FEDERAL COURT OF AUSTRALIA

MZZYV v Minister for Immigration and Border Protection [2016] FCA 957

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time lodged electronically on 5 May 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    The applicant, a citizen of Pakistan who is a Sunni Muslim of Pashtun ethnicity, arrived in Australia in 2012 on a student visa. On 13 February 2013, he applied for a Protection (Class XA) visa. In summary, he claimed to fear harm from the Taliban because of his religion, ethnicity and because of his membership and active involvement with the Awami National Party (ANP). He also claimed to have been targeted by the Taliban because of his employment with the Dir Rural Development Organisation (DRDO), a project linked to the World Food Program.

2    On 5 August 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. A hearing before the Tribunal took place on 24 October 2013 at which the applicant was represented by a migration agent and gave evidence. Subsequently, the applicant provided the Tribunal with some letters relating to mental health issues. On 12 December 2013, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa.

4    In relation to the Tribunal’s decision, I note the following:

(a)    The Tribunal made a number of adverse credibility findings against the applicant. In particular, the Tribunal pointed to significant inconsistencies in his evidence throughout the visa application process; and significant inconsistencies between his evidence and independent country information. The Tribunal also considered key aspects of the applicant’s evidence to be vague and implausible.

(b)    The Tribunal did not accept the applicant’s claim that he was involved in or became a member of the ANP. This was based in part on an inconsistency between the applicant’s account that he became involved with the student group of the ANP, namely the Azad Pukhtoon Student Federation (APkSF) in late 2006 and independent country information indicating that the group was not formed until February 2009.

(c)    The Tribunal did not accept the applicant’s claim that he was involved with the ANP in preparations for the elections to be held in 2008. The Tribunal noted the discrepancy between the date the applicant said the elections were held and independent country information indicating that they were held some five months later.

(d)    The Tribunal did not accept the applicant’s claim that people passed on the applicant’s information to groups like the Taliban and Tehreek-e-Nafaz-e-Shariat-e-Mohammadi or that the applicant’s father started receiving threats relating to the applicant’s political activities. Nor did it accept his claim that he was threatened many times because of his political affiliations.

(e)    The Tribunal did not accept that the applicant worked at DRDO based on a number of discrepancies in the applicant’s evidence. It placed little weight on a letter the applicant submitted purportedly from the managing director of DRDO.

(f)    The Tribunal did not accept that the applicant faced a real chance of persecution at the time of the Tribunal decision or in the reasonably foreseeable future for reason of an imputed political opinion or his membership of a particular social group or any other Convention reason based on his alleged employment with the DRDO.

(g)    The Tribunal concluded that it did not accept the applicant’s claims that he would be targeted by the Taliban, other Sunni extremist groups, Sunni extremist sympathisers and other political groups because of his alleged membership of and active participation in the ANP, his alleged activities in the 2007/2008 election campaign, his employment with the DRDO and involvement in projects advocating for women’s rights and education.

(h)    The Tribunal did not accept that the applicant had a subjective fear of harm arising out of his liberal Muslim beliefs or his Pashtun ethnicity.

(i)    The Tribunal considered the applicant’s claims in the context of the complementary protection regime. It concluded that he did not meet the criteria in s 36(2)(aa) of the Migration Act 1958 (Cth).

5    The applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

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

7    On 10 October 2014, the judge delivered reasons and made orders that the applicant’s application be dismissed and the applicant pay the Minister’s costs fixed in the sum of $4,300.

8    On 5 May 2016, the applicant filed an application for an extension of time in which to appeal the decision of the Federal Circuit Court.

9    The application for an extension of time is supported by a brief affidavit of the applicant in which he relevantly states:

2.    I had no legal representation in federal circuit court

3.    I was not aware of the legal time frame to file and appeal to federal court and i applied for ministerial intervention.

(Errors in original.)

10    A draft notice of appeal has been provided. This states that the grounds of appeal are as follows:

1.    There was no legal representation at Federal Circuit court.

2.    There is a Legal error in RRT Decision and Federal Circuit court decision

3.    More Grounds of the appeal will be be provided once i have legal representation

(Errors in original.)

11    The applicant is not represented by a lawyer and it appears that the affidavit and draft notice of appeal were prepared without legal assistance. No further proposed grounds of appeal have been provided.

