EQL17 v Minister for Immigration and Anor (No.3)

[2020] FCCA 2078

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQL17 v MINISTER FOR IMMIGRATION & ANOR (No.3) [2020] FCCA 2078

Catchwords:
MIGRATION – Immigration Assessment Authority – application for an extension of time – substantive application for a Protection visa – whether the applicant has provided a satisfactory explanation for his failure to appear – whether the substantive application has reasonably arguable prospect of success – amended application for an extension of time dismissed.

Legislation:

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

Applicant: EQL17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3227 of 2017

Judgment of: Judge Street

Hearing date: 22 July 2020

Date of Last Submission: 22 July 2020

Delivered at: Sydney

Delivered on: 31 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Ms S Roberts via Microsoft Teams
Mills Oakley

ORDERS

1. The amended application filed on 11 July 2019 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 $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3227 of 2017

EQL17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time under ss 476 and 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 3 August 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant was found to be a Shia Arab. In May 2013, the applicant arrived in Australia as an unauthorised maritime arrival. In July 2016, the applicant applied for a Protection visa.

3. The applicant claimed to fear harm, in summary, because he was asked in 2010 to the join the Al-Sadr militia and he declined to do so, he made a complaint to the local Al-Sadr military office when his electricity was cut off and that the militia threatened to kill him, through the intermediary of his brother the Al-Sadr militia asked him to join them three times in one week, on 1 March 2013 there was a letter issued by the Al-Sadr militia naming and threatening him because he transported plain-clothed Iraqi military personnel to an American base and because since he left Iraq the Al-Sadr militia have asked about his whereabouts on ten to fifteen occasions. The applicant claimed that he fears the Al-Sadr military will kill him if he returns to Iraq.

4. On 28 April 2017, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. By letter dated 3 May 2017, the Authority notified the applicant that the Delegate’s decision had been referred to the Authority for review. That letter attached an information sheet and practice direction, providing the applicant an opportunity to put on new information and submissions. On 2 June 2017, the applicant’s representative sent to the Authority submissions in accordance with that opportunity.

6. The Authority in its reasons summarised the background to the visa application.

7. The Authority referred to the information before it. The Authority identified having regard to the material referred by the Secretary under s 473CB of the Act. The Authority identified having regard to the submissions provided on behalf of the applicant. The Authority also identified that there were exceptional circumstances to justify considering as new information an updated version of the Department of Foreign Affairs and Trade (“DFAT”) Country Report that was before the Delegate.

8. The Authority summarised the applicant’s claims for protection.

9. The Authority referred to the applicant’s early life. The Authority noted that the applicant did not claim to have personally experienced any harm during the Iran-Iraq war.

10. The Authority referred to the applicant’s self-employment. The Authority noted that the applicant had not claimed he personally experienced any problems as a result of working as a driver until the alleged events in 2013.

11. The Authority referred to the threats that the applicant alleged he received from the Al-Sadr militia. The Authority referred to the applicant’s assertions of being asked to join the Al-Sadr militia in 2010 and what occurred to a friend in 2011. The Authority referred to the applicant’s assertions of transferring military personnel to a particular base in late 2012. The Authority referred to the applicant’s assertions that in early 2013 the Al-Sadr militia again approached the applicant through his brother asking the applicant to join them, as well as asking for details about the alleged military base.

12. The Authority referred to the applicant’s allegation that on 1 March 2013 a letter was found naming the applicant as a collaborator with the Americans and threatening to kill the applicant. The applicant alleged that he went to the police station to report the threat and that the police said there was not much they could do. The applicant alleged that he went into hiding at his relatives’ and brothers’ houses and that the militia did not find him because they were focused on monitoring his house.

13. The Authority noted that in response to a request from the Delegate as to whether the applicant’s family had been contacted since the applicant left Iraq, the applicant asserted that his brother has been asked about ten to fifteen times, with the last time being around four to five months ago.

14. The Authority referred to country information and identified significant concerns about the applicant’s credibility in respect of his key claims. The Authority did not accept that the applicant would not be able to set out in a straightforward and logical way the events he experienced in his own life. The Authority identified that at both the applicant’s entry interview and temporary protection visa interview, the applicant indicated that he understood the interpreter and seemed to be able to comprehend and respond, apart from when the Delegate raised inconsistencies in the applicant’s evidence and identified that on those occasions the applicant’s responses were often vague and evasive.

15. The Authority was prepared to accept as plausible that the applicant was aware of drivers who were threatened, injured or killed by the Al-Sadr militia for transporting military personnel. The Authority was also prepared to accept that the applicant may have transported Iraqi military personnel to a particular military base.

16. The Authority did not, however, accept that the applicant was asked to join the Al-Sadr militia in early 2010 and again in early 2013. The Authority also did not accept that in March 2013 the Al-Sadr militia issued a letter personally threatening to kill the applicant for transporting military personnel to a particular base.

