BJY19 v Minister for Home Affairs

[2019] FCCA 2156

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJY19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2156

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 477

Cases cited:

EXU17 v Minister for Immigration [2018] FCA 1675

MZABP v Minister for Immigration (2015) 242 FCR 585

SZRAN & Anor v Minister for Home Affairs & Anor [2019] FCCA 1240

Applicant: BJY19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 844 of 2019

Judgment of: Judge Driver

Hearing dates: 12 June, 6 August 2019

Delivered at: Sydney

Delivered on: 6 August 2019

REPRESENTATION

Solicitors for the Applicant: Mr L Jacob of Sydney Immigration Law

Counsel for the Respondents: Ms A Carr

Solicitors for the Respondents: Mills Oakley

INTERLOCUTORY ORDERS

1. Leave is granted for the applicant to rely upon the amended application filed on 6 August 2019.

2. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 844 of 2019

BJY19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 January 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The background facts relating to this matter are conveniently set out in the Minister's initial outline of submissions filed on 5 June 2019. 

2. The applicant is a citizen of Lebanon who arrived in Australia, with her then husband, on 7 July 2013, as an unauthorised maritime arrival.[1]  

   [1] Court Book (CB) 3, 5, 92.

3. On 23 August 2016, the applicant was invited to apply for either, a temporary protection (Subclass 785) visa or a Safe Haven Enterprise Visa (SHEV).[2]  On 2 May 2017, the applicant applied for a SHEV as a member of her then husband’s family unit.[3]  At that time, the applicant did not advance any of her own claims for protection.[4]

   [2] CB 31-35.

   [3] CB 84-111.

   [4] CB 44.7

4. On 16 January 2018, the applicant’s representative informed the Minister’s Department that the applicant separated from her husband on 21 December 2017.[5]  On 10 April 2018, the applicant advanced her own claims for protection.[6]

   [5] CB 188-191.

   [6] CB 192-195.

5. The applicant claimed that she departed Lebanon for the same reasons as her ex-husband, being the armed conflict in their neighbourhood between different religious groups and harassment from the Salafist groups for reason of being a Sunni Muslim.  The applicant clarified that her ex-husband’s claims that he feared harm from his “in-laws” was a reference to her uncle (her mother’s brother), whom she also feared.  The applicant claimed that, as her marriage had irretrievably broken down since arriving in Australia, if she was forced to return to Lebanon, she would be discriminated against for being a single divorced mother and would face harm from her uncle and in-laws, the latter of whom she claimed would take away her children.  The applicant also claimed that there was widespread violence against women in Lebanon and the authorities would not protect her.

6. On 5 October 2018, the applicant attended an interview before the delegate.[7]  On 29 November 2018, the delegate refused the applicant’s SHEV application.[8]  Subsequently, on 5 December 2018, the delegate’s decision was referred to the Authority for review.[9]

   [7] CB 197-207.

   [8] CB 210-235.

   [9] CB 236-245.

7. On 21 December 2018, the applicant’s representative provided a submission to the Authority and another statement by the applicant.[10]  The applicant claimed that she had divorced her husband according to Lebanese and Islamic custom and reiterated her claim that, if returned to Lebanon, she would be harmed by her ex-husband’s family.

   [10] CB 260-268.

8. On 16 January 2019, the Authority affirmed the delegate’s decision.[11]

   [11] CB 273-283.

9. The Authority noted that the applicant had married a few weeks before departing Lebanon and that her father had made the travel arrangements for the applicant, her ex-husband and her immediate family.[12]  The Authority found that these events suggested that the applicant’s family, including her uncle, were supportive of her marriage, and the travel arrangements to Australia were part of a longer term plan, rather than the applicant fleeing immediate harm.[13]  The Authority, however, accepted that the applicant had separated from her husband since arriving in Australia.[14]

   [12] CB 275 at [12].

   [13] Ibid.

   [14] CB 276 at [13].

10. The Authority accepted that the applicant was a Sunni Muslim and, according to country information, under the ordinary application of the personal status laws for Sunni Muslims, the applicant’s children would likely remain in her custody until they reached 12 years of age.[15]  The Authority noted the amicable custody arrangement in Australia between the applicant and her ex-husband and found that, in the absence of any attempt to change that arrangement by the applicant’s ex-husband, any claim that the applicant’s ex-husband or his family would seek custody of the children if returned to Lebanon was mere speculation.[16]  The Authority also found that the chance of the applicant being targeted for reason of being a single divorced woman in Lebanon to be remote and speculative.[17]

    [15] CB 276 at [14]-[15]; CB 277 at [17].

