DNX16 v Minister for Immigration and Border Protection
[2018] FCA 1896
•30 November 2018
FEDERAL COURT OF AUSTRALIA
DNX16 v Minister for Immigration and Border Protection [2018] FCA 1896
Appeal from: DNX16 v Minister for Immigration & Anor [2018] FCCA 1289 File number: NSD 1004 of 2018 Judge: BROMWICH J Date of judgment: 30 November 2018 Catchwords: MIGRATION – application for extension of time to file application for leave to appeal – whether application should succeed where proposed grounds of appeal lack reasonable prospect of success – held: proposed grounds of appeal lack reasonable prospect of success at impressionistic level – held: extension of time refused and application for leave to appeal dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Cases cited: Afu v Minister for Home Affairs [2018] FCA 1311
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
Date of hearing: 21 November 2018 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1004 of 2018 BETWEEN: DNX16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
30 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The applicant be refused an extension of time in which to bring an application for leave to appeal.
2.The application for leave to appeal be dismissed by reason of being out of time.
3.The applicant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an application brought out of time for leave to appeal from interlocutory orders of a judge of the Federal Circuit Court of Australia that dismissed a show cause application on 25 May 2018. That show cause application was directed to a judicial review challenge brought by the applicant against a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection, now the Minister for Home Affairs, to refuse the grant of a protection visa to the applicant.
The applicant’s claims for protection were summarised by the primary judge as follows (at [2], omitting footnotes):
The applicant first stated his claims for protection in his application for a Protection visa which he lodged on 4 December 2014. The applicant there claimed he left Lebanon to start a family with his “newly found bride to be in Australia” but that “this relationship has since broken down”; the applicant is “too afraid to return” to Lebanon as “ISIS have begun invading” and the applicant “may be killed” due to his beliefs; the applicant fears ISIS and death if he goes back to Lebanon; and the authorities are “ill equipped to take on this terrorist movement”. Before the delegate and the Tribunal the applicant claimed that “Daesh” controls Lebanon, that everybody is at risk of being killed by the group, that Hezbollah is secretly collaborating with ISIS, and that ISIS membership is made up of Sunnis, Shi’as, Christians, other religious groups and atheists.
The primary judge concisely summarised the Tribunal’s reasons as follows (at [3]-[10], omitting footnotes):
The Tribunal treated the applicant as having made three sets of claims. The first is what the Tribunal referred to as general claims relating to the applicant fearing ISIS, terrorist organisations, Hezbollah, and a lack of security in Lebanon, and the applicant’s being “particularly concerned” about a recent incident in his home area. The second set of claims is that “Daesh” controls Lebanon, that everybody is at risk of being killed by the group, that Hezbollah is secretly collaborating with ISIS, and that ISIS membership is made up of Sunnis, Shi’as, Christians, other religious groups and atheists. The third claim is that that Sunnis are all targeted by Hezbollah and ISIS.
As to the first of the three sets of claims it identified, the Tribunal accepted that in October 2014 attacks had occurred in the applicant’s home area, but it found no information to suggest attacks reoccurred, or that they occurred with any degree of frequency, or that the incident in October 2014 caused residents of the applicant’s home area to be displaced, as the applicant claimed to the delegate. After referring to country information the Tribunal also found there was no persuasive information before it to suggest that “Daesh” or other terrorist groups have targeted Sunnis generally or Sunnis who are opposed to a group’s particular interpretation of Islam and its practices.
As to the second set of claims the Tribunal noted the applicant provided no evidence to support these claims and, on the information before it, the Tribunal considered these claims to be “baseless and without any merit” and, therefore, was not satisfied there is a real chance or real risk that the applicant will face serious harm or significant harm in Lebanon at the hands of ISIS or other extremist or terrorist groups in Lebanon.
As to the third set of claims the Tribunal accepted the Sunni community in the applicant’s home area had been targeted by a terrorist group in August 2013, but the Tribunal found there had been no further similar attacks, and that country information did not support the claim that all Sunnis in Lebanon are being targeted by Hezbollah or anyone else because of their religion or imputed political opinion; and there was no evidence before it to support the applicant’s claim that the war in Syria had spread to Lebanon generally or to his home area in particular. The Tribunal also accepted that sectarian tensions have been on the rise in many areas of Lebanon as a result of the Syrian civil war and that some of these tensions may have been expressed in the form of hateful graffiti writings on walls in the applicant’s home area. The Tribunal, however, noted that the applicant’s mother and five of his siblings continue to live in his home area, and the applicant has not claimed that they have been subjected to any form of harm in the past. On the basis of the evidence before it, therefore, the Tribunal did not accept that Sunnis residing in the applicant’s home area face a real chance of serious harm or a real risk of significant harm at the hands of ISIS, other Sunni terrorist groups, Hezbollah, or anyone else.