17. The Authority referred to the applicant having provided inconsistent and vague evidence about these claims. The Authority found that the applicant had embellished the claims in an attempt to boost his profile.

18. The Authority referred to the entry interview in which the applicant stated he left Iraq because there was no peace. The Authority noted that when asked whether anything specific happened to him, the applicant said he used to work as a driver on the road and some of his friends got threatened so he thought the country was not good to stay in anymore. The Authority noted that, contrary to the applicant’s claims made during the temporary protection visa interview, the applicant made no mention of any threats to himself and when asked about any other reasons for leaving he said that there were none. The Authority also noted that when asked what would happen if he returned, the applicant was vague, saying it was going to be a big shock for him if he goes back and that he would “go mental” if he goes back. The Authority noted that the applicant made no mention in the entry interview of a letter threatening to kill him or reporting it to the police or going into hiding.

19. The Authority also noted that in both the entry interview and the temporary protection visa application, the applicant started to make arrangements to leave Iraq about a year prior to his departure in March 2012, whereas in his temporary protection visa interview he said he arranged to leave Iraq around a year later, after the March 2013 threat.

20. The Authority also referred to the applicant saying that his family remained at their home until the day prior to his departure before going to stay with a maternal uncle. The Authority referred to the inconsistent assertion that the applicant and his family went into hiding about a month prior to his departure, raised at a later point of time.

21. The Authority found that the applicant’s evidence about the militia’s threats and interest in him joining were circular and nonsensical. The Authority referred to the militia allegedly asking the applicant to join them so he could provide them with information, but on the other hand the militia threatening him for being an American collaborator and for transporting personnel.

22. The Authority referred to not having accepted that the applicant was threatened by the Al-Sadr militia and did not accept that the applicant went to the police or that the applicant went into hiding for a month or that since he has departed his brother has been questioned ten to fifteen times by the Al-Sadr militia as to his whereabouts.

23. The Authority referred to the applicant raising an additional claim during the temporary protection visa interview that about two or three months before the militia started asking his brother for information from the applicant about the base, the electricity was turned off and that the applicant went to see the electricity company and that they said they received an order from the Al-Sadr militia to turn off the electricity and referred him to the Al-Sadr militia. The Authority referred to the applicant’s allegation that he went to see the militia and that they asked him who he was and said that he had no right even to talk to them and that they would kill him. The Authority noted that the applicant provided no explanation why he had not mentioned this claim in either his entry interview or the temporary protection visa interview.

24. The reference to the temporary protection visa interview is an obvious typographical error referring to the temporary protection visa application. On a fair reading, the Authority was referring to the absence of explanation in this regard in the entry interview or in the temporary protection visa application. The error is immaterial and does not give rise to any arguable case of relevant error. The nature of that typographical error is further supported by the content of paragraph 29 of the Authority’s reasons and the fact that the Authority had expressly recognised the raising of the additional claim during the temporary protection interview in paragraph 33 of the Authority’s reasons.

25. The Authority did not accept the applicant’s later claim that he visited the local Al-Sadr militia office to complain about the electricity and did not accept that the applicant was threatened as a result of that visit.

26. The Authority referred to the security situation. The Authority referred to taking into account country information and that the applicant had not been personally the subject of adverse treatment at the hands of any Shia or Sunni political parties or militias apart from the allegations concerning the Al-Sadr military.

27. The Authority referred to the chance of the applicant suffering harm from the Al-Sadr militia. The Authority referred to further country information and was not satisfied that now or in the reasonably foreseeable future there is a real chance the applicant would be threatened or killed or otherwise face harm by the Al-Sadr military.

28. The Authority referred to whether the applicant would suffer harm due to his Shia religion and the security situation in Iraq. The Authority found that there is less than a remote chance that now or in the reasonably foreseeable future the applicant will suffer harm due to his Shia religion or the security situation in Iraq.

29. The Authority referred to whether the applicant would suffer harm due to being a failed asylum seeker and returnee from Western country. The Authority found that there is not a real chance now or in the reasonably foreseeable future that the applicant will suffer harm due to being a failed asylum seeker and a returnee from a Western country.

30. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

31. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iraq from Australia, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

32. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. The proceedings commenced on 18 October 2017, approximately 40 days outside the 35 day period permitted under s 477 of the Act.

2. The proceedings were ones in respect of which the applicant failed to appear on 14 March 2019 and the proceedings were dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

3. An application for reinstatement was made and heard on 4 June 2019 and again on 1 August 2019l by a different Judge of the Court who delivered reasons on 12 June 2020 reinstating the proceedings in respect of the application for an extension of time.

4. The matter was fixed for a hearing on 22 June 2020. The Court notes that the proceeding was initially listed in the morning on 22 June 2020 and that the applicant failed to appear. In that regard, the Court had endeavoured to contact the applicant by way of a telephone number as well as the sending of the Microsoft Teams invitation to the applicant’s correct email. The applicant’s telephone number had been disconnected. It became apparent to the Court that the applicant had unsuccessfully endeavoured to join the Microsoft Teams meeting and that there was an attempt by the applicant by means of telephone through the Registry to contact the Court, however, unfortunately the applicant did not provide an updated telephone number to the Registry and nor did the recipient of the telephone call at the Registry initially record the telephone number. A new telephone number for the applicant was subsequently obtained during the morning and the applicant was notified the matter would be relisted in the afternoon.

