Cid17 v Minister for Immigration

[2017] FCCA 3154

FEDERAL CIRCUIT COURT OF AUSTRALIA

CID17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3154

Catchwords:

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in applying the real chance test – no arguable jurisdictional error identified – application for extension of time refused.

PRACTICE & PROCEDURE – Application for extension of time – whether extension of time necessary in the interests of the administration of justice – found that extension of time not necessary in the interests of the administration of justice.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: CID17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1682 of 2017

Judgment of: Judge Street

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Sydney

Delivered on: 14 December 2017

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 6 December 2017.

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

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1682 of 2017

CID17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 15 April 2016 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Iraq and his claims were assessed against that country.

2. On 16 April 2012, the applicant departed Iraq and travelled through UAE en route to Malaysia. The applicant resided temporarily in Malaysia and then travelled to Indonesia. From April to September 2012, the applicant flew from Malaysia and then remained in Indonesia for about four-and-a-half months. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012.

Claims for protection

1. The applicant was found to be a Shia Muslim of Arab ethnicity and claimed that he was in a café when he was approached by a bodyguard of Mr Ali Alatiah, a member of the provincial council. The bodyguard asked the applicant to give money to the Sadrist movement on the basis that his wife was a pharmacist and had her own pharmacy and they had a good income and all pharmacists should pay money to the cause.

2. The applicant entered into an argument with the bodyguard and insulted their leader. The applicant also alleges he insulted he government of Iraq, including the Prime Minister. The applicant alleges the bodyguard physically assaulted the applicant, and waved his gun at the applicant and began shooting. The applicant alleges he escaped onto the street.

3. The applicant alleges he went to stay with his sister in Baghdad and that at his request, his wife attempted to report the incident to the police and was advised not to report the incident, as the militia were in government and the police would not protect them. The applicant alleges one of the bodyguards visited his home after the incident and spoke with his wife and threatened to harm to one of his children if she did not reveal his location. The applicant’s wife was informed that she had two days to reveal his location. The applicant’s family fled the next morning and hid with relatives at a place near the border between Iraq and Kuwait. The area is remote, and the wife and children live miserably.

4. The applicant alleges neighbours informed him that people wearing government uniforms burned their house and wrote the word “traitors” on the front of their wall because he had insulted Muqtada Al Sadr. The applicant alleges militias threatened one of his friends, and he told them that the applicant was in Baghdad. The applicant left Baghdad and went to Basra in the south-east of Iraq. The same day, the militia went to his sister’s house to question her about the applicant’s location, and they told her they would kill the applicant when they see him.

5. The applicant then prepared to travel, departing Iraq legally via Basra International Airport. The applicant then travelled to Dubai and on to Malaysia and then Indonesia before arriving in Australia by boat.

6. On 4 March 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

The Authority’s decision

1. On 7 March 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The letter identified there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.

2. The applicant provided submissions on 7 April 2016 that were referred to in the Authority’s reasons. The Authority’s reasons identified the background to the visa application, and the Authority had regard to the material referred under s 473CB. The Authority found that it was not precluded from considering the information in the submissions and had regard to the same. The Authority also identified obtaining new country information to which the Authority had regard, consistent with s 473DC(1)(a)??.

The applicant’s wife’s occupation

1. The Authority summarised the applicant’s claims and evidence. The Authority referred to the applicant’s wife’s occupation. The Authority accepting as plausible his wife had undertaken some work as a pharmacist and that she may have worked in a public clinic run by the government, but, for reasons that followed, identified it was not satisfied the wife owned her own pharmacy.

2. The Authority identified inconsistencies, which the Authority acknowledged may not individually be significant, however, when taken cumulatively, led the Authority to doubt the applicant’s claims. The Authority was not satisfied the applicant’s wife owned and operated her own pharmacy.

Past harm from members of the Sadrist Movement

1. The Authority referred to the alleged incident involving bodyguards and identified that there were aspects of the applicant’s claims and evidence throughout his interaction with the Department that had not been consistent, and when taken cumulatively, they lead the Authority to find that the incident had not occurred.

2. The Authority found the applicant had provided vague and inconsistent evidence regarding when the incident occurred and how long he remained in hiding before he left the country. The Authority referred to the applicant explaining that he was concerned, disorientated, and worried.