    [16] CB 277 at [16].

    [17] CB 278 at [19].

11. The Authority noted that country information indicated women in Lebanon can face a high risk of societal and official discrimination.[18]  However, as the applicant’s father remained in Lebanon, with whom she had admitted she remained in contact, the Authority found that the applicant would have the support of her father who would be able to subsist and support her children.[19]

    [18] CB 277 at [18].

    [19] CB 278 at [18].

12. The Authority also considered whether the applicant would face harm from sectarian violence in Lebanon.[20]  On the basis of country information, the Authority found the possibility of a violent outbreak in Tripoli in the reasonably foreseeable future to be speculation.[21]

    [20] CB 278 at [20].

    [21] CB 278 at [20[.

13. Consequently, the Authority was not satisfied that the applicant was a refugee for the purpose of s.5H(1) Migration Act 1958 (Cth) (Migration Act) and, therefore, did not meet s.36(2)(a) of the Migration Act.[22]

    [22] CB 278 at [21].

14. As the Authority found that there was not a real chance that the applicant would suffer harm from, her family, her ex-husband’s family, because she was a single divorced woman or sectarian violence, the Authority also found that the applicant would not face significant harm.[23] On the basis of country information, the Authority also did not accept that, the application of local custody laws, or the actual loss of custody of the applicant’s children amounted to significant harm for the purpose of the Migration Act.[24]  Consequently, the Authority was not satisfied that, as a necessary and foreseeable consequence of being returned to Lebanon, there was a real risk that the applicant would suffer significant harm.[25]

    [23] CB 279 at [24].

    [24] CB 279 at [25].

    [25] CB 279 at [26].

The present application

1. As the Minister notes in his submissions, the judicial review application was filed 43 days outside the time prescribed in s.477(1) of the Migration Act, and the applicant seeks an extension of time pursuant to s.477(2).

2. The Court may order an extension of the prescribed 35-day period to seek judicial review of the Authority’s decision if:

   a)the application is made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.[26]

   [26] See s.477(2) of the Migration Act; see also EXU17 v Minister for Immigration [2018] FCA 1675 at [5] [32] per Griffiths J.

3. In the absence of prescribed factors, the phrase “interests of the administration of justice” has been held to be broad.[27]  However, ordinarily, the Court has been guided by the length of delay in coming to the Court, the explanation for that delay, whether the first respondent will suffer any prejudice if the application was granted and the merits of the proposed grounds of review.[28]

   [27] See MZABP v Minister for Immigration (2015) 242 FCR 585 at [58] per Mortimer J.

   [28] See SZRAN & Anor v Minister for Home Affairs & Anor [2019] FCCA 1240 at [23].

4. The matter came before me for an extension of time hearing on 12 June 2019.  At that time, the solicitor for the applicant sought additional time, in part, because of personal difficulties.  I made orders adjourning the extension of time hearing until today, and giving the parties the opportunity to file further material.

5. The Minister's solicitors advised my chambers late last week that nothing further had been filed on behalf of the applicant, and sought to be excused from filing further material.  That was agreed to.  However, overnight, the applicant's solicitor filed electronically a proposed amended application raising a single ground of review, and reiterating the explanation for the lateness of the judicial review application.  After hearing the parties, I granted leave for the applicant to rely upon the proposed amended application for the purposes of today's extension of time hearing.

6. There is one ground in the amended application:

   1. Ground 1: Jurisdictional Error – Failure to consider claim; The IAA failed to have regard to information and evidence that was before the IAA in breach of s473DB of the Act. Consequently, the IAA failed to exercise its jurisdiction and thereby fell into Jurisdictional error. In addition, or in the alternative, the IAA failed to discharge its obligation that requires A body such as the IAA, which is conducting an inquisitorial review process in which here is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which his nevertheless raised clearly or squarely on the material before that review body (Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176).

   Particulars

   1.1 The delegate’s refusal decision dated 29 November 2018 does not consider the claims raised by the applicant as per the applicant’s husband’s statement 4 April 2017 (CB at [171]).

