Erp17 v Minister for Immigration - [2019] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERP17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2054

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a Protection visa – applicant claimed to be a citizen of the Ivory Coast and to fear harm there and that the Ghanaian passport on which he had arrived in Australia was a false passport – Administrative Appeals Tribunal held that the applicant was a citizen of Ghana and that the passport was the applicant’s true Ghanaian passport correctly identifying him and giving his nationality as Ghanaian – applicant needed an 11 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477, 487ZJ

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
SZFWB v Minister for Immigration & Citizenship [2007] FCA 167
SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243

Applicant:

ERP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3254 of 2017

Judgment of:

Judge Dowdy

Hearing date:

1 August 2018

Delivered at:

Sydney

Delivered on:

30 July 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr J. Lambe

Solicitors for the First Respondent:

HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application for an extension of time filed in this Court on 20 October 2017 under s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3254 of 2017

ERP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding claims to be a male citizen of Cote d’Ivoire (also known as the Ivory Coast) of Dida ethnicity aged 42 years, having been born on 21 January 1977.
By Application filed in this Court on 20 October 2017, he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 11 days outside the 35 day time limit prescribed by s.477(1) to make his substantive application to this Court; and
b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 4 September 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 18 December 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background and Claims to Protection

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2054
Decision Date: 30 July 2019

CaseChat Overview and Summary

The applicant, who claimed to be a citizen of the Ivory Coast fearing harm due to his political affiliations, sought judicial review of a decision by the Administrative Appeals Tribunal. The Tribunal had affirmed a delegate's decision to refuse him a protection visa. The applicant had arrived in Australia using a Ghanaian passport, which he alleged was false, and claimed to be a supporter of the former Ivorian President Laurent Gbagbo. The Tribunal, however, found that the applicant was a citizen of Ghana and that the passport was his genuine Ghanaian passport. The matter came before Dowdy J in the Federal Court.

The primary legal issues before the Court were whether the applicant had established a sufficient basis for an extension of time to file his application for judicial review, and if so, whether any of his proposed substantive grounds of review had reasonable prospects of success. The applicant required an eleven-day extension of time under section 477(2) of the *Migration Act 1958* (Cth).

