FEDERAL COURT OF AUSTRALIA

MZZYK v Minister for Immigration and Border Protection [2016] FCA 594

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time filed on 11 January 2016 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

MOSHINSKY J:

Introduction

1    On 18 December 2012, the applicant, a citizen of Pakistan, made an application for a Protection (Class XA) visa. The applicant is a Pashto Sunni Muslim who was born in Darsamand, Hangu. Hangu is in the Khyber Pakhtunkhwa province in the north-west of Pakistan. The applicant claimed that he feared prosecution from the Taliban because of his family’s refusal of a marriage proposal for his sister from a family associated with the Taliban and because of his father’s political opinions.

2    On 27 February 2013, a delegate of the first respondent (the Minister) refused the application for a protection visa.

3    The applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. On 29 November 2013, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa. In relation to the Tribunal’s decision, I note the following:

(a)    Although it held some concern about inconsistencies in the applicant’s evidence, the Tribunal accepted most of his claims. In particular, the Tribunal accepted that there had been a marriage proposal to the applicant’s sister, that it had been refused, and that the Taliban had threatened the family as a result. The Tribunal also accepted the applicant’s claims about being stopped and assaulted by Taliban members.

(b)    The Tribunal also accepted that the applicant’s father had spoken against the Taliban and had been threatened; however, it noted that the father had not preached since March 2010 and did not accept that there had been adverse consequences for the family since.

(c)    The Tribunal accepted that, if the applicant were to return to his home district of Hangu, he would be at risk of serious harm from the Taliban. It also accepted that governmental authorities would not be able to protect the applicant there if he returned.

(d)    However, the Tribunal found that the applicant could relocate elsewhere within Pakistan, that neither the applicant, nor any member of his family, was known outside Hangu or the Peshawar area, and that the Taliban would not track him down elsewhere in Pakistan. The Tribunal also considered that there was no real chance, based on ethnicity, his family’s wealth, or his time in Australia, that the applicant would be kidnapped or otherwise suffer harm. This finding was based on the applicant’s education, work experience, family wealth and evidence of adapting to life in Australia. The Tribunal considered that it would be reasonable for the applicant to relocate to another large city in Pakistan and that he would be safe in such a city.

(e)    The Tribunal directly addressed the complementary protection provisions and concluded that the applicant would not suffer significant harm for any reason, including generalised violence, abduction or kidnapping, outside his home province.

4    On 24 December 2013, the applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

5    On 30 June 2014, the hearing before the Federal Circuit Court took place. The applicant appeared in person, without legal representation.

6    The judge dismissed the application and gave ex tempore reasons for the decision. Orders dismissing the application with costs were made orally in Court and entered that day, that is, 30 June 2014. However, a written form of the reasons for judgment was not published until 20 January 2016, 18 months later.

7    On 11 January 2016, the applicant filed an application for an extension of time in which to appeal to this Court from the judgment and orders of the Federal Circuit Court.

8    The application for an extension of time is supported by an affidavit of the applicant which sets out, in Annexure A, the grounds of the application for extension of time. A draft notice of appeal was also attached. The applicant is not represented by a lawyer and it appears that the annexure and draft notice of appeal were prepared without legal assistance.

9    The draft notice of appeal sets out one ground of appeal, namely “to review [decision] of Refugee Review Tribunal”.

10    In addition to these documents, the applicant provided: an outline of argument; a copy of his application to the Minister for intervention; an email with additional points regarding the delay; and a character reference.

Applicable principles

11    The principles applicable to an application for an extension of time are well established. The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.

Application of principles to the facts of the present case

12    The delay in the present case is very long, being approximately 18 months. The applicant relies on three matters to explain the delay:

(a)    first, financial issues, which had the effect that he could not afford to obtain legal assistance – also, his attempts at obtaining pro bono legal assistance were unsuccessful;

(b)    secondly, an application to the Minister for intervention – this was made in July 2014 and resolved adversely to the applicant in April 2016;

(c)    thirdly, ongoing mental health issues, including anxiety, trauma attacks and inability to sleep.

13    Before considering these issues in detail, I will consider the merits of the proposed appeal.

14    As noted above, the draft notice of appeal contains one ground, which does not identify with particularity any error in the decision of the Tribunal; nor does it identify any error in the decision of the Federal Circuit Court.

15    In submissions today, the applicant contended that the Tribunal neglected to consider arguments that he made regarding relocation. The section of the Tribunal’s reasons dealing with the relocation issue is at paragraphs [56]-[65]. It is apparent from these paragraphs that the Tribunal did set out the arguments made by the applicant in relation to relocation and provided detailed reasons for rejecting those arguments.

16    Although the applicant did not seek to re-agitate the arguments put below in the Federal Circuit Court, for completeness I will refer briefly to these arguments. The three arguments put below were: that irrelevant considerations were taken into account; that the Tribunal was biased; and that the Tribunal did not properly apply the complementary protection criteria. The primary judge dealt with each of these matters as follows:

(a)    On the first point, the primary judge noted that the Tribunal had accepted most of the applicant’s claims, and did not rely on circumstances of delay to affirm the decision; there was no irrelevant consideration taken into account (at [22]-[23]).

(b)    On the second point, the primary judge held that there was no basis for a finding of bias; the Tribunal had appropriately considered the claims put and formed a view on them (at [25]­[31]).

(c)    On the third point, the primary judge held that the Tribunal had considered the claims put and its discussion of complementary protection was free from jurisdictional error (at [33]-[35]).

17    There does not appear to be any error in the way that the primary judge dealt with these matters.

18    For these reasons, the proposed appeal has no merit, and therefore the application for extension of time is to be refused.

19    It is therefore unnecessary to consider the explanations put forward in relation to the delay. However, I note that the making of an application to the Minister to intervene will generally not constitute an acceptable explanation for delay in filing a notice of appeal: see, eg, Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29] per Jessup J; MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15] per Mortimer J.

20    For these reasons, the application for an extension of time will be dismissed. There is no reason why costs should not follow the event. There will, therefore, be an order that the applicant pay the Minister’s costs.

Associate:

Dated:    25 May 2016