CYD16 v Minister for Immigration
[2017] FCCA 610
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYD16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 610 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for an extension of time under s.477 – no satisfactory explanation for the delay and the delay is substantial – grounds in the application failed to identify in arguable jurisdictional area – application for an extension of time not necessary in the interests of the administration of justice – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476, 477, Part 7AA. |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | CYD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2748 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 29 March 2017 |
| Date of Last Submission: | 29 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2017 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2748 of 2016
| CYD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 the decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 14 December 2015 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 is a Shia Muslim. The applicant commenced his journey to Australia in about April 2012 and was intercepted by Australian authorities and transferred to Christmas Island on 18 October 2012. On 9 July 2015 the applicant lodged an application for a Temporary Protection Visa (TPV), subclass XD-785. The applicant was interviewed on 29 September 2015. In that interview the applicant was asked questions about his claims, and in particular his father’s role in the Ba’ath Party.
The applicant’s evidence was that his father was a high-grade member. The applicant described his father’s role as working in some places relating to defending Iraq or protecting Iraq, but the applicant did not know how to explain that or how to say that because at the time, he was too young to understand any of this.
The applicant was asked, “How do you know about your father’s role in the Ba’ath Party?” and the response was that any son would know his father but not everything.
The Delegate
The applicant claimed to fear harm because his father was a supporter of a senior member of the Ba’ath Party and alleged that he and his father were kidnapped by the Dawa Party, and that he and his brothers were threatened by Shia militia groups associated with the government, and that the applicant’s home was raided and his daughter was killed by Shia military groups. The delegate made adverse credibility findings in relation to the applicant’s evidence.
The delegate was not satisfied there was a real chance of the applicant being persecuted for one or more of the reasons mentioned in s.5J(1)(A) of the Act in Iraq. The delegate found the applicant was not a refugee within the meaning of s.5H of the Act and that the applicant failed to meet the criteria under s.36(2)(a) of the Act.
The delegate also found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Iraq there is a real risk that the applicant will suffer significant harm as required by s.36(2)(aa) of the Act. The delegate found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and found that the applicant was not a person in respect of whom Australia had protection obligations. The applicant was found not to be an excluded fast-tracked applicant.
The Authority
On 3 November 2015, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified in that letter that it had been provided with the documents that the Department considered relevant to the applicant’s case, including all material provided by the applicant to the delegate who refused the protection visa.
The letter indicated the Authority would proceed to make a decision on the applicant’s case on the basis of the information sent to the Authority by the department unless the Authority decided to consider new information. The letter explained that the Authority could only receive new information in limited circumstances, as explained in the attached fact sheet. The letter also enclosed the practice direction providing an opportunity for the applicant to put submissions.
By email dated 17 November 2017, submissions and further information was provided to the Authority by the applicant’s migration agent. The Authority responded to the applicant’s request for an opportunity to provide further information on 8 December 2015. On 10 December 2015 further submissions were provided to the Authority by the applicant’s migration agent, together with further information.
Consideration of the information before the Authority
The Authority identified the applicant’s background and that it had had regard to the material referred by the Secretary under s.473CB of the Act. The Authority referred to the written submissions received from the applicant and identified that to the extent that the written submissions included new information, the Authority was satisfied there were exceptional circumstances to justify considering that information.
The Authority referred to the further submissions received on 10 December 2015 and also regarded the new information as falling within exceptional circumstances to justify considering the same.
Consideration of the applicant’s claims for protection
The Authority identified the applicant’s claims for protection and the relevant law. The Authority referred to the applicant’s interview and the applicant’s evidence about his father’s role and referred to the same as being vague. The Authority did not accept that the applicant’s father was or has a profile as a committee member or high-ranking member of the Ba’ath Party, or that he performed major and important roles for the party. The Authority found on the evidence, that the applicant’s father was a low-level member of the Ba’ath Party due to his employment.
The Authority referred to the applicant’s submissions and in particular, the reference to the fact that during the interview his wife was in hospital giving birth to his child. The Authority took that into account in relation to the applicant’s explanation for the discrepancies in his evidence in the interview. The Authority did not accept that that circumstance explained the discrepancies in the applicant’s evidence.
