FEDERAL COURT OF AUSTRALIA

DQU16 v Minister for Home Affairs [2018] FCA 1695

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing an appeal against the judgment in DQU16 & Ors v Minister for Immigration and Border Protection [2017] FCCA 1818 be extended to 21 December 2018, subject to the notice of appeal being confined to a single ground to the effect that the Immigration Assessment Authority committed jurisdictional error by failing to apply the principles in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 when considering the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).

2.    The costs of the application for an extension of time be reserved to the court hearing the appeal.

3.    By 4pm on 21 December 2018, the applicants file and serve a notice of appeal.

4.    The appeal be listed for hearing in the next available Full Court and Appellate Sittings of the Court in Sydney.

5.    By 4pm on 8 February 2019, the first respondent submit to the Registrar a draft of the index to Part A of the Appeal Book and Part B of the Appeal Book.

6.    In accordance with Practice Note APP2, within 14 days of the Registrar’s approval, the first respondent file and serve the complete Part A and the Part B index.

7.    In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the appellants file and serve on the first respondent their outline or outlines of submissions.

8.    In accordance with Practice Note APP2, not later than 4.00 pm 15 business days before the hearing of the appeal, the first respondent file and serve on the appellants a copy of his outline of submissions.

9.    In accordance with Practice Note APP2, not later than 4.00 pm 10 business days before the hearing of the appeal, the appellants file and serve on the first respondent a copy of any submissions in reply.

10.    In accordance with Practice Note APP2, not later than 4.00pm 14 business days before the hearing of the appeal, the appellants file and serve on the first respondent a list of material that they require to be included in Part C of the Appeal Book.

11.    In accordance with Practice Note APP2, not later than 5 business days before the hearing of the appeal, the first respondent file 4 copies and serve on the appellants a copy of Part C of the Appeal Book.

12.    Outlines of submissions must not exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

13.    Each party file and serve a list of authorities and legislation in accordance with Practice Note APP2.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This an application under r 36.05(1) of the Federal Court Rules 2011 (Cth) for an extension of time to appeal against a judgment of the Federal Circuit Court of Australia delivered on 3 August 2017. The application was filed outside the 21 day limit prescribed under r 36.03(a) of the Federal Court Rules.

2    The first applicant is represented by counsel acting on a pro bono basis. The second and third applicants are not legally represented, but the second applicant represented the third applicant, who is an infant. The second applicant relies upon the submissions made by the first applicant’s counsel.

The application for extension of time

3    The first, second and third applicants, are husband, wife and child respectively. In 2012, the first and second applicants arrived in Australia from Iraq. The third applicant was born in Australia. On 3 September 2015, they lodged applications for temporary protection visas. The second and third applicants did not apply in their own right, but, rather, as members of the first applicant’s family unit.

4    A delegate of the first respondent, the Minister for Home Affairs (the Minister) refused the applications on 9 September 2016. The delegate’s decision was referred to the Immigration Assessment Authority (the Authority), which affirmed the decision on 2 November 2016. The applicants then applied for review to the Federal Circuit Court, which dismissed their application with costs.

5    The matters relevant to the application for an extension of time include the length of the delay, the applicants’ explanation for the delay, any prejudice to the respondents and prospects of success in the appeal: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

6    The applicants delayed for over 7 months before filing their application for an extension of time. A delay of that extent is significant and substantial.

7    The first applicant’s explanation for the delay is that he was present in the Federal Circuit Court when the judgment was delivered ex tempore and felt despondent about his chances of success within the Australian court system because of his perception that the Court had not listened to his case. He did not have the money to pay for an appeal. His relationship with his solicitor broke down. He was advised by a migration agent that an application for ministerial intervention would be a lower cost option than filing an appeal. He eventually applied for an extension of time to appeal with assistance from a refugee support group.

