DJH16 v Minister for Immigration and Border Protection
[2018] FCA 1885
•30 November 2018
FEDERAL COURT OF AUSTRALIA
DJH16 v Minister for Immigration and Border Protection [2018] FCA 1885
Appeal from: Application for extension of time to appeal from: DJH16 v Minister for Immigration and Border Protection [2018] FCCA 957 File number: NSD 1005 of 2018 Judge: GRIFFITHS J Date of judgment: 30 November 2018 Catchwords: MIGRATION – application for an extension of time to appeal from a judgment and orders of the Federal Circuit Court of Australia – where the primary judge found that a decision of the Immigration Assessment Authority (IAA) refusing the applicant a protection visa was not affected by jurisdictional error – whether the applicant provided a sufficient explanation for the delay in bringing the present proceedings – whether there are sufficient prospects of success of the appeal to warrant the grant of an extension of time – Held: application dismissed, with costs Legislation: Migration Act 1958 (Cth), s 473DD, 473GB
Federal Court Rules 2011 (Cth), r 36.05
Cases cited: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 Date of hearing: 27 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Applicant: The applicant appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1005 of 2018 BETWEEN: DJH16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
30 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 12 June 2018 be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia (FCCA). The decision is dated 2 May 2018 and is reported as DJH16 v Minister for Immigration and Border Protection [2018] FCCA 957. The FCCA dismissed the applicant’s judicial review challenge to a decision dated 18 October 2016 by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision dated 25 July 2016 to refuse the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV).
Summary of background facts
The applicant is a citizen of Iraq and is of Arab ethnicity. He claimed to have commenced work in February 2006 in Iraq as a police officer for the Facility Protection Service (FPS), which was attached to the Ministry of Health. He was employed as a hospital security guard. His role included inspecting vehicles and people entering or leaving the hospital, protecting doctors and referring cases of injured people for investigation.
The applicant claimed that in December 2009 three people brought an injured man to the hospital where the applicant was working. The injured man was in a critical condition with a gunshot wound. He needed to be transferred to another hospital but this could not occur because of a battle near the hospital. The applicant told the police about the injured person having a gunshot wound. When the applicant told one of the people who had bought the injured man to the hospital (who claimed to be the injured man’s brother) that he should wait for the police to arrive, the brother stated that the shooting was accidental and neither he nor the victim wished to complain. The applicant claimed that both he and a doctor were threatened by the three people who said that they would be held responsible if the injured man died. By the time the police arrived, the three people had vanished. The injured man was later found to be a leader in the Al Mahdi army who was wanted for murder and terrorism offences and had been convicted and sentenced to 80 years imprisonment.
The applicant claimed that inquiries were made about him in early 2010. He said that he took leave from the FPS and returned to his home town. He claimed that he received telephone threats and inquiries were made about him in that town. He said that people came to his uncle’s house and demanded to see him and threatened the whole tribe. The applicant said he was frightened and moved to stay with an aunt in another town.
He said that his uncle and family members met with clan members and that a mediation was arranged with a view to resolving the issue. He claimed that his uncle had been told by a chief that the injured man and his people were no longer considered to be part of the tribe.
The applicant claimed that his brother was shot in the head four months later and that the Al Mahdi army told the applicant’s uncle that they were responsible. He claimed that his uncle abandoned his land and moved to another area and that his brothers and cousins had also left both his and their home town. He said that since his departure, members of the Al Mahdi army have continued to ask about him.
The applicant claimed to fear harm from the Al Mahdi army if he returned to Iraq as he was regarded as responsible for the arrest of the injured man. He claimed to fear harm because he would be imputed with a pro-Western political opinion due to his perceived association with the US forces while he was employed at the hospital, the time he had spent in Australia and the leaking of his personal information in Australia (the data breach). He said he also feared he would be court-marshalled for treason because the Iraqi authorities will be aware of the leaking of his personal information in the data breach and that he would be perceived to be a traitor who had given information to a foreign country and was working for the Australian government.
He also claimed that there was no safe place for him in Iraq. He said that insurgents are active in the southern area, that other parts of Iraq are dominated by Sunni Muslims and he feared persecution as a Shia Muslim and for his imputed political opinion of being a police officer.
The delegate refused to grant the applicant a SHEV. There is an extensive summary of the delegate’s decision record in the primary judge’s reasons for judgment at [28]-[30].
The IAA review
The applicant’s case was automatically referred to the IAA for a review under Pt 7AA of the Migration Act 1958 (Cth) (the Act). The applicant provided a submission to the IAA in support of his case, which included copies of untranslated documents and photographs to support his claim that his brother had had a bullet removed from his head. He explained in his submission to the IAA that he had only received the documents and photos relating to the removal of the bullet after the delegate’s decision and that he was unable to provide translations because he was in immigration detention.
