CLM16 v Minister for Immigration

[2017] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLM16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1006

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an extension of time – almost 3 year delay in bringing the application – the applicant’s explanation for the delay was unsatisfactory – not in the interests of the administrative of justice to extend time – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 91R, 476, 477.

Applicant: CLM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2375 of 2016

Judgment of: Judge Street

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Sydney

Delivered on: 16 May 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application 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 $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2375 of 2016

CLM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 Administrative Appeals Tribunal (“the Tribunal”) made on 27 June 2013 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. On 5 November 2012 the delegate refused to grant the applicant a protection visa.

The Tribunal’s decision

1. The Tribunal invited the applicant to attend a hearing by letter dated 8 April 2013 and by a request for postponement, the hearing was postponed to 19 June 2013. The applicant appeared on that date to give evidence and present arguments. The applicant claimed to fear harm from persecution in Lebanon from Syrians and their supporters because of having joined the Future Movement in Lebanon.

2. The applicant provided the Tribunal with a letter from a Sheikh and marriage celebrant in Greenacre which made some comments about the position in Lebanon, the applicant’s adjustment to life in Australia and the dangers should he return. There is also a letter from a mayor in the north of Lebanon which was provided stating the applicant’s parents would like him to stay abroad for fear of the applicant’s safety. The Tribunal was also provided with newspaper articles about the situation in Lebanon.

3. The Tribunal accepted that the applicant was a supporter of the Future Movement and that the applicant was present when the deputy member of Parliament was shot at. The Tribunal did not however, accept that the applicant had any political profile that would bring him to the adverse attention of pro-Syrian groups. The Tribunal was not satisfied there was a real chance the applicant be persecuted by reason of his support of the Future Movement. 

4. The Tribunal did not accept, based on some country information that there was any real chance the applicant would be targeted in Lebanon because he is a Sunni or because he would be viewed by Sunnis as a traitor for having travelled overseas instead of fighting for his religion.

5. The Tribunal noted that the applicant gave inconsistent evidence about his employment history, but the Tribunal was willing to accept that he had worked in Tripoli, Lebanon and might return there for work. The Tribunal noted that the applicant did not come from Tripoli and had serious concerns about his claim that he could not go anywhere else. The Tribunal noted that the description of the applicant’s background identified him from the north of Lebanon. The Tribunal noted that the applicant’s family had been living elsewhere and his work experience as a concrete renderer and mechanic did not tie him to Tripoli. The Tribunal was satisfied that the applicant would return to work in either of the two neighbourhoods which the Tribunal identified as being subject to spontaneous outbreaks of fighting.

6. The Tribunal did not consider the applicant would be targeted and held that any harm that the applicant might suffer in Tripoli or Lebanon would be as a result of generalised violence rather than systematic or discriminatory conduct such as to enliven a claim under the convention. The Tribunal found there was a risk faced by the general population generally and found that the complementary criteria that was not engaged.

Application for an extension of time

1. The application for relief in this Court was filed on 4 September 2016, reflecting an almost three year delay in respect of the time requirement of s.477 of the Act which relevantly provides as follows:-

   (1)  An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section: “date of the migration decision” means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b)  in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

   (c)  in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

   (ca)  in the case of a migration decision made by the Immigration Assessment Tribunal--the date of the written statement under subsection 473EA(1); or

   (d)  in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

Application for an extension of time

Consideration of the delay

1. The applicant proffered an explanation for the delay in relation to problems with his migration agent. It is apparent in the period since the decision of the Tribunal that the applicant has on two occasions, sought Ministerial Intervention. Sufficient to say that the applicant’s explanation of the delay is completely unsatisfactory. On that ground alone the application should be dismissed. On the ground of the delay in the present case, I am satisfied that in the interests of the administration of justice, it is not necessary to extend time.

Consideration of the merits

1. However, out of deference to the argument advanced by Mr Kumar of counsel in relation to the merits, I note that ground 1 of the application is as follows:-

   Ground 1

   The Tribunal accepted that the Applicant could suffer that “generalised violence"  (RRT at [17]; [20]) and considered that “generalised violence" would not be due to systematic or discriminatory conduct towards him. The Tribunal fell into jurisdictional error in failing to ask the correct questions (pursuant to s5(1); s 36 and s91R).