8    I do not regard the first applicant’s explanation for the delay as reasonable or acceptable. He deposes that his solicitor told him the cost of running an appeal, but does not say whether the solicitor gave him advice as to the prospects of success or the time limit for an appeal. I infer that the omissions are deliberate. He elected to apply for ministerial intervention. He could have filed a notice of appeal within the time limit and, as many people do, represented himself. I do not consider that his lack of funds to retain a lawyer for the appeal is a satisfactory excuse for his delay.

9    The Minister does not assert any prejudice as a result of the delay. However, it would be prejudicial to the administration of justice if persons who fail before the Federal Circuit Court and then deliberately delay in appealing to this Court are readily granted extensions of time.

10    I will turn to consider the merits of the proposed appeal. In light of the conclusions I have reached so far, the merits would have to be substantial to warrant an extension of time.

The merits of the proposed appeal

The Authority’s decision

11    The Authority described the first applicant’s claims as follows:

•    The applicant husband worked as an alcohol seller in [name of town deleted] between 2010 and 2012. He used to obtain liquor from Baghdad and sold them to customers in [name of town deleted] privately. He did not have a public front for his business, and all the sales of alcohol were done through his Mercedes car. His sales were usually done through phone calls. He usually sold alcohol around evening time and kept a low profile because alcohol business was very dangerous in Iraq. He did not operate from a single point; he changed his location frequently and it was difficult for someone to find him. He was careful not to conduct business with people that he did not know.

•    In 2012, he discovered that the Mahdi Army (JAM) was planning to kill him because of his work as an alcohol seller. He was chased by a vehicle and motorbike, who attempted to shoot and kill him. He managed to escape and reported to the police who was unable to assist because the police were afraid of JAM who is a strong militant group.

•    Following these incidents, he left [name of town deleted] and hid in Baghdad for about a month.

•    He received a call from unknown people who threatened to kill him as he sold alcohol.

•    While in Baghdad, he made arrangements to leave Iraq due to fear of harm.

•    In October 2013 and August 2014 while he was in Australia, his family home was raided by JAM. JAM searched for alcohol, inquired about the applicant husband and threatened his family. His family told JAM that they have no idea and they did not know where he was.

•    He fears being killed by JAM because of his work as an alcohol seller.

•    He claims that the political and security situation of Iraq has deteriorated since 2003. Sectarian violence is rampant and the religious parties rule Iraq with impunity.

12    The Authority seemed to proceed on the basis that, while the Mahdi Army prohibits the sale and consumption of alcohol as un-Islamic or immoral, such activities are not illegal in the first applicant’s home town. The Authority accepted that the first applicant had operated a business of selling alcohol from February 2010 to July 2012. The Authority did not expressly state that he was a member of a social group consisting of businessmen who sell alcohol, but implicitly proceeded on such a basis.

13    The Authority found that a number of aspects of the first applicant’s evidence were not credible. It did not accept that he was chased by Mahdi Army members and shot at. It did not accept that he went into hiding in Baghdad and fled Iraq due to fear of harm arising from such incidents. It did not accept that he had received threatening phone calls, nor that he was of interest to the Mahdi Army or any other militias for reasons relating to the sale of alcohol. It did not accept that the Mahdi Army had raided the first applicant’s family home in Iraq and enquired about him. The Authority did not accept another claim made by the first applicant that he had been bashed in 2010 because he was in possession of alcohol. The Authority found that the first applicant did not face a real chance of harm on the basis of the claims made by him.

14    The Authority considered a claim made by the first applicant that because the sale of alcohol is forbidden by Islamic law, he would not be forgiven even if he were to cease that conduct. The Authority accepted that alcohol is forbidden and that alcohol sellers are targeted, but said “the country information before me does not suggest that alcohol sellers will not be forgiven even if they were to cease selling alcohol and repent.” The Authority noted that it had been over four years since the first applicant had left Iraq and was not satisfied that the first applicant would face a real chance of harm because he had sold alcohol in the past.