   1.2 The IAA does not consider the applicant’s claims in full as the IAA does not consider the claims raised by the applicant pursuant to 1.1 above.

7. The amended application shares a defect with the original application in that there is no affidavit explaining the reasons for the delay.  That should have been cured following the adjournment I granted, but it has not been.  The explanation is limited to statements in the body of the application itself.  Nevertheless, the Minister's solicitor's understanding of the circumstances is not in conflict with the explanation proffered on behalf of the applicant, and I am willing to accept that some nine days after the expiry of the time for the filing of the application, the applicant first attempted to file an application, which was rejected by the registry.

8. Further work was done before an application was filed which was accepted.  The delay in this matter is relatively moderate, and the explanation, although not in affidavit form, is plausible.  If an arguable case for judicial review were advanced by the application as amended, then I would be minded to grant the extension of time.  I heard limited argument this morning on the legal merit of the proposed ground.  Ultimately, the applicant's solicitor indicated that further time would be needed in order to develop that ground, probably by written submissions.  I note, however, that the opportunity for written submissions was granted in the orders I made on 12 June 2019. 

9. Having considered the proposed ground of review in the light of oral argument, I am not persuaded that there is any merit in it sufficient to grant the extension of time sought.  The applicant's former husband made a statement in support of his own claims for protection which is reproduced at CB 167-169.  The statement includes claims to fear harm from relatives because of marriage issues, a fear of being forcibly recruited into the Sunni militia and, more generally, a fear of sectarian violence which, I am willing to accept, arises squarely from the material.

10. The delegate's decision is reproduced at CB 214.  Relevantly, the delegate states that the applicant's husband's individual claims for protection were assessed separately as requested by the applicant and her husband.[29]  The delegate notes that in the circumstances, a discussion of the applicant's husband's claims is not within the purview of the delegate's assessment of the present applicant’s claims.  The delegate further states that the applicant's husband's claims do not include any role of the applicant in any real or imputed political activity, insurgent activity, or sectarian violence, or that involved her in any specific way.

    [29] CB 227.

11. Therefore, the delegate did not accept that the applicant's husband's claims alluded to the applicant or were related to her in any way, or that these had any relation to her reason for leaving Lebanon.  The applicant contends that in that regard, the delegate was wrong, and that the applicant's husband's claims, including his claim to fear forcible recruitment, needed to be considered because of the potential impact on her.  In my view, the only issue impacting upon this applicant arising out of the husband's claims was the issue of sectarian violence.

12. The delegate properly referred to that under the heading “Return to Tripoli” in that part of the decision[30].  The applicant had the opportunity, and did, make submissions to the Authority in relation to those parts of the delegate's decision with which she did not agree.  That submission had some impact on the Authority's decision, in particular in relation to issues concerning her marriage.  The Authority refers to the applicant's statement at [7] of its reasons.[31]

    [30] CB 228.

    [31] CB 274.

13. The Authority accepted that there were exceptional circumstances to consider new information in relation to the separation of the applicant from her husband.  Importantly at [20],[32] the Authority considered the same issue which was considered by the delegate, namely, the risk of sectarian violence in Lebanon, in particular in Tripoli.  While the applicant contends that that consideration was inadequate, in my view, the issues raised by the applicant's husband, insofar as they could have any impact on her own claims, were dealt with at a higher level of generality which obviated any need to deal with the specific claims advanced by the applicant's husband.

    [32] CB 278.

14. I conclude that there is no arguable case of jurisdictional error by the Authority in dealing with issues arising from the material before it.  I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case, and that the application for an extension of time should be refused.  It follows that the proposed application is incompetent. 

15. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time is refused

16. In consequence of the refusal of the extension of time, the Minister seeks an order for costs.  The Minister sought costs fixed in the sum of $7,000, and sought an order that those costs be paid personally by the applicant's solicitor.  In support of that application, the Minister read the affidavit of Arielle Bianca Zinn made on 5 August 2019.  As I noted in argument, although the facts in that affidavit are established, they have been overtaken by the proposed amended application which was filed last night, and which I gave the applicant leave to rely upon this morning.  In the circumstances, I am not persuaded that a personal costs order against the applicant's solicitor is warranted.  However, costs in excess of the scale amount of $3,737 are warranted because of the additional costs incurred by reason of the adjournment order I made on 12 June.

17. I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  13 August 2019