AHN17 v Minister For Immigration and Anor (No.2)

[2017] FCCA 1516

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHN17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1516

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority’s decision was manifestly unreasonable – whether the Authority constructively failed to exercise its review jurisdiction – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – application for reinstatement – whether there was an adequate reason for non-appearance.

Legislation:

Migration Act 1958 (Cth), ss.5J, 473GB.

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 15.05.

Cases cited:

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AHN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 196 of 2017

Judgment of: Judge Street

Hearing date: 30 June 2017

Date of Last Submission: 30 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr L Dennis

Minter Ellison

ORDERS

1. The application in a case filed on 26 June 2017 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 196 of 2017

AHN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) to set aside an order made by this Court on 14 June 2017 dismissing the applicant’s application for a failure to appear before the Court under r.13.03C(1)(c) of the Rules.

Non-appearance at the hearing date

1. The applicant filed an application in a case for the setting aside of that order on 26 June 2017 supported by an affidavit. That affidavit, in relation to the failure to appear before the Court, said that the applicant was sick on the date of hearing and was not in a position to attend the hearing.

2. Beyond those bare statements, nothing else was said by the applicant as to reasons why he could not attend Court or could not notify the first respondent or the Court as to his inability to come to Court. The applicant referred to an attached medical certificate. The attached medical certificate was issued on 22 June 2017 and is based on information provided to the doctor on that date by the applicant. The applicant asserted that he was suffering from pain, from inflamed piles, and episodes of rectal bleeding.

3. The note from the doctor in the affidavit said that the symptoms were severe over the last two weeks and the applicant was not able to attend for “an interview” on 14 June 2017. It is not apparent that the applicant informed the doctor that he was required to attend a hearing before the Court. Nor does the doctor in any way identify that the applicant was unable to attend Court or unable to contact the Court by telephone or to communicate with the first respondent. The first respondent has submitted that the explanation by the applicant for the failure to appear is not an adequate excuse. I accept the first respondent’s submission.

4. The evidence from the applicant as to the failure to appear is one in respect of which the medical certificate falls a long way short of explaining why it was the applicant did not attend Court on that occasion. Be that as it may, the more important issue in the present case are the merits and whether the applicant has an arguable case of jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

5. At the commencement of the hearing the Court explained to the applicant that this was a hearing of an application in a case to determine whether the orders of the Court should be set aside.

6. The Court explained to the applicant in that regard that the Court was considering, first, the reason why the applicant failed to attend before the Court and whether it was subject to a satisfactory excuse; and, second, whether the applicant had a reasonably arguable case on the merits so that there is utility in the setting aside of the order. The Court explained that this involved considering whether the applicant had a reasonable argument that the Immigration Assessment Authority’s (“the Authority’s”) decision was affected by relevant legal error.

7. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair. The Court explained that, if satisfied the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair and an adequate explanation for the failure to appear before the Court, the matter would be stood over and fixed for hearing on another occasion.

8. The Court explained that, if not satisfied that the applicant had a reasonable explanation for the failure to appear and a reasonable argument that the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

9. The Court explained that it would identify the evidence and then hear submissions from the applicant as to his excuse for failing to appear before the Court and as to why he has a reasonable argument on the merits, and then hear from the solicitor for the first respondent and then hear from the applicant in reply. The applicant confirmed that he understood the nature of the hearing before the Court.

Grounds of the application

1. The grounds of the application are as follows:

   1. This rendered the IAA's Decision manifestly unreasonable and subject to jurisdictional error.

   2. The IAA erred through a constructive failure to exercise review jurisdiction.

Submissions from the bar table

1. At the commencement of the oral submissions, the applicant indicated that he had a lot of material that he wanted to put forward before the Court. This is a case where a Registrar made orders on 23 February 2017 giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions, as well as fixing the matter for hearing on 14 June 2017, and no such documents were filed. No proper basis was identified to warrant the grant of an adjournment in the interests of the administration of justice.

2. The applicant maintained in relation to his failure to appear that the condition that he was suffering from meant that he was effectively unable to move and unable to make any telephone contact and unable to walk. The doctor’s certificate does not support any of those propositions, nor does the affidavit evidence from the applicant. Whilst the Court is prepared to accept that the applicant, on the relevant day, may have had severe discomfort from piles and rectal bleeding, the Court does not accept that that is an adequate explanation for the failure to engage in any communication with the Court or the first respondent. However, the critical issue is whether there is a reasonable argument that the Authority’s decision is unlawful or unfair.

