FEDERAL COURT OF AUSTRALIA

MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426

THE COURT ORDERS THAT:

1.    The application 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 file a notice of appeal against a decision of the Federal Circuit Court (“the FCC”) dismissing the Applicant’s application for judicial review of a decision of the Second Respondent (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a protection visa. For the reasons that follow, the extension of time should be refused.

reason for the delay

2    The proposed notice of appeal was filed approximately eight months outside the 21 day time period prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth) (“the Rules”). The Applicant’s explanation for his delay was that he believed that he had a “reasonable chance of success” in his request to the Minister, made on 10 November 2014, to exercise his discretionary powers under s 48B of the Migration Act 1958 (Cth) (to allow him to make a further application for a protection visa) or s 417 of the Act (to substitute the Tribunal’s decision with a more favourable decision). That request was based on a change of the circumstances in his country of origin on which the Tribunal had relied in concluding that it would be reasonable for the Applicant to relocate within his country.

3    Whether there is an acceptable explanation for the delay in filing the appeal is a factor for the Court to take into consideration in the exercise of its discretion to grant an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348; [1984] FCA 176 at [18] per Wilcox J. Whilst that is not the only consideration, the absence of an acceptable explanation for the delay is a powerful factor against the extension of time where the merits of the appeal are not strong. The Minister opposed the application for an extension of time, contending that the making of the ministerial intervention request did not of itself provide a proper explanation for the delay and that the proposed appeal lacked merit.

4    I am not satisfied that the Applicant has offered a satisfactory explanation for his failure to appeal within the prescribed time. The request for ministerial intervention was an alternative course of action taken by him in lieu of pursuing his appeal rights and a conscious decision on his part not to pursue appeal rights. The Applicant chose not to pursue appeal rights by reason of changing circumstances in his country of origin which he considered, rightly or wrongly, meant that there was no place in Pakistan to which he could reasonably relocate. His belief was that his circumstances, in consequence, fitted within the guidelines for ministerial intervention. It was only after the request for ministerial intervention was refused that he took steps to seek to appeal the decision of the FCC. It was submitted that the Applicant, nonetheless, had not “rested on his rights”. Reliance was placed on Hunter Valley Developments at 348–9 where Wilcox J stated that non-curial action taken by an applicant by which the applicant has continued to make the decision-maker aware that he or she contests the finality of the decision is relevant to the consideration of whether an acceptable explanation for the delay has been furnished. It was submitted that here the Applicant had continued to contest the finality of the decision to refuse him a protection visa by seeking ministerial intervention. Further, it was said, he acted promptly both in seeking ministerial intervention following the FCC decision and in applying for the extension of time in which to appeal when his request was refused by the Minister. However, the Applicant chose not to appeal when that option was open and instead chose to seek ministerial intervention. That course of action was not consistent with an intent to pursue appeal rights and contest the correctness of the FCC decision: Vella v Minister for Immigration and Border Protection [2015] HCA 42; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21, [14] cited with approval in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293, [24]. The Applicant had legal representation before the FCC and his application for ministerial intervention was made by lawyers on his behalf. There is no evidence that he was unaware that he had the right to appeal from the judgment below within the prescribed 21 day time limit or that he did not appreciate that he also had the option to appeal. Rather, it appears that he treated the right to appeal as the option to take in the event that his request for ministerial intervention was unsuccessful. Faced with the rejection of his request, he then acted to enliven his appeal rights by making an application for an extension of time. It was submitted that the Applicant, consistent with his duties under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), properly did not pursue his appeal rights until and unless unsuccessful in seeking ministerial intervention. However, there is no evidence that this was the rationale for not pursuing his appeal rights within the time prescribed and, moreover, the evidence indicates that he chose not to do so for the different reason that he believed that the changed circumstances in Pakistan meant that he had a reasonable chance of success on his request for ministerial intervention. Having made the decision to pursue ministerial intervention and not appeal rights, the consequence is that he is now out of time to bring his appeal. The Applicant chose the course of action that he pursued and the request for ministerial intervention does not make the delay in appealing reasonable, or his explanation satisfactory, where it appears that he made the conscious decision not to pursue his appeal rights. In this case, this is a sufficient basis upon which to refuse the extension of time.

merits

5    I am not, in any event, persuaded that the Applicant’s proposed appeal has any prospects of success. An extension of time in which to appeal the FCC decision would therefore be futile.

