Dom19 v Minister for Immigration

[2020] FCCA 2349

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOM19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2349

Catchwords:

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth): s.36(2A)

Applicant: DOM19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 368 of 2019

Judgment of: Judge Vasta

Hearing date: 13 February 2020

Date of Last Submission: 13 February 2020

Delivered at: Perth

Delivered on: 13 February 2020

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent: Ms Taggart

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Applicant’s oral application for an adjournment of these proceedings is refused.

2. That the Application for an extension of time is refused.

3. That the Application filed 18 September 2019 is otherwise dismissed.

4. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 368 of 2019

DOM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 8 July 2019, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision made by the delegate not to grant the Applicant EOM19 a protection visa.  On 5 September 2019, the Applicant filed an application in this Court asking this Court to review that decision. 

2. As can be seen from those dates, the Applicant filed his application well and truly outside the 35-day timeframe and accordingly, this proceeding is an application for an extension of time within which to file the application and if that is successful, then, I will deal with the merits of the application.

3. The background to the matter is the Applicant had claimed that he was stateless, but he was born in Thiet, South Tonj in Southern Sudan.  From 1997 to 2004, the Applicant and his family resided in the Imvepi Settlement Camp in Uganda.  On 1 July 2003, an application for a global special humanitarian visa was lodged.  The Applicant was a dependent on the application of the main Applicant, being his paternal aunt.  On 15 April 2004, that visa was granted to the aunt, and the Applicant was a named dependent. 

4. The Applicant arrived in Australia on 8 September 2004.  Without going into any detail at all, the Applicant has committed crimes in this country and has been convicted and incarcerated.  On 16 January 2018, the global special humanitarian visa was cancelled on character or related grounds.  A week later, on 23 January 2018, the Applicant lodged a request for revocation of a cancellation. 

5. On 21 September 2018, the Department determined not to revoke the cancellation.  The Applicant appealed that decision to the Administrative Appeals Tribunal.  The Administrative Appeals Tribunal, on 14 December 2018, affirmed the revocation of the cancellation of the visa.  10 days later, on 24 December 2018, the Applicant applied for a protection visa.  That is the subject of this application.  As I have noted, that is the history that brings the matter here. 

6. The Applicant attended an interview with the delegate on 23 January 2019 and the Applicant then made these claims which he repeated to the Tribunal.  That is, that the Applicant says that he is stateless and not a citizen of South Sudan;  that he left South Sudan at a young age due to the civil war;  that South Sudan is an unsafe country;  that he is likely to be killed if he is returned to South Sudan as he does not know anything about South Sudan or speak their language;  that there is a lack of employment and opportunities available to him in South Sudan;  and, that he moved to Uganda because of the civil wars in South Sudan.

7. He said that he fears the authorities in South Sudan, as it will be viewed that he is vastly wealthy because he is from Australia and he will be targeted due to this perception. 

8. The Tribunal had a large amount of material.  It looked at the country information, especially what the law in South Sudan was as to nationality.  The Tribunal went through quite a dissertation as to what the law regarding citizenship in South Sudan is, but it became clear that the Applicant was considered, under that law, a citizen of South Sudan.

9. He was born in the area that is in South Sudan and his parents were born there.  For those reasons, the Applicant is deemed, under South Sudanese law, to be a citizen of South Sudan.  The Tribunal then proceeded to look further at the matter, noting South Sudan as being the receiving country.  The Applicant spoke of the few memories that he had because he was three years old when he left South Sudan because of the civil war.  He said that his father is still living in Uganda, whilst his mother had passed away in 2014.

10. He said that he and his brothers left with his aunt and his uncle, who was in the United States, paid for their transport.  He said that there is no family left in South Sudan.  The Tribunal asked whether the Applicant identified as a member of the Dinka people.  The Applicant then said to the Tribunal that he feared returning to South Sudan because he is Dinka.  The Tribunal asked why that was the case, and the Applicant replied that there is a civil war between the Dinkas and the Nuer tribe.

11. The Tribunal then had access to the country information from DFAT.  Whilst there had been some targeting of Dinkas by the Sudan People’s Liberation Army in opposition, this was occurring in conflict-affected areas.  The main town of Juba is, in majority, Dinka populated.  In fact, the Dinkas are the largest ethnic group within South Sudan, having, it would seem, more than twice the numbers that the next largest ethnic group has.  The DFAT information was that in Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated government currently has almost unencumbered control over Juba.

