FEDERAL COURT OF AUSTRALIA

MZZKF v Minister for Immigration and Border Protection [2014] FCA 1362

THE COURT ORDERS THAT:

1.    The applicant’s application under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time to file a notice of appeal be 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

INTRODUCTION

1        The applicant has applied for an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia (“FCC”) made on 21 October 2013 dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 April 2013. The Tribunal, in that decision, affirmed the decision of the first respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa. An extension of time is required because the applicant only filed his proposed appeal in August 2014, some nine months after the 21 day time limit for appeal provided for in Rule 36.03 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”).

2        In late August 2014 the applicant was advised that the application for an extension of time would be listed for hearing on a date to be fixed during the sitting period 3-28 November 2014 and by letter dated 29 September 2014, the applicant was advised that his application would be heard on 27 November 2014. On 12 November 2014, the applicant sent an email to the National Appeals Registrar of the Federal Court of Australia seeking an adjournment of the hearing. The applicant wrote that for the last several months he had been looking for a lawyer to represent him but that “due to the complexity of his case most lawyers either refuse[d] to take [his] case or demand[ed] high service fees”. He also wrote that the cancellation of his work rights by the Department of Immigration and Border Protection had made things extremely difficult for him as he has “no income, [is] ineligible for any government benefit and [has] to rely solely on welfare”. The applicant further wrote that he believed that the Department of Immigration and Border Protection had made a misjudgment when assessing his application, that his life will be in serious danger if he is sent back to his country and that he is relying on Australia to give him protection as a genuine refugee. He concluded that to support his claims, he needs to engage a lawyer who can represent him in Court and that his lack of income puts him at a disadvantage in seeking legal representation. He therefore requested some more time to find affordable legal representation or a legal representative who would be prepared to represent him pro bono. The Minister, who was provided with a copy of the request for adjournment, advised the Registrar that he opposed the adjournment application on the basis that the applicant had not provided adequate reason for the adjournment. On 18 November 2014, the Registrar informed the applicant by email of the Minister’s opposition to the adjournment application and that the appeal remained listed for hearing on 27 November 2014. The applicant was informed that if he wished to pursue his application for an adjournment, it should be made before the Court at the hearing.

3        The applicant attended at the hearing and made application for an adjournment. The basis of the application was that he did not have legal representation and wanted more time to obtain legal representation. The adjournment application was refused for two primary reasons. First that procedural fairness did not necessitate that he have legal representation at the hearing: Tera v Minister for Immigration and Citizenship [2013] FCA 371 at [15]; Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20; [2000] FCA 1265. Secondly, that there would be no utility in granting an adjournment because he has already had three months in which to obtain legal representation and there was nothing to indicate that any further time would be likely to result in him obtaining such representation.

4        For the following reasons, the application for an extension of time in which to appeal should also be refused.

APPLICABLE PRINCIPLES

5        The principles guiding the exercise of discretion to extend time for the filing of an appeal are well established. The three main matters for the Court to take into account are:

    the explanation for the delay;

    any prejudice to the respondents, including any prejudice to them in defending the proceedings occasioned by the delay; and

    whether the applicant has an arguable case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; [1984] FCA 176 at [17]-[22] per Wilcox J.

DELAY

6        Rule 36.05 of the Federal Court Rules provides that a party who wants to apply for an extension of time within which to file a notice of appeal must file an application accompanied by, amongst other things, an affidavit stating:

    briefly but specifically, the grounds on which the application relies; and

    why the notice of appeal was not filed within time: r 36.05(3)(c).

7        The application for an extension of time set out two grounds as follows:

1.    Had no lawyer or legal representation

2.    Was not aware of my legal option. Only just became aware of this thought ministerial was my best option -

8        Rule 36.05(3)(c) was not complied with by the applicant, who did not make an affidavit supporting the application containing an explanation as to why the appeal was not filed within time. At the hearing the applicant told the Court that he had not been able to get legal representation and only learnt after the Minister had refused his request for intervention that he had appeal rights to the Federal Court and that upon learning of this he filed his application.

9        An adequate explanation for the delay has not been provided by the applicant. He has not provided sworn evidence explaining why the notice of appeal was not filed within time and the vague and generalised explanation that he gave orally at the hearing does not warrant excusing the delay, where there is a complete absence of any evidence giving content to the assertions put to the Court. Moreover, the fact that he took the course of seeking ministerial intervention strongly weighs against a conclusion that there is a proper explanation for the delay. It was only after he received the Minister’s adverse decision that he filed the application for an extension of time in which to file an appeal from the FCC decision. Although he claimed as a ground that he was not aware of his legal right to appeal until after the Ministerial decision was made, there was simply no evidence to support that ground and given that he was aware of his right to seek ministerial intervention, I find it unlikely that he had not been aware of his right to appeal at an earlier point in time than claimed. If he was not so aware at an earlier point of time, it is not acceptable that he failed to make inquiries to determine at an earlier point that he had a right of appeal.

10        The failure to provide an adequate explanation for the lengthy delay is sufficient reason in itself to refuse the extension of time.

PREJUDICE TO THE RESPONDENTS

11        The Minister did not submit that any prejudice has been occasioned by the delay and accordingly this factor is neutral.

IS THERE AN ARGUABLE CASE?

12        For the reasons that follow, even if I were satisfied that there was an acceptable explanation for the delay, I am not persuaded that the applicant has arguable grounds of appeal.