6    The two proposed grounds are:

(1)    The FCC erred in failing to find that the Tribunal had asked the wrong question on the reasonableness of relocation, namely, whether the Applicant would suffer serious harm in the place of relocation; alternatively, the FCC erred in failing to find that the Tribunal failed to ask the right question, namely, was the relocation reasonable in all the circumstances?

(2)    The FCC erred in failing to find that the Tribunal’s decision was vitiated by error on the question of the reasonableness of the Applicant’s relocation to Islamabad or Rawalpindi because it was irrational.

Did the Tribunal ask the wrong question on the reasonableness of relocation?

The Tribunal decision

7    The Tribunal had found at [46] that the Applicant faced a real chance of persecution for reasons of his political opinion if he returned to his home in the village of Katyar or elsewhere in the Swat region of Pakistan, now or in the reasonably foreseeable future. The Tribunal went on to consider and decide that it was not unreasonable, however, for the Applicant to relocate within Pakistan to Islamabad or Rawalpindi.

8    In dealing with the relocation issue, the Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason in either of those two locations. The Tribunal did not accept that the Applicant’s profile was such that he would be pursued to other parts of Pakistan by the Taliban or other extremists, nor did the Tribunal accept that the Applicant would be targeted because of his Pashtun ethnicity or his moderate Sunni Muslim beliefs. The Tribunal noted that country information indicated that Pashtuns displaced in other provinces had previously been discriminated against through excessive demands for security documents based on a presumption they were Taliban supporters, but did not accept that the actions of the Pakistani authorities in conducting security checks constituted “serious harm”, even in circumstances where they were discriminatorily applied to a particular ethnic group. Other matters which are not presently relevant were also considered by the Tribunal. At [60] the Tribunal concluded as follows:

On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm in Islamabad or Rawalpindi, either on the basis of his political opinion opposing the Taliban, his membership of and activities with the Swat Quami Jarga, his ANP activities in Swat or any similar ANP activities he may undertake in those cities in the foreseeable future. Nor does the Tribunal accept on the evidence before it that the applicant will be targeted for harm in Islamabad or Rawalpindi on the basis of his Pashtun ethnicity or moderate Sunni beliefs in the foreseeable future.

9    Having made that finding, the Tribunal went on to consider whether it would be reasonable for the Applicant to relocate to Islamabad or Rawalpindi. The Tribunal relevantly noted that the Applicant did not wish to relocate his young family (a wife and six children) within Pakistan. However, the Tribunal did not accept that the Applicant’s family circumstances made it unreasonable for him to relocate to one of those cities. The Tribunal considered but did not accept the Applicant’s claim that he would be discriminated against by non-Pashtun people who would assume that he was a terrorist, therefore making it difficult for him to rent a house or find work. In this context the Tribunal noted that the Applicant had lived in Karachi for 12 months prior to departing Pakistan in 2012. The Tribunal accepted that the Applicant suffered from certain mental health problems but considered that the available medical evidence did not suggest that his mental health would deteriorate if he were unable to access particular treatment in Pakistan. Therefore, the Tribunal did not accept, on the evidence before it, that the Applicant’s mental health problems made it unreasonable for him to relocate. Finally, the Tribunal took into account the Applicant’s attributes and capacities. It noted that he is a 43-year-old man who had completed his schooling and who spoke both Urdu and Pashto, and noted that he had been employed as a merchant seaman since 2006. The Tribunal stated that “in all of the circumstances” it did not accept that the Applicant would be unable to earn a living or access accommodation in Islamabad or Rawalpindi. The Tribunal also stated that “for the reasons set out above” the Tribunal had not accepted that the Applicant would be targeted for harm in Islamabad or Rawalpindi on the basis of his Pashtun ethnicity or his past opposition to the Taliban. The Tribunal concluded at [64]:

