EAD17 v Minister for Immigration

[2018] FCCA 849

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 849

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority failed to consider integers of the applicant’s claims – whether the Authority failed to consider the material provided by the applicant – whether the Authority’s reasons were illogical or irrational – no jurisdictional error made out – application for an extension of time dismissed.

Legislation:

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

Applicant: EAD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2782 of 2017

Judgment of: Judge Street

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 10 April 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Evans
Mills Oakley Lawyers

ORDERS

1. The oral application for an adjournment is dismissed.

2. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2782 of 2017

EAD17

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 seeking a constitutional writ in respect of the decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 5 July 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 3 April 2013 as an unauthorised maritime arrival. The applicant claimed to fear harm because he would be perceived to be a Sunni, or pro-Sunni, because of his family name, and his origins in a Sunni-majority province, and his moderate Shia religious values and behaviour. The applicant also claimed to fear harm from Daesh and Shia militia groups and Sunni clans. The applicant also claimed to fear harm because he has become secularised in Australia and is hostile to both radical Islamic terrorists and Shia fundamentalists and that he may not comply with conservative religious edicts.

3. On 2 May 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.

The Authority

1. On 12 May 2017, the Authority wrote to the applicant informing the applicant that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No submissions or new information was provided by the applicant in response to that letter.

2. The Authority, in its reasons, identified the background to the application for the visa and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and accepted that the applicant had lived in a particular area from approximately 2002 until his departure from Iraq in 2013. The Authority found the applicant continued to identify himself as a Shia Muslim and did not accept the applicant was perceived to be opposed to Islam, or that he was of any adverse interest to Sunni or Shia groups, or any other group or person on the basis of him being opposed to those groups at the time that he left Iraq. The Authority did not accept the applicant was of any adverse interest to any Shia group, or any other group or person in a particular area, on the basis of his Sunni name or his origins at the time he left Iraq.

3. The Authority referred to the time the applicant had spent in a particular area apart from the year he spent working in Jordan and, having regard to that length of time that he lived at his address, the Authority did not accept that the applicant was perceived to be Sunni within his local community at the time that he left Iraq.

4. The Authority turned to the applicant’s claim that his father received a threatening letter in November 2012. The Authority identified concerns in relation to the nature of the letter, in particular the father purportedly reporting the threat to a police station that was in another city. Nonetheless, the Authority was prepared to accept that the applicant’s father received a threatening letter from Daesh in Ramadi in November 2012.

5. The Authority also accepted that the applicant’s brother was killed by unknown gunmen in Ramadi in December 2012. The Authority referred to the applicant identifying at the Temporary Protection visa interview that his father was killed by a car in a particular area in May or July 2015. The Authority did not accept the applicant’s father was killed by members of the Shia militia group or any other group in a pre-meditated attack.

6. The Authority identified the relevant law and was not satisfied the applicant would publicly express his opposition to fundamentalist Islam, or that he would engage in any other behaviour that may be perceived to be anti-Islam or inconsistent with conservative religious values on his return to Iraq. The Authority was not satisfied there is a real chance of harm to the applicant from Shia militia groups on the basis of his moderate Shia religious beliefs and practices.

7. The Authority referred to the applicant’s claim that he fears harm from Sunni groups on the basis he is hostile to radical Sunni Islamists and may not comply with religious edicts. The Authority was not satisfied that there was real chance of harm to the applicant from Sunni groups on this basis. The Authority referred to the UNHCR reports of violent incidents in south Iraq. The Authority was not satisfied that there was a real chance of harm to the applicant now or in the foreseeable future as a result of criminal attacks in a particular area. The Authority was not satisfied there is a real chance of harm to the applicant, now or in the foreseeable future, on the basis of his Shia faith, or as a result of the security situation in a particular area.

8. The Authority referred to the applicant returning as a failed asylum seeker who lived in Australia and was not satisfied that there is a real chance, now or in the foreseeable future, that the applicant would be harmed on this basis. The Authority considered the applicant’s circumstances cumulatively and was not satisfied that this would expose the applicant to a real chance of harm in a particular area.