3. The Authority did not consider that explains the applicant’s inability to recall whether he departed a month or one week or two weeks after the incident, or the length of time he stayed with his sister. The Authority found this is particularly so, given the applicant stated at the interview that he recalled the month of the incident and that he was also able to correctly recall the exact date he left Iraq when asked. The Authority referred to the representative’s submissions and did not accept the explanation advanced in relation to his discrepancies in respect of the burning of a house.

4. The Authority found the information in the application form for the temporary protection visa was directly contradictory to the attached written statement regarding the location of the applicant’s family. The Authority was not satisfied on the evidence that the applicant’s wife and children had fled their home area and were in the location the applicant asserted. The Authority referred to the applicant’s mother remaining in the home area in which they lived and found it implausible the applicant’s mother would remain in the home area in the same house if his family home had been targeted as claimed.

5. The Authority referred to taking the matters identified by the Authority cumulatively, leading the Authority to doubt the applicant was subject to an extortion demand as claimed. The Authority then said, having regard to these matters, and as the Authority had not accepted that his wife owned her own pharmacy, the Authority did not accept that the applicant or members of his family were subject to extortion demands by bodyguards of Mr Ali Alatiah because of his wife’s occupation as a pharmacist, her ownership of a pharmacy, or for any other reason.

6. The Authority did not accept the applicant publicly insulted the leader of the Sadrist movement, Mr Muqtada Al Sadr, the Government of Iraq, or the former Prime Minister. The Authority did not accept the applicant was physically assaulted by the bodyguards of Mr Alatiah or that one of the guards waved his gun at the applicant or that they shot at him.

7. The Authority did not accept the applicant had hid with his sister in Baghdad, his wife attempted to report the incident to the police and was advised not to do so, the members of the Sadrist movement visited their home and threatened to harm their child, that his wife and children fled, that his friend was threatened and revealed the applicant’s location, that anyone visited his sister’s home searching for the applicant, that members of his family were threatened, that the applicant’s home was attacked and vandalised, or that the applicant was unable to complete his university studies and fled Iraq as a result of these threats. The Authority was not satisfied the applicant is of any adverse interest to the government of Iraq, Mr Ali Aatiah, members of the Sadrist movement, including the Mahdi army, Shia militias, or anyone else.

Refugee assessment

1. The Authority referred to the applicant’s child having being injured in the bomb blast in 2007 and that he made no claims that this incident was targeted or that it would lead to any future harm for himself or his family. The Authority was not satisfied there was a real chance of any harm to the applicant as a result of this incident if he returns to his home region now or in the reasonable foreseeable future.

2. The Authority found that it had not accepted the applicant or his family were ever subject to extortion demands by members of the Sadrist movement due to his wife’s occupation as a pharmacist, ownership of a pharmacy or any other reason, or that his family were threatened in the past for failing to comply with the demands.

3. The Authority was not satisfied the applicant faced a real chance of any harm from the government, members of the Sadrist movement, including the Madhi army, Shia militias or anyone else due to his wife’s occupation as a pharmacist or ownership of a pharmacy or any other reason if he returns to his home region now or in the foreseeable future.

4. The Authority made reference to the applicant’s father-in-law being wealthy. The Authority was not satisfied the applicant faces a real chance of harm from Shia militia or anyone else due to his father-in-law’s wealth or occupation if he returns to Iraq now or in the reasonably foreseeable future.

5. The Authority referred to the general security situation by reason of the applicant being a Shia Muslim. The Authority found the applicant would have access to housing on return to his home region, and was not satisfied the applicant faces a real chance of any discrimination for any reason, including his religion, if he returns to his home region now or in the reasonably foreseeable future.

6. The Authority was not satisfied the applicant faces a real chance of harm from Daesh, their associates, or any other Sunni extremist groups in his home region on the basis of his religion and/or any other reason, now or in the reasonably foreseeable future.

7. The Authority was not satisfied the applicant faces a real chance from generalised violence in the southern governorates of Iraq, including his home area now or in the reasonably foreseeable future. The Authority found there was nothing in the evidence to suggest the applicant faces a real chance of harm in his home area or on any other basis. Considering the applicant’s circumstances cumulatively, the Authority was not satisfied that he faces a real chance of harm if he returns to his home region now or in the reasonably foreseeable future.

