Baw15 v Minister for Immigration and Anor (No.2)

[2015] FCCA 1826

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAW15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1826

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – application for an extension of time – where the application fails to disclose a sufficiently arguable case to warrant an extension of time.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 r.44.11

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476, 477

Applicant: BAW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1628 of 2015

Judgment of: Judge Street

Hearing date: 30 June 2015

Date of Last Submission: 30 June 2015

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D. Watson
Australian Government Solicitor

ORDERS

1. The injunction granted on 16 June 2015 is dissolved.

2. The application for an extension of time is refused.

3. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1628 of 2015

BAW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision not to grant the applicant a Protection (Class XA) visa. The decision of the Tribunal was made on 12 June 2014 and the application for relief was filed in this Court for an extension of time under s.477 on 16 June 2015.

2. The applicant is in detention and an interlocutory injunction was granted on 16 June 2015 by another judge of this Court restraining the applicant being removed from Australia.  The matter was listed for the first return date today.  Prior to this return date, on 22 June 2015, the first respondent wrote to the applicant informing the applicant that the first respondent would move for an immediate hearing under the Federal Circuit Court Rules 2001 in respect of the application for an extension of time.

3. The Court book has been served on the applicant in the present case.  The applicant had prepared a submission in answer to the show cause application seeking an adjournment to obtain legal representation.  The applicant also gave evidence identifying steps being taken by the applicant seeking ministerial intervention, as well as identifying health issues that the applicant is currently facing in explanation of the delay. 

4. The first respondent relied on r.44.11(e) in respect of the show cause hearing in respect of the application for an extension of time under s.477. It is necessary for the applicant to provide a reasonable and adequate explanation for the delay as well as to have a sufficiently arguable case of jurisdictional error to warrant the grant of an extension of time in the interests of the administration of justice.

5. In the present case, the first respondent pointed out that the ministerial intervention response was sent to the applicant on 3 April 2014 and that this could not be an adequate explanation for the delay.  I do not accept that the ministerial intervention or the applicant’s health issues or the problem he identified in obtaining funds to pay lawyers are an adequate or satisfactory explanation for the delay, and on that ground alone, I would refuse an extension of time.

6. However, turning to the grounds raised in the application, the applicant identified two generalised assertions, as follows:

   1. The tribunal deprived me from natural justice.

   2. The Member did not consider many aspects of my claims.

7. I accept the first respondent’s submission that there is no substance in the assertion of a denial of natural justice and that it is clear from the Court book that the applicant was properly notified of the proposed hearing date and, indeed, attended a hearing on 9 May 2013 at which he was assisted by an interpreter and also had the benefit of submissions made by his legal advisor.  There is no substance in relation to ground 1 of the application. 

8. In relation to ground 2, there were no particulars given identifying any aspect of the applicant’s claims that were not properly considered by the Tribunal.  The Court has had regard to the material in the Court book including, in particular, part C of the irregular maritime arrival interview as well as the submission in support of the application for the protection by BMA Lawyers which referred to the claims identified in the applicant’s statutory declaration at pages 125 to 128 of the Court book.  Further detailed submissions were provided by BMA Lawyers on behalf of the applicant to the Tribunal, and it is clear from the Tribunal’s reasons that it carefully identified the applicant’s claims and evidence as well as identifying concerns as to the credibility of the applicant and difficulty in accepting his claims in evidence.  Relevantly the Tribunal said:

   24. I identified several issues about which I had concerns. As to whether he had a well-founded fear of persecution as a suspected member of the Baath Party, I had some difficulty accepting his claims as his evidence was vague, and did not suggest he had been subjected to harm or a serious threat of harm; it appeared that anyone who did intend to harm him had had ample opportunity to do so; and it seemed unlikely that he would be of adverse interest almost ten years after the fall of Saddam because of a remote connection with the Baath Party. He had also made claims about general violence and danger, but this affected the population of Iraq generally, and did not fall within either the refugees criterion or the complementary protection provisions.  