9. The Authority found the applicant failed to meet the criteria of the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

10. The Authority was not satisfied that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(a) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 7 September 2017. At that stage, the applicant had a legal practitioner acting for the applicant. On 23 November 2017, orders were made by a Registrar of the Court fixing the matter for hearing today and giving the applicant an opportunity to file amended application, affidavit evidence, and submissions. No such documents have been filed. On 30 November 2017, a notice of withdrawal of lawyer was filed.

2. At the commencement of the hearing, the applicant indicated that he wanted an adjournment on two grounds. The first ground was that the applicant had been endeavouring to obtain a lawyer and had been unsuccessful. The applicant referred to taking steps in that regard in the last 10 days. The applicant also asserted that he was not in a physical state to proceed with the hearing. The applicant had handed up to the Court a certificate from Dr Kenan Ismail, dated 7 April 2018, which identified the applicant as suffering from severe depression, in very low mood and is unfit for Court and for duties from 7 April 2018 till 7 May 2018 inclusive. The report, on its face, fails to identify any history in relation to the applicant or the basis upon which the diagnosis is made, or the reason why the applicant would have been unable to attend Court or why the applicant would not have been able to participate by telephone.

3. The medical certificate was provided to the Court through a friend of the applicant on 9 April 2018 and the Court sent an email to the parties indicating that the medical certificate was not one which provided an adequate identification of the applicant’s history and condition and treatment and why the applicant could not attend Court. The letter identified that any further adjournment application should be made by application in a case supported by affidavit evidence.

4. The applicant, from the bar table, identified that his mother had passed away 10 days ago. The applicant confirmed that he had not seen his mother since 2013. Notwithstanding that sad event, the medical certificate did not identify any proper basis why the applicant would be unable to participate meaningfully in the hearing. Nothing said by the applicant from the bar table identified any difficulty in understanding what was said by the Court, or in putting submissions, or understanding the submissions put by the first respondent.

5. The applicant has had ample time since the withdrawal notification of his lawyer on 30 November 2017 to obtain alternative legal representation if he was able to do so. The fact that the applicant included the legal representation as a further reason for his adjournment and referred to having made efforts in the last 10 days, does not reflect a proper basis upon which an adjournment is warranted in the interests of the administration of justice. The applicant’s assertion that his physical state was not sufficient to participate in the hearing is not reflected by the participation and engagement by the applicant in response to the questions asked by the Court. The applicant demonstrated an ability to interact and communicate to the Court and whilst it may well be that the applicant is still affected by the loss of his mother, that loss is not a matter that identifies the applicant as having been unable to meaningfully participate in this hearing.

6. The adjournment application was opposed by the first respondent. The Court was not satisfied that the applicant could not meaningfully participate in the hearing. The applicant’s participation has, in fact, occurred and has been consistent with the applicant being able to properly and meaningfully engage in the hearing. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. During the course of the hearing, the applicant sought to again address the reasons why he had not been successful in obtaining a solicitor and the Court indicated that the request for an adjournment had been refused. Nothing was said by the applicant in the course of the hearing to identify any inability to participate due to any physical state after the refusal of the adjournment application.

7. I am satisfied that the applicant meaningfully participated in the hearing, was able to understand and engage with what was said by the Court and the submissions of the first respondent, and the applicant, in fact, put detailed submissions, both as to his explanation for the delay and in relation to the merits of his application.

8. Having refused the applicant’s application and adjournment, the Court explained to the applicant that this was an application for an extension of time and that there were three issues that the Court was focused upon in that regard. The Court explained the first issue was whether the applicant had a satisfactory explanation for the delay. The second issue was whether there was any particular prejudice to the first respondent, and the third issue was the merits of the application.

9. The Court noted that the delay in the present case was 29 days out of time, which was not significant but, at the same time, required a proper explanation. The Court noted that no particular prejudice was asserted by the first respondent.

10. The Court explained that the merits of the application concerned considering whether the grounds in the application identified an arguable case of relevant legal error by the Authority. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonable explanation for the delay and a reasonable argument that the Authority’s decision was unlawful and unfair. The Court explained that if it were satisfied the applicant has a reasonable explanation for the delay and a reasonable argument that the Authority’s decision was unlawful or unfair, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied the applicant has a reasonable explanation for the delay and a reasonable argument that the Authority’s decision was unlawful or unfair, the application for an extension of time would be dismissed with costs.