8. The Authority referred to the applicant’s ability to access his home region. The Authority was not satisfied the applicant faces a real chance of harm on the roads to his home region now or in the reasonably foreseeable future. The Authority found the applicant could safely access his home region via the Basrah International Airport on return to Iraq.

9. The Authority found the applicant was not a refugee within the meaning of the definition in s 5H(1) and failed to meet the criterion under s 36(2)(a).

10. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant failed to meet the criterion under s 36(2)(aa), and affirmed the decision under review.

Proceedings before this Court

30. These proceedings were commenced on 29 May 2017, 376 days outside the 35-day time limit required under s 477. The applicant adduced evidence in relation to an explanation for the delay, involving an incident. The evidence partially explained a short period of delay. It does not explain satisfactorily the substantial delay that occurred in the present case.

31.         On this ground alone the application for an extension of time should be refused. However, the Court has considered the merits of the application, which require an impressionistic approach However, the critical issue in the present case are the merits of the application.

1. The grounds in the amended application are as follows:

   1. The Immigration Assessment Authority (“the IAA”) found in paragraph 27 of its decision that “I do not accept that the applicant .... [was] subject to extortion demands by bodyguards of Mr Ali Alatiah.” A fair reading of the IAA's reasons indicates that the IAA had a real doubt that this finding of fact was correct. In considering whether the applicant faced a real chance of persecution, the IAA failed to consider the possibility that this finding of fact might not have been correct. Pursuant to the principle explained in Minister v Rajalingam (1999) 93 FCR 220, this involved an erroneous application of the real chance test, which is a jurisdictional error.

   2. The IAA found in paragraph 15 of its decision that “I am not satisfied that his wife owned her own pharmacy”. A fair reading of the IAA' s reasons indicates that the IAA had a real doubt that this finding of fact was correct. In considering whether the applicant faced a real chance of persecution, the IAA failed to consider the possibility that this finding of fact might not have been correct. Pursuant to the principle explained in Minister v Rajalingam (1999) 93 FCR 220, this involved an erroneous application of the real chance test, which is a jurisdictional error.

2. Mr Zipser of counsel, both orally and in his written submissions, took the Court to the findings of the Authority in relation to the inconsistencies, which the Authority itself identified may not be significant on its own. The inconsistencies cannot, however, be said to be trivial or insignificant.

3. Mr Zipser sought to argue that because of the reference to doubt in paragraph 27, the Authority should have considered “what if I am wrong?” in respect of the adverse finding concerning the allegation the applicant was subject to extortion demands by bodyguards. The reference to doubt by the Authority was to doubt in respect of the applicant’s claims generally, and was not doubt in respect of the finding that the Authority made in relation to not accepting that the applicant or any member of his family were subject to extortion demands by bodyguards.

4. That finding was open on the material before the Authority for the reasons given as summarised above and cannot be said to be illogical, irrational or unreasonable. This is not a case where the Authority was required to consider the possibility of “what if I am wrong?” as the finding was a definitive finding in respect of the applicant’s claim, having identified that the Authority did not accept that the applicant’s wife owned her own pharmacy. No arguable jurisdictional error as alleged in Ground 1 is made out.

5. Ground 2 is one in respect of which Mr Zipser of counsel took the Court, again both in his written submissions and orally, to the findings of the Authority , and in particular the language in which the Authority identified that it was not satisfied that the applicant’s wife owned her own pharmacy. Mr Zipser referred to the finding in paragraph 18 as well as the finding in paragraph 19, and again the reference that the considerations cumulatively led the Authority to doubt the applicant’s claims.

6. The doubt in respect of the applicant’s claims was a separate observation to the finding that was made by the Authority in paragraph 15 and repeated in paragraph 18, that it was not satisfied the applicant’s wife owned and operated her own pharmacy. The adverse finding in that regard was open on the material before the Authority for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

7. This is not a case where the Authority was required to consider the “what if I am wrong?” proposition in relation to the adverse finding in respect of the applicant’s wife’s ownership and operation of her own pharmacy. No arguable jurisdictional error as alleged in Ground 2 of the application is made out.

Conclusion

1. For the reasons summarised above, even if there was a satisfactory explanation for the delay, which there is not, the Court is not satisfied that the grounds identified in the amended application have sufficient merit to warrant an extension of time in the interests of the administration of justice. The Court finds that an extension of time is not necessary in the interest of the administration of justice. Accordingly, the application for an extension of time is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  23 February 2018