The Tribunal also found there was no persuasive evidence before it to suggest that the tensions, lack of general security, and any instability the applicant may be concerned about is faced by him personally. The Tribunal appreciated that the applicant is concerned about general violence, political and sectarian conflict in Lebanon, but it was not satisfied that the general security situation would expose the applicant to a real chance of persecution for a Convention reason.
The Tribunal was not satisfied, therefore, there is a real chance the applicant will be subjected to serious harm for reasons of his political opinion, religion, membership of a particular group, including the particular social group of his family or any other social group on the face of the evidence or for any other Convention reason. The Tribunal was also not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Australia that the applicant will face significant harm in Lebanon, arising from his religion, his imputed political opinion, area of residence or other circumstances.
The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that the applicant will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of “torture” in s.5(1) of the Migration Act 1958 (Cth)(Act). The Tribunal was not satisfied there are substantial grounds for believing there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment; or that the applicant will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act; or that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of life or the death penalty.
For those reasons the Tribunal found the applicant did not meet the criteria set out in s.36(2)(a) or s.36(2)(aa) of the Act.
The sole ground of review before the primary judge was that the Tribunal “misunderstood my well-founded fear of persecution even though he accepted the sectarian tensions in my area yet failed to accept my subjective fear of persecution and harm”. His Honour took the applicant as advancing three claims by that ground:
The Tribunal misunderstood the grounds on which the applicant claimed he had a well‑founded fear of persecution.
The Tribunal acted unreasonably or irrationally in concluding the applicant did not have a well-founded fear of persecution, even though it accepted there was sectarian violence.
The Tribunal did not accept the applicant had a subjective fear of persecution or harm.
The primary judge found that none of those three claims were arguable because:
(1)the Tribunal set out the claims it understood the applicant to have made, and there was nothing to suggest that understanding was incorrect;
(2)there was no inevitability that a finding of sectarian violence would lead to a conclusion that the applicant had a well-founded fear of persecution; and
(3)the Tribunal did accept that the applicant had a subjective fear of persecution because of his concerns about general violence, political conflict and sectarian tensions in Lebanon, but even if that finding had not been made, that would not, without more, constitute jurisdictional error – there was no jurisdictional error in the Tribunal concluding that it was not satisfied that the applicant would face a real risk of serious or significant harm if he were to return to Lebanon.
The primary judge then turned to the submissions that the applicant made at the hearing, discerning three additional claims, which his Honour articulated and dealt with as follows (at [23]-[26]):
I then turn to the submissions the applicant made at the hearing. The applicant may be taken to have made a number of claims. One is that the Tribunal did not consider the applicant’s claims or the matters the applicant said or submitted to the Tribunal in support of his claims. That is not arguable. It is beyond argument the Tribunal identified the applicant’s claims; and, as is apparent from my description of the Tribunal’s reasons, it is beyond argument the Tribunal considered those claims.
A second claim the applicant may be taken to have made at the hearing before me is that the Tribunal’s rejection of his claims was unreasonable and unjust. That is not arguable. It is beyond argument the Tribunal identified the applicant’s claims, it considered them, and gave reasons for not accepting them. It is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.
Finally, there is the potential claim that may arise from the applicant’s evidence that he told the Tribunal that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence. It is not reasonably arguable that the applicant said any such thing to the Tribunal. The Transcript records no words to that effect; and the applicant said that the audio recording that he heard does not record any statement made by the applicant in Arabic at the hearing that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence. The applicant also said that the only basis he said the audio recording was not a complete record of the hearing before the Tribunal was that it did not record that which the applicant recalls he said. In these circumstances, it is not arguable that the applicant did say to the Tribunal words to the effect that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence.
