DOR16 v Minister for Home Affairs

1. The application for an extension of time within which to appeal be granted.
2. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This is a commendably narrowly focused appeal from a judgment of the Federal Circuit Court made in June 2018. The appellant recognises, frankly, that the ground of appeal now asserted was not raised before the primary judge. An issue also arises in relation to the fact that, at least arguably, the appeal was filed out of time. On balance, I think it is appropriate to extend time and also to allow the appellant to raise a ground which was not advanced before the primary judge so that the matter can be determined on substantive grounds. 2 The sole ground now advanced is that the primary judge erred by failing to identify that the relevant decision of the Immigration Assessment Authority (Authority) was affected by legal unreasonableness. In particular, the appellant asserts that the Authority reasoned unreasonably in two respects, as is evident from [37] and [38] of the Authority's reasons. 3 I am spared the necessity to set out the relevant background, which is reproduced in detail in the reasons of the primary judge: DOR16 v Minister for Immigration and Anor [2018] FCCA 1465, at [1]-[19]. At [16], the primary judge, with respect, accurately set out what he described as the "core findings" made by the Authority as reflected in the decision record. 4 Mr Bailey, who did not appear below but appears on behalf of the appellant, contended that given that the Authority had accepted (at [30] of the Decision Record) that the appellant was not an ordinary taxi driver collecting passengers, but was rather a driver for the Lebanese Armed Forces (LAF), it could not logically be said that any harm to him would be "collateral". The reference to "collateral harm" is a reference to the appellant's fears of being harmed because his work necessarily placed him in close proximity of LAF targets. The point made by Mr Bailey was that the use of "collateral" in this sense fails to logically distinguish between the nature of his activities (as being, in effect, part of the LAF) and the LAF targets to which reference is made by the Authority. 5 When [37] of the Authority's reasons is read in context, however, it seems to me that it is tolerably clear that what the Authority was saying was that, although it accepted that as part of the appellant's role he was once in close proximity of an explosion in Tripoli targeted at army officials, in considering whether the appellant had been "directly threatened" in the course of his work, a distinction was drawn between direct threats and indirect threats to someone who is transporting LAF personnel. It is apparent that the appellant accepted such a distinction by responding to a question as to whether or not he had been directly threatened in the following way: Not directly, but as a driver who transports these army people if something happens to them I will be in danger as well. 6 Ultimately the Authority found that, although the appellant fears being harmed because his work necessarily placed him in close proximity of LAF targets, on the evidence, the Authority was satisfied the appellant would not face a real chance of harm upon his return if he was to conduct his previous employment as a driver for the LAF. 7 It is trite that unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, an impugned finding is of the type described by the Full Court in collecting the relevant authorities in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158, at 171-172. At [65] Allsop CJ, Griffiths and Wigney JJ refer to "decisions which are 'plainly unjust', 'arbitrary', 'capricious', 'irrational', 'lacking in evident or intelligibly justification', and 'obviously disproportionate'". It could not be said that any such illogicality or unreasonableness is demonstrated by the Authority's reasoning at [37]. 8 Turning to the Authority's reasoning [38], the contention made was that the Authority had failed to demonstrate an intelligible reasoning process for concluding that the appellant would not have the capacities to subsist or would otherwise face serious harm if he returned. This was the finding made in the context of the conclusion that the appellant did not have a well-founded fear of persecution arising from employment-related matters upon return. 9 It is worthwhile setting out [38] of the Authority's decision in full: The applicant has not articulated that he wishes to resume his LAF driving activities upon return. To the contrary, he has indicated he wished to obtain different employment, preferably a government job. However, the applicant claims that even with his uncle being an MP, the government favoured Christians and Shia's over Sunnis so he was not able to change work and had no choice but to continue as a driver for army personnel. I am satisfied that outside the threat of harm, it is the applicant's preference to obtain other employment but he has previously felt limited, and I note he believes he has been denied opportunities on account of religious discrimination due to being Sunni. However, while it is accepted that sectarianism has been divisive in Lebanon, country information does not indicate that Sunnis face discrimination in employment or other fields. The applicant has extensive driving experience and has also worked at least six months in the construction industry in Australia. He is a young man in his 30s, is able-bodied, of working age and also has most of his family still in Akkar. I note that the applicant comes from Akkar, one of Lebanon's poorest provinces, and that the influx of Syrian refugees has placed increased pressure on the employment situation in Lebanon. I am not satisfied that the applicant's lack of success in obtaining a government job is linked to his religion, nor that he would be prevented in finding work outside government. Country information does not indicate that the applicant would not have a capacity to subsist or would otherwise face serious harm if he returned. I find that he does not have a well-founded fear of persecution arising from employment related matters upon return. (internal citation omitted) 10 This finding was made in the context of: an earlier finding (at [20]) that the Authority was not satisfied the appellant faced a real risk of harm in Akkar on the basis of imputed pro-Syrian opinion and links to the Ba'ath party; and, a subsequent finding (at [59]), in the context of the Authority's consideration of the complementary protection assessment, that the Authority was not satisfied that the appellant would be prevented from obtaining employment either as a driver in a different role or in another field (including construction, from which he gained experience in Australia). 11 As is evident from [59], the Authority was clearly aware that Akkar was one of Lebanon's poorest provinces, and the conflict in Lebanon and Syria has impacted upon the appellant's ability to get work and placed pressure on the employment sector generally. Additionally, it is evident from the extract from [38] above that the decision-maker did have regard, in an apparently rational way, to a number of matters bespoke to the appellant (including his age, his ability to work, and his skillset) as well as country information in reaching its conclusion. 12 Again, given the nature of the stringent test for concluding legal unreasonableness is established or in determining that a decision lacked an intelligible basis, the error alleged, which it will be recalled was not before the primary judge, is not made out. Notwithstanding that Mr Bailey said everything that could possibly be said in support of the sole ground of appeal advanced, the appeal must be dismissed. 13 Hence the orders should be that the application for an extension of time within which to appeal ought to be granted but the appeal should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.