The IAA considered the documents and photos to be “new information”, that it substantiated previously known information which was before the delegate, and that it was satisfied for the purposes of s 473DD(b)(i) of the Act that there were exceptional circumstances to justify consideration of the new information.
The applicant’s submission to the IAA raised a new claim which had not been made to the delegate, namely that the applicant’s service weapon had not been returned to the police when he left Iraq. He said that there were outstanding charges against him relating to the missing gun. It was also at this point that he claimed to fear imprisonment on return if convicted of this offence and to fear harm in prison from members of the Al Mahdi army and others with a grudge against police officers or former police officers.
The applicant claimed that he had not provided this information to the delegate because he was only advised of the outstanding charges after the delegate’s decision. Again, the IAA was satisfied that there were exceptional circumstances to justify consideration of this new information.
The IAA found that it had significant concerns about the applicant’s claims concerning the alleged events which took place at or near the hospital in December 2009 and the threats made against him. The IAA referred to inconsistencies in the applicant’s evidence. It was not satisfied that the applicant was of adverse interest to the Al Mahdi army. The applicant’s claims that he was at risk because of his association with western forces was rejected by the IAA, as were his claims concerning the non-return of his gun and his claims concerning the data breach. The IAA concluded that it was not satisfied that the applicant would be at risk of harm due to his Shia religion as he lived in a Shia-dominant province and did not have a profile that would make him a target. Accordingly, the IAA affirmed the decision under review.
The FCCA proceeding
The primary judge summarised at some length the IAA’s reasons for affirming the delegate’s decision. A summary is to be found at [31] to [60] of her Honour’s reasons for decision. The applicant did not have legal representation in the FCCA and his only ground of judicial review was that the IAA decision is “affected by legal error”. The primary judge noted that, at the FCCA hearing, the applicant had particularised his challenge to the IAA’s decision by reference to the following three issues:
(a)the IAA’s alleged failure to consider that he would be imprisoned if he were returned to Iraq because he had been a police officer and had deserted his work;
(b)his disagreement with the IAA’s failure to find that the fighting between the Al Mahdi army and the police in December 2009 had led to the injured terrorist being admitted to the hospital which resulted in threats being made against the applicant; and
(c)the applicant’s interview with the delegate was conducted with an interpreter on the telephone and the delegate did not let the applicant tell his story and simply directed him to answer her questions.
The primary judge explained why none of these complaints gave rise to jurisdictional error.
In relation to the applicant’s claim to fear imprisonment in Iraq because of his prior employment as a police officer, the primary judge noted the IAA’s finding that the applicant was not a police officer, but was a security officer employed by the FPS. The IAA had accepted, however, that he had been provided with a service weapon in that role. Her Honour also noted at [78] that the IAA had accepted that the applicant may have retained his service weapon while on medical leave but it did not accept that he would not have surrendered his weapon when his employment was terminated. The IAA further found that it was implausible that the applicant would have entrusted his weapon to a smuggler whom he did not know, rather than to his own family for the purpose of returning it to the police.
The IAA concluded that there was not a real chance of the applicant being prosecuted due to the non-return of his service weapon. Her Honour concluded at [81] that these findings were open to the authority on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.
As to the second matter, the primary judge referred to the IAA’s decision record in which it rejected the applicant’s claims that a battle had taken place outside the hospital in 2009, that an injured terrorist had been brought to the hospital and that the terrorist had been arrested. The primary judge noted that these findings were made by the IAA with reference to country information which did not indicate that there had been any battle near the hospital in 2009 or 2010. The IAA found that there was no basis on which members of the former Al Mahdi army would have held the applicant, his family or his tribe responsible for the imprisonment of the terrorist leader.
The primary judge referred at [85] to the IAA’s rejection of the applicant’s claims to have been targeted due to his association with coalition forces and the IAA noted that the applicant had not worked with the FPS since 2010. Given the lack of previous interest by militias in the applicant and the fact that he was no longer employed by the FPS, the IAA found it highly unlikely that the applicant would be targeted in Iraq. The primary judge found at [88] that these findings were open to the IAA, for the reasons it gave.
As to the third matter, relating to the interview with the delegate, the primary judge stated at [89] that there was no evidence before the Court to support the applicant’s claims.
The primary judge then addressed at [92]-[97] of the reasons for judgment the applicant’s claim, which was raised for the first time in reply, that he feared harm because of the data breach. Her Honour referred to the IAA’s decision record, which she found made it clear that the IAA considered the effect of the data breach, but concluded that the release of the applicant’s personal information did not increase the chance of him being harmed upon return to Iraq or that there was a real chance that he would face serious harm on return as a result of the data breach.
The primary judge concluded at [94] that these findings were open on the evidence and materials before the IAA and for the reasons it gave, including its adverse credibility findings. Her Honour described the applicant’s complaints regarding the data breach as being more in the nature of a disagreement with the merits of the IAA’s findings.