12. The Applicant said to the Tribunal, when that was put to him, that he does not come from Juba.  The Tribunal explained that he could live in Juba and the fear that he has therefore does not relate to all areas of the country.  The Applicant simply said he does not want to go back to a country that he knows nothing about. 

13. The Applicant had claimed to be a Christian and the Tribunal noted that the majority of the population in South Sudan is Christian, though there are some people in the more isolated areas that follow traditional tribal beliefs, but the main Christian religions are quite prominent, with the African Inland Church, the Presbyterian, the Evangelical, Roman Catholic, Sudan Pentecostal, Sudan Interior, Coptic Orthodox, Ethiopian Orthodox, and Greek Orthodox churches being present.

14. Many Muslims, it is noted, migrated to Sudan following South Sudan’s independence, though some remain.  The Applicant agreed then that he had no fear of being a Christian in South Sudan.  The Applicant made a claim that he would be killed if he were returned to South Sudan and the Tribunal asked him to explain why that may be the case. He replied that he would be singled out in South Sudan because of the way he speaks.  The Tribunal confirmed to the Applicant that English is the official language of South Sudan, although Arabic is widely spoken.

15. Other regional and tribal languages are also very common outside of Juba.  The Tribunal noted that the Applicant appeared genuinely surprised, stating that he thought South Sudanese spoke Arabic.  The Tribunal suggested to the Applicant that it did not seem likely he would be persecuted because of his language.  At that, the Applicant said that it related more to the way he spoke and that it would be clear that he had been Westernised and that he would give the appearance of possibly having money.  

16. Therefore, he said that he would be a target for kidnapping and be killed because he had no money.  The country information was that there are quite a number of people who are returning to South Sudan, especially people who were Dinkas.  The country information noted that, given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence.  Other ethnicities who had not threatened the authority of the government or were supporting the Liberation Movement-in-Opposition would also be able to return to Juba without facing discrimination or violence.

17. The Applicant reiterated that he thought South Sudan was dangerous and he did not want to go back.  The Tribunal discussed with the Applicant his work experiences in Australia, and the Applicant told the Tribunal about his work in civil demolition and construction.  He said that when he lost his job was when his troubles began. 

18. The Tribunal noted that the Applicant was skilled, and then, discussed country information that suggested that, whilst there is high unemployment in South Sudan, there is a lack of skilled and educated people following years of civil war and that the South Sudanese government was counting on the return of those people with skills who are educated, particularly English-speaking people.

19. The Tribunal raised this with the Applicant and suggested that he might have better employment prospects in South Sudan, and particularly, in Juba, than many of the locals.  The Tribunal noted that the delegate had suggested that someone who returned from a Western country and was familiar with the operation of a society based on the Rule of Law might be an attractive candidate for a position of trust.  The Tribunal asked the Applicant what he thought of that suggestion from the delegate, and the Applicant replied he would like to study engineering and work with young people.

20. When the Tribunal discussed him utilising those skills in South Sudan, the Applicant replied he could not leave his children and his partner behind.  The Tribunal said to the Applicant that it needed to understand how the Applicant says he would personally be at risk from suffering harm as distinct from the situation for the whole country.  The Applicant reiterated that he would appear to be rich. 

21. The Tribunal spoke to two witnesses; one of whom is the Applicant’s current partner and who was a complainant in one of the matters for which the Applicant was incarcerated, and the other is the daughter of that woman or the stepdaughter of the Applicant.

22. The Tribunal then assessed the Applicant’s claims.  They noted that the Applicant’s claims during the hearing were vague and uncertain, and whilst the Tribunal accepts that the Applicant left South Africa as a child and his recollections of events are substantially what he has been told in the intervening years since their departure, that really was no substitute for the country information. 

23. At paragraph 101 of their reasons, the Tribunal said that:

    101. The Tribunal is satisfied, after a long discussion with the applicant and consideration of his evidence, that he has a subjective fear of harm of returning to South Sudan.  The Tribunal accepts that the applicant does not want to return to South Sudan and wishes to stay in Australia where he can be reunited with his partner and step-children.  The Tribunal acknowledges the evidence of his witnesses as to his being a good father and partner, and the Tribunal accepts that the applicant is apologetic for his crimes.

24. The Tribunal then assessed whether that fear that the Applicant has is actually well-founded by going through the objective evidence.  The Tribunal was satisfied that the Applicant did not have a well-founded fear of persecution on the basis of political opinion, nor of ethnicity in that he is a Dinka, nor because he appears Westernised and he speaks English, and nor because of his religion.  The Tribunal looked at the fact the Applicant has a criminal record in Australia, but because the victim of his crimes is not a person of South Sudanese extraction, there is no risk that the Applicant would be harmed if he returns to South Sudan because of the nature of his crimes or by any victim’s family or by the community.

