BAS18 v Minister for Home Affairs
[2018] FCCA 1940
•16 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAS18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1940 |
| Catchwords: MIGRATION – Extension of time – whether the Immigration Assessment Authority fell into jurisdictional error – consideration of cumulative effects – unauthorised maritime arrival – protection visa – complementary protection. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 |
| Cases cited: MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration (No 2) [2016] FCAFC 138 |
| Applicant: | BAS18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 570 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 16 July 2018 |
| Date of Last Submission: | 16 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
THE COURT:
GRANTS leave to the Applicant to rely on the amended application filed on 4 July 2018.
Pursuant to s.477(2) of the Migration Act 1968 (Cth), ORDERS the time for making the application provided by s.477(1) of the Act, be extended up to and including 5 March 2018.
ORDERS that costs of this application be the Applicant’s costs in the cause.
GRANTS LEAVE to the Applicant to file and serve a further amended application giving complete particulars of each ground of review relied upon by 6 August 2018.
ORDERS the Applicant to file and serve, by way of affidavit, all additional evidence to be relied upon, if any, by 20 August 2018.
ORDERS the First Respondent to file and serve, by way of affidavit, all additional evidence to be relied upon, if any, by 3 September 2018.
ORDERS that other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit.
DIRECTS that the Applicant file and serve written submissions and his list of authorities with hyperlinks 14 days before the hearing, and to provide copies by email in Microsoft Word format to the Associate to Judge Baird at the time of filing.
DIRECTS that the First Respondent file and serve written submissions and his list of authorities with hyperlinks 7 days before the hearing, and to provide copies of these documents by email in Microsoft Word format to the Associate to Judge Baird at the time of filing.
STANDS OVER the matter for callover to obtain a date for final hearing on 13 November 2018 at 10:15am before a Registrar.
GRANTS liberty to apply on 5 days notice.
THE COURT NOTES THAT:
If Counsel are able to identify mutually suitable dates for final hearing in the period of October to November 2018, and February to April 2019. Counsel are to liaise with Judge Baird’s Chambers with a view to fixing a hearing date in those periods and dispense with the need for a callover.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 570 of 2018
| BAS18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
This is an application pursuant to s.477(2) of the Migration Act 1958 (Cth) seeking an extension of time in which to make an application under s.476 of the Act for the judicial review of a decision of the Immigration Assessment Authority made 21 November 2017, affirming a decision of the Delegate of the First Respondent dated 5 September 2017, refusing the Applicant a Temporary Protection (subclass 785) Visa.
The First Respondent, the Minister for Immigration and Border Protection at the time, Minister for Home Affairs now, opposes the application for an extension of time. He submits, inter alia, that the application’s delay is unwarrantable and not explained, and that the grounds of the proposed substantive application are without merit.
The application for extension of time was lodged on 3 March 2018, and was accepted for filing on 5 March 2018. It is some 68 or 69 days outside the 35 day time limit prescribed by s.477(1) of the Act, unless the Court considers it in the interests of the administration of justice to extend time under s.477(2).
In his substantive application, the Applicant relies on an amended application, filed 4 July 2018, which I granted leave to file and rely on today. That amended application sets out one substantive ground:
1.The Authority failed to take into account the cumulative effects of persecution. Specifically, the Authority found that the applicant may face low levels of harm for at least three separate reasons - at [25], [29] and [31]. The Authority attempted to consider the applicant's claims cumulatively at [35], but limited its consideration to whether the cumulative effect of the applicant's status created a heightened profile. However, a separate aspect of a "cumulative" assessment is whether the low levels harm the subject of the findings at [25], [29] and [31], when combined, amount to "serious harm" within the meaning of this term in s.5J(4) of the Migration Act 1958 (Cth). The Authority failed to consider this aspect of the cumulative assessment. This is a jurisdictional error.
The Applicant relies on an affidavit sworn 9 July 2018 as his reasons for delay and the commitment that he has to prosecuting this application for judicial review.