   Particulars

   1.1 The Tribunal fell into error by failing to ask “generalised violence" despite being not being systematic or discriminatory posed risk to the Applicant.

   1.2 The Tribunal failed to ask itself whether “generalised violence” or other harm presented other risk to the Applicant to return to Tripoli (or Lebanon);

   1.3 The Tribunal failed to ask correct questions.

   1.4 The Tribunal committed jurisdictional error.

Generalised violence

1. Mr Kumar of counsel contended that the Tribunal had erred in its approach in relation to generalised violence and that as the applicant was from the north, the Tribunal had failed to properly address the applicant’s claim to fear of generalised violence in the north. Mr Kumar of counsel referred to the  application for protection in which the applicant stated “the Authorities have no power to protect us in Lebanon especially in the north.” The application identified the applicant as a person from north Lebanon.

2. Mr Kumar of counsel took the Court to the finding of the Tribunal that the Tribunal was not satisfied on the evidence before it that the applicant would be targeted in Tripoli where the applicant had been working. The Tribunal found that any harm that he would suffer would be as a result of generalised violence rather than because of systemic and discriminatory conduct towards him. The Tribunal therefore said it was not satisfied that there is a real chance that the applicant would be persecuted for working in Tripoli. There was no error in the Tribunal’s approach to the applicant’s claims and the Tribunal made dispositive findings that were open on the material before the Tribunal.

The applicant allegedly supplying weapons

1. The Tribunal referred to the supply of weapons in Lebanon and the applicant’s belated accusation that he had been accused of supplying weapons. The Tribunal referred to the applicant’s claim that people had been monitoring him coming to and from his workplace and he was subject of suspicion because he is Sunni. The Tribunal observed that had they been monitoring the applicant as claimed, then they would have been aware of where he lives and that he had not worked at that workplace for six months or more. It was in those circumstances the Tribunal did not accept that they would have gone to his former workplace and made allegations. The applicant said that he had never been involved in supplying weapons. The Tribunal found he had no political profile and the Tribunal cannot see any reason why such an allegation would be fabricated against him. The Tribunal did not accept that the applicant was accused of supplying weapons in Lebanon.

2. The Tribunal then referred to other claims and accepted that the applicant is generally concerned about the situation in Lebanon and the instability and potential for further civil unrest. The Tribunal made reference to the applicant’s statement that there is a lot of shooting and killing and that he could be killed walking down the street. The Tribunal made reference to the possibility of Lebanon plunging into another civil war because of Syria as being speculative. The Tribunal said it was not satisfied on the information available, that another civil war was probable, let alone imminent.  The Tribunal then found that the chance of the applicant being subject to serious harm as a result of generalised violence in Lebanon as remote. 

3. Mr Kumar of counsel submitted that the Tribunal in the making of that finding failed to take into account the applicant’s personal circumstances and contended that the Tribunal had failed to correctly apply s.91R of the Act and that the violence was systematic and discriminatory targeting the applicant.

4. The Tribunal correctly identified the relevant law in the attachment to the Tribunal’s reasons that was incorporated into the reasons. No criticism was made of the statement of principle identified by the Tribunal in relation to s.91R of the Act. It is apparent on a fair reading of the Tribunal’s reasons that the Tribunal appreciated the distinction between conduct that is systematic and discriminatory which could give rise to a well-founded fear of persecution and generalised violence that was not targeted at the applicant.

5. The reference by the Tribunal to the chance of the applicant being subject to serious harm as a result of generalised violence being remote was a finding that was open on the material and took into account the applicant’s personal circumstances. Generalised violence, as identified by the Tribunal, was not violence that involved systematic and discriminatory conduct. There was no failure by the Tribunal to answer the correct questions in relation to whether the applicant had a well-founded fear of persecution or any error in the application of s.91R of the Act to the circumstance of the applicant in the present case. In relation to ground 1, I accept the first respondent’s submission that the Tribunal was correct to hold that the harm lacked a Convention reason necessary to establish a claim under the Convention. Ground 1 fails to identify any reasonably arguable ground of jurisdictional error.

Conclusion

1. The merits of the application do not warrant an extension of time in the interests of the administration of justice. For the reasons give, the Court is not satisfied that is necessary in the interests of the administration of justice to make order under s.477 of the Act.

2. Accordingly, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 June 2017