Dus17 v Minister for Immigration

[2018] FCCA 2726

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2726

Catchwords:
MIGRATION – Immigration Assessment Authority – application to extend time under s 477 of the Act – application filed out of time – no satisfactory explanation for the delay – no sufficiently arguable case of jurisdictional error to make necessary an extension of time – application for an extension of time under s 477 of the Act is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476, 477

Applicant: DUS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2658 of 2017

Judgment of: Judge Street

Hearing date: 21 September 2018

Date of Last Submission: 21 September 2018

Delivered at: Sydney

Delivered on: 21 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Evans
Mills Oakley

ORDERS

1. The application for an extension of time 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 $3,667.00.

DATE OF ORDER: 21 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2658 of 2017

DUS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 24 August 2017 seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 14 March 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 14 May 2013. The applicant was found to be a Shia Muslim from the Nasiriyah, Dhi Qar province in Iraq.

3. The applicant claimed he had been present at the time that a person was shot twice and that the person was a member of a particular tribe. The applicant was the subject of a statement to the police and gave evidence at a trial in May 2010, at which the person from a particular tribe was found guilty of murder in relation to the person shot and he was sentenced to 25 years imprisonment. The convicted person’s relatives came to the applicant’s home and allegedly threatened to kill the applicant. The applicant alleges that he reported it to the police who responded it was a tribal thing and that they would not get involved in tribal matters.

4. The applicant alleges the convicted person’s family came to his home again in 2012 and that there was an appeal being pursued against the sentence. The appeal was unsuccessful in February 2013. It was alleged that the convicted person’s brothers went to another witness’ house and shot him in the legs and that the convicted person’s brothers threatened to kill the applicant. The applicant alleges that he then made arrangements to depart the country. The applicant alleges that the convicted person’s brothers have come to his parents’ house and asserted they were connected with a militia and that if the applicant returns to Iraq the whole family would suffer because of him.

5. On 1 February 2017, the delegate found the applicant failed to meet the criteria for a Temporary Protection visa.

6. On 6 February 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter gave the applicant opportunity to put on new information and submissions. Submissions were provided on behalf of the applicant which were explicitly referred to in the Authority’s reasons. The Authority found that the information provided engaged with the delegate’s decision and was not new information and had regard to the same.

7. The Authority in its reasons summarised the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and evidence.

8. The Authority was satisfied that the applicant witnessed the shooting of a person and gave evidence at the trial relating to the murder. The Authority identified that the main issue is whether or not the applicant was, in fact, the subject of threats from the family of the convicted murderer. The Authority referred to inconsistencies in the applicant’s statements and the protection visa interview in relation to the threats once the convicted person had been sentenced. The Authority found these inconsistencies impact on the applicant’s credibility.

9. The Authority accepted that there was an initial threat in 2010 but that the applicant and the other witness did testify and no harm came to them. The Authority did not accept the applicant’s more recent claim that the convicted person’s family then visited him over two years later to apprise him of their legal challenge. The Authority found that the applicant provided no explanation as to why they would do this. The Authority did not consider it plausible that the convicted person’s family would expect the applicant would be released from gaol some two years after the murder, were the appeal successful. The Authority referred to what was more likely if, in fact, the convicted person’s family blamed the applicant.

10. Taking into account the whole of the applicant’s evidence and the inconsistencies and implausibilities, the Authority was not satisfied the applicant was the subject of any further threats or actions from the convicted person’s family once he had given evidence in Court in May 2010. The Authority did not accept the applicant’s friend was shot by the brothers of the convicted person in February 2013. The Authority did not accept the applicant would be in any danger of harm from the convicted person’s family, the Al Ghizi tribe or any militias associated with that tribe, should the applicant return to his home region.

11. The Authority identified the relevant law. The Authority was not satisfied that in the future there is a real chance that the threat made against the applicant in 2010 would be realised or manifest into actions causing serious harm, or that the threat itself amounts to serious harm. The Authority found the applicant does not have a real chance of being harmed on the basis that he or his family are of interest to any militia groups.

12. The Authority found that the applicant did not claim to have experienced harm on any other basis and did not claim to fear that he would be harmed for any other reason on return to Iraq.

13. It was in those circumstances that the Authority found that the applicant failed to meet the definition of “refugee” in s 5H(1) of the Act and found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

14. The Authority also identified the relevant law in relation to complementary protection and referred to having concluded that the applicant does not face a real chance of harm on the basis that he gave evidence in a murder trial and was threatened by the convicted person’s family.