Background
The Applicant is a Shia Faili Kurd who was born in Iraq in 1991. On 22 September 2012 he arrived in Australian waters on Christmas Island by boat as an unauthorised maritime arrival. On 29 November 2012 he participated in an entry interview, and, from September to December 2012, he was in immigration detention. He was released into the community in the Australian mainland shortly thereafter.
On 29 June 2016 he lodged an application for a protection visa, and following which, on 17 July 2017, he participated in an interview with the Delegate, previously having provided with his application a written submission by his agent and a typed English translation of a statement which set out his claims. As I have said, on 5 September 2017 the Delegate made a decision refusing to grant the Applicant a protection visa.
The Delegate’s decision clarified the Applicant’s claims which included that:
· the Applicant’s tribe rejected him as part of their tribal law and assumed he had done something wrong for his parents to abandon him as they had;
· his then girlfriend’s family threatened to kill him if he continued to see her; and
· he would have no opportunities if he returned to Iraq, and would be forced to join a militia or the Iraqi Army, and that he would be imputed with apostasy for being a returnee from the west.
The Authority, in affirming the Delegate’s decision, accepted some of his claims at least to a degree. I will return to those matters below.
Extension of time – Legal Principles
Section 477(2) of the Act provides that the Federal Circuit Court may, by order, extend the 35 day period in which an application for judicial review may be made as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors that the Court will take into account when considering whether an extension of time should be granted include:
(a)the extent of the delay and the explanation for the delay;
(b)any prejudice the Minister might suffer because of the delay; and
(c)the merits of the proposed application, or as it may otherwise be put, the prospects of success on the substantive application.
It has been said on many occasions that these principles are not to be taken as exhaustive. The principles were considered by Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585.
In particular, at [62] her Honour adverts to the interests of the administration of justice, and cautions that it is not for the Court, when exercising its discretion in an extension of time application, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic” level into a full consideration of the arguments for and against each ground of review.
Her Honour’s consideration at [58]-[63] was approved by the Full Court of the Federal Court in MZABP v Minister for Immigration (No 2) [2016] FCAFC 138; see also SZSZW v Minister for Immigration [2017] FCCA 1710, and the observations of Wigney J in SZTES v Minister for Immigration [2015] FCA 719 at [48].
I am also guided by her Honour’s review of Wigney J’s caution in SZTES to carefully distinguish between grounds that are hopeless and destined to fail, and those which are properly described as weak, and that it is, in the latter case, seldom appropriate to refuse to extend time. I am cognisant of Mortimer J’s observations in MZABP at [63] that:
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s.477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s.477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
In the present case the Minister accepts that he suffers no prejudice by the grant of an extension of time, save, it should be said, in costs, but cautions that the mere absence of prejudice to the Minister is not enough to justify an order to extend time. That proposition is clear from the authorities. The Minister says that where the delay is unsatisfactorily explained, and there is a lack of merit, then the Minister should not be put to the burden and cost of additional litigation. Further, the public interest requires that there be an end to litigation about the efficacy of decisions such as that of the Authority.
Whilst it may be true that the public interest requires an end to litigation, that is not to say that where there is, on the merits of the case, as observed by Mortimer J in MZABP, a ground that is “arguable”, “reasonably arguable”, or, in the words of Wigney J, weak rather than hopelessly destined to fail, that an interest that there be an end to litigation is sufficient of itself to refuse to extend time.
Explanation for delay
In relation to the question of delay, the Applicant has said in his affidavit and substantiating documents provided with the affidavit that he was, in substance, let down by his migration agent.
He has provided evidence that after his application for a protection visa was refused on 5 September 2017, he approached a solicitor, Ms Youssef, to prepare a submission to the Authority. She spoke Arabic, and they communicated mainly in Arabic. The Applicant paid her the sum of $1,000 through his wife’s account and has annexed a copy of the fee transfer dated 22 September 2017. The Applicant says that Ms Youssef advised him that she would correspond with the Authority about his case and that she will receive correspondence on his behalf, and that the he did not need to worry about communicating with the Authority. He attests that he relied on Ms Youssef in this matter.
