CCD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 226

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 226

File number(s):	SYG 1284 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	5 February 2020
Catchwords:	MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise (Class XE) (Subclass 790) Visa – application for an extension of time under s 477 of the Migration Act 1958 (Cth) – where the application for judicial review was filed 246 days outside of the required time period – where the applicant did not have a satisfactory explanation for the extensive delay – whether the merits of the originating application for review made necessary an extension of time in the interest of the administration of justice – application for extension of time under s 477 of the Migration Act 1958 (Cth) dismissed
Legislation:	Migration Act 1958 (Cth) pt 7AA; ss 5AAA, 473CB, 477, 477(2), 477(2)(a)
Number of paragraphs:	56
Date of hearing:	5 February 2020
Place:	Sydney
Solicitor for the applicant:	In person
Solicitor for the first respondent:	Mr A Fisher, HWL Ebsworth

ORDERS

SYG 1284 of 2019

BETWEEN:

CCD19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of the bringing of proceedings, which seek a constitutional writ in respect of the decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 16 August 2018. This decision affirmed the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant as Safe Haven Enterprise (Class XE) (Subclass 790) Visa (“the Visa”).

2. The applicant is a citizen of Ethiopia and his claims were assessed against that country.

   Background

3. On 6 April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant claimed to fear harm because of political problems, and because his mother and relatives were members of the Kinijit party, also known as the Coalition for Unity and Democracy (“CUD”), a political opposition party that ran for the 2005 elections.

4. The applicant alleged that his aunt and uncle were arrested and detained for a couple of months after the election and then released. The applicant alleged that he was stopped on two or three occasions in 2006 on his way to school and told to support the Ethiopian People’s Revolutionary Democratic Front (“EPRDF”) party in the future and to become a member. The applicant did not join the EPRDF and continued to oppose them.

5. The applicant alleged that, in 2007, he was approached and told that he was going to be arrested because he continued to refuse to join the EPRDF party. The applicant alleged that he was detained for three days and taken to a prison for four months. The applicant claimed that, after his release, he was interrogated and threatened by another two people who told him that if he did not join the EPRDF party he may die.

6. The applicant travelled to a particular location in 2008 and lived with some of his father’s relatives. The applicant began working as a trader. The applicant alleged that, a year after moving to that location and selling clothes, he was approached and asked which political party he supported. The applicant alleged that he was threatened and told he should join the EPRDF.

7. The applicant claimed to fear harm of being imprisoned, beaten or killed if he remained in Ethiopia and so he applied for a passport and a tourist visa for Saudi Arabia. The applicant left for Saudi Arabia in 2009 and stayed there two and a half years, working in a particular location. 

8. The applicant alleged that he and his girlfriend were stopped around 2011 at a bus checkpoint, and that they were detained because their visas had expired and they were both illegal. The applicant claimed that he and his girlfriend were deported back by plane to Ethiopia.

9. The applicant alleged that he started working in a cinema in 2012. The applicant claimed that, in November 2012, plain clothes persons came to the cinema, asking about his background, and that he was threatened with losing his job unless he supported the EPRDF.

10. The applicant maintained that he cannot return to Ethiopia because he will continue to be harassed by the EPRDF. The applicant maintained that he will remain opposed to them and that he will continue to be a member of the opposition party. The applicant claimed to fear that he will be monitored, interrogated, detained, imprisoned, beaten and abused. 

11. On 13 June 2018, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.

    The Authority’s Decision

12. On 19 June 2018, the Authority wrote to the applicant, explaining that the application had been referred to the Authority for review. As referred to above, the Authority attached to that letter a fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did not do so. 

13. In its reasons, the Authority identified the background to the Visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and evidence.

14. The Authority identified inconsistencies in the applicant’s evidence about his name, birth date, issuance of various documents, including his national identity document, Ethiopian driver’s licence, Indonesian visa in his passport, and his evidence about when he started to make arrangements to leave Ethiopia and travel to Australia. Those inconsistencies, on their face, cannot be said to be trivial.

