CDJ16 v Minister for Immigration and Border Protection
[2019] FCA 220
•22 February 2019
FEDERAL COURT OF AUSTRALIA
CDJ16 v Minister for Immigration and Border Protection [2019] FCA 220
Appeal from: Application for extension of time: CDJ16 v Minister for Immigration & Anor [2018] FCCA 1907 File number: VID 978 of 2018 Judge: RANGIAH J Date of judgment: 22 February 2019 Catchwords: MIGRATION – application for extension of time to appeal against judgment of Federal Circuit Court of Australia – applicant seeks to raise ground not advanced before primary judge – proposed ground has no prospect of success – application dismissed Date of hearing: 22 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr A Alexsov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Maloney Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 978 of 2018 BETWEEN: CDJ16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
22 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time within which to file a notice of appeal is dismissed.
2.The applicant pay the first respondent's costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
The applicant seeks an extension of time to appeal against a judgment of the Federal Circuit Court of Australia delivered on 13 September 2018. The primary judge dismissed the applicant’s application for judicial review of a decision of the Immigration Assessment Authority (the Authority) affirming a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the applicant a Safe Haven Enterprise Visa.
The application for an extension of time was filed seven days out of time. The applicant’s explanation for the delay is that he was unaware of the time limit until he engaged his present lawyers to act for him. The Minister has not asserted any prejudice as a result of the delay.
In these circumstances, the fate of the application for an extension of time turns upon the merits of the proposed appeal. The amended draft notice of appeal relies upon a single ground as follows:
1. The second respondent erred by failing to consider a clearly articulated argument advanced by the applicant, that he feared harm on return to Lebanon on the basis that he may become destitute.
That ground was not advanced before the primary judge. Accordingly, the applicant would require leave to raise the ground in any appeal. The applicant was represented by counsel before the primary judge and the explanation for not raising it seems to be that it was not thought of at that stage. The merits of the ground are also relevant to whether leave to raise the ground would be granted.
The applicant asserts that the argument that he feared harm in Lebanon on the basis that he may become destitute was raised before the Authority in a written submission dated 9 February 2016. That submission contains the following passage, in which the applicant asserted that he feared harm as a vulnerable young person.
The applicant fears not only being unable to subsist due to being a vulnerable young person, but being subjected to inhumane treatment as a consequence of being put in the position of being destitute with no income. He also has no real prospect of improving his situation in the foreseeable future given his limited connections, economic vulnerability and lack of familial support in Lebanon, as was raised by Mstr [Deleted] at the interview.
…
In the context of this case, in addition to the Applicant’s fear that he will be killed or subjected to torture and physical harassment if he is returned to Lebanon, we further submit that the level of social persecution in the form of economic hardship, denial of access to basic services, and denial of capacity to earn a livelihood all cumulatively threaten the Applicant’s capacity to subsist within the confines of the examples listed in s5J.
The applicant also raised a claim before the Authority that since 2014 he had been in a relationship with a Shia Iranian woman and that his family disapproved of the relationship. He claimed that this was relevant to the question of whether he could relocate to avoid harm in his home area, as his family would not provide support to him.
I accept that the applicant’s claims to fear harm as a young person and as a person in a relationship with a Shia woman each involved allegations that the applicant would not have the support of his family in Lebanon and would become destitute.
The Authority found, in the course of considering a claim that the applicant faced forced recruitment into a militia:
The applicant’s own evidence does not suggest that he is a vulnerable child who might be targeted for recruitment, as he lives with his family which appears to be reasonably well off.
The Authority also found:
The applicant’s own testimony does not suggest that he faces persecution from his family (or any other source) because of his relationship in Australia with an Iranian Shia woman. While he stated at the SHEV interview that his family is not happy about the relationship and is “against him”, it was not suggested that his family would disown or ostracise him because of the relationship if he returns to Lebanon. Rather, it was argued that because his family disapproves of the relationship they may not provide the level of support he would need if he were to return to Lebanon and relocate to Beirut to avoid harm in his home area. The applicant’s evidence does not suggest that his family’s disapproval would result in a decision to reject him and not permit him to return home to live with them, or that they would harm him in any other way because of the relationship. As I have found that the applicant does not have a well-founded fear of persecution or face a real risk of significant harm in his home area, the question of relocation to Beirut does not arise.
(Underlining added.)
The Authority’s reasons, read as a whole, demonstrate that it found the applicant would not be rejected by his family, and that they would permit him to live with them.
Contrary to the applicant’s argument, the Authority did consider his claim that he feared harm in Lebanon on the basis that he may become destitute. The Authority rejected that claim.
In my opinion, the proposed appeal on the basis of the proposed ground has no prospect of success. The application for an extension of time within which to file a notice of appeal must be dismissed with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 1 March 2019
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