FEDERAL COURT OF AUSTRALIA

MZZBW v Minister for Immigration & Border Protection [2015] FCA 156

THE COURT ORDERS THAT:

1.    The application to extend time within which to lodge an appeal from the judgment of the Federal Circuit Court of Australia delivered on 15 April 2014 be dismissed.

2.    The applicant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    The Federal Circuit Court of Australia (FCCA) on 15 April 2014, dismissed an application for judicial review of a decision of the second respondent (Tribunal), affirming a decision of the first respondent (Minister), by his delegate, refusing the applicant a protection (Class XA) visa (visa): MZZBW v Minister for Immigration and Border Protection [2014] FCCA 761 (FCCA reasons). The applicant now seeks an extension of time for appealing against that decision.

2    The applicant is self-represented. He has not filed written submissions.

3    Pursuant to r 36.03(a) of the Federal Court Rules 2011 (Cth) (Rules), an appellant has 21 days to file and serve a notice of appeal. Any appeal should therefore have been lodged on or before 6 May 2014. It was more than five months later that the applicant lodged an application for an extension of time within which to appeal.

4    The Court retains a discretion to enlarge the time for filing a notice of appeal: r 36.05. The Minister opposes the grant of an extension of time because the applicant has not provided an acceptable explanation for the delay and the appeal lacks substantive merit.

The application for a protection visa and for merits review

5    The applicant is a 44 year old citizen of Pakistan.

6    On 28 October 2011, he arrived in Australia as a seaman on a merchant ship. He left the ship and applied to the Minister for the visa.

7    On 16 May 2012, his visa application was refused, mainly due to the applicant’s lack of credibility.

8    On 13 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision.

9    By a decision dated 14 September 2012, the Tribunal affirmed the delegate’s decision not to grant the visa: (Tribunal’s reasons).

The applicant’s claims before the Tribunal

10    The applicant claimed to have a well-founded fear of persecution by reason of his political beliefs and membership of particular social groups.

11    In his visa application, the applicant claimed he:

•    was born in Karachi, Pakistan;

•    was an active member of the Awami National Party (ANP);

•    was promoted to General Secretary of his local area;

•    by reason of his political activities, had been targeted by an opposition group - Muttahida Qaumi Movement (MQM) - who had attacked him and killed his younger brother. The applicant also claimed to have injuries to his hand and leg as a result.

12    The applicant, in a statutory declaration, claimed to be of Yousafzai ethnicity, Muslim faith and a Pashtun. He claimed he had been involved with the ANP since approximately 1987 and provided details of his involvement. He claimed the ANP is opposed to the Taliban and MQM and he was the target of attacks from both groups. He claimed that in October 2010 he was providing security services at the Aligarh Market. He met up with his brother so he could give him groceries to take home. He and his brother were fired upon by MQM/Taliban members. His brother was killed instantly and he received two bullet wounds, one to the hand and one to his leg. He claimed he boarded a ship in March 2011 and escaped from Karachi. He further claimed the Pakistani authorities could not assist in protecting him.

13    The applicant provided the Tribunal with material suggesting he had been diagnosed with post-traumatic stress and continued to suffer with symptoms of the condition.

14    The applicant’s representative filed submissions in support of his application. The submissions included reference to country information relevant to the treatment of ANP members and leaders in Pakistan. His representative submitted the applicant could not relocate within Pakistan because the risk of persecution was “prevalent in all parts of Pakistan” and the authorities were “either unwilling or unable to protect the [a]pplicant”. The applicant provided further material after the Tribunal hearing, including news articles concerning attacks on ANP members in Pakistan, and the applicant’s medical reports which, it was submitted, affirmed the nature of his injuries.

The Tribunal’s decision

15    The Tribunal accepted the applicant’s claims with respect to his race, ethnicity, family and employment. The Tribunal accepted the applicant was a member of the ANP and had been since about 1987 and that he assisted the party in a voluntary capacity.

16    The Tribunal did not accept that the applicant was appointed to the position of General Secretary for Noorani Mohallah (his local district) in 2001, or at any other time. Central to the Tribunal’s rejection of this claim was its doubt arising from the applicant’s “very limited knowledge” about the structure or organisation of the ANP, the fact that the applicant was only available to assist his party for 3 months of every year and because of the Tribunal’s adverse assessment of the applicant’s credibility. The Tribunal concluded that the applicant’s involvement in the ANP was that of an ordinary member.

17    The Tribunal accepted the applicant was shot at the Aligarh Markets in Karachi in October 2010, that his brother was killed in the same incident and that the applicant was engaged in ANP activities at the time. The Tribunal accepted as plausible that the applicant was targeted for attack at the market because of his ANP membership and activities. The Tribunal had regard to relevant country information and found there was a real chance the applicant would face serious harm if he returned to Karachi now or in the reasonably foreseeable future. The Tribunal accepted the state was unable to provide “the level of protection which citizens are entitled to expect” against this harm. However, the Tribunal did not accept that the Taliban or MQM activists would pursue him outside of Karachi.

18    The Tribunal considered whether it was reasonable, in the sense of practicable, for the applicant to relocate within Pakistan. The Tribunal considered the applicant’s arguments and submissions and relevant country information. On the basis of the country information before it, the Tribunal was satisfied ANP leaders and senior activists were targeted for harm in Khyber Pakhtunkhwa and Karachi and there was one report of ANP members or workers being harmed in Balochistan.

19    The Tribunal found the applicant would continue to be a member and supporter of the ANP if he returned to Pakistan and might engage in similar political activities to those undertaken in the past. The Tribunal did not accept the applicant would be pursued by the Taliban outside the areas of Khyber Pakhtunkhwa, Karachi or Balochistan and noted the absence of evidence of any attacks on ANP members or their families outside those areas in recent years. The Tribunal did not accept that the applicant faced a real chance of persecution outside these areas on the basis of his political opinion, ethnicity or ANP membership.

