Avc19 v Minister for Immigration

[2020] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVC19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 431

Catchwords:
MIGRATION – Application for reinstatement where original application previously dismissed for non-appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider evidence before it – whether the Authority provided reasons for its decision – whether the Authority properly applied s 36 of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 477
Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Applicant: AVC19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 478 of 2019

Judgment of: Judge Street

Hearing date: 27 February 2020

Date of Last Submission: 27 February 2020

Delivered at: Sydney

Delivered on: 27 February 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Gardner
MinterEllison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application in a case is dismissed.

3. The applicant pay the first respondent’s further costs fixed in the amount of $1,200.00.

DATE OF ORDER: 27 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 478 of 2019

AVC19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case for an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) setting aside an order made by this Court on 9 September 2019 dismissing the proceedings under r.13.03C(1)(c) of the Rules. 

2. The substantive proceedings are ones seeking an extension of time under s.477 of the Migration Act 1958 (Cth) (“the Act”) for the seeking of a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 16 January 2019 under p.7AA of the Act affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. The applicant was approximately nine days late in lodging the application to this Court for relief.

3. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country.

4. The applicant arrived in Australia on 7 July 2013 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 2 May 2017.

5. On 29 November 2018 the Delegate found that the applicant did not meet the criteria regarding a Safe Haven Enterprise visa.

6. On 5 December 2018, the Authority wrote to the applicant giving the applicant an opportunity to put on new information and submissions. The Authority referred to a five-page submission provided by the applicant in that regard and had regard to the same.

7. The applicant claimed to be a Sunni Muslim from a particular suburb of Tripoli. The applicant claimed this suburb bordered another suburb in which there was violence between groups of Sunnis and Alawites.

8. The applicant claimed that his first name is a common Shia name and that because of this, he was often considered to be Shia. The applicant also claimed that Hezbollah tried to recruit him because they thought he was Shia. The applicant further claimed that a Sunni group, the Jabhat al-Nusra (“JAN”), both threatened to harm him because they perceived he was Shia and attempted to recruit him to fight in Syria because they knew he was Sunni.

9. The applicant claimed that he left Lebanon because of sectarian violence and because of threats from extremist groups. The applicant also claimed that he left Lebanon to avoid conflict with his in-laws who were intent on harming him.

10. The applicant claimed that since being in Australia there are rumours of a relationship with his cousin’s wife which have ended his marriage and caused the cousin and the cousin’s wife to make allegations to the police, leading to criminal charges. The applicant claimed that these charges have since been withdrawn but that the cousin continues to hold a grudge against the applicant. The applicant further claimed that the cousin has now returned to Lebanon where he is awaiting the applicant to kill him upon his return.

11. The Authority accepted that the applicant was a Sunni Muslim from a particular area in Tripoli. The Authority referred to his concern in relation to his name and alleged recruitment, and his fear of sectarian violence, extremist groups, as well as his conflict in respect of his in‑laws and his cousin.

12. The Authority identified the background to the applicant’s Safe Haven Enterprise visa application. The Authority had regard to the material provided to it by the Secretary under s.473CB of the Act.

13. The Authority summarised the applicant's claims.  

14. The Authority found that there is not a real chance that the applicant will face harm from his in-laws in relation to unspecified conflict because the Authority did not accept that there was any conflict before the applicant left Lebanon and also because he is no longer in a spousal relationship with his ex-wife.

15. The Authority referred to the applicant's name and did not accept that Hezbollah would mistakenly think he is a Shia Muslim. The Authority found the applicant's claim that Hezbollah attempted to recruit him to be implausible. The Authority also found that Hezbollah would not have any interest in the applicant for the reason of his name if he returns to Lebanon. The Authority did not accept Hezbollah would have any interest in the applicant for any other reason on return to Lebanon. The Authority found that the applicant does not face a real chance of harm from Hezbollah.

16. The Authority referred to the applicant's claims concerning JAN. The Authority identified inconsistencies in the applicant's evidence raising doubts as to whether he was ever approached by JAN. The Authority did not accept that JAN would remember the applicant being asked to fight six years earlier and that they would be looking for him upon return. The Authority found that there is no real chance the militia group JAN has any interest in the applicant, either to recruit him or to harm in. 

17. The Authority found the applicant's claim to be imputed with a political opinion as being anti-Sunni Jihadi campaigns to be far-fetched and did not accept that the applicant faced any real chance of harm for this reason. 

18. The Authority referred to the applicant's claims in relation to some of the Sunni extremist groups. The Authority did not accept that the applicant was approached by these other groups. The Authority found the chance of the applicant being recruited by an extremist group on return was too low and speculative to amount to a real chance.

19. The Authority also found the proposition that the applicant would be punished for his Shia Muslim name is farfetched. The Authority did not accept that the applicant has a real chance of harm for reason of his first name.

20. The Authority referred to sectarian violence in the country information. The Authority found that the chance of the applicant being caught up in possible future violence is too remote and speculative to amount to a real chance.

21. The Authority referred to country information and was not satisfied that the applicant faced a real chance of harm on the basis of being a Sunni Muslim.