The Authority found the applicant’s evidence as to his father’s disappearance and his own abduction to be implausible and the Authority provided rational and logical reasons in that regard. The Authority did not accept the applicant’s father had disappeared or was taken by the Dawa Party.
The Authority did not accept the applicant and another boy were abducted, detained for 40 days and tortured by the Dawa Party at any time in the past. The Authority did not accept that the applicant and the other boy escaped but were recaptured, or that they were subsequently beaten unconscious and thrown onto the road where they were found by locals and taken to hospital. The Authority did not accept the Dawa Party, other militia or the Government monitored the applicant after his return home or sent him a threatening letter. The Authority did not accept that the applicant’s move to another location was the result of the applicant’s abduction or because the Dawa Party or the Government were searching for the applicant or his father.
Consideration of refugee criterion
The Authority found the applicant does not have a real chance of persecution in his home region of Iraq for any reason now or in the reasonably foreseeable future. The Authority found that the applicant does not have a well-founded fear of persecution under s.5J(1) of the Act.
The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act and did not meet the criteria under s.36(2)(a) of the Act.
Consideration of complementary protection criterion
The Authority found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Iraq, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s.36(2)(aa) of the Act.
Before this Court
These proceedings were commenced on 7 October 2016. On 1 December 2016, this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. Other than the affidavit annexing the transcript of the interview on 29 September 2015 and an affidavit annexing the Tribunal’s decision, no submissions or amended application were filed. On 15 February 2017 a notice of withdrawal of lawyer was filed.
Adjournment application raised from the bar table
When the matter was called for hearing today, the applicant sought an adjournment. The applicant produced a letter from Mr S. Cassam dated 25 March 2017 bearing an initial purportedly signed on behalf of Future Legal. The letter referred to the hearing date today, 29 March 2017 and referred to having looked at the applicant’s file and court book and that the applicant’s previous lawyer had withdrawn in late January. The letter referred to the applicant facing difficulties locating a solicitor to take the matter at short notice. The letter suggests that the lawyer was unable to attend the hearing on 29 March 2017 due to being required to appear in the Supreme Court on another matter.
The letter suggested that if the applicant was able to obtain an adjournment, in light of the current situation and history, the lawyer would be happy to assist the matter moving forward. No notice of appearance was filed on behalf of Mr S. Cassam or Future Legal, only a notice of an adjournment application was provided by the applicant. The adjournment application was opposed by the first respondent.
Consideration of the adjournment application
From the bar table, the applicant asserted that he had just received funds from his parents overseas and was now in a position to instruct a lawyer. The applicant asserted that those funds had been received a week ago. Notwithstanding that assertion, the applicant did not attend Court with a lawyer and no steps had been taken to obtain a new lawyer on the record prior to the hearing date. No affidavit evidence was provided in support of the application for an adjournment and from the bar table the applicant asserted that he had taken steps but it was difficult to obtain representation because lawyers wanted money.
The applicant’s explanation for the absence of Mr Cassam or a notice of appearance is not satisfactory. I do not regard the applicant’s explanation as to the steps he had taken to obtain a lawyer as satisfactory. The applicant was aware since late January that his other lawyer had withdrawn.
I am not satisfied that the circumstances identified by the applicant warrant the granting of an adjournment in the interests of the administration of justice. On the material before the Court, an adjournment is only likely to unnecessarily add to the costs of the parties and utilise limited Court time. The letter is an insufficient indication of representation on behalf of the applicant and any competent lawyer would be well alive to the fact that a notice of appearance must be filed if representing an applicant.
Application for an extension of time
At the commencement of the hearing, the Court explained to the applicant that this was an application for an extension of time under s.477 of the Act. The Court explained to the applicant in relation to an extension of time that the application filed by the applicant in the present case was eight months late.
The Court explained that it was relevant to the Court to consider the explanation of the delay and whether the applicant had a reasonably arguable case that the Authority’s decision was affected by relevant legal error. The Court explained that in this regard the Court was considering whether the applicant had a reasonable argument that the Authority’s decision was unlawful or unfair.