12    In addition to these documents, the applicant provided a document headed “Applicant’s Contentions of Fact and Law” attaching a number of letters and other documents. I will refer to this document as the applicant’s written submissions.

Applicable principles

13    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

14    The delay in the present case is very long, being approximately one year and six months. The applicant relies on three matters to explain the delay:

(a)    that he had no legal representation in the Federal Circuit Court;

(b)    that he was not aware of the time frame for an appeal; and

(c)    that he applied to the Minister for intervention.

15    Before considering these issues, I will consider the merits of the proposed appeal.

16    Ground one of the draft notice of appeal is to the effect that the applicant did not have legal representation in the Federal Circuit Court. Many migration applicants appear before the Federal Circuit Court without legal representation. There is no entitlement to legal advice: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J. Nor is there an entitlement to representation at the hearing of such an application. Ground one does not indicate error on the part of the Federal Circuit Court.

17    Further, I note that, notwithstanding that the grounds of review before the Federal Circuit Court were not particularised, the Federal Circuit Court proceeded to consider whether the Tribunal had fallen into error. It found that, contrary to the applicant’s complaints, he had been accorded a real and meaningful opportunity to be heard in relation to the determinative issues on the review; and the findings made by the Tribunal were open to it on the evidence before it (paragraphs 23-27 of the reasons of the primary judge).

18    Ground two of the draft notice of appeal asserts legal error in the Tribunal decision and the decision of the Federal Circuit Court. The ground does not identify any such error. No such error is apparent. The Tribunal considered all of the applicant’s claims for protection and the components of those claims. It found that the claims were not credible. A finding on whether an applicant for a visa is to be believed is a finding on credibility and part of the function of the Tribunal, as the primary judge correctly noted at paragraph 27 of the reasons. It is apparent from the Tribunal’s reasons that the Tribunal raised its credibility concerns with the applicant and afforded him an opportunity to be heard on whether his claims should be believed.

19    Ground three of the draft notice of appeal simply asserts that further grounds will be provided.

20    In his written submissions, the applicant refers to a finding by the Tribunal that one of the letters provided by the applicant following the hearing was from a psychologist rather than a psychiatrist (Tribunal’s reasons, paragraph 49). The applicant states in his written submissions that he did not provide a copy of a report from a psychiatrist to the Tribunal, believing that a report from a psychologist would suffice. The applicant has attached to his written submission a letter from a psychiatrist. In relation to these submissions, I make the following observations. The Tribunal was correct to say that it had received a report from a psychologist not a psychiatrist. The reference to one of the letters being from a psychologist rather than a psychiatrist does not appear to have played a material part in the Tribunal’s reasoning. Accordingly, no error is apparent.

21    The applicant in his written submissions challenges the way the Tribunal dealt with certain evidence relied on by the applicant, specifically a letter or certificate from the Managing Director of DRDO (which the Tribunal gave “little weight”, at paragraph 39) and letters from the ANP (which the Tribunal gave “little weight” or no weight, at paragraphs 26 and 33). Determining the weight to be given to these letters was a matter for the Tribunal. The Tribunal in these paragraphs explained the reasons why it gave the relevant letters little weight or, in one case, no weight. It was open to the tribunal to give these documents little or no weight on the basis of the facts and matters discussed in the Tribunal’s reasons in relation to these documents.

22    The applicant in his written submissions contends that the Tribunal denied him procedural fairness in that it did not give him a fair hearing and failed to consider all his claims and the letters he provided. These matters were considered, and rejected, by the primary judge at paragraphs 23-27 of the reasons. No error is apparent in the primary judge’s treatment of these matters.

23    The applicant also contends in his written submissions that the Tribunal did not give him an opportunity to comment on an important issue in dispute. There does not appear to be a basis for this contention. The Tribunal’s reasons indicate in many places that the applicant was invited to comment on credibility issues. The applicant has not identified an important issue in respect of which he was denied the opportunity to comment.

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

25    It is therefore unnecessary to consider the explanations put forward in relation to the delay. However, I note that the fact that a litigant is ignorant of the time frame for lodging an appeal is generally not a satisfactory explanation for the delay: see, eg, SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38]. I also 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. In the present case, there was also a significant period of delay between the rejection of the applicant’s second request for Ministerial intervention (on 13 January 2016) and the lodging of the application for an extension of time (on 5 May 2016).

26    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:    15 August 2016