What is clear from the court book in evidence is that whilst the Applicant was represented by a migration agent (not Ms Youssef ) when the matter was before the Delegate, the Applicant did not have, at least on the record, the assistance of that migration agent thereafter. Certainly, by the time of the Authority’s decision, there is no reference in the court book that it was communicated to the migration agent.
The Applicant relied on a report of a psychologist dated 14 October 2017, a copy of which he provided to Ms Youssef on 17 October 2017. He says that at that time he understood she would give a copy of the report to the Authority. It is apparent that the report was not given to the Authority. The Applicant’s counsel before me relies on the provision of the report to Ms Youssef as further evidence of the Applicant’s engagement of Ms Youssef, and that he took the prosecution of his application very seriously.
The Applicant’s counsel also relies on the psychologist’s report to demonstrate that the Applicant had mental health problems. He drew my attention to the diagnostic consideration and impression in the report at page 9 that the Applicant appears to be suffering from chronic and complex post-traumatic stress disorder with major depressive disorder symptoms. The Applicant himself attests to going through some psychological issues which sometimes make it difficult for him to think clearly and make decisions about his migration matter.
The Applicant received the decision of the Authority under cover of a letter from the Authority dated 21 November 2017 and, on the same day, contacted Ms Youssef and sent her a copy of the letter from the Authority through the WhatsApp messaging service. The next day, according to his affidavit, he attended Ms Youssef’s office and asked her what was going on. She replied she did not know why the Applicant had received the letter from the Authority when she did not get a copy of the letter. He attests that she said she would communicate with the Authority and let him know. She told him to go home and she will contact him if needed.
Time passed. The Applicant had not heard from Ms Youssef. He tried to phone Ms Youssef to speak to her, but, when he did so, the receptionist said she was busy. He left a message for Ms Youssef to phone back, and he phoned her a few times and left messages for her to phone back. She never did so. It was only in mid-February 2018 that he become concerned that Ms Youssef had not contacted him, and he then approached his current solicitor. His current solicitor then advised that he should have lodged his application to the Court within 35 days of the Authority’s decision and he now needed to apply for an extension of time. The Applicant says on oath that Ms Youssef did not advise him about the 35-day limit.
As I have said, the application to this Court was accepted for filing on 5 March 2018. The additional two weeks between the Applicant contacting his present solicitor and the filing was – so the Applicant says – because the Applicant’s solicitor had some other migration hearings and work commitments in the second half of February 2018.
Whilst the explanation is not entirely satisfactory, what is clear is that the Applicant relied on a solicitor who did not, in the event, appear to have placed herself on the record with the Authority. In circumstances where the Applicant has a limited level of English, and is, on the face of the Authority’s decision, a person who has attended only primary school, and, as the Applicant’s counsel has submitted, as a man whose English is not his first language, he could not be expected to have the level of understanding of the requirements of time, and of consequences of delay, to ensure his application to this Court was made in time.
I am prepared to accept that the delay is moderate. The Applicant took steps to prosecute his case as is evidenced by his enquiries of Ms Yousef about what was to be done next in order to progress his case. The Applicant took further steps to prosecute his case by retaining another lawyer after it became apparent that Ms Youssef was not to be relied upon to progress his application. I am satisfied that the delay is not such as to disentitle the Applicant, without more, from an extension of time, should the merits of the underlying application meet the tests that I’ve already set out.
The substantive application has some merits
In relation to the merits of the substantive application, the Applicant points to four matters identified by the Authority. Whilst each of the four matters may be a finding of a low level of discrimination, or some evidence of violence, the Applicant submits that the Authority did not consider the matters cumulatively.
The Applicant says that these four matters are as follows.
First, the Authority’s consideration and finding at [24]-[25]:
[24] I accept that Iraq is a more conservative country than Australia. I also accept that in 2017 a male model was thought to have been murdered in Baghdad by radical Islamists because of his appearance, and that barbers in Mosul were threatened by Islamic State over the way they dressed and cut their hair. However I find that the applicant’s profile is not consistent with that of the model or the barbers and that he lived in the south, rather than in either Mosul or Baghdad where there is a real chance of harm by Islamic State.
