Btu17 v Minister for Immigration
[2018] FCCA 3227
•8 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3227 |
| 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: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 473DD, 477 |
| Cases cited: CSR16 v Minister for Immigration [2018] FCA 474 |
| Applicant: | BTU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1243 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2018 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1243 of 2017
| BTU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 6 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The show cause application was filed on 26 April 2017. That was about six weeks outside the time prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time under s.477(2) of the Migration Act.
Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions.
The applicant is a citizen of Iraq who arrived in Australia on 20 March 2013. He participated in an entry interview on 2 May 2013.[1] The interviewer recorded the applicant as having said during that interview that he left Iraq because “the situation is terrible over there, and the political unrest, the threats, my brother works for the Iraqi Army. He was shot in the leg, he worked for the Iraqi Army and he stopped working. He can’t work. There is no human rights in Iraq…”. The interviewer also recorded that a question was asked, “Is there any other reason why you left Iraq?” to which the applicant responded: “No”.
[1] Court Book (CB) 1
On 7 May 2016 the applicant applied for a temporary protection visa.[2] The applicant’s claims in support of his temporary protection visa application were set out in a statutory declaration accompanying the document.[3] The applicant claimed to be at risk of harm from members of the Saraya Alsalam group (Mehdi Army) arising from his brother’s former involvement in the Iraqi Army and the brother’s subsequent refusal to join the Medhi Army, members of which visited the applicant’s home in around 2014. The applicant claimed that he was at risk in particular because in 2009 he and his family had been threatened and he had been kidnapped for two days and tortured by members of the Mehdi Army.
[2] CB 27
[3] CB 72
On 9 December 2016 the applicant participated in an interview with the delegate. The applicant’s claims as developed in his interview with the delegate went beyond, and in some respects differed from the written claims in his statutory declaration. For instance, the applicant claimed that in 2007 his brother (“M”) engaged in a conflict where he killed five members of the Mehdi Army. As a consequence, the tribes of the men M had killed swore revenge and that they had to kill four or five members of the applicant’s family. The applicant also claimed that M was killed in 2015 by the tribes.
On 20 December 2016 the delegate refused to grant the applicant a temporary protection visa.[4] On 6 January 2017 the applicant’s matter was referred to the Authority.[5] The applicant provided a submission to the Authority containing, in part, new information.[6]
[4] CB 122
[5] CB 140
[6] CB 136
Authority’s decision
On 6 February 2017 the Authority affirmed the decision under review.[7]
[7] CB 157
The Authority, at [3]-[4],[8] determined that the representative’s submission[9] addressed the delegate’s decision and findings and, to that extent, “the document” may be referred to as argument rather than new information. Accordingly, the Authority had regard to the submission. It may be noted that some information within the representative’s submission appears not merely to be “argument” or a submission addressing the delegate’s decision, but “new information” for the purposes of s.473DD. Nevertheless, the Authority (beneficially to the applicant) took into account the whole of the submission, including references to general news articles. There was no obligation on the Authority to refer in its reasons to specific parts of the representative’s submission unless the Authority considered specific parts of the submission to be material to its findings.[10]
[8] CB 158
[9] at CB 136
[10] Minister for Immigration v Yusuf (2001) 206 CLR 323
The Authority noted that the applicant at the temporary protection visa interview on 9 December 2016 developed his claims for protection in a way that “bore little relation to his initial claims for protection”.[11] From [8]-[12],[12] the Authority set out a series of findings of fact in respect of the applicant’s claims, as developed. The Authority:
a)rejected the applicant’s claim that his family had been targeted by sundry tribes due to M’s actions as a soldier in the Iraqi Army;[13]
b)accepted that M was threatened as stated and that the applicant was kidnapped and mistreated by members of the Mehdi Army.[14] However it did not accept that M was shot in the leg;[15]
c)acknowledged the applicant’s claim that a leader of the Saraya al-Salam visited M in 2014 and asked him to fight with them against ISIS, and that M and the applicant’s other brothers fled Iraq after the visit, fearing they would be targeted due to M’s refusal to help as requested.[16] However the Authority did not accept that the applicant’s brothers were threatened as claimed, or that the applicant’s brothers had left Karbala as claimed;[17]
d)rejected the claim that M was killed by the tribes.[18]
[11] CB 159 at [7]
[12] CB 160-161
[13] CB 160 at [8]
[14] CB 160 at [9]
[15] CB 160 at [10]
[16] CB 161 at [10]
[17] CB 161 at [11]
[18] CB 161 at [12]
The Authority was not satisfied there was a real chance the applicant would suffer harm or be persecuted on the basis that a family member of his fought against the Mehdi Army or other militia groups as a soldier in the Iraqi Army.[19] The Authority further considered two claims not advanced by the applicant, first, that he might be entitled to protection obligations as a Shia Arab, and secondly, that he would be at risk of harm due to having sought asylum in the west, but was not satisfied that such obligations arose on either basis.[20]
[19] CB 162 at [15]
[20] CB 162 at [16]-[17]
The Authority found that the applicant was not entitled to protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.
