FEDERAL COURT OF AUSTRALIA

Applicant A148 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1416

APPLICANT A148 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 204 of 2004

MANSFIELD J

28 OCTOBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for an extension of time to appeal from the decision of the Court given on 30 April 2004 is refused.

2.                  The applicant pay to the respondent costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from a decision of Lander J given on 30 April 2004.  The application was made on 15 September 2004, considerably after the time permitted by O 52 r 15 of the Federal Court Rules.  I may, however, extend the time within which to appeal under O 52 sub-r 15(2) in certain circumstances.  See Jess v Scott (1986) 12 FCR 187.

2                     The applicant has a long history in respect of the present application.  He first applied for a protection visa on 6 July 2000.  That application was refused by a delegate of the respondent on 22 February 2001.  The delegate's decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 19 September 2002.  An application to the Federal Court to review the Tribunal's decision was referred to the Federal Magistrates Court and then dismissed by consent on 5 March 2003.

3                     The applicant then commenced proceedings in the High Court on 18 March 2003, seeking to set aside the Tribunal's decision for jurisdictional error.  The High Court remitted that application to this Court.  It was that application which Lander J dismissed on 30 April 2004.

4                     To be granted an extension of time, I need to consider a number of matters, including the reason why the appeal was not instituted within the time allowed and whether there is any prospect of the proposed appeal succeeding.  The applicant asserts a misunderstanding of the Court procedures, leading him not to have instituted the appeal within the time allowed.  Instead, on 25 May 2004, he applied again to the High Court for an order to set aside the Tribunal's decision.  That application was dismissed with costs on 23 August 2004.  One of the reasons for it being dismissed is that there was nothing in the evidence or other materials suggesting there is any chance of any of the grounds relied upon succeeding.

5                     Although the fact that the applicant adopted that procedure does not lie readily with his assertion of misunderstanding that he might have appealed from the decision of Lander J of 30 April 2004, I am prepared to assume in his favour a satisfactory explanation for the delay.

6                     I turn to consider whether there is any arguable case which might succeed on an appeal if an extension of time is granted.  It is not suggested that Lander J misunderstood the nature of the applicant's case as to why he had a well-founded fear of persecution if he were to return to Afghanistan.  They are recorded in [6] – [10] of the reasons for judgment:

‘The applicant claimed to be an Afghani citizen.  Although the RRT had doubts about that claim, the RRT said that it would give the applicant “the benefit of the doubt and for the purposes of this decision has proceeded on the basis that the Applicant’s nationality is as claimed and that his experiences and circumstances are broadly as he has stated.”.

The applicant claimed to be an ethnic Pashtun from Afghanistan.  He said he was born in the village of Lalpur in the Jalalabad district of Afghanistan, but had left Afghanistan in about June 1999 to escape from the Taliban.  He said that he had lived in Pakistan at various addresses until he left for, and came to, Australia.

He left Afghanistan to avoid being recruited by the Taliban.  His father is dead and there was no-one in Afghanistan to help or protect him.  On one occasion he was beaten by the Taliban when he was unable to recite accurately from the Koran.

His claim was simply that he feared that if he returned to Afghanistan he would be detained and punished severely, and maybe even killed.  His claim was that he feared the Taliban and being punished for not joining the Taliban Army.

He also said that he had other concerns about returning to Afghanistan.  He claimed that he lacked family or financial means to support himself.  He was also concerned at the prospect of returning to Afghanistan without his wife, whom he has married since arriving in Australia.  The Tribunal, rightly, in my opinion, found that those two reasons could not amount to persecution for a convention reason.’

7                     Nor is it suggested that Lander J misunderstood the nature of the Tribunal's findings.  They are set out in [11] and [12] of the judgment in the following terms:

‘In respect of his claim that he feared persecution by the Taliban, the RRT found:

“Although some individuals who exercised local authority under the Taliban administration have retained similar positions of authority, they do not act on behalf of the Taliban but on behalf of the new regime, and the Tribunal is satisfied that the Taliban has been effectively removed and no longer governs or administers Afghanistan.”

Later, it found:

“On the basis of the country material it has consulted, the Tribunal is not satisfied that there is a real chance of the Taliban returning to power in the reasonably foreseeable future (and then targeting ordinary persons who failed to support them in the past), notwithstanding reports of numbers of Taliban or el-Qaeda fighters in remote and border areas where they receive some support from local villagers, as well as some continuing skirmishes.

The Tribunal is not satisfied that on return to Afghanistan the Applicant would face a real chance of persecution from the Taliban or others associated with them for a Convention reason.”’ 

8                     Lander J identified the applicant's argument as being that the Tribunal failed to address whether the authorities in Afghanistan could offer him protection if he were to return to Afghanistan.  Where there is a well-founded fear of persecution from a non-state entity, the nature of the protection which the state authorities can offer becomes a relevant consideration:  Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003(2004) 78 ALJR 678;[2004] HCA 18.

9                     However, as Lander J pointed out, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution at all if he were to return to Afghanistan because of the changed circumstances in Afghanistan.  As his Honour said, because the Taliban was no longer in a position of power, the Tribunal found the applicant did not have a well-founded fear of persecution.  As it was the fear of the Taliban which prompted the applicant's claims, and because the Tribunal found that fear was not well-founded, his Honour concluded that it was not necessary to address whether the Afghani authorities could protect the applicant from the Taliban.

10                  The applicant has not argued that that process of reasoning is erroneous on this application.  What he has argued is that the circumstances in Afghanistan mean that he cannot return to Afghanistan safely because of continuing activities of the Taliban.  That is an issue of fact about which the Tribunal has made a decision.  Even if the applicant disagrees with its conclusion as a matter of fact, there is nothing in the evidence or material before me to indicate that the Tribunal's finding of fact was reached through any jurisdictional error on its part. 

11                  If it be the case, as the applicant asserted without evidence, that the circumstances in Afghanistan have changed for the worse since the Tribunal's decision, the applicant's proper course would be to seek from the Minister a determination under s 48B of the Migration Act 1958 (Cth) (the Act), enabling him to apply afresh for a protection visa, notwithstanding s 48A of that Act.  There is no evidence of a change of circumstances of the nature described in the material before me.  Nor am I suggesting that the Minister should exercise the power under s 48B.  That is a matter entirely for the Minister.  I am simply pointing out a procedural option.  But the change of circumstances, if it exists, does not demonstrate jurisdictional error on the part of the Tribunal.

12                  The applicant also asserted that there is no-one that he may live with in Afghanistan.  Even if that be true, it does not demonstrate that he has or may have a well-founded fear of persecution for a Convention reason.

13                  In my judgment, the applicant has failed to show any arguable case of jurisdictional error on the part of the Tribunal.  He has not suggested, nor do I see, any arguable case of error in the way in which Lander J decided his application. 

14                  In those circumstances, I decline to grant the extension of time to file and serve the notice of appeal as he seeks.  He has failed to make out any arguable basis any ‘error of law, jurisdictional error, [lack of] procedural fairness and [entitlement to] relief’, as sought in the grounds of his draft notice of appeal.  The application is therefore refused.

15                  I order that the applicant pay to the respondent costs of the application.

Associate:

Dated:              2 November 2004