However the Tribunal finds that it is reasonable for the applicant to relocate within Pakistan and that the applicant’s chance of being harmed by the Taliban or other extremist groups outside of Khatyar and the Swat region in Khyber Pakhtunkhwa is remote and, accordingly, not well-founded. The Tribunal therefore finds that that (sic) the applicant does not hold a well-founded fear of persecution if he returns to Pakistan, now or in the reasonably foreseeable future.

The FCC decision

10    The grounds advanced by the Applicant in his judicial review application included that:

The [Tribunal] erred by asking itself the wrong question, namely would the Applicant suffer serious harm in the place of relocation? Alternatively, the [Tribunal] failed to ask the right question, namely was the relocation reasonable in all the circumstances?

11    The Applicant argued in the FCC that the Tribunal had asked itself the wrong question by:

(a)    assessing whether the Applicant’s relocation would be reasonable by asking whether he would be the subject of Convention-based harm in Islamabad or Rawalpindi;

(b)    failing to consider the generalised risk from terrorism to the Applicant’s family in Islamabad or Rawalpindi; and

(c)    failing to consider the impact that any of the potential harms or difficulties for the Applicant would have on his family.

12    The FCC rejected the Applicant’s argument that the Tribunal had applied the wrong test. The FCC held that the Tribunal had asked itself the correct questions and dealt with all the integers of the Applicant’s claims.

13    The FCC held at [59]:

It is plainly reasonable to decide whether a person will face the same persecution throughout an entire country, because if he or she does it is clear that the applicant will attract Convention protection throughout the whole country. Axiomatically the question of relocation absent Convention harm raises different considerations.

14    At [64] the FCC held that the claim “now put forward”, namely that the Applicant and his family face risk of harm on the basis of generalised violence, was not articulated with sufficient clarity for it to be jurisdictional error for the Tribunal not to have dealt with it. At [67] the FCC also noted that the Tribunal did make a generalised finding in relation to harm in the following terms:

However the Tribunal finds that it is reasonable for the applicant to relocate within Pakistan and that the applicant’s chances of being harmed by the Taliban or other extremist groups outside of Khatyar and the Swat region in Khyber Pakhtunkhwa is remote and, accordingly, not well-founded.

15    At [65]–[67] the FCC held that the Tribunal had considered whether the Applicant’s personal and family circumstances made it unreasonable for the Applicant to relocate to Islamabad or Rawalpindi.

Decision

16    The FCC did not fall into error in concluding that the Tribunal had correctly identified and applied the relocation test.

17    In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at 26–7 (CLR), the High Court explained that a person does not meet the definition of a “refugee” within the meaning of the Convention if “it would be reasonable, in the sense of practicable for the [person] to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.” The Court observed that “what is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the [person] and the impact upon that person of relocation”. The Court also observed that the Convention is not concerned with “living conditions in a broader sense”.

18    The application of the principles enunciated by the High Court required the Tribunal to undertake two inquiries:

(1)    Having accepted that the Applicant had a well-founded fear of being persecuted for a Convention reason if he returned to his home in the Swat region of Pakistan, was there a different region in Pakistan where, objectively, there would be no appreciable risk of the feared persecution?

(2)    If yes, was it reasonable, in the sense of practicable, to expect the Applicant to be sent to that other region, having regard to his particular circumstances, the circumstances that he would reasonably be expected to face in the place of relocation, and the impact on him of being sent to the place of relocation?

In considering whether relocation is reasonable, a risk of harm which is less than a real chance of a risk of serious harm might nevertheless make relocation not reasonable: MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 at [34] and the authorities there cited.

