Bjo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 969
•19 August 2021
FEDERAL COURT OF AUSTRALIA
BJO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 969
Appeal from: Application for extension of time: BJO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 144 File number(s): NSD 270 of 2021 Judgment of: JAGOT J Date of judgment: 19 August 2021 Catchwords: MIGRATION – application for extension of time to appeal – applicable principles – whether proposed appeal arguable – application dismissed. Legislation: Federal Court Rules 2011 (Cth) r 36.03
Migration Act 1958 (Cth) ss 5H(1), 5J(1)(a), 473EA
Cases cited: BJO17 v Minister for Immigration & Anor [2021] FCCA 144
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Date of hearing: 2 August 2021 Counsel for the Applicant: Applicant appeared in person Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Minter Ellison Lawyers Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 270 of 2021 BETWEEN: BJO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the costs of the first respondent, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
The application
These reasons for judgment concern an application for an extension of time to appeal against orders of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 12 February 2021 dismissing the applicant’s application for judicial review of a decision of the second respondent (the IAA): BJO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 144. The IAA had affirmed the decision of a delegate of the first respondent (the Minister) to refuse the applicant a Temporary Protection Visa (TPV).
In accordance with r 36.03 of the Federal Court Rules 2011 (Cth) the applicant was required to file a notice of appeal within 28 days of the primary decision, that is, by 12 March 2021. However, the applicant did not file his application until 29 March 2021.
The applicant’s draft notice of appeal dated 24 March 2021 identifies two grounds as follows:
(1)The Federal Circuit Court erred in failing to find that 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 Federal Circuit Court erred in failing to find that the decision of the IAA was legally unreasonable.
In determining whether it is in the interests of justice to grant an extension of time the Court is to take into account the explanation for and extent of the delay, any prejudice the respondent might suffer because of the delay, and the merits of the proposed appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
For the reasons that follow, the application must be dismissed.
Background
The applicant is a citizen of Lebanon who arrived in Australia on 24 April 2013 as an unauthorised maritime arrival.
The applicant claimed to fear harm in Lebanon from a radical Sunni group affiliated with Al Qaeda. The applicant claimed that the Sunni group had targeted him and destroyed his café that sold alcohol because they wanted to dominate the area with Sunni Muslims and they were opposed to alcohol consumption. The applicant claimed that he could not return to Lebanon because, even if he does not open another alcohol shop, he will be targeted as he is on the “black list” of the radical Sunni group. The applicant also claimed to fear harm arising from the sectarian conflict in his area.
After the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (the Act) allowing the applicant to make a valid application for a specified visa, the applicant made an application for a TPV on 21 September 2015. On 22 January 2016, while in detention, the applicant withdrew his application for a TPV and asked to be returned to Lebanon. However, on 19 February 2016, he made a further application for a TPV.
The applicant attended an interview with the Minister’s delegate on 13 October 2016. On 24 October 2016, the delegate refused to grant the applicant a TPV. The delegate’s decision was referred to the IAA for review.
On 23 March 2017, the IAA, as previously constituted, affirmed the decision under review. On 19 July 2017, the Federal Circuit Court made orders by consent remitting the matter to the IAA for reconsideration according to law.
On 6 September 2017, the IAA, as presently constituted, affirmed the decision under review. The IAA found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and that the applicant did not satisfy the complementary protection criterion.
The applicant applied to the Federal Circuit Court for judicial review of the IAA’s decision.
The Federal Circuit Court decision
Before the Federal Circuit Court, the applicant relied on an application containing four grounds. The first and second grounds claimed that the IAA’s decision was affected by jurisdictional error because it failed to consider the evidence before it (specifically, the country information regarding the risk of harm from the sale and consumption of alcohol in Lebanon) and failed to provide reasons why it was not satisfied that the applicant met the definition of refugee in s 5H(1) (ground one) and the definition of well-founded fear of persecution in s 5J (ground two). The third ground claimed that the IAA failed to comply with its statutory duty under s 473EA of the Act. The fourth ground claimed that the IAA breached natural justice or failed to give the applicant procedural fairness because the IAA made its decision before the applicant’s migration agent had provided submissions.
The primary judge set out the IAA’s findings at [11]–[29] in BJO17 v Minister for Immigration & Anor [2021] FCCA 144, saying that in coming to the view that the applicant would not face a real chance of harm should he return to Lebanon based on his ethnicity or religion, his alcohol business or the general situation in Lebanon, the IAA relevantly:
(1)referred to the applicant’s claims concerning an incident in 2013 when he was operating a café, which also sold alcohol: at [12];
(2)referred to country information in relation to incidents or attacks on premises, threats to shopkeepers and extremist violence: at [13] and [23];
(3)accepted the applicant has a genuine fear of the perpetrators, who it accepted were religious extremists: at [15]–[16]; and
(4)accepted that, for the purpose of a profit, the applicant was likely to return to selling alcohol if he returned to Lebanon and referred to his fear from extremist groups: at [18].
