FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCA 225

FEDERAL COURT OF AUSTRALIA

FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225

Appeal from:

FQV18 v Minister for Home Affairs [2019] FCCA 858

File number:

NSD 572 of 2019

Judge:

STEWART J

Date of judgment:

28 February 2020

Catchwords:

MIGRATION – appeal from judgment of the Federal Circuit Court – whether the Immigration Assessment Authority considered relevant country information – no jurisdictional error shown

PRACTICE & PROCEDURE – application to adjourn hearing – no reasonable prospects of success – adjournment application dismissed

Legislation:

Migration Act 1958 (Cth) s 46A

Cases cited:

ETA067 v The Republic of Nauru [2018] HCA 46; 360 ALR 228

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Date of hearing:

26 February 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

30

Counsel for the Appellant:

The appellant appeared in person, assisted by an interpreter

Counsel for the First Respondent:

DA Hughes

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The second respondent filed a submitting notice save as to costs

ORDERS

NSD 572 of 2019

BETWEEN:

FQV18

Appellant

AND:

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

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	STEWART J
DATE OF ORDER:	28 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs as agreed or taxed.

3.The name of the first respondent be amended to read 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1. The appellant appeals from a judgment of the Federal Circuit Court (FQV18 v Minister for Home Affairs [2019] FCCA 858), which dismissed an application for judicial review of a decision by the Immigration Assessment Authority on 26 September 2018.  The Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the first respondent).  The delegate refused to grant the appellant a protection visa.

   Background

2. The appellant is a citizen of Lebanon. He arrived in Australia (Christmas Island) by boat from Indonesia on 5 June 2013. On 25 January 2017, after the bar imposed by s 46A of the Migration Act 1958 (Cth) (Act) was lifted, he applied for a protection visa.

3. The appellant claimed persecution on the grounds of actual and implied political opinion for assessment of refugee status and also relied on complementary protection for the assessment of his claims.

4. On 1 June 2018, the delegate refused the protection visa application.  The matter was then referred to the Authority for review.  On 26 September 2018, the Authority affirmed the delegate’s decision.

   Authority’s Decision

5. The appellant claimed at his arrival interview, in a statutory declaration and before the delegate that he feared harm in Lebanon by reason of his membership of a well-known family in Lebanon, which had been involved in a long-standing and violent dispute with another well-known family in Lebanon.  The nature of the dispute involved political, ethnic and religious differences.

6. The Authority found that the appellant had exaggerated parts of his evidence.  It accepted that there was a long-standing inter-family conflict, that members of the appellant’s family had been killed and wounded in 2012, and that his cousins were killed in a clash in March 2014.  The Authority found that the appellant had played no part in any of the killings, and that the two families remain opposed to each other.  However, the Authority was not satisfied that there had been any further fighting or adverse incidents between the two families since the appellant’s cousin killed a member of the opposing family in 2014.

7. The Authority had regard to country information about the situation in Lebanon and the appellant’s particular circumstances, and concluded that the chance of him suffering harm if he returned to Lebanon is remote.

   The proceeding in the Circuit Court

8. In his amended application, the appellant advanced two grounds of review in the Circuit Court.  Only one of the grounds advanced below is taken up in the notice of appeal.

9. By that ground, the appellant asserted that the Authority had wrongly concluded that the chance of him suffering harm if he returned to Lebanon is remote by having overlooked information “in the last sentence of paragraph 3.29 of DFAT Country Information Report for Lebanon dated 23 October 2017”.

10. The primary judge dealt with this ground at paragraphs [22]-[28] of his Honour’s judgment.  The primary judge found that paragraph [31] of the Authority’s reasons was “entirely consistent with having regard to the DFAT country information”.

    The adjournment application

11. Although the appellant was legally represented before the Circuit Court, he was unrepresented in the proceeding in this Court.  He failed to file written submissions.  When the matter was called for hearing, the appellant appeared representing himself.  He was assisted by an interpreter interpreting between the Arabic and English languages.

12. The appellant applied orally for an adjournment of the appeal hearing.  He said that the purpose of the adjournment was to enable him to seek to obtain legal representation.  He said that he had been working (i.e. earning a living) since November 2019 from which time he had been saving money to appoint a lawyer to represent him.  He said that before that time he was not able to afford a lawyer.

13. When questioned why he had waited until the hearing to ask for the case to be adjourned, he stated that he sought the adjournment in response to the Court’s invitation to him to say what he wished to say in support of the appeal.  I understood him to mean that what he wished to say in support of the appeal was that he would like to have the opportunity of appointing a lawyer to speak in support of the appeal.

