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[2018] FCA 1885
Federal Court of Australia
2018-11-30
Griffiths J
Original judgment source is linked above.
The applicant's submissions summarised 30 The applicant failed to provide an outline of written submissions, nor did he seek to file an amended draft notice of appeal notwithstanding that he had indicated in his draft notice of appeal that this might occur. 31 At the hearing, when the applicant was asked to make oral submissions in support of his application, he started to recount the entirety of his case, as presented before the delegate. The Court asked him to focus upon why he said that the primary judge had fallen into error. The Court attempted to explain to him how its function differed from that of the FCCA, the IAA and delegate. 32 It emerged that the applicant's primary complaint was that he had been treated differently from other protection visa applicants in detention. He said that he had not had the same access to legal advice as was given to other detainees to assist them in lodging a protection visa application. He said that the migration agent who was allocated to him fell ill and was unable to accompany him to the interview with the delegate. He also complained that the only contact he had with that migration agent was over the telephone, that the interpreter was Lebanese and did not properly interpret things which the applicant told the migration agent. He said that a replacement migration agent turned up to accompany him on the day of the delegate's interview and told him that she knew nothing about his case and that this had never happened to her before. 33 The applicant acknowledged that a post-interview submission had been provided to the delegate and that this submission was prepared by his original migration agent. 34 The applicant said that it was certain that he would be killed or imprisoned if he were returned to Iraq, having regard to his previous work. 35 He said that all he wanted was a fair face-to-face interview so that his case could properly be presented. He said that his interview with the delegate was also unfair because he was told that all he could do was answer questions and not otherwise express himself as he wished.
The Minister's submissions summarised 36 It is unnecessary to summarise the Minister's submissions because they are substantially reflected in the reasons below for dismissing the application for an extension of time.
Consideration and disposition 37 One of the relevant matters which guides the discretion under r 36.05 of the Federal Court Rules 2011 (Cth) to extend time to appeal is the prospects of success. Another is whether the applicant has provided a sufficient explanation for the delay in commencing the proceeding. On the latter matter, I am willing to accept the applicant's explanation as summarised in [27] above, particularly having regard to his unrepresented status. I am conscious of, and take into account, the fact that the proceedings relate to the applicant's claim that Australia owes him protection. The stakes for him are particularly high. 38 The central difficulty for the applicant lies in the draft notice of appeal which simply asserts, without any particulars, that the primary judge erred in failing to find that the IAA's decision was affected by jurisdictional error. The draft notice of appeal is patently inadequate. As noted above, the applicant did not seek to amend the draft notice of appeal notwithstanding that he had foreshadowed that he might do so. The applicant was unable to overcome these deficiencies in his oral submissions. He effectively invited the Court to consider the merits of his application for a protection visa. His complaints regarding the interview with the delegate were considered and rejected by the primary judge, as is also the case with his complaint that, even though he was a Shia, he was also at risk of harm by Shia militia (see her Honour's reasons at [89]-[91] and at [55]-[56] respectively).
Conclusion 39 For these reasons, the application for an extension of time will be dismissed, with costs. It is not for this Court to determine whether there are compassionate grounds which make the applicant's case suitable for consideration as to whether a non-compellable discretion under the Act should be exercised in his favour, but sufficient was said by the applicant from the Bar table to indicate that the relevant authorities might wish to address that matter. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
DJH16
Minister for Immigration and Border Protection
GRIFFITHS J: 1 The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia (FCCA). The decision is dated 2 May 2018 and is reported as DJH16 v Minister for Immigration and Border Protection [2018] FCCA 957. The FCCA dismissed the applicant's judicial review challenge to a decision dated 18 October 2016 by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate's decision dated 25 July 2016 to refuse the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV).