15. The Authority referred to the inconsistencies in the applicant’s evidence in relation to the assertion that he had never used a different name, and in relation to his assertions regarding when he started making arrangements to depart Australia. The Authority referred to the inconsistent information provided by the applicant regarding threats in November 2012, when the applicant’s passport supports the applicant having returned to Ethiopia in October 2012.  The Authority also referred to inconsistencies in relation to the applicant’s claims concerning his mother being actively involved in an opposition party, and at the protection interview, where the applicant stated that his mother was just a supporter and had never been politically involved or arrested. The Authority also took into account country information.

16. The Authority found that the applicant’s evidence had been extremely vague and lacked detail. In particular, the Authority found that the applicant’s evidence lacked detail in response to specific questions.

17. The Authority referred to the applicant’s inability to describe his membership card, which the applicant  alleged that he had for the Unity for Democracy and Justice Party (“UDJP”). The Authority also made reference to the fact that the applicant only mentioned being in jail after the elections when the delegate put it to him that this had been part of his written application.

18. The Authority accepted that the applicant supports the opposition, and that he is not a supporter of the ruling party. But, given his evasive and inconsistent evidence and his lack of knowledge about the opposition parties, the Authority found the applicant’s evidence that he was actively involved in the CUD or UDJP political activities, that he was arrested and detained over a period of three or four months, that he was threatened with serious harm, or that he would be killed if he did not join the EPRDF, not to be credible. 

19. The Authority referred to the applicant’s age and passport, and his travelling to a particular location to work as a trader, selling shirts. The Authority found that the applicant had been inconsistent about whether he went to Saudi Arabia illegally or legally, and whether he was the holder of a tourist visa or work visa.

20. The Authority found that the applicant’s ability to obtain a passport prior to his departure to Saudi Arabia in 2009, and his ability to depart Ethiopia without difficulty and re-enter Ethiopia in 2011 when he was deported, as impacting on the applicant’s claims. The Authority also noted that the applicant did not have any difficulty with the Ethiopian authorities upon entry and exit from Ethiopia, and that this impacted on the applicant’s claims. In that regard, the Authority referred to the applicant being able to obtain a new passport in March 2011 and to depart Ethiopia by air in October 2012 without any difficulty from the Ethiopian authorities.

21. The Authority referred to the applicant’s claim that he returned to Indonesia after about a week in early November 2012, and found that he did not arrive until February 2012, which would suggest that the applicant stayed in Ethiopia for another for another three months. The Authority found that these matters suggest that the applicant was not of any interest to the Ethiopian authorities, despite his assertions that he had an adverse political profile, and his assertions in relation to having been detained, interrogated and threatened. 

22. The Authority was not satisfied that the applicant was a member of any opposition party or had any adverse political profile with the Ethiopian Government, or members of the EPRDF Party, at any time in Ethiopia.

23. The Authority was satisfied that none of the applicant’s family members had or have any adverse political profile with the Ethiopian authorities, or that any of the applicant’s family members are active members of the opposition party in Ethiopia. 

24. The Authority found that the applicant did not have an adverse political profile in Ethiopia or in Australia. The Authority found that the applicant had never come to the adverse attention of the authorities in Ethiopia, for reasons of imputed or actual political opinion or activities, or political affiliations, or activities of his family members. 

25. The Authority was satisfied that there is no real chance that the applicant would face serious harm if he returns to Ethiopia now or in the reasonably foreseeable future, for reasons of his actual or imputable political opinion.

26. The Authority referred to the applicant being a non-practicing Muslim. The Authority was satisfied, after taking into account country information, that there is no real chance that the applicant has suffered serious harm as a consequence of being a non-practicing Muslim, or as a consequence of identifying as having no religion, or as a consequence of having attended a Christian church in Australia.

27. The Authority referred to the applicant’s Amhara ethnicity. The Authority was satisfied that, whilst the applicant may have suffered occasional discrimination, his failure to obtain desirable employment or successfully run his own business was a function of lack of qualifications and high unemployment in Ethiopia. The Authority was satisfied that there was no real chance that the applicant would suffer discrimination, which meets the threshold of serious harm, if he returns to Ethiopia now or in the reasonably foreseeable future.