[25]I accept that the PMF has banned certain unspecified hair styles in the south; that some people in the applicant’s family and tribe(s) may have expressed verbal disapproval of his style of dress and haircut; and that the applicant may prefer the less restrictive Australian lifestyle. I also accept that there is a real chance that on return to Al-Imara the applicant may face some low level social disapproval about his choice of clothing and hairstyle. However I do not accept that such treatment amounts to serious harm and I am satisfied that the information before me does not suggest a real chance of serious harm in the south for wearing western clothes or hairstyles.
The second finding on which the Applicant relies, is set out at [26]-[29], in relation to the Applicant’s ethnicity as a Faili Kurd. At [28]-[29] the Authority says:
[28]… Credible in-country contacts suggest that societal discrimination against Faili Kurds continues to occur ... DFAT also assesses the risk of Faili Kurds experiencing societal discrimination, notably not being welcomed in communities dominated by other groups, to be moderate.
The Authority continues:
[29] … While it is not implausible that the applicant may experience some low level discrimination as a Faili Kurd on return to Iraq, I am satisfied that the chance is remote now or in the reasonably foreseeable future that the applicant will suffer serious harm as a result of his Faili Kurd ethnicity.
The Applicant submits that, by the double negative “not implausible”, the Authority has made a finding that it is plausible that the Applicant may experience some low level discrimination as a Faili Kurd on return to Iraq, but not serious harm.
Thirdly, the Applicant draws my attention to the Authority’s decision at [31]-[32] in which, at [32] the Authority was satisfied that, while there is some violence in the south of Iraq, the level of harm is such that the chance of harm does not rise to a real chance:
[32] … I am satisfied that while there is some violence in the south of Iraq, the level of harm is such that the chance of harm does not rise to a real chance and I consider the chance remote that now or in the reasonably foreseeable future the applicant will suffer serious harm as a result of his Shia religion or the security situation in Maysan governorate.
The Applicant submits that, the Authority has here reached a finding that there is some violence in Maysan governorate, which is where the Applicant will return to, but that it is less than a real chance. Thus the Applicant submits that, there is a finding of a possibility, but not such as to rise to a real chance.
Fourthly, the Applicant refers to the Applicant’s claim, at [6] of the Authority’s decision that:
As a returnee from the West he will be regarded by Sunni and Shia fundamentalists as a secularist and an apostate.
The Applicant’s counsel points to [34] of the Authority’s decision, in which the Authority refers to DFAT evidence in line 6:
[34]… DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into their communities. I am not satisfied there is a real chance now or in the reasonably foreseeable future that the applicant will suffer serious harm as a failed asylum seeker and returnee from a western country.
The Applicant says that, at [34], the Authority has accepted that there is evidence, albeit limited, that voluntary returnees such as the Applicant face difficulties assimilating back into their communities.
The Applicant then says that the Authority’s consideration of the claims at [35] is limited to a consideration of the cumulative effect of the status of the Applicant as creating a heightened profile for him, which the Authority rejects. The Authority does not accept that the Applicant has any form of heightened profile. Paragraph [35] is as follows:
[35]The applicant’s representative claims the cumulative effect of his status creates a heightened profile for him that increases the risk of severe persecutory treatment against him at the hands of both the Shia radical armed groups and Daesh jihadists. I have carefully considered all of the applicant’s claims but I do not accept that the applicant has any form of heightened profile. I accept that he is a Shia Faili Kurd. However I do not accept that he was of adverse interest to either Shia or Daesh militants when he departed Iraq. Nor do I accept there is a real chance now or in the foreseeable future that he will suffer serious harm because of his ethnicity, religion, membership of a particular social group or his political opinion.
Whilst it might be thought that the above suggests a cumulative consideration by the Authority of the individual findings, the Applicant submits that there is a difference between what the Authority did, and a consideration of the whole of the Applicant’s claims. Rather, what the Authority did not do is consider the cumulative effect of each of the four matters, or indeed, on any basis, the finding at [25] (that the Applicant may face some low level social disapproval about his choice of clothing and hair style). In doing so the Authority failed to properly complete its task of considering whether, combined, the findings rise to a level of serious harm within s.5J of the Act.