22. The Authority referred to the applicant's claim that he would struggle to subsist if he was returned to Lebanon. The Authority considered the country information and was not satisfied that the applicant faced a real chance of serious harm in not being able to subsist in Lebanon.

23. The Authority referred to the applicant's claim concerning his cousin seeking revenge. The Authority found that there is nothing to indicate that the authorities would condone or withhold protection from the applicant. The Authority found that the applicant did not have a well-founded fear of persecution within s.5J of the Act from his cousin.

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

25. The Authority referred to the applicant's claim of being a victim of a stabbing in December 2017 allegedly organised by his cousin. The Authority took into account the applicant's willingness to lie to the police or keep information from them as impacting on his credibility in relation to his claims about his cousin.   

26. Taking into account the lack of evidence of threats and the time that had passed without incident, the Authority found the claim that the applicant’s cousin intends to kill or otherwise harm the applicant in Lebanon is an exaggeration or fabrication.

27. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Lebanon from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s.36(2)(aa) of the Act. 

28. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing in respect of the reinstatement application and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

2. The applicant relied upon an affidavit identifying that he had instructed a solicitor to appear. The applicant alleged that he had paid that solicitor but there is no evidence in support of the same. The applicant also asserted that he believed that the solicitor was going to appear and explained steps taken subsequent to the hearing date in September 2019.

3. As to endeavours to contact the solicitor, the applicant's evidence does not address the email communications that had, in fact, taken place between him and his solicitor in relation to the orders made by this Court on 21 March 2019 fixing the matter for hearing. The applicant also acknowledged that there were communications in writing from the solicitor in which the solicitor sought funds. The first respondent accepts that the applicant's explanation should be regarded as satisfactory. 

4. But for the first respondent's concession, the Court would not have regarded the evidence in this case as providing a satisfactory explanation, specifically where no evidence had been put on as to the applicant's knowledge of the orders made on 21 March 2019 and no evidence of the written communications being provided in circumstances where it is patent that there were such communications. Nonetheless, accepting the applicant's explanation as being reasonable, the first respondent submits that the application for an extension of time lacks sufficient merit to make any utility in reinstating the proceedings.

The grounds

1. The grounds in the application are as follows:

   1. Jurisdictional Error - The Immigration Assessment Authority's decision ("IAA") dated 16 January 2019 (the decision) is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicants do not meet the requirements of the definition of refugee in s.5H(l) or why the applicants did not meet s36(2)(a) of the Migration Act 1958 (Cth). Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.

   2. Jurisdictional Error - The IAA decision is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicants do not face a real chance of significant harm, and why the applicants do not face a real risk of significant harm form the community on this basis for the purpose of s36(2)(aa) of the Act. Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.

2. The first respondent submits that the two grounds in the application lack any proper particularisation. It is apparent from the Authority’s reasons, to which the Court has referred, that the Authority did consider the applicant's claims and evidence. It is also evident that the Authority did provide logical and rational reasons consistent with the correct application of the law under the 1951 Refugee Convention and in relation to complementary protection and the making of adverse findings that were open to the Authority for the reasons given by the Authority.

3. Grounds 1 and 2 are, in substance, an invitation to the Court to engage in merits review and fail to identify a reasonably arguable case of relevant error. From the bar table, the applicant identified that he had a concern in relation to a person who had threatened him. This appears to be a reference to his cousin, which was an issue expressly considered by the Authority.

4. The applicant also referred to his concern as to whether he would be able to subsist. The Authority in its reasons expressly identified that the applicant had been employed in Tripoli before leaving Lebanon and had extended family still in Lebanon. The Authority found there was no real chance of serious harm on the basis that the applicant could not subsist in Lebanon.

5. The applicant also referred to fear and harm and the Authority found the applicant's home area is a Sunni-dominated area, which is now broadly stable, and did not accept the applicant faces a real chance of harm in his home area.

6. The applicant otherwise identified a request to the Court to decide the matter on compassionate grounds in respect of his love and concern for his children, future operations and an injury to his arm. This Court has no power to determine whether the proceedings should be reinstated on compassionate or discretionary grounds of the claim identified by the applicant. While the Court understands and sympathises with the applicant's position, those matters, as the Court explained to the applicant, do not identify any arguable case of relevant error by the Authority.

7. In relation to the extension of time application, the first respondent did not suggest that the nine days was a significant delay and identified that the underlying grounds lacked merit. Accepting, as the first respondent has invited the Court to, that the applicant has a reasonable explanation for the failure to appear, the Court is not satisfied that there would be any utility to reinstating the proceedings. This is because the two grounds fail at an impressionistic levels to identify any reasonably arguable case of relevant error by the Authority so as to identify a reasonable case to support an extension of time in the interests of the administration of justice under s.477 of the Act.

8. In these circumstances the application for an extension of time does not disclose a sufficiently arguable case of relevant error by the Authority so as to make necessary an extension of time in the interests of the administration of justice.   

9. As there is no reasonably arguable case of relevant error by the Authority, the Court is not satisfied that there would be any utility in reinstating the proceedings.

10. Accordingly, the application in a case is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 27 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate: 

Date:  24 March 2020