13        The applicant is a national of Pakistan, who arrived in Australia in 2011 as the holder of a student visa and applied for a protection visa. The applicant claimed to have a well-founded fear of being persecuted by the Taliban if he returned to Pakistan due to his, and his father’s political views, his western education and his love of western culture. The applicant made claims that he and his family had been persecuted in the past by the Taliban and that both he and his father had been threatened by the Taliban. The applicant claimed that in 2010 the Taliban forcibly tried to recruit him, that he had been kidnapped by the Taliban and that he was shot at by the Taliban in March 2011. These claims were not accepted by the Tribunal. Specifically, the Tribunal did not accept that the applicant’s father was threatened by the Taliban in Lahore in 2008 as claimed. Nor did the Tribunal accept the applicant’s claims that the Taliban had tried to recruit him or his kidnapping story, describing it as “improbable”. Moreover, whilst the Tribunal accepted that the applicant may have been caught up in an incident involving gunfire in March 2011, the Tribunal was not satisfied that the incident involved an attempt by the Taliban to harm or threaten the applicant. The Tribunal also rejected the applicant’s claims of past harm by the Taliban because he plays cricket and his claims to fear harm in Pakistan because of his western education and love of western culture. The Tribunal noted that the applicant’s family had lived in Lahore for at least seven years and that the applicant had not made any claim of harm arising during this time because of their race. Finally, the Tribunal rejected the applicant’s claim that he is at risk of harm in the Punjab because he is a Pashtun and therefore deemed to be a terrorist. The Tribunal noted that there was a significant Pashtun population in the Punjab and that the Pashtuns were widely represented in public life in the Punjab. The Tribunal found that the applicant does not face a real chance of serious harm in the reasonably foreseeable future and does not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

14        The Tribunal also considered the alternative protection criterion in s 36(2)(aa) of the Act and was not satisfied that there were substantial grounds for believing that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia and returned to Pakistan.

15        On 1 May 2013 the applicant applied to the FCC for judicial review of the Tribunal’s decision. The grounds of appeal relied on were expressed as follows:

Ground One:

There are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. The situation in Lahore is untenable for the applicant and is exacerbated by his past dealings with the Taliban and the Tribunal is wrong when it concludes that it falls within an exception to the complimentary protection provisions in the Act.

Ground Two:

There is no evidence to suggest that the Taliban did not try to recruit the applicant and there is Country Information to indicate that the Pakistan Taliban resorts to violence and intimidation to show how people are dealt with if they are opposed to their aims and ideals.

Ground Three:

The Tribunal has erred by dismissing the shooting incident on 12 March 2011, on the grounds that the allegation was solely based on his statement and that there was no witnesses to the incident. The Tribunal did not ask the applicant if the street was busy and if anybody volunteered to act as a witness.

Ground Four:

The Tribunal has erred by concluding that the applicant would not be at risk of harm in the Punjab because he was a Pashtun and therefore deemed to be a terrorist. That whilst Pashtuns might well be represented in public life in the Punjab, that does not mean that this applicant will not be persecuted and therefore the Tribunal has not properly considered the issue of race, namely that he is a Pashtun and the level of violence associated to Pushtans.

16        The FCC dismissed the application for judicial review, concluding that the applicant had failed to establish that the Tribunal had made a jurisdictional error and that the grounds for review essentially sought an impermissible challenge to the findings of fact made by the Tribunal.

17        The proposed grounds of appeal from the decision of the FCC are as follows:

1.    Some country information wasn’t discussed

2.    Information related the hospital incident was assumed and was not given the chance to respond

3.    Inaccurate or not 100 percent exact interpretations of my wordings misled the Court decision

4.    Some information was rejected unfairly without giving an opportunity to reply to that

5.    A psychologist report was not given an opportunity to be submitted to the Court.

18        The grounds themselves are vague and generalised and do not disclose an intelligible basis upon which the applicant seeks to appeal the FCC’s decision. At the hearing, the applicant was given an opportunity to elaborate on each of these grounds.

19        In support of ground 1, the applicant informed the Court that country information that is now available clearly supports his claim for a protection visa and he sought the opportunity to rely upon it. The ground however invites only a reconsideration of the merits of the Tribunal’s decision which is impermissible on review of the FCC’s decision before this Court. It is not the function of this Court to engage in fact-finding about the merits of the applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

20        In support of ground 2, the applicant gave an explanation as to why his claim about the shooting incident should have been accepted by the Tribunal. Ground 2 is also a challenge to a finding of fact by the Tribunal and seeks impermissible merits review.

21        In support of ground 3, the applicant asserted that there were mistakes in the interpretation but he made no attempt to substantiate that claim or demonstrate that there was any foundation for making the claim.

22        By ground 4, the applicant again sought to challenge the findings of fact made by the Tribunal, and raises no error of law in the Tribunal’s decision.

23        Ground Five relates to an alleged failure on the part of the Tribunal to give the applicant an opportunity to submit a psychologist’s report. The applicant did not identify the document in question that he was allegedly denied the opportunity to submit and there is nothing in the material before the Court to indicate that this claim has any factual foundation.

24        In oral submissions, the applicant relied on a further ground – that is, that the Tribunal, in considering the complementary protection claim, did not take into account that the applicant faced a risk of harm because, although the Tribunal rejected his claim that he was targeted by the Taliban in the shooting incident in March 2011, the Tribunal accepted that the applicant may have been fired at by unknown persons. This ground also lacks any merit. The Tribunal accepted that there is a level of insecurity in Pakistan, including in Lahore but held that any risk the applicant faces is one faced by the population at large and not one faced by the applicant personally. The exclusion in s 36(2B)(c) of the Act therefore applied and the Tribunal was correct to dismiss his application.

25        As the proposed appeal has no prospects of success, it would be futile to grant an extension of time in which to appeal.

CONCLUSION

26        Accordingly the application for an extension of time in which to file an appeal from the FCC decision should be dismissed.

Associate:

Dated:    11 December 2014