Ejc17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 484
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 484
File number(s): SYG 3005 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 21 June 2022 Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection visa – Whether the Authority erred in making a finding of “no real chance of harm” on the basis of silence in the country information – whether the Authority dealt with the claims cumulatively – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 477(1) Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CQG v Minister for Immigration and Border Protection [2016] FCAFC 146
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Citizenship v SZMDS (2010) 240 LR 611
MZZXD v Minister for Immigration and Border Protection [2015] FCCA 104
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 2 June 2022 Date of hearing: 2 June 2022 Place: Sydney Counsel for the Applicant: Mr Zipser Counsel for the Respondents: Mr Cleary ORDERS
SYG 3005 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
21 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.Grant leave for an extension of time for the filing of the application for judicial review.
3.The application is dismissed.
4.The Applicant is to pay the First Respondent’s costs, fixed in the amount of $6,300.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Iraq and a Shia Muslim arrived in Australia on 3 April 2013. On 4 August 2016 the applicant applied for a Temporary Protection Visa (“TPV”). A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a TPV on 8 February 2017.
The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 21 March 2017, the Authority affirmed the delegate’s decision not to grant the applicant his TPV.
The applicant now seeks judicial review of the Authority’s decision.
EXTENSION OF TIME CONSIDERATION
The applicant filed his application for judicial review on 27 September 2017, which was 155 days outside the 35 day time limit prescribed by s 477(1) of the Migration Act 1958 (Cth)
(“the Act”). The Minister opposes leave being granted.
The considerations for whether or not a Court should extend time, are well-settled. They include the following: MZZXD v Minister for Immigration and Border Protection [2015] FCCA 104 at [50]:
a. applications for extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored;
b. there must be some acceptable explanation for the delay;
c. any prejudice to the respondent in defending the proceeding;
d. the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and
e. the merits of the substantial application.
To the above, the Court would add the extent of the delay. The greater the delay in lodging an application, the greater the level of explanation that will be required for the delay. However, granting an extension of time is a discretionary matter for the Court.
In an Affidavit sworn 18 May 2022, the applicant seeks to explain the 155 day delay by asserting that:
a. he was not advised of the 35 day time limit by his migration agent, rather, he was told he could apply to the Court for a review “sometime in the future”;
b. he was depressed and did not have any financial resources to pay the filing fee;
c. he did not have sufficient money to use a solicitor was under the impression he would need some money first so he could pay legal fees (even though the applicant ultimately retained a solicitor who did not require the payment of any fees in advance);
It was submitted that to this, should be added that, the applicant deposed in an Affidavit of
19 September 2017 that he did not have the necessary English language skills to communicate with any legal advisor or the Courts.
The first respondent points out that the lack of English language skills and/or the legal process are not adequate explanations for the extensive delay. The applicant had a responsibility to make proper enquiries take reasonable action to make an application to the Court: (see; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]). Further, no medical evidence has been filed to support the claim that the applicant was suffering from depression, or what steps he took to obtain legal representation.
The delay is a significant 155 days. It is over 4 times the 35 day time period for the lodging of an application for review. The Court however accepts, on the basis that there is no evidence to the contrary, that, the applicant did not have English language skills, and presumably, a knowledge of the Courts system in Australia. Further, the Court accepts that the applicant was depressed and had no funds to properly brief a legal representative. In these circumstances, the Court considers this criteria to be at best neutral, or leaning against the applicant in relation to the granting of an extension of time.
In terms of prejudice to the first respondent, Counsel for the first respondent properly concedes that no specific prejudice arises. That is not the end of the matter. There is a significant public interest in the timely and effective disposal of litigation, particularly where delays in dealing with applications for visas are to be avoided if possible: (see; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62]). This criteria is again assessed as neutral, in terms of reinstatement.
The final matter relates to the merits of the substantive application. At this point of the consideration, the Court must only consider the merits of the application for review on an impressionistic basis
The applicant claims that the Authority failed to consider if he was at risk of harm on return to Iraq due to the fact he was a former Police Officer. Further, the Authority did not deal with the applicant’s claims on a cumulative basis. Whilst the first respondent submitted that there is no jurisdictional error by the Authority, the Court is satisfied at an impressionistic level that the claims have sufficient merit for substantive consideration.
Balancing all of the considerations set out above, the Court is satisfied that leave pursuant to
s 477(1) of the Act, should be granted.