28. The Authority referred to the applicant being a member of a social group of failed asylum seekers. The Authority referred to country information and was satisfied that there is no real chance that the applicant would suffer serious harm if he returns to Ethiopia, now or in the reasonably foreseeable future, for reasons of his membership of a particular social group, being that of failed asylum seekers.

29. The Authority referred to having considered the applicant’s claims cumulatively, and was not satisfied that there is any real chance that the applicant would suffer serious harm for reasons of his ethnicity or religion. The Authority was not satisfied that there was a real chance the applicant would suffer serious harm for reasons of actual or imputed political opinion, or for any family affiliation, if he returns to Ethiopia now or in the reasonably foreseeable future.  The Authority was not satisfied that there was a real chance of the applicant being seriously harmed by Ethiopian authorities or any other group or person.

30. The Authority found that the applicant failed to meet the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

31. The Authority found that there are not reasonable grounds for believing it is necessary and foreseeable consequence of the applicant being returned to Ethiopia from Australia that there is a real risk the applicant will suffer significant harm.

32. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act, and affirmed the decision of the delegate under review.

    Before the Court

33. The applicant commenced the proceedings for judicial review on 24 May 2019, almost 246 days outside of the time period required under s 477 of the Act.

34. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under s 477 of the Act. It is apparent that the application complies with the requirements of s 477(2)(a) of the Act, and no particular prejudice has been advanced by the respondent.

35. However, the delay is substantial, and the explanation for the delay is effectively based on a medical certificate, which does no more than assert information conveyed approximately a week before the filing of the application for review.

36. There was a discussion in which the applicant asserted that he had been stressed for most of last year and, accordingly, was unable to complete the necessary paperwork due to stress. The medical certificate does not identify that the applicant is suffering from a particular condition which prevented him from being able to advance the application. Whilst the applicant has made an assertion that he was suffering from a depression, there was no evidence that he was the subject of any treatment in that regard, nor is there any medical diagnosis of that condition.

37. The applicant’s grounds in the application assert that he was suffering from stress and pressure. That explanation, together with his assertion of depression, is not, of itself, a satisfactory explanation for the substantial delay.

38. The delay in the present case can be properly characterised as inordinate. The Court finds that, by reason of the delay in the circumstance of the present case, it is not necessary in the interest in the administration of justice to extend time under s 477 of the Act.

    The Originating Application

39. Insofar as the merits of the originating application are further taken into account under s 477 of the Act, the applicant’s oral submissions made an assertion that the Authority’s decision was unfair on the face of the material before the Court. On 19 June 2018, the Authority wrote to the applicant, providing an attached fact sheet and practice direction, and giving the applicant an opportunity to put on new information and submissions. The Authority’s decision identified that no information was provided to the Authority in that regard. On the face of the material, there is no basis to find that there has been any material procedural unfairness in the conduct of the statutory review under pt 7AA of the Act, even if the same was capable of giving rise to jurisdictional error.

40. Insofar as the applicant has made an assertion in his affidavit that the Authority was biased, there is no basis identified for that assertion other than the adverse findings. The adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to the determination of the matter on its merits.

41. The Authority’s reasons identified the background to the Visa application and identified the applicant’s claims. On their face, the Authority’s reasons, as summarised above, reflect an active intellectual engagement with the applicant’s claims and an assessment of those against the criteria under the statutory provisions as to a refugee and in relation to complimentary protection.  The adverse findings by the Authority were dispositive of the applicant’s claims and were open for the reasons given by the Authority.

42. Further the Authority’s reasons are consistent with the Authority having approached the statutory review under pt 7AA of the Act with an open mind reasonably capable of persuasion as to the merits. At an impressionistic level, there is no reasonably arguable ground that the Authority did not have an active intellectual engagement with the applicant’s claims or that the adverse findings, based on the identified inconsistencies, were not open to the Authority for the reasons given by the Authority. There is also appears at an impressionistic level to be no basis to find that the Authority, in the conduct of the review, was the subject of any arguable apprehended or actual error bias.