15    Up to this point, the Authority seemed to have been considering the issues arising under s 5J(1) of the Migration Act 1958 (Cth) (the Act). It then turned to consider s 5J(3) and whether the first applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. The first applicant claimed that it would not be an option to stop selling alcohol in Iraq because he had failed in finding any other job and he would need to sell alcohol to make a living. The Authority accepted that it was difficult to find work in Iraq. The Authority said that the first applicant had completed primary, secondary and higher education, and that “he had completed nursing studies”. The Authority went on to say, “I consider that the applicant husband could utilise his skills and knowledge from the nursing studies in finding alternative employment upon return”. It noted that he had worked as a car mechanic in the past. The Authority found as follows:

I accept that selling alcohol is a profitable but dangerous business in Iraq. Given that the applicant husband is relatively well educated, has diverse skills, including over nine years of experience as a mechanic which, I consider, would enable him to find alternative employment, I am not persuaded he would continue alcohol upon return.

16    The Authority considered that the first applicant could take reasonable steps to modify his behaviour by ceasing to sell alcohol so as to avoid the chance of persecution. It concluded that s 5J(3) of the Act applied, such that the first applicant did not have a well-founded fear of persecution.

17    The Authority next considered and rejected the first applicant’s claim that he was at a real risk of harm from Shia militias on the basis that he is a Shia Muslim man. It rejected a submission that he was at risk of serious harm from police and security organisations. It rejected his claim that he would face a real chance of harm from Sunni militia groups. It considered that there was only a remote chance that the first applicant would be caught up in generalised violence or sectarian violence. It also found that he would not face a real chance of harm for reasons of being a failed asylum seeker or returning from Australia.

18    The Authority was not satisfied that the first applicant fell within the definition of “refugee” in s 5H(1) and therefore found that he did not satisfy the criterion in s 36(2)(a) of the Act. The Authority then turned to consider the complementary protection criterion under s 36(2)(aa) of the Act.

19    The Authority found as follows:

59.    I have found above that the applicant husband could take reasonable steps to modify his behaviour by ceasing to sell alcohol so as to avoid a real chance of harm, and therefore, he does not have a well-founded fear of persecution. Unlike s 5J(3), there is no equivalent provision to which complementary protection is subject. The relevant question before me is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed Australia to Iraq, there is a real risk that he will suffer significant harm.

60.    I have found that the applicant husband would not continue to sell alcohol upon return.

61.    Having found that he would not work as an alcohol seller upon return, I find that he does not face a real risk of harm on this basis.

20    The Authority went on to find that the first applicant did not face a real risk of significant harm for any other reason. It found that the first applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

21    The Authority then found that the second and third applicants did not satisfy the criteria for a protection visa as members of the same family unit of a person mentioned in s 36(2)(a) or (aa). The Authority accordingly affirmed the delegate’s decision to refuse the applicants’ protection visas.

The judgment of the Federal Circuit Court

22    The applicants’ further amended application before the Federal Circuit Court relied on the following grounds:

1- the Immigration Assessment Authority “IAA” Failed to assess the applicant’s claims under section 5 J of the Migration Act :

particulars

a- the IAA did not assess the serious harm that the applicant will be subjected to , through the following sub sections of section 5 of the Migration Act

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

2- The IAA failed to consider relevant considerations, the IAA took into account Irrelevant considerations :

Particulars

a – The IAA failed to take into account the DVD provided as part of the Migration agent’s submissions as an evidence of the persecution that alcohol sellers face in Iraq.

b- The IAA did not take into account past experiences of alcohol sellers in Iraq, although past experiences are considered as part of the law applicable in these cases.

c- The IAA did not take into account the lack of the professional experiences that the applicant have in doing any other job in its assessment to whether the applicant can subsist if he goes back to the receiving country or if he is to modify his behaviour , a requirement that exists in section SJ of the Act.

