due to suspicion arising from the fishing pass incident, but this was explained away. The Authority found that the applicant did not have a profile suggested by country information to be at risk, and did not consider that the authorities would have had any further interest in the applicant had he remained in Sri Lanka, at [55].

The Authority considered the balance of the applicant’s claims, including his illegal departure claim. It considered the applicant’s circumstances as a whole and was not satisfied that he faced a real chance of persecution in the reasonably foreseeable future, at [79], or a real risk of significant harm, at [89].

5. The Minister opposes the grant of the extension of time by reason of its lateness (89 days), the absence of any satisfactory explanation for the delay, and the fact that the draft notice of appeal raises issues that were not raised before the primary judge. The last point is strictly correct, but the substance of the issue now sought to be agitated was dealt with by his Honour. The fate of this application can be adequately and most efficiently addressed by reference to an “impressionistic reading and consideration” of the proposed appeal grounds sought to be relied upon at the appeal that would follow, only refusing the application if those grounds are hopeless: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [66].

6. The proposed appeal grounds assert jurisdictional error, by way of legal unreasonableness, in the Authority failing to exercise the power in s 473DC of the Migration Act 1958 (Cth) to obtain “new information”, being information that was not before the delegate and that the Authority considers to be relevant to the review.

7. Importantly, s 473DC(2) expressly provides that there is no duty imposed to get, request, or accept any...