Even if, however, it is arguable the applicant made such statement, his having made the statement could only have been relevant to the Tribunal’s assessment of the applicant’s state of mind, that is, his asserted subjective fear of significant harm if he returns to Lebanon. If, therefore, the applicant did make such statement, it could not arguably have affected the Tribunal’s decision because, for reasons that disclose no arguable jurisdictional error, the Tribunal was not satisfied that (objectively) the applicant faced a real risk of significant or serious harm if he were to return to Lebanon.
The primary judge was satisfied that the applicant had no arguable case for the relief he sought, and therefore dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). It is not in doubt that his Honour’s decision was interlocutory, such that the applicant requires leave to appeal, nor that the applicant was late in applying for leave to appeal, such that he requires an extension of time.
The applicant’s explanation for his delay in filing an application for leave to appeal was that, while he understood that he could appeal, he was not aware of the time limit. The time limit was 14 days, such that the application was required to be filed by 8 June 2018. The application was filed four days later, on 12 June 2018. The Minister properly disavowed any prejudice beyond costs in granting the extension of time, and only really opposed it upon the basis that the proposed appeal was insufficiently meritorious. While the merit threshold for a grant of an extension of time is not onerous, if it can be confidently concluded on an impressionistic reading of the proposed grounds that those grounds must fail, an extension of time should not be granted: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] and [66]; see also Afu v Minister for Home Affairs [2018] FCA 1311 at [3].
In this case, it is only necessary to consider whether the explanation given for the delay is satisfactory if the impressionistic merits threshold is not met, although, generally speaking, an applicant must take responsibility to make proper enquiries to determine when an appeal is required to be lodged, for otherwise such time limits would become meaningless. I would generally be more accommodating if a short delay, in this case of only a few days, were the only real barrier to the grant of an extension of time, and if the explanation for that delay were at least plausible. However, as will be seen, neither the extent of the delay, nor the plausibility of the explanation for it, are the real barriers to the grant of an extension of time in this case.
The applicant’s proposed grounds of appeal in his draft notice of appeal are as follows:
1.His Honour misunderstood the error of law and my well-founded fear of persecution.
2.The Tribunal and His Honour failed to accept that the Tribunal was expected to make enquiries and failed to do so.
The Minister’s written submissions assert that the proposed grounds of appeal lack any reasonable prospect of success because:
(1)they fail to establish any basis to indicate that the proposed appeal has any prospect of success;
(2)the applicant has not articulated how the primary judge misunderstood the law, made any error of law, or otherwise misunderstood the applicant's claims to fear persecution;
(3)there are no particulars to make the first proposed ground of appeal meaningful, especially given that the primary judge correctly set out the applicant's claims to fear persecution, afforded a generous interpretation of the applicant’s ground of review and his oral submissions at the hearing, and made no apparent error in concluding that those grounds failed to raise an arguable case for the relief sought;
(4)the complaint in the second proposed ground of appeal was not raised in the Court below, but is, in any event, unsupported by any particulars, in circumstances in which no duty to inquire arose in the limited sense of a failure to make an inquiry about a critical fact, the existence of which was easily ascertained, going to the proper exercise of the review function – rather, the Tribunal's decision turned on its assessment of country information, which was relied upon:
(a)to reject the applicant’s claims that he faced a real chance or real risk of harm in Lebanon from ISIS or any other extremist or terrorist group, noting also that the applicant's family continued to reside in the area he came from; and
(b)to find that the applicant did not face a risk of harm arising from generalised violence.
Each of the above submissions must be accepted as an accurate characterisation of the proposed grounds of appeal.
At the hearing of the application for an extension of time and leave to appeal, the applicant handed up and solely relied upon written submissions, not making any oral submissions. The Minister accurately summarised those submissions as amounting to no more than a disagreement with the Tribunal’s conclusions and dissatisfaction with the primary judge’s decision. Most of the applicant’s written submissions contain references to the evidence that was before the Tribunal, including by way of hearing transcript references. Those submissions do nothing to advance the applicant’s case.
I am of the view that the proposed grounds of appeal have no prospect of success, taken at an impressionistic level, in the context of reasonable comprehension of both the Tribunal’s reasons and the primary judge’s decision so as to be able make that assessment. In those circumstances, there is no proper basis for granting the extension of time sought. The application for an extension of time must therefore be dismissed. The application for leave to appeal must accordingly be dismissed for being out of time. The applicant must pay the Minister’s costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 30 November 2018
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