15. The Authority referred to the real risk and real chance involving the same standard and was not satisfied the applicant would face a real risk of significant harm for the purposes of s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced from 24 August 2017, approximately four months outside of the 35 day period required under s 477 of the Act.

2. At the commencement of the hearing the Court explained to the applicant the nature of the application for an extension of time under s 477 of the Act and the applicant confirmed that he understood the nature of the hearing as explained by the Court. The requirements of s 477(2)(a) of the Act is met by the application made in writing.

3. From the bar table the applicant explained that he did not have income and that he could not pay the lawyers to retrieve his file and that was the reason for the delay. Whilst the Court does understand that the applicant may have had financial difficulties, that of itself is not a satisfactory explanation for the delay. No particular prejudice is asserted by the first respondent in the present case, and the more material issue in the circumstances of the present case is whether on a preliminary impressionistic level there is sufficient merit in the grounds advanced by the applicant to make necessary an extension of time in the interests of the administration of justice.

4. From the bar table, the applicant maintained that there was a tribal problem as a result of his having been a witness and that he faced harm from the militia and the tribe. It is apparent, as referred to above, that the Authority took into account the applicant’s claims to fear harm from both militia and by the tribe and expressly referred to the same in the adverse findings made by the Authority as summarised above. The adverse findings made by the Authority were open for the reason given by the Authority, as summarised above in paragraphs 9 to 10, and cannot be said to lack an evident and intelligible justification. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

The proposed grounds

1. The proposed grounds in the application are as follows:

   1. The Immigration Assessment Authority “IAA” failed to take into account relevant considerations, the “IAA” took into account irrelevant consideration.

   Particulars

   A. The IAA failed to take into account the tribal threats that I will face if I go back to Iraq, no assessment was made to the tribal threats although the IAA recognised that I was threatened, the IAA committed legal error in not following the country information in this regard which suggest that the tribal law is the dominant factor in Iraq.

   B. The IAA contention that nothing happened two years after I received the threat is not based on legal foundation, the absence of targeting during specific period of time doesn’t mean that there is no real chance of persecution, accordingly the IAA failed to properly test the real chance of persecution criteria.

   2. The Immigration Assessment Authority “IAA” decision is unreasonable.

   3. The IAA failed to take into account the complementary protection criteria’s.

Proposed Ground 1

1. In relation to proposed ground 1, the proposition that the Authority failed to take into account the applicant’s claim to fear harm from the tribe of the convicted person is not supported on a fair reading of the Authority’s decision. The Authority referred to the applicant’s claims to fear harm from the tribe and militia and made adverse findings that appears open to the Authority for the reasons summarised above.  At an impressionistic level there was no failure to take into account a relevant consideration.

2. The particulars to proposed ground 1 assert that the Authority took into account an irrelevant consideration and yet nothing happened in the time after the first threat in 2010. That does not reflect a correct analysis of the Authority’s reasons. While accepting the threat in 2010, the Authority made adverse credit findings in relation to the applicant’s claims to have been further targeted after 2010. At an impressionistic level those adverse findings were open to the Authority. Proposed ground 1 lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.

Proposed Ground 2

1. In relation to proposed ground 2, the assertion that the decision is unreasonable does not of itself identify any arguable case of jurisdictional error. The Authority’s reasons on their face at an impressionistic level reflect a compliance with the statutory regime in the conduct of the review. The Authority gave logical and rational reasons in support of the adverse findings. There was no apparent legal unreasonableness in process, conduct or outcome apparent on the face of the material before the Court. Proposed ground 2 lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.

Proposed Ground 3

1. In relation to proposed ground 3, the assertion that the Authority failed to consider the applicant’s claims under the complementary protection criteria are not correct. It is apparent that the Authority did do so and the Authority correctly identified the test in relation to real risk and real chance as being the same. The Authority was entitled to take into account the adverse findings made under the Refugees Convention in considering whether or not the applicant met the criteria in respect of complimentary protection. Proposed ground 3 fails to identify a sufficiently meritorious argument to warrant or to make necessary any extension of time in the interests of the administration of justice.

Conclusion

1. In the circumstances of the present case, where the explanation of the delay is one the Court finds is not satisfactory, and where there are insufficient merits in respect of the proposed grounds in the application, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

2. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018