11. The Court explained that it would first have identified the evidence, then hear submissions from the applicant, then hear submissions from 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.

12. From the bar table, the applicant maintained that his explanation for the delay was due to his solicitor not informing him of the need to commence proceedings within the 35-day period. The applicant alleges that he was unaware of that 35-day period and that it was the fault of his solicitor that the proceedings were not commenced within time.

13. The applicant’s explanation from the bar table does not entirely accord with the explanation that was identified in the application. In the application, the applicant identified that he went to see Legal Aid and that they told him to see a private lawyer and that he could not afford a private lawyer and he has had to borrow money from relatives to be able to pay for the application at hand. The applicant also identified that he did not speak English. The applicant, not having funds or not speaking English, is not a satisfactory explanation for the delay. Whilst it may well be that there was a problem with the applicant’s solicitor, that explanation does not sit with what the applicant identified in his application for extension and, again, is not of itself an adequate explanation for the delay.

14. The more significant issue is, however, the merits of the application. From the bar table, the applicant put submissions that the Authority had failed to take into account the threatening letter that his father had received. That submission is not supported by the reasons of the Authority. The Authority’s reasons expressly took into account and accepted that the father received a threatening letter. The Authority nonetheless provided logical and cogent reasons in respect of the adverse findings concerning the applicant’s claims. Those adverse findings were open to the Authority for the reasons given by the Authority.

15. There was no failure by the Authority to take into account the letter received by the father. The letter received by the father did not give rise to circumstances in which the Authority had to accept the applicant’s claims or give rise to any unreasonableness or illogicality in respect of the adverse findings by the Authority. Materially, the Authority found that the applicant’s father was not killed by members of a Shia militia group or any other group in a pre-meditated attack. The findings by the Authority that the applicant’s claims were not ones that gave rise to satisfying the criteria under s 36(2)(a) or 36(2)(aa) of the Act cannot be said to lack an evident and intelligible justification and accordingly were not legally unreasonable. No arguable case of jurisdictional error arises in this regard.

16. The applicant also complained from the bar table that the Authority had failed to give appropriate weight to the documents that he had provided. The weight to be given to the material provided by the applicant was a matter for the Authority. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s claims and evidence. The criticism in relation to weight advanced by the applicant is, in substance, an invitation to this Court to engage in impermissible merits review.

17. The applicant suggested that the Authority had not taken into account the material provided by the applicant and that the material from the applicant was all official documents. It was a matter for the Authority to determine what weight to give to the material before it and to make dispositive findings in relation to the applicant’s claims. The Authority provided rational and cogent reasons in support of its adverse findings. There is no arguable case of jurisdictional error by reason of the assertion from the bar table that the Authority did not take into account the applicant’s documents. A fair reading of the Authority’s reasons reflect a nuanced approach to the consideration of the applicant’s claims, part of which the Authority did accept. There was no arguable jurisdictional error by the Authority by reason of anything said by the applicant in respect of the Authority not accepting the applicant’s documents.

18. The applicant also referred to the current situation in Iraq and his concern in relation to militia groups. This Court does not have power to make fresh findings in relation to the merits. The applicant had also filed, in support of the application, an affidavit that sought to address the merits of the applicant’s claim. For convenience, that affidavit was admitted subject to relevance. Although particular paragraphs were only allowed on the basis of being limited to argument. This Court does not have power to make fresh findings of fact in relation to the applicant’s claims. The Court is confined to considering whether or not the review conducted by the Authority was one that was carried out in accordance with the statutory regime and whether the Authority complied with the requirements of procedural fairness. The applicant’s submissions in relation to the current situation in Iraq invited this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

The proposed grounds

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

   1. The applicant will suffer ‘significant harm’ as there is a strong possibility that he will be arbitrarily deprived of his life in Iraq, that the death penalty may be carried out on him, that he may be subjected to torture, that he may be subjected to cruel of inhuman treatment or punishment and that he may be subjected to degrading treatment or punishment if sent back overseas.