14. The appellant explained that since he began working in November 2019 he had sought legal representation but he had been unable to secure any even though he had paid money to lawyers to consider the matter.

15. The Minister opposed the adjournment on the basis that it was futile – in the sense that there could be no confidence that the appellant would be able to get the assistance of a lawyer given his previous unsuccessful attempts – and that notice of the adjournment application was given so late, i.e. at the hearing.

16. I dismissed the application for an adjournment and said that I would give my reasons when I gave my reasons on the appeal.  These are my reasons.

17. The appellant has had a long period of time to prepare for the appeal.  If he wished to seek an adjournment in order to try to get legal representation, he could and should have done that at a much earlier time.  In particular, he was required to file written submissions by 12 February 2020 (ten business days before the hearing) but failed to do so.  At a minimum, if he intended to seek to have the hearing of the appeal adjourned he should have indicated that intention by that time.

18. As a consequence of the late application, the Court and the Minister have prepared for the appeal.  It would be detrimental to the administration of justice, and a waste of the Court’s time and resources, to reschedule the appeal for another day.  Of course, sometimes such rescheduling, despite the detriment and waste, is justified.  But on this occasion, it is not justified. 

19. On the basis of what the appellant said in support of his application for an adjournment, there can be no confidence that the appellant will be able to secure any legal representation for his appeal.  If he has thus far been unable to get such legal representation, even for the limited purpose of seeking an adjournment, it would appear that he may be unable to do so in the future.

20. Recognising that the appellant is unrepresented in this Court, and as an asylum seeker is inevitably in resource deficient circumstances, I also gave consideration to whether there might be a point in his appeal (in addition to the point already taken in the notice of appeal) that a lawyer would be able to do justice to such as to give the appeal reasonable prospects of success.  I was not able to identify such a point.  I recognise, of course, that it may be that a lawyer appointed by the appellant would see something that I have not seen.  The position is nevertheless that at present it cannot be said that there is any prospect in the appeal (beyond the ground of appeal in the notice of appeal which I will come to) that a lawyer would be able to assist the appellant with.

    The appeal

21. The notice of appeal in this Court asserts again that the Authority failed to consider part of the country information evidence before it in a DFAT Report dated 23 October 2017 and an issue which arose from the country information evidence.  This would appear to re-agitate ground 1(a) of the amended grounds of review in the Circuit Court which was in the following terms:

    1.The Immigration Assessment Authority (“the IAA”) found at [31] that “the chance of the applicant is suffering harm if he returned to Lebanon on is remote”.  The IAA made two errors in arriving at this finding as follows:

    (a) The IAA overlooked the country information in the last sentence of paragraph 3.29 of the DFAT country information report for Lebanon dated 23 October 2017.

22. The Authority plainly considered the Report – it referred to it repeatedly in its reasons (e.g. footnotes 4-10 at [26]-[28] and again at [31]).  There is nothing to suggest that the Authority failed to appreciate the whole of the Report, or that it misunderstood the Report. 

23. The following is clear from paragraph [31] of the Authority’s reasons which is the same paragraph in which the Authority’s finding that the appellant complains of is recorded.

24. First, the Authority referred expressly to its earlier consideration of the Report.

25. Second, the Authority quoted almost verbatim from parts of paragraph 3.29 of the Report, which is the paragraph containing the sentence that the appellant said that the Authority overlooked.

26. Third, the Authority did not only take into account country information when considering whether the appellant had a real chance of suffering harm if he returned to Lebanon.  In particular, the Authority also took into account the appellant’s particular circumstances, and considered the country information and those circumstances primarily against the background of the appellant’s claims, which related to inter-family violence.

27. So understood, the primary judge was correct to hold that the Authority did consider the Report and that no jurisdictional error was shown.  The primary judge was correct in holding that the Authority’s reasons are not to be read with a keen eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2, and that the Authority does not have to refer to every piece of evidence: ETA067 v The Republic of Nauru [2018] HCA 46; 360 ALR 228 at [13].

28. Additional matters raised in oral address by the appellant went to the merits of the decision of the Authority and did not support any basis to find that there was jurisdictional error.

29. I am satisfied that the appellant has failed to establish any jurisdictional error on the part of the Authority, and has consequently failed to show any error on the part of the primary judge.

    Conclusion

30. The appeal should be dismissed.  There is no reason why the costs should not follow the event.  That is to say, the appellant should pay the Minister’s costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.

Associate:

Dated:       28 February 2020