43. The applicant’s submission that the Authority’s decision was unfair, in substance, invites impermissible merits review. This Court has no power to review the merits.

44. The applicant asserted that the Authority did not take into account the applicant’s claims, evidence and documents. The Authority’s reasons are inconsistent with that proposition and reflect a comprehensive engagement with the applicant’s claims and evidence, and the country information, in the making of adverse findings which were open and dispositive of the applicant’s claims. At an impressionistic level, there is no reasonably arguable case that the Authority failed to take into account the applicant’s claims and evidence.

45. The applicant otherwise asserted that he was a good citizen. This Court has no power to determine the matter on compassionate or discretionary grounds. In substance, the applicant’s oral submissions from the bar table, invited the Court to engage in impermissible merits review. No reasonably arguable case of relevant error is identified by the applicant’s oral submissions.

    The Proposed Ground in the Originating Application

46. The proposed Ground in the originating application are as follows:

    I provided any relivent documents & identity documents but the still didn’t blieve that my documents are legit plus when I told Immigration Minister/IAA how I came & even befor I came, they check few radio ricords on interview with years between this interviews & the found a few errors that not match so that’s the main perpous & there rejection but me I blieve that I’m honest & legit to Immigration Minister/IAA about my identity & how I traveled here so I blieve that I’m a genuien refugee & I should be granted a protection visa ASAP as I provided & handled every … to now so please help.

47. In substance, the proposed Ground reflects an invitation to engage in merits review. The applicant makes assertions in relation to his honesty and providing documents, and asserts that the inconsistencies did not matter. That is, in substance, an invitation to engage in merits review and does not identify any arguable case on the merits.

48. The applicant’s affidavit, filed on 14 August 2019, advanced a reference to bias which, for the reasons that the Court has already given, at an impressionistic level, does not identify any arguable case.

49. It is not the position that the Authority repeated the same reasons as the delegate. The Authority’s reasons reflect the Authority conducting a statutory review in accordance with the requirements of pt 7AA of the Act. The applicant’s explanation for the inconsistencies in the affidavit does no more than invite merits review.

1. The applicant’s disagreement with the adverse credibility findings does not identify any arguable case of relevant error. In its reasons, the Authority identified inconsistencies that cannot be said to be trivial or insignificant. The applicant’s characterisation of the inconsistencies as being trivial is not correct and does not identify, at an impressionistic level, identify any reasonable arguable case of relevant error.

2. The applicant’s assertion of a lack of active intellectual engagement within the Authority’s decision is also, at an impressionistic level and in substance, inviting impermissible merits review. So too is the applicant’s assertion that the Authority jumped to conclusions. The Authority identified logical and rational reasons in support of the adverse findings.

3. The applicant asserted that the Authority had not provided itself sufficient time to understand the applicant’s claims. Pursuant to s 5AAA of the Act, it was before the applicant to provide sufficient evidence to establish his claims. No arguable case of relevant error is disclosed by the applicant’s assertions in respect of the time taken in respect of the review under the statutory regime and in relation to the fact sheet and practice direction.

4. It is apparent that the Authority is required to conduct the review expeditiously. No arguable case of relevant error arises by reason of the applicant’s complaints in respect of the time taken to determine the matter. The referral to the Authority occurred on 19 June 2018, and a decision was delivered on 16 August 2018. There is no basis to identify any arguable case of relevant error relating to the timing of the decision of the Authority. In substance, the applicant’s affidavit otherwise invited impermissible merits review by repeating the substance of the applicant’s claims.

   Conclusion

5. For the reasons already given, at an impressionistic level, there is no sufficiently arguable case on the merits to make necessary an extension of time in the interests of administration of justice.

6. Even if the Court were to accept the applicant’s explanation for the delay as satisfactory, which the Court does not, the merits of the application are sufficiently lacking, whereby it is not necessary in the interests of the administration of justice to make an order extending time under s 477(2) of the Act.

7. Accordingly, the application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 February 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 November 2021