FEDERAL COURT OF AUSTRALIA

FMF17 v Minister for Home Affairs [2018] FCA 1906

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to file an application for leave to appeal is dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for an extension of time to file an application for leave to appeal against a judgment of the Federal Circuit Court of Australia delivered on 22 May 2018. The application is brought under r 35.14 of the Federal Court Rules 2011 (Cth).

2    The Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provides that at a hearing of an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) states that, to avoid doubt, such a dismissal is interlocutory.

3    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of the Federal Circuit Court unless the Court or a judge gives leave to appeal. Under r 35.13 of the Federal Court Rules, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order made. The applicant’s application for leave to appeal was required to be filed no later than 5 June 2018 but was filed on 7 June 2018. The applicant seeks an extension of time for the filing of his application for leave to appeal.

4    The applicant was self-represented before the primary judge and before this Court. He appeared with the assistance of an interpreter.

5    The matters which the Court will usually have regard to in considering an application for an extension of time include the length of the delay, the reasons for the delay, any prejudice to the respondent and the merits of the proposed application.

6    The application was filed only two days out of time. The first respondent (the Minister) does not assert any prejudice.

7    The primary judge’s reasons were delivered ex tempore. The application for the extension of time seems to indicate that the applicant was waiting for written reasons to be published, but that they were not published until close to the day on which the application for an extension of time was filed. In oral submissions, the applicant indicated that the application was filed late because his legal advisor mistakenly thought the application had to be filed within 21 days of the Federal Circuit Court’s judgment. The explanation may well lie in some combination of these factors.

8    The Minister submits that the applicant has not provided an acceptable explanation for the delay in circumstances where the applicant was present when the ex tempore reasons were delivered and the applicant was “therefore well aware of the Court’s decision and reasons”. In my opinion, the Minister’s submission assumes and requires too much of a self-represented litigant who needed the assistance of an interpreter. I consider that the applicant has provided an acceptable explanation for the delay. If the proposed application for leave to appeal has sufficient merit, I would grant the extension of time.

9    In an application for leave to appeal, it is relevant to consider:

(a)    whether, in all the circumstances, the judgment of the primary judge is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

[See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.]

10    I will proceed to consider the merits of the proposed appeal.

11    The applicant arrived in Australia from Iraq in 2013. He is a Shia Muslim of Bidoon ethnicity. In 2016, he lodged an application for a Safe Haven Enterprise (Class XE) Visa. That application was refused by a delegate of the Minister on 15 June 2017.

12    The applicant’s application was then referred to the Authority. The Authority summarised the applicant’s claims as follows:

•    He is a Bidoon who was born in Kuwait.

•    He served in the Kuwaiti Army for seven years in the Eighties and then worked in several roles in Kuwait before being deported to Iraq in 1993 following the First Gulf War.

•    He was granted an Iraqi citizenship certificate in 1993 and settled in Nasiriyah, Dhi Qar governorate, where he worked in various jobs over the next twenty years.

•    His family was verbally insulted, and he was verbally insulted during the course of his employment, particularly when he worked as a self-employed taxi driver.

•    He fears that if he is returned to Iraq he will be discriminated against socially and he will be unable to find employment.

13    The Authority accepted that the applicant is Bidoon. The Bidoon are an ethnic group in the Gulf region, primarily Kuwait. An estimated 100,000 Bidoon fled from Kuwait to Iraq during the Gulf War. Approximately 47,000 were eventually granted Iraqi nationality.

14    The Authority noted that the applicant claimed that he lived a miserable life in Iraq and was discriminated against. He claimed that the people in his area have hatred towards people who were raised in or had lived in Kuwait or the Gulf states. He saw discrimination on a daily basis and his life was like a hell because of that. In Iraq he could not protect himself. He could not live a decent life and felt the whole society was against him. That he speaks and dresses in a different way makes his life unbearable. He had worked as a taxi driver in Iraq, but when customers detected his Kuwaiti dialect, they would insult and use offensive words against him. His children had no choice but to leave school because of the offensive words and insults they faced. More recently, he had not been able to find a job because he was not a member of any political party and not affiliated with an Iraqi tribe.

15    The applicant’s representative claimed that the applicant is stateless. However, the Authority considered that the applicant’s verbal and documentary evidence indicated that he possesses Iraqi citizenship and is not stateless. This aspect of the Authority’s reasons is the primary focus of the proposed appeal and will be discussed in more detail later in these reasons.

16    The Authority did not accept that the applicant is unable to obtain a job or settle in one place in Iraq. It did not accept that he was denied the capacity to earn a livelihood of any kind such that it threatened his capacity to subsist. His own evidence was that in the 20 or so years that he lived in Iraq, he had worked for much of the time. He had only lived at one or two addresses since the early 1990s.

17    The Authority did not accept that the applicant was readily identifiable as Bidoon by wearing traditional dress. It noted that in his most recent identity card photograph, he was not wearing traditional dress. Further, there was nothing in the country information before the Authority to suggest that persons who wear traditional dress are subject to adverse treatment.