The substantive application

Submissions from the bar table

1. The applicant started to address the merits of his application and his claims in relation to his former girlfriend and the girlfriend’s family, as well as his fears in relation to what may happen to him for failing to undertake military service. The applicant asserted that he would be killed if he went back to Egypt by the girlfriend’s family, and that he would be jailed for seven years if he went back by the military for failing to perform his military service. The Court explained to the applicant that it did not have power to revisit the merits or make fresh findings of fact in relation to the merits of the applicant’s claim.

2. The Court explained that the powers of the Court were limited to considering whether the Authority’s decision was conducted in accordance with the statutory regime and whether it was conducted in accordance with the requirements of procedural fairness. The applicant maintained the pursuit of submissions seeking to explain the substance of his claims.

3. The applicant maintained that he would die before he went back to his country and told the Court that he would set himself on flames if he was not successful. The Court interrupted the applicant to inform him that that was a stupid proposition to put forward and that this Court does not have power to decide the matter on compassionate grounds. The applicant referred to his intention to get engaged shortly and get married.

4. The Court cannot decide the applicant’s case on compassionate reasons. It does not have power to do so. The only power given to this Court is to consider whether the Authority’s decision was made in accordance with the statutory regime and in accordance with the limited requirements of procedural fairness under Part 7AA. The applicant maintained that if he went back to Egypt he was going to die. Nothing said by the applicant from the bar table identified any basis upon which it could be said that there is a reasonable argument that the Authority’s decision is unlawful or unfair.

5. The grounds in the application are of a generalised, un-particularised nature that fail, on their face, to identify any arguable jurisdictional error.

Delegate’s decision

1. The applicant was found to be a citizen of Egypt and his claims were assessed against that country. The delegate, on 9 November 2016, refused to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act. The delegate found that the applicant was not a credible witness and the delegate found that the applicant’s claims regarding the attack on his ex-fiancé and the subsequent targeting by his ex-fiancé’s family were not credible.

2. The delegate found that the applicant may have been subject to a robbery. However, this was an isolated criminal incident and not indicative of any specific targeting. The delegate found that the applicant had completed his military service and would be not be considered a deserter upon return to Egypt. The delegate found that the applicant failed to meet the criteria under the Act and found that the applicant was not an excluded fast track applicant.

The Authority’s decision

1. On 14 November 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The Authority’s letter identified that it had been provided with the documents considered relevant by the Department to the applicant’s case. The letter explained the limited circumstances in which the Authority could receive new information. The letter enclosed a fact sheet and Practice Direction providing the applicant with an opportunity to put on new information and to put on submissions. Consistent with the opportunity provided by the Authority to applicant, the applicant provided further documents and submissions to the Authority on 9 December 2016.

2. The Authority, in its decision, made on 23 December 2016, identified that the applicant arrived from Egypt by boat on 28 March 2013 and that he applied for a Safe Haven Enterprise visa on 25 February 2016. The Authority identified the outcome adverse to the applicant before the delegate.

Consideration of claims

1. The Authority identified having regard to the material referred to the Authority under s.473CB of the Act and summarised the applicant’s claims. In that regard, the Authority referred to the applicant, alleging that he left Egypt because in early 2012, people threw acid in his fiancé’s face when they were in a car together and that in 2010, “bad people” took his phone and stabbed him and that his fiancé’s family had accused him of throwing the acid in her face and threatened to kill him, as well as fearing to return to Egypt because he said he had not done his compulsory military services.

2. The Authority summarised what the applicant said at the Safe Haven Enterprise visa interview and summarised the submissions and information received on 9 December 2016 in response to the Authority’s letter. The Authority found that the documents were new information and that it was not apparent why the applicant was unable to obtain those documents and why they could not have been provided to the delegate before the decision was made. The Authority was not satisfied that the documents were credible personal information, as the dates of documents are different to the dates given by the applicant for the claimed event in 2012 and that at no stage had the applicant claimed that a police investigation was carried out, or that he and his fiancé made statements to the police, despite being asked extensively at the Safe Haven Enterprise visa interview about the events following the acid attack. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances justifying consideration of the documents provided with the submissions on 9 December 2016.

Refugee assessment

Robbery and stabbing

1. The Authority correctly identified the relevant law. In relation to the robbery, the Authority found that the assault was a random and opportunistic robbery of the shop where the applicant was working. The Authority was not satisfied that the applicant was targeted for any reason under s.5J(1)(a) of the Act. The Authority was not satisfied there is a real chance the applicant faces persecution now or in the reasonably foreseeable future, resulting from that criminal attack.