Dowdy J refused the application for an extension of time. His Honour found that the applicant had not provided a reasonable explanation for the significant delay in filing his application. Furthermore, His Honour concluded that the applicant had no reasonable prospects of success on any of the substantive grounds he sought to raise. Consequently, the application for an extension of time was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Second, in short the Applicant claimed to fear harm from the Ivory Coast government because he was a political supporter of Laurent Gbagbo, the former President of the Ivory Coast for whom he had campaigned in the presidential elections in 2010. For present purposes, the Applicant’s claims to protection may be summarised as follows from the solicitor’s submission provided to the Delegate after his interview with the Applicant on 13 July 2015:1.Summary of the Applicant's evidenceThe Applicant is citizen of Cote d'Ivoire who arrived in Australia on a Business Visitor visa in the name of [Charles Basic] on 24 November 2014. The Applicant is married and has two children in Cote d'Ivoire.During the campaign for the 2010 presidential elections in Cote d'Ivoire, the Applicant was part of the organisational committee of Mr Dogo Djereke Raphael, a candidate for the Ivorian Popular Front (FPI). The Applicant was not a member of the FPI, but knew Mr Raphael well and was part of the same ethnic group. The Applicant's responsibilities included liaising with village chiefs and the presidents of youth groups, door-knocking and organising public meetings. On several occasions, the Applicant was attacked by supporters of Mr Alassane Ouattara in his neighbourhood in Abidjan; he was also attacked everywhere where he was campaigning for the FPI. The Applicant was beaten in the street, including with iron bars and pieces of wood.When conflict broke out following the disputed results of the election, supporters of Mr Ouattara, who had gained control of Abidjan, arrested and killed supporters of Mr Gbagbo. Supporters of Mr Ouattara indicted that the Applicant's house belonged to a supporter of Mr Gbagbo, and the Applicant was beaten, taken away and imprisoned at the Maison de Correction d'Abidjan on 6 April 2011, without trial or due process. When the MACA was attacked, on 11 April 2011, the Applicant and other prisoners escaped. The Applicant did not return to his family home, as it was too dangerous to do so, but left Abidjan the following day, travelling to Bingerville, where he boarded a boat and travelled by boat and on foot into Ghana. In Ghana, the Applicant lived in hiding, as supporters of Mr Ouattara were crossing the border to capture Ivorian refugees and harm them or take them prisoner.With the assistance of acquaintances in Ghana, the Applicant contacted people who provided him with a Ghanaian passport in the name of [Charles Basic] and a Business Visitor visa to Australia. The Applicant paid 2000 Ghanaian Cedi to those persons and provided them with a photo of himself, but had no involvement in the visa application process.The Applicant fears that if he were to return to Cote d'Ivoire, he would be harmed by armed groups supporting Mr Ouattara, and which operate with the support or permission of the government. The Applicant fears this persecution in all parts of Cote d'Ivoire.2.Summary of the Applicant's claimsWe submit that if the Applicant is returned to Cote d'Ivoire there is a real chance that he will be seriously harmed on account of his actual or imputed political opinion as a supporter of the former president of Cote d'Ivoire, Laurent Gbagbo, and a former campaign organiser for Dogo Djereke Raphael, a candidate for the Front Populaire Ivoirien.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 11 March 2015 the Applicant applied for the Protection visa and his claims for protection were ultimately set out in:a)his Protection visa application form;b)his Statutory Declaration declared on 3 July 2015 (Statutory Declaration); andc)his solicitor / migration agent’s submission dated 14 August 2015 (solicitor’s submission). First, the Applicant claimed that in truth he was one ‘Richard Kayman’ (i.e. a pseudonym), a citizen of the Ivory Coast, and not ‘Charles Basic’, whose name appeared on the Ghanaian passport and the Business visa, which documents had been provided to him in return for a payment of 2,000 francs. The Applicant claimed that he did not know Mr Charles Basic, nor did he know how the Ghanaian passport or the Business visa had been originally obtained. Second, in short the Applicant claimed to fear harm from the Ivory Coast government because he was a political supporter of Laurent Gbagbo, the former President of the Ivory Coast for whom he had campaigned in the presidential elections in 2010. For present purposes, the Applicant’s claims to protection may be summarised as follows from the solicitor’s submission provided to the Delegate after his interview with the Applicant on 13 July 2015:1.Summary of the Applicant's evidenceThe Applicant is citizen of Cote d'Ivoire who arrived in Australia on a Business Visitor visa in the name of [Charles Basic] on 24 November 2014. The Applicant is married and has two children in Cote d'Ivoire.During the campaign for the 2010 presidential elections in Cote d'Ivoire, the Applicant was part of the organisational committee of Mr Dogo Djereke Raphael, a candidate for the Ivorian Popular Front (FPI). The Applicant was not a member of the FPI, but knew Mr Raphael well and was part of the same ethnic group. The Applicant's responsibilities included liaising with village chiefs and the presidents of youth groups, door-knocking and organising public meetings. On several occasions, the Applicant was attacked by supporters of Mr Alassane Ouattara in his neighbourhood in Abidjan; he was also attacked everywhere where he was campaigning for the FPI. The Applicant was beaten in the street, including with iron bars and pieces of wood.When conflict broke out following the disputed results of the election, supporters of Mr Ouattara, who had gained control of Abidjan, arrested and killed supporters of Mr Gbagbo. Supporters of Mr Ouattara indicted that the Applicant's house belonged to a supporter of Mr Gbagbo, and the Applicant was beaten, taken away and imprisoned at the Maison de Correction d'Abidjan on 6 April 2011, without trial or due process. When the MACA was attacked, on 11 April 2011, the Applicant and other prisoners escaped. The Applicant did not return to his family home, as it was too dangerous to do so, but left Abidjan the following day, travelling to Bingerville, where he boarded a boat and travelled by boat and on foot into Ghana. In Ghana, the Applicant lived in hiding, as supporters of Mr Ouattara were crossing the border to capture Ivorian refugees and harm them or take them prisoner.With the assistance of acquaintances in Ghana, the Applicant contacted people who provided him with a Ghanaian passport in the name of [Charles Basic] and a Business Visitor visa to Australia. The Applicant paid 2000 Ghanaian Cedi to those persons and provided them with a photo of himself, but had no involvement in the visa application process.The Applicant fears that if he were to return to Cote d'Ivoire, he would be harmed by armed groups supporting Mr Ouattara, and which operate with the support or permission of the government. The Applicant fears this persecution in all parts of Cote d'Ivoire.2.Summary of the Applicant's claimsWe submit that if the Applicant is returned to Cote d'Ivoire there is a real chance that he will be seriously harmed on account of his actual or imputed political opinion as a supporter of the former president of Cote d'Ivoire, Laurent Gbagbo, and a former campaign organiser for Dogo Djereke Raphael, a candidate for the Front Populaire Ivoirien.