3- The IAA decision is unreasonable :

Particulars

a- The IAA did not take into account the Country information in relation to the treatment of alcohol sellers in Iraq.

b- The IAA did not take into account the serious harm that the applicant will face if he is to go back to his home country as a result of his past experiences in selling alcohol.

c- The IAA did not assess whether the applicant will be liable in front of the law in his home country or whether the law applies in this case is of general application

d- The IAA decision is disproportionate by giving excessive weight to a matter of very minor importance, being the phone call, and /or by giving little weight to a very important factor, being the video clip.

4- The IAA failed to properly apply the commentary protection criteria’s.

(Errors in the original.)

23    As to the first ground, the primary judge held that on the face of the Authority’s reasons, it had correctly applied s 5J(3) of the Act in relation to determining whether the first applicant met the requirements under the Refugees Convention and correctly excluded from consideration s 5J(3) in relation to the issue of complementary protection. It is not entirely clear whether his Honour directly engaged with the ground of appeal, which may have been directed to s 5J(1) of the Act, rather than s 5J(3), which is concerned with modification of behaviour. However, his Honour may have been dealing with the ground as it was argued rather than as it was expressed. His Honour concluded that the first respondent’s submissions were, in substance, an invitation to the Court to engage in impermissible merits review.

24    As to the second ground, the primary judge held that there had been no identification of any relevant consideration that the Authority failed to consider or irrelevant considerations that the Authority considered. His Honour concluded that the first respondent’s submissions were an invitation to the Court to engage in impermissible merits review.

25    As to the third ground, his Honour again held that the submission was, in substance, an invitation to the Court to engage in impermissible merits review. The Court considered that the Authority’s findings in relation to the first applicant’s credibility were open and could not be said to lack an evident and intelligible justification.

26    As to the fourth ground, the primary judge held that the Authority had correctly understood the relevant law in respect of complementary protection. It was open to the Authority to take into account the findings that it had made in relation to the refugee criterion in determining the first applicant’s claims for complementary protection. His Honour found that the Authority had correctly excluded from consideration s 5J(3) of the Act, and that the Authority’s finding that the first applicant would not be selling alcohol upon return was open. His Honour dismissed the application with costs.

The proposed appeal

27    The first applicant’s counsel has prepared an amended draft notice of appeal. It contains the following grounds:

1.    The FCCA constructively failed to exercise its jurisdiction in relation to, or failed to give sufficient reasons for dismissing, each ground of the application that was before it.

Particulars

In relation to each ground of the application before the FCCA, the FCCA’s reasons for dismissing the ground suffer from some or all of the following deficiencies (primary judgment (38)-(58)

i.    stating significant conclusions for which no, or insufficient, reasoning is provided;

ii.    mischaracterising submissions that were put to the FCCA;

iii.    failing to respond to submissions that were put to the FCCA.

2.    The FCCA erred in failing to find that the Second Respondent had made an error of law in making an unfounded factual assumption about alternative employment that was available to the First Applicant.

Particulars

i.     There was no evidence to support a conclusion that the First Applicant could find employment as a nurse or as a mechanic.

3.    The FCCA erred in failing to find that the Second Respondent had made an error of law in failing to consider relevant information in making its determination about the potential alternative employment available to the First Applicant.

Particulars

i.     The Second Respondent failed to consider the education record of the First Applicant (Court Book below p 147)

4.    The FCCA erred in failing to find that the Second Respondent had made an error of law in making the unfounded factual assumption that "the country information before me does not suggest that alcohol sellers will not be forgiven even if they were to cease selling alcohol and repent".

Particulars

i.    The country information before the Second Respondent made no reference to forgiveness of repentent former alcohol sellers.

ii.     There was no evidence before the Second Respondent to support a conclusion that the First Applicant was repentent about selling alcohol.

iii.     There was no evidence before the Second Respondent to support a conclusion that the First Applicant would be willing to repent about selling alcohol.