19    The Applicant’s primary submission was that the Tribunal erred by only considering whether there was an appreciable risk of serious harm for a Convention reason in Islamabad or Rawalpindi, and not whether there was a risk of the Applicant and his family suffering harm in those places for non-Convention reasons, that is from generalised violence. It was submitted that it was relevant to the question whether it was reasonable, in the sense of practicable, to expect the Applicant to live in either of those two locations faced with the risk of generalised violence and security checks from Pakistani authorities.

20    The Tribunal was only required to deal with the matters raised or clearly arising on the material before it. The Tribunal was not obliged to deal with claims that were not articulated or which did not clearly arise from the material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [61]. I accept the submission for the Minister that a claim to fear harm from generalised violence did not clearly arise on the material.

21    The claim to fear harm from generalised violence was said to be raised in the Applicant’s further submission in support of his application to the Tribunal. The representative wrote that “country information from the Refugee Review Tribunal indicates [that] ‘terrorists are in the advanced stages of planning attacks against a range of targets, including in Pakistani cities’”. That statement was said to be consistent with the delegate’s finding in the context of consideration of country information about violence in Pakistan that “random incidents [of violence] do occur” in the Punjab and also consistent with articles submitted by the Applicant to the Tribunal. There was, however, no express claim made that the Applicant feared harm from generalised violence and such a claim does not emerge clearly from the material.

22    The representative’s submission needs to be read in the context of the whole paragraph containing that submission:

Furthermore country information from the Refugee Review Tribunal indicates “terrorists are in the advanced stages of planning attacks against a range of targets, including in Pakistani cities”. Such information is sadly indicative of the political climate of Pakistan. Other dangers would be present for the applicant should he be forced to return. The country is currently unstable and the applicant’s history which is outlined in out (sic) submissions to the Tribunal makes him a target for injustice. With respect to State protection in Pakistan The UK Home office has stated that “a claimant may still have a well founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require.” Given the applicant’s history with the Taliban and the extent of the attacks on his family he fears they will find him no matter where he relocates to.

(footnotes omitted)

Read in that context, there was no clearly articulated separate claim to fear harm from generalised violence.

23    Similarly, the delegate’s consideration of the security situation in the Punjab was in the context of consideration as to whether the Applicant faced a real chance of being targeted in an attack.

24    Of the two articles submitted by the Applicant, the subject matter of one was the Punjabi Taliban and the subject matter of the other was extremist groups operating in the Punjab.

25    The Tribunal dealt with the claim that was raised, namely whether there was a real chance of harm from targeted violence by the Taliban or other extremists. At [64] the Tribunal found that the chance of such targeted violence was remote. No jurisdictional error is shown in the approach taken by the Tribunal. As the plurality stated in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [23], [25], the factum upon which the principle of relocation operates is that there is an area in the applicant’s country of nationality where he or she may be safe from harm. If a person could have relocated to a place within his or her own country where the person could have no well-founded fear of persecution, and where the person could reasonably be expected to relocate, then the person is outside the country of his or her nationality because he or she has chosen to leave it and seek asylum in another country. The person is not outside the country owing to a well-founded fear of persecution for a Convention reason. Accordingly, if it were found by the Tribunal that the Applicant would suffer persecution for a Convention reason in Islamabad or Rawalpindi, it must follow that relocation would be unreasonable. The Tribunal did not address the wrong inquiry in assessing whether the Applicant would suffer persecution for a Convention reason in Islamabad or Rawalpindi. Having found that the Applicant would not suffer persecution for a Convention reason in Islamabad or Rawalpindi, the Tribunal then addressed the claims made by the Applicant as to why it would be unreasonable for him to relocate to Islamabad or Rawalpindi. Those claims included his fear of targeted violence, which the Tribunal found was remote. Those claims did not include a claim that there was a real chance of harm from generalised violence or that the actions of the Pakistani authorities in conducting security checks made the relocation of the Applicant and his family to Islamabad or Rawalpindi unreasonable.

