Eqj17 v Minister for Immigration

[2018] FCCA 2597

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2597

Catchwords:
MIGRATION – Immigration Assessment Authority – application to extend time under s 477 of the Migration Act 1958 (Cth) – application filed out of time – no satisfactory explanation for the delay – no sufficiently arguable case of jurisdictional error made out by proposed grounds in the amended application – application for an extension of time dismissed.

Legislation:

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

Applicant: EQJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3223 of 2017

Judgment of: Judge Street

Hearing date: 12 September 2018

Date of Last Submission: 12 September 2018

Delivered at: Sydney

Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely on the amended application filed 3 September 2018.

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 $3,667.00.

DATE OF ORDER: 12 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3223 of 2017

EQJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 17 October 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 made on 18 January 2016 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant is a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. On 17 December 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Authority’s reasons

1. On 21 December 2015, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide submissions on 8 January 2016. The Authority’s reasons identified having considered those submissions and had regard to the same, insofar as they engaged with the delegate’s submissions and in respect of certain country information which the Authority found was before the delegate. The Authority identified that there was country information that was not before the delegate when the delegate’s decision was made. The Authority’s reasons plainly reflect having regard to both limbs of s 473DD of the Act in evaluating whether there were exceptional circumstances to justify considering the new information, and the Authority found there was not. 

2. The Authority identified the applicant’s claims and made adverse findings in relation to the applicant’s claims concerning the Mahdi Army. The Authority found that it was not credible that the applicant was ever harmed or threatened by the Mahdi Army or any other person as a result of a discovery of alleged weapons. The Authority found that members of the Mahdi Army did not raid the applicant’s home and that neither the applicant nor his brothers were of adverse interest to a particular person X, or members of the Mahdi Army, or anyone else. 

3. The Authority was not satisfied that upon return to Iraq there is a real chance the applicant will face harm from the Mahdi Army, or any other Shia militia group or any other person as a result of him painting the house and discovering the ammunition and weapons.

4. The Authority referred to the applicant’s fears of harm by reason of being a Shia Muslim and generalised violence and the Authority was not satisfied there is a real chance the applicant will face serious harm as a result of any militia or other non-state agent activity based on his religion or for any other reason. 

5. The Authority found the applicant did not have a profile giving rise to a profile of the kind identified in the United Nations High Commissioner for Refugees (“UNHCR”) report and found that any chance of harm to the applicant was remote. The Authority was not satisfied the applicant has a profile which would limit access to utilities or services which are normally available to the population at large and found that access to services will not be withheld for a reason mentioned in s 5J(1) of the Act.  

6. The Authority referred to the applicant being a returnee from a western country and a failed asylum seeker and found there is no real chance of serious harm as a result of the applicant being returned to Iraq from a western country or being a failed asylum seeker or for any other reason. The Authority referred to the general security situation and was not satisfied there is a real chance the applicant will be targeted as a result of returning to his home area. 

7. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act. 

Before this Court

1. These proceedings were commenced on 17 October 2017 approximately 603 days outside the 35 day period permitted under s 477 of the Act. The principles to be applied in considering an extension time under s 477(2) of the Act are in substance the merits of the proposed grounds, the explanation for the delay and whether there is any prejudice to the first respondent. Further, the Court takes into account that a refusal of leave is not the subject of a right of appeal. The applicant has complied with the first limb of s 477(2) of the Act by the making of the application for an extension of time.

2. In considering whether to extend time under s 477 of the Act, the Court should consider the grounds at an impressionistic level. Further the longer the delay, in general the more persuasive the explanation needs to be. This is because there is a public interest in the finalisation of administrative decisions. The Court accepts that no specific prejudice was alleged by the first respondent.

3. The delay in the present case is inordinate. The explanation for the delay initially advanced was the inability to cover the expenses and having difficulty speaking English. That explanation was sought to be expanded by the applicants asserting psychological problems of depression, anxiety and stress supported by a psychologist’s report. Neither the psychologist’s report, nor the applicant’s affidavits including problems with expenses or difficulty speaking English provide a satisfactory explanation for the inordinate in the present case. On the ground of inadequate explanation alone, the Court is satisfied that this is a case where it is not necessary in the interests of administration of justice under s 477(2) to extend time of the Act.

4. Taking into account the merits of the application, the Court finds as explained below, that the merits are also lacking.

The proposed grounds

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

   1. On 8 January 2016 the applicant's agent provided a submission to the Immigration Assessment Authority (“the IAA”) which included country information which explained why the Mahdi Army would be concerned about a person such as the applicant becoming aware of the location of its stockpile of weapons. The IAA concluded in relation to the majority of the country information that, on application of s 473DD of the Migration Act, "there are no exceptional circumstances to justify considering the new information". The IAA failed to consider a number of relevant matters in considering whether there were "exceptional circumstances" and applied an overly narrow definition of "exceptional circumstances". This is a jurisdictional error.

   2. The applicant claimed that in 2012 he was selected for a job to paint a house, while painting the house he found a room full weapons in the house, and he was then beaten and threatened to be killed by the man who engaged him to paint the house. The IAA at [21] rejected the applicant's claims in a different way or on a different basis to the delegate without giving the applicant an opportunity to comment by exercising its power under s 473DC of the Migration Act. In the particular circumstances, the IAA ought to have given the applicant an opportunity to comment, and its failure to give the applicant an opportunity to comment was legally unreasonable.