5.    The FCCA erred in failing to find that the Second Respondent had made an error of law in construing whether the assumption that the First Applicant would repent would require conduct within the terms of s 5J(3)(c)(i) or s 5J(3)(c)(iii)

Particulars

i.    The concept of repentance requires an alteration of religious beliefs

ii.    If protestation of repentence is required when a person is not in truth repentant, that protestation requires a concelament of the person’s true religious beliefs.

iii.    If protestation of repentance is required when a person does not in fact believe that the selling of alcohol is wrong, that protestation requires a concelament of the person’s true political beliefs.

6.    The FCCA erred in failing to find that the Second Respondent had made an error of law in construing the entitlement of the First Applicant to complementary protection.

Particulars

i.     The Second Respondent failed to consider whether the First Applicant would face significant harm if he continued to sell alcohol on his return to Iraq.

28    It is convenient to begin with the proposed sixth ground of appeal. The first applicant’s counsel argued that ground differently to the way expressed in the particulars of the ground. The argument is that the Authority ought to have applied the principles in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 (S395) to the first applicant’s claim for complementary protection under s 36(2)(aa) of the Act.

29    In S395, a majority of the High Court held at [39]–[43] and [88] that if a decision-maker finds that a person will modify his or her conduct in a way to avoid persecution, the decision-maker must consider whether the modification was influenced by a threat of serious harm. That is because a threat of serious harm itself constitutes persecutory conduct.

30    In the present case, the Authority found that the first applicant would modify his behaviour by ceasing to sell alcohol if he were returned to Iraq. In the context of considering the refugee criterion under s 36(2)(a) of the Act, the Authority found that the first applicant could take reasonable steps to modify his behaviour by ceasing to sell alcohol so as to avoid a real chance of harm. The Authority found that, accordingly, under s 5J(3) of the Act, the first applicant did not have a well-founded fear of persecution.

31    However, when the Authority considered the complementary protection criterion under s 36(2)(aa) of the Act, it did not apply S395. The first applicant submits that the Tribunal erred by failing to ask why he would cease selling alcohol (a legal activity) if he were returned to Iraq. The first applicant submits that if the question had been asked, the answer was likely to be that he would cease selling alcohol because of the real risk that, as a necessary and foreseeable consequence of being removed to Iraq, he would otherwise suffer significant harm. He submits that the Authority was required to consider whether his behaviour would be modified to avoid harm.

32    The Minister submits that the principles from S395 are confined to the refugee criterion and do not extend to complementary protection. The Minister submits that s 36(2)(aa) of the Act only required the Authority to assess what the first applicant would do if he returned to Iraq, not why he would act in that way. The Minister submits that if a person will face a risk of significant harm after removal to another country because of the way the person chooses to act, the harm is not a “necessary” consequence of removal.

33    The question of whether the principles from S395 have any application to complementary protection has not been decided by this Court. In Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106, the appellant argued that the principles in S395 apply to a claim for complementary protection, but the Full Court held that the issue did not arise for determination given its factual findings. In Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111, the Minister argued that it was wrong for the Federal Circuit Court to have assumed that the reasoning in S395 applied to s 36(2)(aa), but the Full Court did not find it necessary to decide the issue. In BPX17 v Minister for Immigration and Border Protection [2018] FCA 763, Barker J also found it unnecessary to decide whether the Federal Circuit Court erred by concluding that S395 did not apply in relation to complementary protection.

34    In my opinion, the first respondent’s ground is at least arguable. The Minister did not contend to the contrary. If S395 is held to be applicable to an application for complementary protection, then the Authority’s failure to apply the case is likely to be dispositive of the appeal.

35    Despite my misgivings about the length of the first applicant’s delay and the lack of any adequate explanation for that delay, I consider that an extension of time should be granted to allow the applicants to argue the proposed ground.

