WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150 (27 February 2004)

WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150

WAJU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W 137 OF 2003

MOORE J
27 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 137 of 2003

BETWEEN:	WAJU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application for an extension of time is dismissed.

2. The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	W 137 of 2003

BETWEEN:	WAJU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2004
PLACE:	PERTH

1 This is an application for an extension of time in which to appeal against the judgment of Federal Magistrate Driver dismissing the applicant’s application for judicial review (the application was implicitly seeking the grant of constitutional writs) of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 11 February 2003.

2 The applicant is an ethnic Tamil of the Hindu religion and a Sri Lankan citizen. On 1 September 2001 he left Sri Lanka by boat, arriving in Australia on the Cocos (Keeling) Islands off the north-west coast of the Australian mainland on 15 September 2001. In August 2002, after six months on Christmas Island where he was processed under the ‘Off Shore Regime’, he was transferred to Port Hedland. He applied for a protection visa in September 2002. On 13 November 2002, a delegate of the Minister for Immigration & Multicultural Affairs refused to grant the applicant either a Protection (Class XA) visa or a temporary protection visa (subclass 785) under the Migration Act 1958 (Cth) (‘the Act’). The applicant lodged an application for review with the Tribunal on 19 November 2002. The Tribunal conducted a hearing on 18 December 2002. On 11 February 2003, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant then applied to this Court on 24 February 2003 for review of that decision. On 28 March 2003 that application was transferred to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth). On 21 May 2003, Federal Magistrate Driver dismissed the applicant’s application. The applicant now applies for an extension of time in which to appeal against that judgment. It is necessary for time to be extended because any appeal against the judgment should have been filed by 11 June 2003. The notice to appeal was filed on 18 June 2003.

3 The following is the substance of the applicant’s claims for a protection visa. The applicant was born in Mundel in 1974 where he lived until he moved to Udappu to work as a prawn farmer in September 1999. In 1997, the applicant was detained by Sri Lankan authorities who suspected that he was a member of the Liberation Tigers of Tamil Eelam ("LTTE"). He was detained for 14 days and released after being forced to sign a document he did not understand because it was in the Sinhalese language.

4 The applicant claimed that while working at a prawn farm in Udappu in 2001, he was approached by cadres of the LTTE. He claimed they asked him his name and about his work, and then asked him to join them. After this visit, the applicant claimed he left, telling his employer that he needed to go home. He then claimed to have told his mother of the conversation with the LTTE. She was fearful and begged him to leave for his own safety. The applicant claimed that he then went into hiding, moving around between different relatives. The applicant claimed that in April or May of 2001, the LTTE went to his family home, threatening to destroy them if he did not report to them.

5 In July 2001, the applicant sought the assistance of a ‘people smuggler’ to escape Sri Lanka. He was informed that he could leave on a boat on 28 July 2001 for 450 000 rupees. The applicant’s mother arranged the money and applicant went to leave that night. However, the boat had a problem with its compass and was forced to return. On the night of 29 July 2001, the police raided the people smuggler's home in Negombo where the applicant and another Tamil man were. They were arrested and taken to the police station. There, they were beaten, kicked, hit in the head with rifle butts and interrogated. The police wanted to know why they were in the area. The applicant told them they were planning to go to Australia and the details of their failed attempt.

6 The applicant claimed that the police accused him of being involved in a bomb attack on Katunayake airport in Colombo a week earlier on 23 July 2001. He and the other Tamil man were detained for three days before being taken to court and formally charged. The applicant claimed he was charged with a criminal offence concerning his alleged involvement in anti-government activities and the airport attack. He claimed that the matter was reported in the newspapers. The applicant was then released on bail which was paid by the people smuggler. He appeared in court on 29 August 2001 but the matter was adjourned until 15 September 2001. He returned to the home of the people smuggler and left on another boat on 1 September 2001.

7 The applicant claimed he had a well-founded fear of persecution on the ground of membership of a particular social group (young male Tamils likely to be recruited by the LTTE) and imputed political opinion (by Sri Lankan authorities) that he is a supporter of the LTTE. He also claimed to fear being persecuted by the LTTE for political reasons.

8 The Tribunal accepted that Sri Lankan authorities have typically suspected young Tamils from Northern or Eastern Sri Lanka of being connected with the LTTE. This being the case, the Tribunal found the applicant’s claim regarding the 1997 detention plausible. The Tribunal also accepted as plausible that the Sri Lankan authorities arrested the applicant, physically mistreated him and accused him of being involved in the LTTE attack on Katunayake Airport. The Tribunal accepted most of the evidence of the applicant in relation to the events of July and August 2001 other than the claim that the applicant was charged with a criminal offence in relation to the attack on Katunayake Airport.