25. The Tribunal acknowledged that the South Sudanese authorities may question him on his return, particularly if he is returned on an involuntary basis, but that, even if he were detained and questioned, he would not face a real chance of serious harm or a real risk of significant harm as the South Sudanese government has no adverse interest in him. 

26. The Tribunal noted the claim that the Applicant says that he has nowhere to live and no remaining family in South Sudan, and that he had been absent there for well over 20 years, but noted the country information about people returning to South Sudan and the Applicant’s chances of being part of building of a new and better society in South Sudan.

27. The Tribunal did not accept that the Applicant would not be able to find and obtain work upon return to support himself and was satisfied he would be able to find employment as he has skills and experience and language advantages that would assist him in a workplace.  The Tribunal noted that the Applicant may experience some financial hardship upon his immediate return, but that that would not be significant nor would it amount to serious harm.  The Tribunal did not accept that the Applicant would not be able to find accommodation and found that he had the capacity to subsist on his return to South Sudan.

28. The Tribunal was satisfied the Applicant does not have a well-founded fear of persecution for any reason now or in the foreseeable future if he returns to South Sudan. 

29. The Tribunal then looked at the complementary protection criteria, and again, relied somewhat heavily on the country information. The Tribunal noted the Applicant made a vague claim as to concerns of being separated from his partner, his stepchildren, his brother, and aunt, but the Tribunal, looking at Federal Court authority, found that separation from family members could not amount to significant harm.

30. Whilst the Tribunal noted that the Applicant may enjoy less favourable social, economic, or cultural rights, this in itself, did not give rise to a non-refoulement obligation, nor did it constitute degrading treatment. 

31. The Tribunal then was of the view that the Applicant did not fulfil the complementary protection criteria and therefore, it affirmed the decision. 

32. The Applicant’s application before this Court, that was filed late, has a number of bland grounds that have no particularity.  I will read them into the record.  They are actually found not on his application, but on his affidavit.  They are:

    The Second Respondent decision was unreasonable.

    The Second Respondent failed to take relevant considerations into account.

    There was insufficient evidence or no evidence to support various findings made by the Second Respondent.

    The Second Respondent decision involved an error of law.

    The Second Respondent’s in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.

33. The Applicant appeared by video link before me today as he is still in immigration custody.  I explained to him the purpose of this hearing and he did not seem to have appreciated the role of the Court in reviewing the decision as opposed to the decision being an appeal. 

34. I asked him to tell me what errors he thought that the Tribunal had made. 

35. The Applicant said to me that the decision of the AAT was unreasonable because he came here on a humanitarian visa;  he had lived here all his life;  his family was here;  it did not make sense to send him to a country that he knew nothing about;  that he was entitled to protection as a refugee in Australia;  that South Sudan was a war-torn country;  that this would affect his mental health;  that it would be hard for him to get on his feet in South Sudan;  that he feels safe here in Australia;  that the hardship of being deported is taking its toll on him;  that the fear of deportation has changed him;  that he looks at life in a different way;  that he does not see a good life in South Sudan; that Australia is his home;  that this is where he grew up, this is where he went to school, this is where he was educated, this is where he has had all of his major life experiences;  that he could not see why he did not meet the criteria and that he wanted a second chance;  and, that the AAT did not give him a second chance.

36. Whilst I have been able to recount those matters over the course of less than a minute, it took an inordinate amount of time for the Applicant to say all of those things with large pauses of sometimes one to two minutes in between matters and a great deal of repetition. 

37. After he had seemingly exhausted his complaints about the AAT, I explained to him that this was a list of matters that really went to trying to evoke my sympathy and that I needed to be able to look at this matter wholly and solely on whether the AAT had completed its task properly, rather than being swayed by emotive or sympathetic feelings I may have to the Applicant.

38. At that point, the video link dropped out for the second time, just as I was telling the Applicant that it was no use for him to repeat himself or to say anything that he had already said because the repetition of a point did not make it any stronger.  Once we resumed after the link was re-established and I asked the Applicant to continue but not to repeat himself, the Applicant then said that he wanted an adjournment because he wanted to find a lawyer.  He said that he had tried to get one but could not afford one because all of them wanted money in advance, but that he had just spoken to another inmate in the detention centre who has a lawyer and who told him that he should talk to his lawyer.

39. He said to me that he had difficulty finding what errors the AAT has made and it would be better for him if he had a lawyer on his side to help him. 