After considering the IAA’s decision and the applicant’s contentions the primary judge concluded:
(1)in relation to grounds 1 and 2, the IAA “expressly referred to country information, including country information that had been previously considered by a differently constituted [IAA]. The [IAA]’s reasons reflect a genuine intellectual engagement with the applicant's claims and the evidence and the making of adverse findings that were logical, rational and open for the reasons given by the [IAA]”: at [37];
(2)in relation to ground 3, “it is apparent that the [IAA] provided reasons in support of this adverse finding and complied with the requirements of s 473EA of the Act”: at [41]; and
(3)in relation to ground 4, “whilst it is apparent that the applicant’s migration agent is a person who has subsequently been the subject of removal as a migration agent, there is nothing before the Court to establish a fraud by the migration agent disabling the [IAA] from the conduct of its review” and “the foreshadowing of written submissions on the applicant's behalf, and given the passage of time of more than 21 days that had passed, does not give rise to any legal unreasonableness in the [IAA] proceeding to make a determination in respect of the review”: at [43] and [44].
For these reasons, the primary judge dismissed the application for judicial review.
In respect of ground 3 below, the primary judge’s reasons are obscure. Section 473EA of the Act concerns the IAA’s obligation to make a written statement of its decision which, relevantly, includes the reasons for the decision. It is not apparent what “adverse finding” the primary judge had in mind at [41]. Despite this, there can be no doubt that the IAA complied with s 473EA so ground 3 could not have succeeded in any event. Otherwise, the primary judge’s conclusions about grounds 1, 2 and 4 are orthodox and involve no apparent error.
Discussion
As stated above, the applicant filed his draft notice of appeal from the decision of the Federal Circuit Court out of time.
The Minister acknowledged the lack of any prejudice by the filing of the draft notice of appeal out of time. The Minister also acknowledged that there was an explanation for the delay which could be accepted. The Minister focussed on the alleged lack of merit of the proposed appeal. This was appropriate – the delay is relatively short and there is an explanation for the delay in the fact that the applicant is in detention (and has been for a number of years) and is suffering from mental health issues as a result.
None of the grounds identified in the draft notice of appeal are reasonably arguable or give rise to any, let alone sufficient doubt, about the correctness of the primary judge’s decision. As the Minister submitted:
(1)the first ground must fail as the IAA did review the delegate’s decision. The IAA did not commit any error which would justify a conclusion that it “constructively” failed to do so as is asserted; and
(2)the second ground must fail as the IAA’s decision was not legally unreasonable.
The applicant did not advance any submissions of jurisdictional error in support of his application for an extension of time. The applicant made oral submissions explaining why he could not return to Lebanon. His explanation focussed on the deteriorating socio-economic and political circumstances in Lebanon and what he had already suffered in coming to Australia. He explained that: (a) everyone looks for freedom and safety, (b) the situation in Lebanon has seriously deteriorated since the explosion in 2020, (c) he expected to be treated decently in Australia and was shocked to be placed in detention, first on Christmas Island and then on the mainland, (d) continued detention was very difficult for him and he never expected to be put back in detention having been released for a period (presumably, this was after his first successful appeal to the Federal Circuit Court), (e) the situation in Lebanon is miserable, corruption is rife, there is no effective government, there are food and petrol shortages, there is no future in Lebanon, his country is in ruins, and people are being killed, and (f) if went back to Lebanon now he would have lost years of his life and he had only been able to put up with detention in the hope of gaining a life for the future.
The submissions of the applicant about the deteriorating socio-economic and political situation in Lebanon can readily be accepted. This is common knowledge and there can be no doubt that the applicant has suffered in detention. Those submissions do not, however, indicate any error in the reasoning of the IAA which caused it to affirm the decision under review that the applicant did not qualify for a TPV. The legality of the IAA’s decision is to be determined on the basis of the available material at the time, not subsequent events and their consequences, such as the explosion in 2020. Further, socio-economic and political circumstances affecting the entirety of a nation do not involve a “well-founded fear of persecution” within the meaning of s 5H(1) of the Act. In accordance with s 5J(1)(a) of the Act, a “well-founded fear of persecution” is a fear of being persecuted “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.
The proposed appeal, accordingly, is not reasonably arguable. As a result, the application for the extension of time should be dismissed.
Conclusion
For the reasons identified above, the application for an extension of time must be dismissed with an order for costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate:
Dated: 19 August 2021
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