The Court explained that if the Court was satisfied the applicant had an adequate explanation for the delay and had a reasonable argument that the Authority’s decision was affected by relevant legal error, the Court would grant an extension of time and fix the matter for hearing on another occasion. The court explained that if the Court was not satisfied there was an adequate explanation of the delay and a sufficiently arguable case, the application would be dismissed.
The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The grounds of the application are as follows:-
The second respondent made findings relating to the credibility of the applicant arising from a TPV interview with the first respondent on 29 September 2015 which had no evidentiary basis.
Particulars
1. The second respondent (at [16]) considered that the evidence given by the applicant at the TPV interview on the nature of his father's role or the functions his father performed as a senior committee member or high ranking member of the Ba'ath Party was “vague".
2. The above finding was the primary reason why the second respondent found, at [17], that the applicant's father was not, nor did not have a profile as, a committee member or a high ranking member of the Ba'ath party and that he did not perform major and important roles for the party, but rather that he was a lower level member of the Ba'ath party due to his employment.
3. The above finding was inextricably linked to the overall decision to affirm the refusal of a temporary protection visa to the applicant.
4. There was no evidence before the second respondent which was capable of supporting the finding that the applicant's evidence at the TPV interview had been “vague.” The second respondent did not listen to an audio recording of the TPV interview and was therefore not in a position to ascertain whether the applicant's evidence had been “vague.”
Consideration
The applicant’s explanation for the delay in substance turned upon having obtained legal advice and deciding to pursue Ministerial Intervention. The pursuit of Ministerial Intervention reflects a deliberate decision not to pursue the opportunity to seek a review in the Court and is generally an unsatisfactory explanation for delay. In the present case I regard the applicant’s explanation for the delay as unsatisfactory and the delay is substantial. However, the more material issue is the merits of the application.
In relation to ground 1, it is apparent that there was evidence adduced at the interview of questions asked by the interviewer as to the applicant’s father’s role. It was open to the Authority and to the delegate to find the applicant’s responses were vague. No arguable jurisdictional error is made out by ground 1 of particular 1.
In relation to particulars 2, 3 and 4, this is in substance an invitation to this Court to engage in impermissible merits review. The adverse findings by the Authority were open and cannot be said to lack an evident and intelligible justification. The proposition in particular 4 that the Authority did not listen to the audio tape is without substance. On a fair reading of the Authority’s decision, it is apparent that the Authority has taken into account what occurred at the interview.
The adverse credibility findings in the present case cannot be said to be illogical or unreasonable and there was an evidentiary basis on the material to support the adverse credibility findings. Ground 1 and particulars 2 to 4 in the application fail to identify any arguable case of jurisdictional error.
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].
The applicant’s submissions from the bar table
From the bar table, the applicant sought to explain why his evidence had been unsatisfactory before the delegate by reference to his wife’s childbirth. There is nothing in the transcript to support any request for an adjournment or problem with the applicant in understanding or responding to the questions at the interview.
The applicant made a number of assertions as to what had occurred at the interview, most of which do not reflect the content of the transcript. The applicant asserted that he was unfairly treated by the delegate and the Authority.
Further consideration
On the face of the material before the Court, the Authority complied with its statutory obligations under Part 7AA of the Act. By sending the letter dated 26 November 2015 and providing an opportunity to put submissions or new information, the Authority complied with its obligation of procedural fairness.
To the extent that the applicant was desirous of having a further interview before the Authority, there was no obligation on the Authority to do so under Part 7AA of the Act. On the face of the material before the Court, the applicant had a real and genuine opportunity to provide information at the interview. The proposition that the applicant was unfairly treated by the delegate or the Authority is not reasonably arguable. The Authority was entitled to take into account the interview and on the material before the Court, the authority has independently assessed the applicant’s claims in the conduct of a review.
The adverse findings in relation to the applicant’s credit and claims are not a basis upon 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. The applicant’s submissions in relation to the circumstances currently in Iraq are in substance an invitation to this Court to engage in impermissible merits review.
Nothing said by the applicant from the bar table identified any arguable jurisdictional error.
Conclusion
I am not satisfied that an extension of time under s.477 of the Act is necessary in the interests of the administration of justice.
Accordingly, the application for an extension of time under s.477 of the Act is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 6 April 2017
2
1
2