40. This application for adjournment, not surprisingly, was opposed by the Minister.  In the end, it seems to me that the application for an adjournment he made was an opportunistic one which mirrored what the AAT had described of some of the claims that the Applicant had made.  It was made only after I had told the Applicant of the realities of the situation.  The Applicant himself admitted that he has had trouble identifying what errors the AAT has made.

41. In effect, he is saying he does not know what errors that have been made.  He is simply upset with the decision. The case for granting an adjournment is not that, upon resumption, there will definitely be a lawyer here and the lawyer will have a reason as to why there is some merit in this matter.  I must weigh up, in the interests of justice, what the Applicant has asked for and what the community actually needs.  Given the fact that there are such a huge backlog of matters and the Applicant is in detention, it is incumbent on the Court to act in proper time.

42. The Applicant has filed this application.  He filed it in September of last year.  This date has been known for some time, and during the hearing, when told of the realities of the situation, it is only then that he has asked for a lawyer. It is still speculative as to whether a lawyer would be available and even more speculative that there would be found any error.  The interests of the community outweigh any need or desire for an adjournment.  I therefore declined to adjourn the matter and asked the Applicant to continue with his submissions.

1. He had some trouble being able to tell me anything that he had not already said.  It was then that I reminded him that this was an application for extension for time and I asked him then why it took so long for the matter to be filed. 

2. The Applicant said to me that he did not know what the procedures were.  The Applicant did say that he did file his application, but he filed it in the Federal Court.  He annexed his communications with the Court to his affidavit.  It is clear that on 24 July 2019, well within the 35 days, the Federal Court wrote to the Applicant and explained that he had made an error in filing the matters in this Court and that he should be looking at filing in the Federal Circuit Court which had jurisdiction in respect of a greater range of migration decisions. The letter explained that he could get some legal advice or he could file the matters himself and the websites and links were put in the letter.

3. Notwithstanding that this letter was sent to the Applicant on 24 July, it was not until 5 September, which was now well outside the 35 days, that the Applicant filed his material.  The only excuse he has given to me is again, that he did not know what the procedures were. 

4. The fact that he was able to file in the Federal Court and then, later, in the Federal Circuit Court does seem to fly in the face of that assertion. 

5. The Applicant then listened to the submissions of the Minister and then, in reply, said to me that the AAT did not take into account that he had been incarcerated for over 20 months and that he only did nine months imprisonment and that he would have a home and employment to go back to, and that he had been a carer for his aunt.

6. None of those matters that the Applicant has raised really amount to anything other than an attempt at an impermissible merits review.  It is clear that the AAT took into account all of those matters that the Applicant has spoken of.  It is clear in the language that is used, that the AAT was well aware that the Applicant had lived the majority of his life, and certainly, his adult life in Australia;  that he had been accustomed to living in Australia;  that he did have a relationship in Australia;  that he did have family in Australia, especially his brothers and aunt;  it did take into account the evidence of this partner and stepdaughter;  it did take into account the situation in South Sudan;  it did take into account the fact that the Applicant had not been to South Sudan since he was three years old;  and, that the Applicant would face difficulties. But the Tribunal was concerned with whether there would be “significant harm” to the Applicant.

7. None of those things went to whether or not the Applicant would face significant harm and whether he therefore had a well-founded fear of persecution.  The AAT was extremely thorough in its examination and its reliance upon the country information cannot be brought into any form of disrepute. 

8. The decision cannot be said to be unreasonable because it was a decision that was open to the Tribunal.  As I had tried to explain to the Applicant, it is not whether I would have come to the same decision or whether anyone else would have come to the same decision.  It is whether it was possible on that evidence for the Tribunal to have come to that decision.  It was open, and on that basis, it cannot be said that the decision was unreasonable. 

9. There are no relevant considerations – that is, considerations that the Tribunal was mandatorily obliged to consider – that they did not consider.  There was certainly sufficient evidence to support all findings that have been made by the AAT.  There were no errors of law that have been able to be identified, and the AAT complied with its obligations under the Act dealing with procedural fairness and natural justice.

10. Having gone through all of this, it would seem to me that the Applicant has very little hope of mounting an arguable case that the Tribunal has committed a jurisdictional error. 

11. When one combines that with the excuse for late filing that the Applicant has given; that is, he did not know what the procedures were, it would seem that in the two aspects that I must take into consideration – that is, the excuse the Applicant has made and whether there is an arguable case – the Applicant has not satisfied me on either of those matters. 

12. I therefore refuse the application to extend the time within which to file the application.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 26 August 2020