The FCCA proceeding 15 The primary judge summarised at some length the IAA's reasons for affirming the delegate's decision. A summary is to be found at [31] to [60] of her Honour's reasons for decision. The applicant did not have legal representation in the FCCA and his only ground of judicial review was that the IAA decision is "affected by legal error". The primary judge noted that, at the FCCA hearing, the applicant had particularised his challenge to the IAA's decision by reference to the following three issues: (a) the IAA's alleged failure to consider that he would be imprisoned if he were returned to Iraq because he had been a police officer and had deserted his work; (b) his disagreement with the IAA's failure to find that the fighting between the Al Mahdi army and the police in December 2009 had led to the injured terrorist being admitted to the hospital which resulted in threats being made against the applicant; and (c) the applicant's interview with the delegate was conducted with an interpreter on the telephone and the delegate did not let the applicant tell his story and simply directed him to answer her questions. 16 The primary judge explained why none of these complaints gave rise to jurisdictional error. 17 In relation to the applicant's claim to fear imprisonment in Iraq because of his prior employment as a police officer, the primary judge noted the IAA's finding that the applicant was not a police officer, but was a security officer employed by the FPS. The IAA had accepted, however, that he had been provided with a service weapon in that role. Her Honour also noted at [78] that the IAA had accepted that the applicant may have retained his service weapon while on medical leave but it did not accept that he would not have surrendered his weapon when his employment was terminated. The IAA further found that it was implausible that the applicant would have entrusted his weapon to a smuggler whom he did not know, rather than to his own family for the purpose of returning it to the police. 18 The IAA concluded that there was not a real chance of the applicant being prosecuted due to the non-return of his service weapon. Her Honour concluded at [81] that these findings were open to the authority on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. 19 As to the second matter, the primary judge referred to the IAA's decision record in which it rejected the applicant's claims that a battle had taken place outside the hospital in 2009, that an injured terrorist had been brought to the hospital and that the terrorist had been arrested. The primary judge noted that these findings were made by the IAA with reference to country information which did not indicate that there had been any battle near the hospital in 2009 or 2010. The IAA found that there was no basis on which members of the former Al Mahdi army would have held the applicant, his family or his tribe responsible for the imprisonment of the terrorist leader. 20 The primary judge referred at [85] to the IAA's rejection of the applicant's claims to have been targeted due to his association with coalition forces and the IAA noted that the applicant had not worked with the FPS since 2010. Given the lack of previous interest by militias in the applicant and the fact that he was no longer employed by the FPS, the IAA found it highly unlikely that the applicant would be targeted in Iraq. The primary judge found at [88] that these findings were open to the IAA, for the reasons it gave. 21 As to the third matter, relating to the interview with the delegate, the primary judge stated at [89] that there was no evidence before the Court to support the applicant's claims. 22 The primary judge then addressed at [92]-[97] of the reasons for judgment the applicant's claim, which was raised for the first time in reply, that he feared harm because of the data breach. Her Honour referred to the IAA's decision record, which she found made it clear that the IAA considered the effect of the data breach, but concluded that the release of the applicant's personal information did not increase the chance of him being harmed upon return to Iraq or that there was a real chance that he would face serious harm on return as a result of the data breach. 23 The primary judge concluded at [94] that these findings were open on the evidence and materials before the IAA and for the reasons it gave, including its adverse credibility findings. Her Honour described the applicant's complaints regarding the data breach as being more in the nature of a disagreement with the merits of the IAA's findings. 24 The primary judge also turned her attention to the fact that information had been given to the IAA which had not been disclosed to the applicant by virtue of the operation of s 473GB of the Act. Her Honour referred to the Full Court's decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16) at [96]-[98]. Her Honour also noted that BBS16 was the subject of a special leave application to the High Court. Her Honour then implicitly adopted the Minister's submission that she should follow BBS16 in which it was held that, because of the particular statutory scheme in Pt 7AA of the Act, there is no duty on the IAA, or any entitlement on the part of a referred applicant, to be involved in the IAA's determinations with respect to certificates/notifications given under s 473GB, referring to [97] and [98] of BBS16. 25 For these reasons, the primary judge concluded that the IAA's decision was not affected by jurisdictional error.