The present proceedings
The applicant continues to rely upon his show cause application. That application is supported by an affidavit filed with it. I received that affidavit as a submission.
I have before me as evidence the court book filed on 24 May 2017.
Section 477(2) of the Migration Act empowers the Court to extend time in the interests of the administration of justice. Considerations bearing upon that exercise of discretion are not confined. Commonly, the Court has regard to the length of the delay, the reasons for the delay, any prejudice and the prospects of success if an extension of time is granted.
In his affidavit the applicant explains the delay by reference to financial incapacity, physical or emotional illness and language difficulties. As I pointed out to the applicant, however, those are problems confronting a great number of applicants in this jurisdiction. Moreover, the applicant was represented by a solicitor at the time his show cause application was filed. The applicant told me that he initially paid the lawyer $2,000. More recently, the lawyer required a further $8,000 and the applicant was unwilling or unable to pay that amount. The lawyer thereupon withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth).
I conclude that the applicant had sufficient means to instruct a legal representative at the time his application was filed. The applicant told me that he has recently consulted a free advice service. The applicant has apparently been advised to seek pro bono representation. He is seeking both an extension of time and an adjournment of these proceedings in order to obtain further legal assistance. In my view, and as I told the applicant, he has already had sufficient time to prepare for today’s hearing.
The applicant’s explanation for his delay in coming to Court is not persuasive. Although the delay in this case is a moderate one, the absence of a persuasive explanation for the delay counts against an extension of time. That obstacle could, nevertheless, be overcome if the application disclosed a serious issue to be tried. In my opinion, however, the application does not disclose a serious question to be tried.
The application contains three grounds of review:
1. The Immigration Assessment Authority “IAA” failed to take into account relevant consideration, the “IAA” took into account irrelevant consideration
2. The Immigration Assessment Authority “IAA” failed to test [complementary] protection principles in my case
3. The Immigration Assessment Authority “IAA” decision is unreasonable
I invited the applicant to orally address those arguments. He was unable to do so. I invited the applicant to tell me what in his view was wrong with the Authority decision. He was unable to address that question either. In his submissions in reply, the applicant told me that he wants to remain in Australia. He asked me to treat him as my son, which I took to mean an invitation for sympathetic consideration.
The Minister’s submissions deal adequately with the grounds of review advanced, as augmented in the supporting affidavit. I agree with those submissions.
In respect of the first ground the applicant develops the argument at [4] of his affidavit made on 23 April 2017. The applicant describes the “relevant consideration” the Authority failed to consider as being his statutory declaration which accompanied his temporary visa application, and his “oral testimony in this regard”. He describes the “irrelevant consideration” the Authority considered as being the arrival interview.