20    The Tribunal considered the applicant could relocate to Lahore, which had a large Pashtun population. The Tribunal identified factors personal to the applicant that might impact on his ability to relocate and considered each in turn.

21    The Tribunal “considered the applicant’s circumstances separately and cumulatively” and determined that his particular circumstances did not make it unreasonable for the applicant to relocate within Pakistan to a place such as Lahore: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [23]-[24].

The application for judicial review

22    On 23 October 2012, the applicant applied to the FCCA for judicial review. The applicant initially raised four grounds for review challenging the Tribunal’s findings on the question of relocation and persecution.

23    The final hearing of the application was adjourned several times to accommodate the applicant.

24    On 26 February 2014, the applicant filed and served the amended application and submissions that formed the basis for argument at final hearing. The amended application alleged error in respect of the Tribunal’s re-location finding and alleged that the Tribunal failed to consider an integer of the applicant’s claims as a Yousafzai Pashtun member of the ANP.

25    On 3 March 2014, the day before the (second) adjourned date for final hearing, the applicant’s solicitors applied for leave to withdraw as the applicant’s lawyer. This application was occasioned by the solicitors’ difficulty in contacting the applicant. The application was supported by the affidavit of Ms Tran, who had acted for the applicant since about 11 April 2012, at which time his application was still before the Tribunal.

26    Following oral submissions on 4 March 2014, the matter was adjourned to a directions hearing on 17 March 2014, to allow the solicitor time to give the applicant notice of their intention to withdraw.

27    By 17 March 2014, the applicant had re-established communication with his solicitor, the parties appeared at the directions hearing and the matter was listed for final hearing.

28    On 20 March 2014, the matter proceeded to final hearing. The applicant was represented by counsel, with his solicitors instructing.

29    On 15 April 2014, the primary judge dismissed the (amended) application for judicial review. The applicant’s solicitors attended judgment. Correspondence from the parties to the Federal Circuit Court dated 2 May 2014 indicates the resolution of the question of costs was delayed, in part, by “the applicant’s lawyers’ difficulty in contacting the applicant other than by post”.

The decision of the FCCA

30    The primary judge dismissed the application concluding that the Tribunal’s finding in respect of relocation did not reveal of jurisdictional error and that the Tribunal did not err by failing to consider any relevant consideration: FCCA reasons at [14], [18]-[20], [23], [25]-[33].

The application for an extension of time

31    On 22 October 2014, the applicant applied to this court for an extension of time to file a notice of appeal. No explanation for the delay in filing has been provided nor is a draft notice of appeal identifying the grounds of appeal enclosed. The application was accompanied by an affidavit dated 13 October 2014. At [3] of that affidavit, the applicant states:

I filed for judicial review application before the Federal Circuit Court Judge. Honourable Judge dismissed my application on 15 April 2014, but I have not received the decision or order.

Legal principles

32    The principles expressed in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 have equal application to r 36.05 of the Rules: SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15]; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [13]. Before the Court will grant an extension of time, it must be satisfied that, amongst other things:

(a)    there is an acceptable explanation for the delay;

(b)    there would be no undue prejudice to the respondent if the Court were to grant leave; and

(c)    there is merit in the substantive appeal or application.

33    The delay is substantial. Further, there is no evidence to support the applicant’s assertion that he did not receive the decision or Court order. The FCCA court file indicates:

(a)    when the applicant’s solicitors were unable to obtain instructions from the applicant, they applied for leave to withdraw;

(b)    when the applicant re-established contact with his solicitors, they appeared on his behalf and the matter proceeded to final hearing;

(c)    the applicant was represented at judgment and his solicitor received a copy of the decision and order dismissing the application;

(d)    sealed copies of the order of the Court of 15 April 2014 were provided to the parties by the Court;

(e)    the applicant’s solicitors continued to act on his behalf following judgment and indicated they were doing so on the basis of instructions.

34    I accept the Minister’s submission that the contents of the FCCA court file supports a finding, on balance, that at all material times from 17 March 2014, the applicant’s solicitor was acting on his instructions; he was aware of the outcome of his application and had access to, and contact with his solicitor.

35    Moreover, the applicant lodged his application for an extension of time on 22 October 2014. He provides no explanation why he was able to do so in October, apparently without having a copy of the reasons and order of the primary judge yet was unable to do so in the 21 day period after judgment was given. I find that the applicant’s explanation is not “acceptable” in the requisite sense.

36    The Minister made no submissions as to any prejudice which might be suffered by him if the extension were granted. Lack of prejudice alone is not determinative.

37    As to the merits, if any, in the substantive appeal, the applicant would require to establish jurisdictional error on the part of the Tribunal. However, none is alleged. To the extent the applicant may seek to agitate the same grounds advanced in his amended judicial review application, I find that these are without merit.

38    The Tribunal’s assessment of the extent to which relocation was “reasonable in the sense of practicable” does not reveal jurisdictional error. The Tribunal articulated the correct legal test in accordance with SZATV, had regard to all relevant considerations and made findings that were open on the material.

39    The Tribunal did not fail to take into account relevant considerations. The applicant’s claims in respect of ethnicity and political activities were acknowledged and dealt with by the Tribunal.

Conclusion

40    There has been no satisfactory explanation as to the delay in filing a notice of appeal. Moreover, the applicant has not asserted that there was any jurisdictional error by the primary judge.

41    The application for an extension of time to file a notice of appeal should therefore be dismissed with costs.

Associate:    

Dated:    4 March 2015