18    The Authority did not accept the applicant’s evidence that his children had no choice but to leave school because of verbal insults. The Authority accepted that the applicant and his family may have been subjected to verbal insults from time to time. However, it did not accept that the applicant’s life was made intolerable because of daily discrimination or harassment. Nor did it accept that he or his family suffered physical violence as a result of being Bidoon. The Authority said that the applicant had given unpersuasively vague and general evidence in that regard and had not articulated any particular instances of violent ill-treatment. Further, that claim was inconsistent with country information that there is no evidence of targeted violence against Bidoon communities.

19    The Authority considered that there was only a remote chance that the applicant would be denied the capacity to earn a livelihood such that it would threaten his capacity to subsist. The Authority accepted that there was a real chance that the applicant may suffer minor discrimination in the form of verbal insults from time to time, but was not satisfied that such ill-treatment arises to the level of serious harm.

20    The Authority noted that the applicant had suffered a heart attack and that his representative at his visa interview claimed that he may not receive sufficient medical care or attention because he is a Bidoon if he were returned to Iraq. The Authority did not accept that the applicant would be unable to access medical treatment for his heart condition in Iraq, although he may not receive optimal treatment in comparison to the treatment received in Australia because of the more limited resources available in Iraq. The Authority did not accept that there was discrimination in healthcare, or that he would be denied treatment or restricted in his ability to obtain treatment on the basis of his Bidoon ethnicity.

21    The Authority also considered whether the applicant would be harmed on the basis of his Shia religion and rejected that claim. Further, the Authority was not satisfied that there was a real chance that the applicant would suffer harm as a failed asylum seeker and returnee from a western country. The Authority concluded that the applicant did not satisfy the definition of “refugee” in s 5H(1) of the Migration Act 1958 (Cth) (the Act), and accordingly, did not satisfy the criterion in s 36(2)(a).

22    The Authority considered whether the applicant was owed “complementary protection” obligations under s 36(2)(aa) of the Act. It accepted that the applicant may suffer minor discrimination by reason of his Bidoon ethnicity, but was not satisfied that such ill-treatment rises to the level of “significant harm”. It was not satisfied that the applicant would be unable to access medical treatment or that any restriction on his ability to access treatment would constitute significant harm. The Authority was not satisfied that the applicant would face a real risk of significant harm as a result of his Shia religion and the security situation in his area, or from being a failed asylum seeker or returnee from a western country. Accordingly, the Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm. The Authority concluded that the applicant does not meet the criterion in s 36(2)(aa) of the Act.

23    The applicant applied for judicial review of the Authority’s decision to the Federal Circuit Court. The applicant relied on the following grounds:

Ground 1

The Authority did not take into consideration the evidence about paying bribes to the officials in order to get the nationality ID’s, the Authority erred in applying the country information in this regard, the country information supports the idea that forgery and nepotism is prevalent which makes it difficult to distinguish the correct from the false ID’s, the Authority was not sure about the process of getting ID’s in IRAQ, the Authority did not apply “what if I am wrong” test as provided in Rajalingam v Minister for Immigration and Border Protection and Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 (12 November 2001)

Ground 2

The Authority erred in applying section 5 in relation to the extreme humiliation that I suffered.

Ground 3

The Authority did not mention the details of how will I return to me home area (CID15 v Minister for Immigration) at [50].

24    The primary judge noted that the first ground concerned the applicant’s claim to be stateless and his claim that his certificate of Iraqi citizenship had been obtained through bribery. His Honour concluded that these matters had been expressly considered by the Authority. His Honour said that there was no finding by the Authority that reflected any doubt such as to require the Authority to apply a “What if I am wrong?” test.

25    As to the second ground, his Honour considered that the Authority had expressly referred to the relevant statutory provisions, including the definition of “degrading treatment or punishment” under s 36(2A) of the Act in respect of complementary protection. The Authority was not satisfied that the applicant would suffer extreme humiliation. There was nothing to suggest that the Authority had erred in its identification or application of the law concerning complementary protection.

26    His Honour understood the third ground to allege that the Authority should have considered whether it was reasonably safe for the applicant to return to his home area. His Honour considered that, as no such claim had been raised, the Authority was not required to address it. Further, the Authority was not required to engage in any such consideration as the case was not one where the Authority was required to consider the reasonableness of relocation.

27    The primary judge also considered a number of submissions made from the Bar table by the applicant. These included that the applicant was a stateless Bidoon, that his citizenship documents were obtained by bribes and were not genuine, that he would be identified as a Bidoon, that he would be at risk of discrimination on return to Iraq and he would not be able to stay in any safe area. He also alleged that he was in need of medical treatment having had a heart attack. The primary judge noted that the Authority had expressly addressed each of these claims. The applicant’s disagreement with the adverse findings of the Authority did not identify any arguable case of jurisdictional error.

28    The primary judge was satisfied that it was appropriate to dismiss the matter under r 44.12(1)(a) of the Federal Circuit Court Rules.