9 The Tribunal found his evidence in relation to the claim concerning criminal charges to be ‘incongruous, implausible and unconvincing’. The Tribunal considered it was implausible that the applicant would have been released on bail if the charge had been in relation to a terrorist attack. Also, the Tribunal considered that the applicant had the means of supporting this claim by obtaining and retaining a copy of the newspaper reports, but he had not done so despite the fact that he had already decided to travel to Australia to claim asylum. The Tribunal found it incongruous that the applicant should say that he thought the charge related to the attack on Katunayake Airport and not his attempt to illegally depart Sri Lanka when he could not explain how he knew this.

10 The Tribunal did not accept that the LTTE had tried to recruit the applicant or threaten him or any member of his family. The Tribunal said:

11 The Tribunal then considered whether the applicant’s fear of being persecuted by the Sri Lankan authorities for reasons of his Tamil ethnicity and imputed support for the LTTE, was a well founded fear.

12 The Tribunal accepted as correct a number of country reports which concerned the reconciliation process in Sri Lanka and pointed to the cessation of hostilities. The Tribunal accepted as correct reports that the situation for Tamils had significantly improved and that, for Tamils in the north-east, there was less police harassment and a decrease in arrests and detention. The Tribunal acknowledged the fragility of the political situation, noting the President’s ability to dissolve parliament and trigger general elections. But it was not satisfied that the President was, or would be, in a position to thwart the peace process, nor that if she triggered general elections, the peace process would be jeopardised. Because of what the Tribunal viewed as ‘substantial improvements in the situation for Tamils in Sri Lanka since the peace process commenced’, it concluded that the applicant would not face a real chance of being persecuted by the Sri Lankan authorities for reasons of his Tamil ethnicity or a perception that he supported the LTTE. As a result, the Tribunal was not satisfied that the applicant met the criterion for a protection visa.

13 The applicant represented himself before the Federal Magistrate. Though his application set out identifiable grounds of review, the applicant was unable to provide particulars of these at the hearing. The grounds in the application, as summarised by the Federal Magistrate at [2] of his judgment, were:

14 His Honour accepted the submissions made on behalf of the Minister that the Court was bound to dismiss the application by operation of s 474 of the Act. He found no legal error on the face of the record and no evidence of procedural unfairness. His Honour concluded the decision of the Tribunal was based on findings concerning the credibility of the applicant which it was entitled to make.

15 The applicant was represented by counsel in this appeal or, more precisely (as noted earlier), in this application for an extension of time within which to appeal. In substance, two issues were raised. The first was that circumstances in Sri Lanka have changed materially since the time the matter was considered by the Tribunal. The second was that the applicant was a member of the social group, namely ethnic Tamils from Northern Sri Lanka, and his circumstances should have been considered on that basis.

16 In relation to the first point, the applicant confronts insurmountable problems. The first problem, at one level, is establishing that, as a matter of fact, circumstances in Sri Lanka have changed. No evidence was led before the Federal Magistrate about present circumstances in Sri Lanka and, ordinarily, it would be inappropriate to receive such evidence in an appeal. However the point fails at a more fundamental level. Even assuming that circumstances in Sri Lanka have changed materially since the Tribunal decision, those changes are irrelevant for present purposes. As the majority of the High Court observed in Minister for Immigration & Multicultural Affairs v Thiyagarah [2000] HCA 9; (2000) 199 CLR 343 at 355, the Act posits the determination of a particular application at a particular time. While the Act is now not in precisely the same terms, it was not suggested this might result in some different conclusion. The decision of the Tribunal made by reference to circumstances existing at the time of its decision, cannot now be impugned because those circumstances may have changed.

17 The second point is without substance. The Tribunal considered the position of the applicant having regard to his Tamil ethnicity. Nothing more, in this respect, was required of it.

18 The reasons advanced by the applicant for not filing the appeal within the prescribed time (he was in detention at a remote location with no ready access to legal assistance and receive belated notice of the Federal Magistrate's judgment some time after it was given) might, in other circumstances, warrant the extension of time (a proposition accepted by counsel for the Minister) see WAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 757. The grounds that he is raising are, in my opinion, without substance. For that reason, I am not satisfied special reasons exist which warrant the extension of time. Accordingly the appropriate order is to dismiss the application for an extension of time in which to appeal, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Counsel for the Applicant:	J J Hockley (Pro Bono)

Counsel for the Respondent:	L B Price

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	24 February 2004

Date of Judgment:	27 February 2004