GROUNDS OF JUDICIAL REVIEW
The applicant relies on two grounds of judicial review set out in an Amended Initiating Application filed with the Court on 6 September 2019. They are as follows:
1. The applicant claimed he face a real chance of harm if required to return to Iraq due to having formally been a police officer. The Immigration Assessment Authority at [12] found that the applicant did not have a well-founded fear of persecution due to having formally been a police officer and “there was not a real chance the applicant would be harmed on return to Iraq” on this basis because “the country information… Is silent on the risk of harm to former police officers”. The fact that the country information before the IAA was “silent on the risk to former police officers” does not support a conclusion or positive finding that there was no real chance of harm to the applicant on that basis. The IAA erred in making a finding of “no real chance of harm” on the basis of silence in the country information.
2. The applicant claimed to have a well-founded fear of persecution on a number of bases. Although the IAA found in respect of each claimed basis of harm that the applicant did not face a real chance of harm on return to a bark, the IAA did not deal with the claims cumulatively. This is a jurisdictional error.
THE APPLICANT’S SUBMISSIONS
In relation to ground one, it was submitted that at paragraph 9 of the decision record, the Authority accepted that “the applicant worked as a Police officer in Nasiriah from 2007 until his departure in March 2013”. At paragraph 12 of its decision, the Authority found:
In terms of whether the applicant has a well-founded fear of persecution due to having formally been a police officer, the referred information indicates that this would not be the case. The country information indicates there is a risk to serving Police Officers, but is silent on the risk to former Police Officers… I conclude there was not a real chance the applicant would be harmed on return to Iraq on the basis he worked as a Police Officer in 2007 to 2013.
It was submitted that the fact that the country information before the Authority was silent on the risk to former Police Officers, does not support a conclusion or positive finding of fact that there “was not a real chance” of harm to the applicant on this basis, just as it does not support a conclusion or positive finding that there was a real chance of harm to the applicant.
It was submitted that a reasoning process may be irrational or illogical if the decision to which the decision-maker came, was simply not open on the evidence, or if there was no logical connection between the evidence and the inferences or conclusions drawn: (Minister for Immigration and Citizenship v SZMDS (2010) 240 LR 611 at [135]).
It was further submitted that there was no rational or probative evidence to support the finding, and the finding was made without any probative foundation or, that there was any material to found it.
Similarly, a finding will be unreasonable if the finding of fact is not “based upon facts having a logical and probative weight”: (see; CQG v Minister for Immigration and Border Protection [2016] FCAFC 146 at [41]).
In the present matter, the reasoning process in support of the finding that there was not a real chance that the applicant would be harmed on the basis that he worked as a Police Officer in the past was irrational or illogical.
In relation to ground two it was submitted that the applicant was exposed to a number of potential risks if required to return to Iraq. The risk included the following;
a. The applicant had worked as a Police Officer, however, the Authority concluded the applicant would not return to such work.
b. The Authority found that there was not a real chance that the applicant would be harmed on the basis of his previous work as a Police Officer.
c. The applicant claimed he had deserted the Police force and would be imprisoned upon his return to Iraq. The Authority found that the applicant did not face a real chance of harm on that basis.
d. The applicant was a Shia Muslim returning to a Shia dominated region of Iraq. The decision in relation to the risk of harm from Sunni armed groups was dealt with on the basis that the Authority “was not satisfied that there was a real chance that the applicant will suffer serious harm another rear as a result of sectarian conflict”. In relation to the risk of harm from Shia militia groups, the Authority stated “there was nothing in the referred material to indicate that this occurs”.
e. An issue was whether the applicant would face a real chance of harm from generalised violence in Nasiriya.
f. An issue was whether the applicant would face a real chance of harm on the basis he was a failed asylum seeker.
Although the Authority found in respect of each claimed basis of harm, the applicant did not face a real chance of harm on return to Iraq, the Authority did not deal with the claims cumulatively.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one, the finding that the applicant would not face a real chance of harm on return to Iraq on the basis that he worked as a Police Officer previously, the submissions put by the applicant must be rejected. The finding was open to the Authority based on the evidence that was before it.
The Authority summarised the applicant’s claims at paragraph 4 of its decision. This included the applicant’s work as a Police Officer, which included guarding a number of VIPs. The applicant left Iraq without resigning from his job as a Police Officer.
The Authority accepted at paragraph 5 of its decision, these factual matters. At paragraph 6 of its decision however, the Authority found in relation to the applicant’s reasons for leaving Iraq that, he “did not identify a particular event that precipitated his flight.” The Authority found that the applicant’s claims were in the way of “generalisations as to the dangers of Policing” rather than “specific events” that occurred to him or his colleagues. The Authority therefore found that the applicant was not the subject of any targeted adverse action due to his job as a Police Officer during the period from 2007 to March 2013.