The Applicant submits that the Authority, in its reference of the cumulative assessment at [35], limited its consideration to whether the Applicant had a heightened profile (which assessment focuses on the risk of harm). What the Authority did not do, is consider the separate aspect of a cumulative assessment: whether the low level harm – the subject of separate findings – when combined, amounts to serious harm. And in that failure lies jurisdictional error.
The Minister refers particularly to [33] and [40] of the Authority’s decision. The Authority concluded its consideration in [33] with a list of factors of which it was satisfied that the chance was remote now, or in the reasonably foreseeable future, that the Applicant will suffer serious harm:
[33] … Having carefully considered the evidence before me, I am satisfied that the chance is remote now or in the reasonably foreseeable future that the applicant will suffer serious harm because of his Faili Kurd ethnicity, because of his Shia religion, because of any perceived secularisation or because of the security situation in Maysan governorate.
This list may be seen as a list of separate factors. It is not a hopeless argument to say that there is no consideration of a cumulative nature in the way the Authority concluded at [33].
The Applicant’s counsel points to the list of factors in [33] as preceding the consideration at [34], and argues that, by language and by order, the findings in [33] do not address the DFAT evidence in [34].
There is another matter that the Applicant refers to in oral submissions, and that is that, in [33], the Authority has made a specific finding of the Applicant’s perceived secularisation as not leading to a chance that will give rise to serious harm. Argument was presented to me by both counsel as to whether the references to secularisation at the end of [33] referred back to the last dot point at [6] of the Authority’s decision, and to the consideration at the beginning of [33] where the Authority did not accept that on return to Iraq, the Applicant will be regarded as secularised or apostate.
Given that rejection of a finding of secularisation, the question arises as to whether the Authority cumulatively considered the effect of its finding at [25], that there was a real chance that on return to Al‑Imara, the Applicant may face some low level social disapproval about his choice of clothing or/and hair style together with its other findings. There is a question whether or not that finding is subsumed within the Authority’s further consideration of [33] or not.
The Minister’s counsel submitted strongly that to go into this detail is to read the reasons minutely and to nit-pick. In my view, the Applicant’s case is not such a hopeless case that on a full hearing of the ground of review, the argument could not be made and succeed that the Authority did not, in its consideration, consider as a matter cumulative with any other of its findings, that the Applicant may face some low level social disapproval about his choice of clothing and hair style.
Under the heading of “complementary protection assessment,” the Authority reached its conclusions at [40]. Before I turn to [40], I also note [39], where the list of factors the Authority says that it has concluded in relation to are set out. I note that the closest that the Authority comes to considering its earlier finding at [25] is the reference: “or from being a returnee from a western country.” This may provide another basis on which the Applicant’s case may have a reasonable prospect on a final hearing.
At [40] the Authority refers to its findings of some low level social disapproval, and thereby refers back to its finding at [25]. The Authority then refers to its acceptance of a real chance of some low level societal discrimination arising because of the Applicant’s Faili Kurd ethnicity. The Minister’s counsel submitted that by the sentence: “However I find the level of discrimination he may face does not rise to the level of pain, suffering or humiliation required by the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in s.5(1)”, the Authority was not dividing up its consideration, but was reaching a conclusion and must therefore be taken to have considered the matters fairly and cumulatively.
It is also possible that the reference to the level of discrimination reads back to the finding of low level societal discrimination, and does not take into account, when considered cumulatively, social disapproval as well as discrimination. In this regard it may be that a mere recital of findings does not suffice to stand as a cumulative consideration.
It is apparent by the arguments that have been raised before me that, on an impressionistic reading and consideration, I am not satisfied that the Applicant’s grounds of review are hopeless, or would fail. Rather, I am satisfied that the grounds are “sufficiently arguable,” or “arguable,” or, whatever words are used, are such that the merits are sufficient that it is appropriate, in these circumstances, to extend time.
The Applicant should be granted an extension of time. Having had regard to the matters raised orally before me today, I will also grant leave to the Applicant to file a further amended application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 2 August 2018
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