9. It is also clear at the hearing the applicant had a break and identified his further claims thereafter, allegedly linking the death of his son to his alleged political views.  The Tribunal relevantly found:

   30. I do not accept that the applicant has been identified as a Baathist, or a supporter of the Saddam Hussein regime because of his work as a [teacher who taught] Saddam’s youth groups. The applicant has provided slightly different versions of his claimed involvement in this work, but at the hearing he stated that he did it for one year only, during the period from 1996 to 1999. While I accept that the applicant was involved in [teaching] youths for the former government for a limited time during the period 1996 to 1999, I do not accept that he was considered to be a member or supporter of the Baath Party simply because in the course of his duties as a [teacher he provided taught the] Baath Party youth groups. I consider that if the applicant was really regarded as having been a member or supporter of the Baath Party because of the work he undertook in the late 1990’s, action would have been taken against him following the fall of Saddam Hussein in 2003. …

   31. … His claim to have been an ongoing target since 2006 because of a perceived association with the Baath Party is therefore inconsistent with the independent information indicating that such targeting of individuals such as the applicant  has ceased.

   32. …This, in my view, tends to confirm my finding that he was not really suspected of being a former Baathist, because if he were, then the country information suggests that some more severe action would have been taken against him over the lengthy period that he remained in Iraq following the fall of Saddam and the targeting of those associated with his regime. The applicant’s evidence about what happened to him does not indicate, in my view, that he has a well-founded fear of persecution, even if it were the case that he was suspected by some people to have been associated with the Baath Party.

   …

   36. …I do not accept the claim raised at the end of the hearing that the applicant had received letters stating that either he or his sons would be harmed, or subsequently linking their deaths with the applicant. The applicant was given many opportunities to put forward this information, had it been true, but he did not do so until the very end of the hearing. In my view, there is no basis for his assumption that his sons were targeted because of him. I do not accept that there was any letter, phone call or direct statement from the killers linking the deaths with the applicant. Sadly, given the large number of deaths of ordinary Iraqi citizens since the fall of Saddam in 2003, there are numerous reasons why the applicant’s sons could have been killed, either deliberately or accidentally, in circumstances that have nothing to do with the applicant. 

   37. … As noted above, I do not accept that the applicant received letters and telephone calls threatening that he or members of his family would be killed, or linking his son’s death with his own alleged activities. Even if the applicant’s evidence about the harassment he encountered on the bus and when walking around were accepted, I do not consider that it reaches the threshold of “serious harm” amounting to persecution. While I doubt that the applicant received warnings from friends that he should move away, even if this were accepted I do not consider, on the basis of the credible evidence, that this indicated that the applicant’s safety was seriously compromised or that he was really at risk of serious harm. There was ample opportunity for anyone who really intended to harm the applicant to do so during the period between the fall of Saddam in 2003 and the applicant’s departure from Iraq in 2012; or between 2006, when the applicant claims the first threat was made against him, and his departure. I conclude that the applicant was never actually harmed during this period because he was not of adverse interest to Shia militias or to any other group for the reasons claimed.

   38. I do not accept that the applicant was only able to avoid serious harm by taking action to protect himself. At the hearing he provided shifting and inconsistent evidence about his movements following the claimed first threat in 2006. He stated that he moved to the farms in 2007, several months after his first son was [killed]. In his protection visa application he did not claim to have moved to the farms because of any direct threat that he faced personally, but because of the general situation. When first questioned at the hearing about the period after his son’s death and his move to [Farm 1], he did not mention having received any threats during that period. When questioned by his adviser at the end of the hearing he claimed for the first time that he had received threats after his son was killed which led him to move away, but he then claimed variously that he stayed with his step-sisters, then that he remained in his own home for at least some of the time (which accorded with his original evidence) under the protection of his neighbour (which was a new claim), then that he stayed with his neighbour. This evidence is extremely problematic. These were new claims raised for the first time at an extremely late stage, right at the end of the hearing. The claims conflict with earlier claims and evidence, and shifted when discrepancies were pointed out. I find this evidence not credible at all; it appeared to have been made up to overcome the deficiencies in the applicant’s account which I identified shortly before the evidence was given. In any case, the applicant’s ultimate account of his movements does not account for the fact that no attempt was made to harm him during the period following his son’s death for the further three to four months that he remained either in his own home or next door with his neighbour, during which time he continued to go to work. I simply do not accept that the neighbour, albeit that he was a tribal leader, would have been able to provide protection to the applicant sufficient to protect him from a real threat to his life or safety as a Baathist, had one existed. I conclude that the applicant was not under a real or serious threat to his life at that time.