The primary judge also turned her attention to the fact that information had been given to the IAA which had not been disclosed to the applicant by virtue of the operation of s 473GB of the Act. Her Honour referred to the Full Court’s decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16) at [96]-[98]. Her Honour also noted that BBS16 was the subject of a special leave application to the High Court. Her Honour then implicitly adopted the Minister’s submission that she should follow BBS16 in which it was held that, because of the particular statutory scheme in Pt 7AA of the Act, there is no duty on the IAA, or any entitlement on the part of a referred applicant, to be involved in the IAA’s determinations with respect to certificates/notifications given under s 473GB, referring to [97] and [98] of BBS16.
For these reasons, the primary judge concluded that the IAA’s decision was not affected by jurisdictional error.
The proceedings in this Court
The applicant requires an extension of time to appeal from the FCCA’s orders because no notice of appeal was filed within the prescribed 21 day time period.
In an affidavit sworn 12 June 2018, the applicant said that he had tried to lodge his appeal application on 15 May 2018 but was told that, for him to obtain a fee waiver, he needed a letter from the Iraqi community to verify that he had no income and that he was supported by that community. He said that it took him some days to obtain the appropriate documentation.
The draft notice of appeal contained two paragraphs under the heading “Grounds of appeal”. The first was that the FCCA erred in failing to find that the IAA’s decision was affected by jurisdictional error. The ground was not particularised. The second paragraph stated that further grounds would be provided after the applicant obtained legal advice.
The applicant represented himself, as he also did below. He was assisted by an interpreter.
The applicant’s submissions summarised
The applicant failed to provide an outline of written submissions, nor did he seek to file an amended draft notice of appeal notwithstanding that he had indicated in his draft notice of appeal that this might occur.
At the hearing, when the applicant was asked to make oral submissions in support of his application, he started to recount the entirety of his case, as presented before the delegate. The Court asked him to focus upon why he said that the primary judge had fallen into error. The Court attempted to explain to him how its function differed from that of the FCCA, the IAA and delegate.
It emerged that the applicant’s primary complaint was that he had been treated differently from other protection visa applicants in detention. He said that he had not had the same access to legal advice as was given to other detainees to assist them in lodging a protection visa application. He said that the migration agent who was allocated to him fell ill and was unable to accompany him to the interview with the delegate. He also complained that the only contact he had with that migration agent was over the telephone, that the interpreter was Lebanese and did not properly interpret things which the applicant told the migration agent. He said that a replacement migration agent turned up to accompany him on the day of the delegate’s interview and told him that she knew nothing about his case and that this had never happened to her before.
The applicant acknowledged that a post-interview submission had been provided to the delegate and that this submission was prepared by his original migration agent.
The applicant said that it was certain that he would be killed or imprisoned if he were returned to Iraq, having regard to his previous work.
He said that all he wanted was a fair face-to-face interview so that his case could properly be presented. He said that his interview with the delegate was also unfair because he was told that all he could do was answer questions and not otherwise express himself as he wished.
The Minister’s submissions summarised
It is unnecessary to summarise the Minister’s submissions because they are substantially reflected in the reasons below for dismissing the application for an extension of time.
Consideration and disposition
One of the relevant matters which guides the discretion under r 36.05 of the Federal Court Rules 2011 (Cth) to extend time to appeal is the prospects of success. Another is whether the applicant has provided a sufficient explanation for the delay in commencing the proceeding. On the latter matter, I am willing to accept the applicant’s explanation as summarised in [27] above, particularly having regard to his unrepresented status. I am conscious of, and take into account, the fact that the proceedings relate to the applicant’s claim that Australia owes him protection. The stakes for him are particularly high.
The central difficulty for the applicant lies in the draft notice of appeal which simply asserts, without any particulars, that the primary judge erred in failing to find that the IAA’s decision was affected by jurisdictional error. The draft notice of appeal is patently inadequate. As noted above, the applicant did not seek to amend the draft notice of appeal notwithstanding that he had foreshadowed that he might do so. The applicant was unable to overcome these deficiencies in his oral submissions. He effectively invited the Court to consider the merits of his application for a protection visa. His complaints regarding the interview with the delegate were considered and rejected by the primary judge, as is also the case with his complaint that, even though he was a Shia, he was also at risk of harm by Shia militia (see her Honour’s reasons at [89]-[91] and at [55]-[56] respectively).
Conclusion
For these reasons, the application for an extension of time will be dismissed, with costs. It is not for this Court to determine whether there are compassionate grounds which make the applicant’s case suitable for consideration as to whether a non-compellable discretion under the Act should be exercised in his favour, but sufficient was said by the applicant from the Bar table to indicate that the relevant authorities might wish to address that matter.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 30 November 2018
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