Having found that the applicant worked as a Police Officer, the Authority at paragraph 10 of its decision, considered based on country information, that although he was not subject to any targeted attacks during his time in the Police Force, he would only suffer serious harm if he should “return to working as a Policeman in Nasiriyah”. This finding was based on country information that indicated that was there was a risk of harm to serving Policeman but was silent on the risk to former Policeman.
The Authority at paragraph 7 of its decision, concluded the applicant would not return to work as a Policeman based on the fact he had experience in other areas of work and based on his evidence of dissatisfaction of when he was a policeman.
At paragraph 12 of its decision, the Authority concluded there was not a real chance the applicant would be harmed if returned to Iraq on the basis that he had previously worked as a Police Officer. This conclusion was based on a logical and rational evaluation of the evidence that was before the Authority. It was reasonably open, based on the evidence before the Authority, that the applicant would not work as a Police Officer if he returned
Pursuant to s 5AAAA(2) of the Act, it is the responsibility applicant to provide sufficient evidence to establish his or her claim. The Authority is not required to make the applicant’s case for him.
Ground two claims that the Authority did not deal with the applicant’s claims cumulatively. This must fail at a factual level. At paragraph 18 of its decision, the Authority made the following finding: “I do not consider that cumulatively the applicant’s profile would be raised to the extent that there would be real chance of serious harm due to the imputed opinion as claimed”.
Secondly, the Authority is not required to conduct this kind of cumulative assessment in any event. In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (“DDK16”) the Full Court at [34] stated:
as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.
In this case, the Authority had rejected all the claims that the applicant made that he contended gave rise to a real risk of serious harm. As a matter of logic, no amount of cumulative consideration of those rejected claims is capable of producing a different result.
CONSIDERATION
Prior to assessing the grounds of judicial review relied upon, it is appropriate to set out a number of general principles that relate to judicial review in migration matters.
It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
It is also well settled that the country information and the weight it gives to that information is a matter for the Authority: (see; NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10).
In relation to ground one, the applicant complains that the Authority made a finding that the applicant did not face a real risk of harm upon return due to him being a former Police Officer. Counsel for the applicant conceded in oral submissions that the scope of this ground was narrow. The applicant complains that the country information was silent as to this issue. Thus, the reasoning process that supported the finding that the applicant was not at a real chance of harm, was irrational or logical.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogic cavity or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
It was a matter for the applicant to provide all material that he relied upon, in order to show that he had satisfied the criteria for refugee protection. Presumably, if a significant issue relating to the risk of harm was the fact that the applicant was a former Police Officer, and would be at risk due to that fact alone, it was incumbent on the applicant to provide any evidence to support that claim.
In circumstances where the country information was silent as to that particular risk, the Authority was entitled to proceed in the matter that it did. There is nothing illogical, irrational or unreasonable, where country information is silent as to a particular issue, of the Authority concluding that no real risk of harm arose. The relevant country information indicated that attacks from Sunni extremists groups generally targeted police about their duties, including the checkpoints and police stations.
The Authority concluded that the applicant would not return to his former employment as a Police Officer if returned to Iraq. The Authority gave extensive reasons for forming this conclusion. That conclusion that was reasonably open to the Authority for the reasons it gave. Ground one reveals no error.
Ground two is a complaint that the Authority did not consider the applicant’s claims cumulatively. The Authority systematically considered each of the applicant’s claims and found each did not give rise to a risk of harm upon return. It substantively found at paragraph 12 of its decision that, there was not a real chance the applicant would be harmed on the basis he worked as a former Police Officer. The Authority considered the claim that the applicant had deserted from the Police Force but was not satisfied that any penalty that would be imposed upon him for abandoning his office, would constitute discriminatory conduct.
The Authority considered the risk from Sunni and Shia armed groups together with generalised violence but was also not satisfied that these posed a real chance that the applicant will suffer harm. The Authority also considered whether or not the applicant would face harm on the basis of his return as a failed asylum seeker, but similarly found that, this did not cause the applicant face a real chance of harm.
The Court respectfully agrees with the first respondent’s submission relying upon DDK16 that, in circumstances where each of the claims has been dismissed then no amount of cumulative consideration of those rejected claims would be capable of producing a different result.
Counsel for the applicant sought to read the finding in paragraph 18 of the decision, by reference only to the applicant’s profile, due to his desertion from the Police Force and of being a failed asylum seeker. This appears earlier in the paragraph.
Even if this submission is correct, which the Court does not find, due to the systemic manner in which the Authority dealt with the applicant’s other claims and dismissed them, it cannot be said that a cumulative consideration of the balance of the applicant’s claims would have produced a different result. Ground two has no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 June 2022
0
10
0