   39. The applicant has also given conflicting and inconsistent evidence about his situation at [Farm 1]. At the hearing he first stated that “of course” he was not threatened there because it was so far away from everything; however, he had stated at the protection interview that he was directly threatened by a member of the Mahdi Army three months before he left Iraq, while he was at the farms. He did not mention this claim until specifically reminded of it at the Tribunal hearing, then gave a different account of the alleged threat, which he described more as an accusation that he was a Baathist, and he did not mention that it was made by a Mahdi Army member. The applicant has also stated variously that he never left the farms, but also that he went to town once every month or so accompanied by a friend. Also of significance is his initial evidence at the Tribunal hearing that he left the farms because it was hot and difficult; he did not mention, at that time, that he was at risk there, or that he had received a direct threat to his life. As noted above, he did not mention this claim at all at the hearing until he was specifically asked about it. In these circumstances, and given the inconsistencies in the applicant’s accounts of this claimed threat, I do not accept that the applicant was threatened three months before he left Iraq.

   40. …He is well educated and clearly intelligent. I conclude that the vagueness, inconsistencies and contradictions in his evidence and his occasional failure to respond directly to the questions asked of him do not indicate that the applicant was not given a proper opportunity to present his evidence, or that he was prevented from doing so for any medical or other reason. I consider that the deficiencies and problems in the evidence reflect a lack of truthfulness.  

   41. The applicant’s evidence about the past threats and harassment he claims to have encountered was so vague and inconsistent that I cannot be satisfied that he actually faced a real, genuine and serious threat of harm; moreover, the credible independent evidence indicates that had the applicant really been at risk of harm for the reasons claimed, the risk would have existed over the period of almost ten years following the fall of Saddam Hussein, so that there was ample opportunity for any individual or group that genuinely intended to harm the applicant to do so. ...

   …

   43. Because, for the reasons discussed above, I do not accept that the applicant was previously associated with the Baath Party or that he was accused of being a member or associate of the Baath Party, I do not accept that he would be accused of spying, or be the subject of adverse attention amounting to persecution for that reason, if he returns to Iraq.

   …

   46. … I do not consider that the available evidence supports a finding that there is a real chance that the applicant would face serious or significant harm, including from criminals, merely because he is a returnee to Iraq from a Western country.

   …

   48. I am not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Iraq because of his membership of a particular social group comprised of returnees from Western countries, or any similar characterisation, now or in the reasonably foreseeable future.

   49. …As to the general lack of security in Iraq, due to the conditions resulting from almost ten years of war and political and sectarian violence, I am satisfied that the applicant’s fears in this regard do not fall for consideration under the Refugees Convention, as the applicant would not be targeted  for such harm personally or as a member of a group, for any of the Convention reasons. 

   …

   52. … I have decided that the applicant does not have a well-founded fear of persecution, in that there is no real chance that he will be subjected to serious Convention related harm in Iraq. For the same reasons I conclude that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in Iraq.

10. It was in these circumstances that the Tribunal held that the applicant did not satisfy the criteria under s.36(2)(a) or 36(2)(aa) and that the applicant was not a person to whom Australia had a protection obligation. There is no substance in the assertion that the Tribunal failed to consider the applicant’s claims. The adverse finding was clearly open and, in these circumstances, the application fails to disclose a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

11. The injunction granted on 16 June 2015 is dissolved.  The application for an extension of time is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 1 July 2015