   3. The IAA at [21] found that it was "not satisfied that the applicant's discovery or knowledge of the weapons or ammunition posed a threat to the Mahdi Army or the PDB or would be of concern to them, given the changed nature of the Mahdi Army's existence by 2012 and that the possession of weapons by such persons was common knowledge" and that "the claim that the applicant was threatened to be killed and buried, called a spy, and his house raided to be not plausible." The IAA, in making these findings, failed to consider:

   a) the applicant's submission that the IAA faced a challenge from a splinter group; and

   b) the applicant's evidence that the weapons he discovered had "Iranian numbers on the boxes".

   This is a jurisdictional error.

   4. The IAA at [23] used country information concerning an event in 2008 (in August 2008 al-Sadr announces indefinite freeze of Madi Army's activities following call for surrender by Prime Minister in April 2008) to assess the correctness or otherwise of an event which occurred in 2012 (whether hostility between al-Sadr and Prime Minister in 2012). In the circumstances, this involved a jurisdictional error by the IAA.

   5. The IAA reasoned at [35]-[37] that, because Basra remains "significantly more secure" than central Iraq, "generalized violence occurs . . . at a significantly lower level than in Baghdad" and the southern provinces are "relatively insulated", therefore there is not a real chance the applicant will face serious harm. It appears from the country information that in parts of Iraq other than the southern provinces there is a significant chance that a person will face serious harm as a result of general violence. The fact that Basra and the southern provinces are "significantly more secure" or violence occurs at a "significantly lower level" does not mean that there is no real chance of harm in Basra and the southern provinces. The IAA's reasoning process involves jurisdictional error

   6. The IAA, in assessing the applicant's complementary protection claim, found at [49] that "DFAT also reported that Shias in Shia dominated provinces of southern Iraq, such as the applicant, are at low risk of generalized violence". Yet the IAA continued that "any risk of significant harm [to the applicant] is remote" High Court authority indicates that a "low risk" of harm is greater than the threshold of a "real chance" of harm. The IAA fell into jurisdictional error in applying the real chance or real risk test.

Proposed ground 1

1. In relation to proposed ground 1, for the reasons already given, on the face of the Authority’s reasons, the Authority complied with the statutory obligations in relation to new information and did not misconstrue or misapply s 473DD of the Act. On the face of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act and had regard to the nature of the new information.  No sufficiently arguable case of jurisdictional error is made out by proposed ground 1 to make an extension of time necessary in the interests of the administration of justice. 

Proposed ground 2

1. In relation to proposed ground 2, Mr Zipser of counsel properly conceded that under the law as presently applicable, this ground was bound to fail. That was a proper concession by Mr Zipser. Proposed grounds 2 lacks sufficient merit to make an extension of time necessary in the interests of the administration of justice. 

Proposed ground 3

1. In relation to proposed ground 3, Mr Zipser made reference to the finding in paragraph 21 of the Authority’s reasons and the submission that was advanced on behalf of the applicant. There is no basis to find that the Authority overlooked or failed to take into account the applicant’s submission. The substance of the argument identified by proposed ground 3 of the express reference to the submissions by the Authority does not support any such failure being inferred is of the kind inviting the Court to engage in merits review. No sufficiently arguable case of jurisdictional error is made out by proposed ground 3 to warrant an extension of time as being necessary in the interests of the administration of justice. 

Proposed ground 4

1. In relation to proposed ground 4, Mr Zipser referred to the Authority’s reasoning in paragraph 23 and the reference to country information in 2008. The Authority’s reference in that regard to information in 2008 was footnoted by reference to country information, dated 1 March 2013, and was referrable to a fact being asserted by the Authority as to what had occurred at a particular time. I do not accept that there is a sufficiently arguable case of jurisdictional error as alleged in proposed ground 4 to make an extension of time necessary in the interests of the administration of justice. 

Proposed ground 5

1. In relation to proposed ground 5, the Authority’s reasons correctly identified the relevant law and the Authority’s reasons on a fair reading, reflect a correct application of the relevant law in relation to the real chance test of serious harm. No sufficiently arguable case of jurisdictional error is disclosed by proposed ground 5 to make an extension of time necessary in the interests of the administration of justice. 

Proposed ground 6

1. In relation to ground 6, Mr Zipser referred to the reasoning in paragraph 49 of the Authority’s reasons and the reference to a low risk of generalised violence in the DFAT report. That was a correct quotation from the DFAT report. The Authority’s reasons do not however reflect an erroneous application of the real chance test. In relation to significant harm, it was open to the Authority to refer to the country information and on a fair reading of the reasons as a whole, the Authority did not misconstrue or misapply the statutory provisions in determining the claim for complementary protection. No sufficiently arguable case of jurisdictional error is made out by proposed ground 6 to make an extension of time necessary in the interests of the administration of justice. 

Conclusion

1. In summary, there are insufficient merits in the present case to make necessary an extension of time in the interests of the administration of justice. Taken together with the inadequate explanation, this is not a case where it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. 

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

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 November 2018