26    There is also no substance in the submission that the Tribunal failed to address whether it would be unreasonable for the Applicant to relocate for non-Convention based reasons. The Tribunal addressed the non-Convention based reasons at [61]–[64]. It was submitted that the Tribunal, however, failed to consider all the circumstances of the Applicant which included the reasonableness of relocation having regard to the young age of the Applicant’s family and the risk of violence to them in Islamabad or Rawalpindi. As stated, a claim to fear harm from generalised violence was neither expressly made nor did it clearly arise on the material.

27    There is one further aspect of the submissions for the Applicant that should be dealt with. It was submitted that, based upon MZZQV v Minister for Immigration and Border Protection [2015] FCA 533, the Applicant is “entitled to the benefit of the doubt” where the question of whether a claim was raised is “finely balanced”. The view taken by Barker J in MZZQV, on the facts before his Honour in that case, that the appellant should have “the benefit of the doubt” does not assist the Applicant in this case where, for the reasons already given, a claim to fear harm from generalised violence was neither expressly made nor did it clearly arise on the material.

Was the decision of the Tribunal irrational?

28    The FCC dealt with this ground at [70]–[72] as follows:

70.    As advanced in both written and oral submissions the applicant’s complaint here is essentially to the effect that the Tribunal’s decision as to relocation was irrational because the applicant’s employment history as a farmer and merchant seaman could not reasonably support the proposition that he could relocate to Islamabad or Rawalpindi, both of which are a very long way from the sea and might reasonably be thought not to have any opportunities for farming. A detailed analysis of the Tribunal’s observations are set out at paragraph 25 of the applicant’s written submissions and in particular at paragraph d thereof. These criticisms were advanced in oral submissions also. It was put that there was a complete mismatch in the relocation cities as a result of the applicant’s prior work experience. It was submitted the applicant would not be able to return to his work as a seaman because he deserted ship. It was put that the Tribunal accepted the state of the applicant’s mental health and that the findings that he could therefore find work in Rawalpindi or Islamabad were plainly such that no reasonable, rational person could reach them.

71.    Counsel for the first respondent noted, as was in fact agreed by the applicant, that the bar for finding of irrationality is very high. It was submitted that the Tribunal responded to the matters that the applicant raised and that the issues now raised about the applicant’s skills as a seaman or farmer were simply not agitated by him. It was further submitted that the Tribunal consider the medical evidence in the context of a question of practicability of relocation.

72.    My conclusion can be put shortly. In my opinion the applicant simply did not articulate the specific matters as to his employability in Islamabad or Rawalpindi that are now stressed. The Tribunal responded directly to the matters the applicant did raise and in my view the findings made by the Tribunal were open to it. The Tribunal expressly turned its mind to the applicant’s health difficulties (paragraph 53, CB285) but concluded on the evidence that the applicant’s health did not make it unreasonable for him to return to Pakistan. Minds could readily differ as to whether this was so or not but to suggest that such a finding was one that no rational person could arrive at is not in fact in my opinion made out.

29    It was submitted that the flaw in the reasoning at [72] was that the matters that the FCC regarded as not having been raised by the Applicant were matters of which judicial notice could be assumed or which were so basic that a party before the Tribunal could assume no such information would be needed. Moreover, it was said, of the specific details relevant to the Applicant himself, the Tribunal was well aware of the underlying issue, namely that he was a seaman who had deserted his employment.

30    No error is shown in the FCC’s reasoning. As the FCC stated, it was not part of the Applicant’s claim that he could not obtain work because his work had been as a merchant seaman or because he was a seaman who had deserted his employment.

31    The Applicant also sought to challenge the decision on the basis that a critical factual error was made by the Tribunal, upon which it based its decision: namely, that the Applicant had lived in Karachi for 12 months prior to leaving Pakistan in 2012. The year was wrong but otherwise there was no factual error – the Applicant had lived in Karachi until he departed Pakistan in September 2011. Nothing arises out of the reference to the wrong year as it was uncontentious that the Applicant had left Pakistan in 2011.

conclusion

32    The application for an extension of time should be dismissed. The explanation for the delay in appealing the FCC decision is not acceptable and the proposed appeal has no merit.

Associate:

Dated:    17 December 2015