5. The applicant appeared in the afternoon and, in these circumstances, the Court set aside orders that it had initially made dismissing the application under r 13.03C(1)(c) of the Rules and heard the application in the afternoon on 22 July 2020. The applicant was also directed by the Court to file an amended notice of address for service correctly identifying his telephone number.

6. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

7. In relation to the applicant’s application under s 477 of the Act, the amended application complies with the requirements under s 477(2)(a) of the Act and the making of an application in writing.

8. The applicant proffered an explanation in relation to the late notification of the decision by his lawyer and difficulties that he encountered as a result of approaching the Department of Immigration and asserted that he gave instructions for the commencement of the proceedings to his lawyer and identified the difficulty with his Arabic language as well as the lawyer being in Melbourne and applicant being in Sydney. The applicant also identified documents clearly relating to some other proceedings that he suggested caused him to believe that an application had been filed in time before this Court.

9. The first respondent identified the want of any supporting evidence from the applicant’s solicitor or the communications between the applicant’s solicitor and the applicant and/or the instructions or cost agreement relating to the taking of proceedings.

10. Whilst the applicant’s explanation is not entirely satisfactory, the Court does accept the first respondent’s submission that, even accepting the applicant’s explanation for the delay, it was not a reasonable explanation given that the documentation identified by the applicant clearly did not relate to the applicant’s application to this Court.

11. The Court finds the explanation advanced by the applicant not to be a reasonable explanation for the delay in the commencement of proceedings.

12. The more critical issue, however, is the merits of the application and whether at an impressionistic level the applicant has a reasonable argument of jurisdictional error so that the Court is satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

13. In that regard, the applicant put submissions in relation to the threats that he received through his brother and maintained that he had advanced a claim that his brother was threatened. A translation of the temporary protection visa interview was tendered in the applicant’s evidence and does not support the contention that the applicant raised a claim that his brother was threatened by the militia.

14. The applicant then submitted that the fact that the militia were regularly asking his brother as to the applicant’s whereabouts, which was raised before the Delegate, amounted implicitly to the advancing of a claim that he feared harm as a result of threats made to his brother by the militia. No such claim fairly arises on the material that was before the Authority. The applicant’s evidence does not support the implication advanced. No reasonably arguable case arises by reason of the applicant’s reference to alleged threats made by the militia to his brother.

15. The applicant also referred to the proposition of raising with the Authority that his brother was killed. The Court does not accept that a claim was advanced before the Authority that the applicant’s brother was killed. No such claim fairly arose in the material before the Authority.

16. The applicant otherwise maintained that he could not return to Iraq and that he would be killed and this, in substance, invited this Court to engage in merits review. This Court has no power to review the merits.

17. At an impressionistic level, nothing said by the applicant orally identified any arguable case of relevant error.

Proposed Grounds in the amended application

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

   1. THE IMMIGRATION ASSESMENT AUTHORITY “IAA” FAILED TO TAKE INTO ACCOUNT RELEVANT CONSIDERATION, THE “IAA” TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION.

   2. THE IMMIGRATION ASSESMENT AUTHORITY ‘‘IAA” DECISION IS UNREASONABLE.

Proposed Ground 1

1. Without particulars proposed ground 1 is incapable of identifying any arguable case of relevant error. There is no relevant consideration that has been identified that the Authority failed to take into account. There is no irrelevant consideration that has been identified that the Authority took into account. No arguable case of relevant error is disclosed by proposed ground 1.

Proposed Ground 2

1. In relation to proposed ground 2, the Authority gave detailed logical and rational reasons in support of its adverse decision. The adverse findings by the Authority were open for the reasons given by the Authority. In that regard, the Authority correctly identified the applicant’s claims. The adverse findings by the Authority are the subject of logical and rational reasons, as summarised above. The Authority identified the applicant’s inconsistencies, implausibilities and omissions in evaluating the applicant’s claims. In these circumstances, the Authority’s adverse findings cannot be said to lack an evident and intelligible justification. Further, the Authority’s adverse decision in terms of outcome is not one in respect of which it could be said no reasonable decision-maker could so conclude. Accordingly, no arguable case of jurisdictional error is made out by proposed ground 2.

1. The Court is not satisfied, at an impressionistic level, that the merits of the application have a sufficient prospect of success so as to satisfy the Court that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. Even accepting in favour of the applicant, which the Court does not, that there was a satisfactory explanation for the delay, the Court is not satisfied at an impressionistic level that there is a sufficiently arguable case whereby it is necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act.

2. Accordingly, the amended application filed on 11 July 2019 for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

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

Associate:

Date: 31 July 2020