36    I consider that there is insufficient merit in the remaining five grounds to extend the time to appeal upon those grounds. They may be dealt with shortly.

37    The Minister submits that the proposed second to fifth grounds were not raised before the primary judge and that an extension of time should not be granted for that reason alone. The first applicant argues that they were raised. It is unnecessary to decide this issue since dealing with the grounds on their merits produces the same outcome.

38    The proposed first ground raises the adequacy of the primary judge’s reasons. It is necessary to make some allowance for the fact that his Honour’s reasons were given ex tempore. They were brief, but their brevity does not mean that they were inadequate. There is some difficulty in understanding part of the reasons in respect of the first ground of the application, but his Honour was ultimately correct to hold that the ground sought merits review. In my opinion, the reasons adequately explained the basis of his Honour’s reasoning in rejecting the applicants’ contentions. The applicants’ prospects of success of the first ground are inadequate to allow an extension of time in respect of that ground.

39    The first applicant’s proposed second ground alleges an error by the Tribunal in stating that the first applicant had completed his nursing studies when, in fact, he had withdrawn from those studies. The first applicant argues that the finding that the applicant completed his nursing studies was made without evidence and amounts to a jurisdictional error. In my opinion, any such error by the Authority was an error of fact. To describe the ground as a “no evidence” ground is to dress up an error of fact as an error of law. Further, the error was immaterial. It was made in the context of the Authority deciding whether it would be reasonable, for the purposes of s 5J(3) of the Act, for the first applicant to cease selling alcohol in Iraq. The Tribunal found that the first applicant could find alternative work as a nurse or as a mechanic. No error was alleged in respect of the finding that the first applicant could find work as a mechanic. Therefore, any error in finding that he could find work as a nurse made no difference to the conclusion.

40    The proposed third ground asserts that the Authority failed to consider the education record of the first applicant. Any such error is immaterial for the reasons given in relation to the proposed second ground.

41    The first applicant’s proposed fourth ground involves a misunderstanding of how the Authority used country information. The first applicant claimed that he was at risk of serious harm because even if he ceased to sell alcohol, he would not be forgiven. The Authority considered that as it had been four years since he had left Iraq, he would not face a real chance of harm for his past conduct. When the Tribunal said that the country information did not suggest that alcohol sellers would not be forgiven even if they ceased selling alcohol and repented, the Authority was merely indicating that it had found nothing in the country information to support the first applicant’s claim. That did not amount to any misuse of the country information.

42    The first applicant’s proposed fifth ground involves an argument that the Authority made an error of law in failing to construe ceasing the sale of alcohol and “repenting” as representing an alteration of the first applicant’s religious beliefs. There was no evidence before the Authority that the first applicant sold alcohol as part of any religious belief. Rather, he merely sold alcohol as a business. Therefore “repenting” would not involve any alteration of his religious beliefs.

Conclusion

43    As I have said, the proposed sixth ground was argued in a different way to the way it is expressed. The ground as argued is that the Authority erred by failing to apply the principles from S395 to its consideration of the complementary protection criterion under s 36(2)(aa) of the Act. Provided that the notice of appeal is redrafted to reflect that argument, I am prepared to grant an extension of time to file the notice of appeal. To make it clear, I am not prepared to grant an extension of time to file a notice of appeal containing any other ground.

44    It is not clear whether the first applicant’s submission concerning S395 was raised before the primary judge. If it was not raised, it will be necessary for the applicants to seek leave from the appellate court to rely upon that ground.

45    The second and third applicants adopted the submissions made on behalf of the first applicant. The second and third applicants should also be given an extension of time to file a notice of appeal based upon the same ground.

46    I will issue a pro bono referral certificate in respect of the three applicants pursuant to r 4.12(1) of the Federal Court Rules for the appeal. It is to be hoped that the same counsel will act for all three of them.

47    I wish to record that I am grateful for the assistance provided to the Court by both counsel.

Associate:    

Dated:    14 December 2018