Further, in his affidavit, the applicant appears to contend, perhaps by reference to the errors he advances in the first ground, that the Authority “erred in concluding” that:
a)the militia groups did not threaten his brothers after the groups visited the brothers in 2014. Here the applicant refers to [6] of his statutory declaration; and
b)the “tribal issue” resulting from the applicant’s brother’s involvement in the killing of five militia men was “fictional”.
The applicant asserts, by reference to [6] of his statutory declaration, that the “clear mention” of the fight between his brothers and the militia groups was not assessed at all by the Authority. The applicant also asserts that the Authority did not mention the confrontation between the Mehdi Army and his brothers at all, resulting in an incorrect assessment of his claims.[21]
[21] [6] of the affidavit
Addressing the first ground and the asserted errors of the Authority in [4] and [5] of the applicant’s affidavit, the applicant’s argument appears to be that the Authority made findings that were contrary to what he asserted in his statutory declaration. This would not establish jurisdictional error. It was open to the Authority having considered the claims advanced by the applicant, both in writing and orally in his interview with the delegate, to reject those claims. It was open to the Authority to observe, and find, that the applicant had not claimed that any threat was made by the Mehdi Army to him or his brothers during the encounter. It was open to the Authority to reject the claim advanced for the first time to the delegate that the applicant feared harm from tribes due to M’s killing of five militia men.
To the extent the applicant asserts, separately, that the Authority fell into error by taking into account what the applicant said, or relevantly, did not say, at his entry interview, this would not in the circumstances of this case amount to jurisdictional error.[22]
[22] see MZZJO v Minister for Immigration [2014] FCAFC 80; (2014) 239 FCR 436, at [56] and CSR16 v Minister for Immigration [2018] FCA 474 at [50]
Addressing the applicant’s contention at [6] of his affidavit, it it is not disputed that the Authority does not, in addressing the applicant’s claims, refer expressly to some of the detail of the 2014 encounter with the Mehdi Army. It does not refer to the fact that the Army insulted his family, or the fact that the Iraqi Army became involved and were shooting at the Mehdi Army. The question raised by the applicant is whether the Authority, in failing to refer or expressly deal with the detail of the 2014 encounter claim, has misunderstood or failed to appreciate the claim as it was advanced. For the following reasons, no error is apparent.
First, the 2014 encounter with the Mehdi Army at the applicant’s family home was a claim first advanced in the applicant’s statutory declaration to the Minister’s Department.[23] The delegate addressed the claim by rejecting it, although accepting it to be plausible that a member of the group may have requested the assistance of the applicant’s brother in fighting ISIS.[24] As noted above the Authority addressed the claim at [10]-[11][25] by observing that the applicant had not indicated at any point that his brothers were threatened by the Saraya al-Salam during or after the 2014 visit. The Authority concluded there was no threat, which finding was open to the Authority. The Authority further concluded at [11][26] that the applicant’s brothers had not left Karbala at all, which was a part of the applicant’s claim in connection with the 2014 encounter at the family home.
[23] CB 72-73
[24] CB 125
[25] CB 160-161
[26] CB 161
At [15][27] the Authority concluded that “From 2007 to date neither the applicant, nor his family, have been the subject of any further threats from the Mehdi Army, Saraya al-Salam or any armed groups”. It is by reference to this finding that the Authority dealt with the 2014 encounter claim. It was unnecessary for the Authority to refer to every detail of the claim advanced, in circumstances where the Mehdi Army having insulted his family, and the involvement subsequently of the Iraqi Army did not add in any substantive way to the claim itself advanced. The Authority addressed the substance of the claim.
[27] CB 162
The applicant does not expand upon his second and third grounds that the Authority failed to test complementary protection principles, and that the Authority’s decision is unreasonable. In the absence of particulars, neither ground on its face identifies any jurisdictional error by the Authority.
I conclude that the interests of the administration of justice do not require an extension of time in this case.
I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time is refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs. The Minister seeks the amount prescribed under the Court Rules at the time the application was filed for an interim or interlocutory hearing. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 November 2018
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