Acid attack on fiancé

1. The Authority referred to the incident involving the acid attack on the applicant’s former fiancée. The Authority did not accept the applicant faces a real chance of harm as a consequence of those allegations. The Authority found that since his departure there had been no ongoing contact between his family and that of the fiancée’s suggesting that his whereabouts were not of any interest to the other family and in those circumstances the Authority expressed considerable doubt about the existence of an ongoing intention to harm him. The Authority found even if the applicant were to be at risk of harm from his fiancée’s family in his home area, which the Authority was not satisfied, the Authority was not satisfied that the risk arises to a real chance of harm. The Authority was not satisfied there is a real chance of persecution of the applicant relating to all areas of Egypt.

Compulsory military service

1. The Authority addressed the applicant’s military service and his concerns for the punishment he would face for not having done it. The Authority made reference to the DFAT advice that the penalty for not completing military service is a fine or imprisonment of one year for a person who fails to present his conscription papers.

2. The Authority referred to other advice suggesting penalties up to three years for a person who presents conscription papers but fails to turn up for military service. The Authority made reference to other information indicating that a fine is a common penalty for Egyptians who have not done military service and who are returning from abroad. The Authority noted that the DFAT report said that there are no reports of Egyptian expatriates being imprisoned on return for not completing military service.

3. The Authority accepted that the applicant has outstanding military obligations and that he may be penalised on return to Egypt for not having complied with these obligations. The Authority noted that the non-discriminatory enforcement of a generally applicable law does not constitute persecution for the purposes of the Convention. The Authority found that the Egyptian laws and regulations relating to compulsory military service are laws of general application in that the obligation to perform compulsory military service applies equally to all male members of the population within a certain age range.

4. In those circumstances the Authority was satisfied that the laws relating to performance of military service are not themselves persecutory. The Authority found that even if the applicant was subjected to punishment as a draft-evader on return to Egypt there is no evidence before the Authority to suggest that he would not be treated in the same way as any other person considered to have evaded military service. The Authority found that any penalty to which the applicant may be subjected for late attendance would be administered pursuant to laws of general application imposed in a non-discriminatory manner.

5. The Authority did not accept that the applicant would be subject to unusually harsh or discriminatory punishment for any Convention reason including his actual or imputed political opinion for avoiding military service. The Authority was not satisfied that the applicant has a well-founded fear of Convention persecution arising in relation to his obligation to perform military service or his failure to do so.

Other matters

1. The Authority noted that the applicant had not at any stage suggested that he had been targeted for harm by religious or terrorist groups or that he feared harm in the future. The Authority was not satisfied that there is a real chance of the applicant facing harm on return as a failed asylum seeker.

2. The Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Act and found that the applicant did not meet the criterion under s.36(2)(a).

Complementary protection

1. The Authority was not satisfied there are substantial grounds for believing as a reasonable and foreseeable consequence of the applicant being returned to Egypt from Australia there is a real risk the applicant will suffer significant harm.

2. The Authority found the applicant failed to meet the criteria under s.36(2)(aa) of the Act and affirmed its decision under review.

Consideration of the grounds

1. The applicant’s ardent disagreement with the adverse findings by the Authority does not identify any arguable jurisdictional error. The grounds in the application do not identify any arguable jurisdictional error. Nothing said by the applicant identifies an arguable basis upon which it could be said that there is an arguable jurisdictional error.

Certificate issue

1. The Minister has pointed out in the Minister’s submissions that there was a certificate issued in the present case under s.473GB. On the face of that certificate referring to a particular document, it was a valid certificate. The decisions in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 do not apply to Part 7AA. On the face of the material before the Court I am satisfied that there is no reasonable argument that the failure to disclose the existence of the certificate or documents the subject of the certificate gave rise to any practical injustice in the present case.

2. There is no arguable jurisdictional error in the Authority’s decision. There is no utility in setting aside the orders made by the Court on 14 June 2017 even if the Court accepted the applicant’s explanation for his failure to appear. The merits are sufficiently lacking that even if the Court did accept that the applicant was unable to contact the first respondent and unable to contact the Court and was unable to move on the day of the hearing the merits of the application are lacking and there would be no utility in setting aside the order made as there is no reasonably arguable case of jurisdictional error by the Authority.

Conclusion

1. Accordingly, the application in a case filed on 26 June 2017 is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017