   2. The Grounds stem from the fact that at the N Province, his surname is a Sunni surname.

   3. As a result of the above, his brother was executed – Mr. T J whereby he has readily available a death certificate. Moreover, his father was also executed as a result of his surname. His fathers name is Mr. N J. Moreover, he notes that as a result of his Shia Faith, there are organisations in Iraq who want to see him killed due to coming from a family where by his surname is A J.

   4. There is a well founded fear of persecution, notable the applicant fears persecution as there is a real chance that he will be persecuted.

   5. Since the application is from the Shia faith, he may be persecuted by the Sunni’s since he is from a state in which the population are from the Sunni faith.

   6. The applicant may face danger since he is an asylum seeker which in-turn will make him an aim by the militia groups in Iraq who are targeting foreigners.

   7. Although ISIS has been removed from A, there is still a risk of harm that may be presented to the applicant. This is evident as Militias such as Hizb Al Dawa, Mahdi army, Asai’b Ahl Al Haq, Hezbollah and government forces continue to abuse human rights. This is reinforced by the Human Rights Watch World Report 2017 in which it stated that the government forces have committed numerous human rights of Ramadi and Fallujah have taken place.

   8. Moreover, due to the applicant’s mother being afraid of her sons life, she has sold her house. Therefore, if the applicant returns to Iraq, he will have no place to reside in.

   9. As per s 36(2)(c) of the Migration Act, it is likely that the applicant will be exposed to torture. There is evident as the applicant is a shia and thus will be exposed to harm by Sunni militants such as ISIS. This is evident as the applicant currently resides in N. This is evident as the applicant’s surname is a Sunni surname. Therefore, he may be exposed to harm by Shia militias in South Iraq.

   10. Moreover, T who is the applicant’s brother was killed in 2012 by the militia’s in Ramadi. He was killed by way of being shot by a sniper in his heart. this can be reinforced in the Death Certificate of his brother which is attached in the Affidavit.

   11. As per the above, Ali is afraid of returning to Iraq since he is scared that the same outcome will apply to him.

   12. Moreover, N also erred in her statement by stating that she did not accept that the applicant did not go to police station to present them with the ISIS letter. This is not true. This is evident as the applicant has a police statement detailing how his father went to the police station to notify them of this issue that they had with ISIS. Therefore, it is clearly an error of the law.

   13. Also, the applicant is willing to ask the police station for a report on his fathers death and how it had occurred as this will reinforce the view that this father was in fact killed by Militias and unknown men.

   14. Moreover, the letter by ISIS may have been issued by Shia Militias or even Sunni Militias. The reason is they might have done this as a means to disguise their true identity and blame ISIS from this letter.

   15. It is to be submitted that there is not sufficient evidence for the refusal.

1. The proposed grounds, in substance, take the form of submissions restating the applicant’s claims to fear harm in Iraq. The proposed grounds, in substance, advance the proposition that the Authority’s reasons were somehow illogical or unreasonable. The proposed grounds of the application invite the Court to engage in impermissible merits review.

2. On the face of the Authority’s reasons, the Authority correctly identified the relevant law and made findings that were open to the Authority. The reference to an error by the delegate is not capable of making out any jurisdictional error by the Authority. It was not for the Authority to obtain evidence in relation to the applicant’s claims and the applicant’s proposition that there was insufficient evidence to support the Authority’s reasons erroneously assumes that the Authority was required to accept the applicant’s claims. It was open to the Authority to determine what weight to give the applicant’s claims and to make credit findings in respect of the applicant’s claims. Those adverse findings, referred to in the reasons above, were open to the Authority and cannot be said to lack an evident and intelligible justification.

3. Proposed grounds 1 to 15 do not identify any arguable case of jurisdictional error. The application lacks sufficient merit whereby it is necessary in the interests of the administration of justice to extend time.

4. The Court finds that the explanation for the delay is inadequate and the merits are sufficiently lacking whereby it is not necessary in the interests of the administration of justice to make an order extending time.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 October 2018