29    In an affidavit before this Court, the applicant states:

I rely on my application for Judicial Review to the Federal Circuit Court…during the final hearing, I presented my argument of being stateless person and how IAA established its decision on no evidence, I believe that my statelessness was not given sufficient consideration by the Court

30    The applicant’s draft notice of appeal contains the following grounds:

1.     The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), in a finding in paragraph 16 of its decision, misapplied the Country information which talks about the prevalence of bribes in Iraq to obtain personal ID’s, the authority decided that the applicant is an Iraqi national and that his citizenship certificate is genuinely issued although the authority itself accepted that use of bribes are prevalent in this field

2.     The appellant contended in the Federal Circuit Court that the IAA based its decision that the applicant is an Iraqi citizen on no evidence, accordingly, the authority’s decision is unreasonable and irrational.

3.     The appellant contended in the Federal Circuit Court that the IAA failed to consider the applicant’s personal corroborative evidence in relation to his statelessness, accordingly, The Federal Circuit Court erred in dismissing this ground of review.

31    The applicant was self-represented before this Court. He argued that there was a contradiction in the Authority’s finding that he is Bidoon but that he is not stateless. He said that bribes are often paid in Iraq to obtain forged documents. He said that when he arrived in Iraq from Kuwait, he obtained Iraqi documents by paying bribes. He said he had suffered a heart attack in Australia and has to take particular medication, but that it is difficult to obtain that medication in Iraq. He stated that he had faced persecution in Iraq and had to move around with no single place to stay in. That was because he was easily recognisable as Bidoon because of his dress and accent. He suffered discrimination everywhere he went. It affected his family and his children’s schooling. He was not able to work and support his family financially.

32    The applicant’s first ground of appeal concerns the Authority’s finding that the applicant is a citizen of Iraq and is not stateless. It asserts that the Authority misapplied country information about the prevalence of bribes in Iraq to obtain personal IDs. It also asserts that the Authority ought not to have decided that his citizenship certificate was genuinely issued in circumstances where the Authority accepted that bribes were prevalent.

33    The Authority accepted that the applicant had paid a bribe and used a friend’s connections to obtain his Iraqi citizenship certificate. However, the Authority said it was not satisfied that the use of the connections and the bribe were necessary and that he would not otherwise have been entitled to obtain the document. The Authority went on to say that country information indicated that such payments and connections are routinely expected for any government service in Iraq. While these aspects of the reasons are a little confusing, it is tolerably clear that the Authority meant that the applicant was entitled to the certificate of citizenship, but the bribe was necessary to obtain the government service of having the certificate produced. The Authority also noted that the applicant’s citizenship certificate had been issued in 1993 and that he had subsequently obtained a replacement identity card in 2012 and a legal Iraqi passport. It accepted that these documents were genuine. It noted that the applicant had not claimed to have any difficulties in renewing or obtaining these subsequent documents. For these reasons, the Authority was satisfied that the applicant was an Iraqi national.

34    The proposed first ground of appeal appears to assert that it was illogical for the Authority to decide that the applicant was an Iraqi national and that his citizenship was genuinely issued when the Authority had accepted that the use of bribes was prevalent. In oral submissions the applicant reiterated that bribes are often paid to obtain forged documents. I cannot see anything illogical about the Authority’s conclusion that the applicant’s Iraqi citizenship certificate was genuine. The Authority reasoned that it was common for government services to be obtained through the payment of bribes, but that did not mean that he was not an Iraqi citizen who was not entitled to a certificate of citizenship. While the applicant argued that there was a contradiction between the Authority’s finding that he is Bidoon and that he is not stateless, I cannot see that there is any contradiction. The Authority noted that some 47,000 Bidoons had been granted Iraqi citizenship. I cannot see any way in which the country information was misused. There is no arguable case that the first ground could succeed in any appeal.

35    The proposed second ground is that the Authority’s decision that the applicant is an Iraqi citizen was not based on any evidence and was unreasonable and irrational. However, there was evidence to support the Authority’s decision that he is an Iraqi citizen. It accepted that he has a genuine Iraqi citizenship certificate, and that he was able to obtain a replacement identity card and a legal Iraqi passport. The decision was not legally unreasonable or irrational. There is no arguable case that the proposed second ground could succeed.

36    The proposed third ground contends that the Authority failed to consider the applicant’s “personal corroborative evidence in relation to his statelessness”. It is unclear what evidence is referred to by the applicant. It may be a complaint that the Authority did not believe his evidence that he is not an Iraqi citizen. If so, it is simply an expression of disagreement with the Authority’s conclusion that he is an Iraqi citizen and does not amount to jurisdictional error. Therefore, the proposed third ground could not succeed.

37    To the extent that the applicant’s submissions repeated some of the claims made before the delegate, I observe that the Authority dealt with these claims. The applicant cannot seek merits review of the Authority’s decision before this Court. To the extent that the applicant asserts that the judgment of the primary judge was in error, I cannot see any such error.

38    In my opinion, the proposed appeal does not have any reasonable prospect of success. The application for an extension of time to seek leave to appeal must be dismissed. There should be an order that the applicant should pay the first respondent’s costs of the application.

Associate:    

Dated:    30 November 2018