FEDERAL COURT OF AUSTRALIA

AKG16 v Minister for Immigration and Border Protection [2016] FCA 1576

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be refused.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant applies pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) for an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia delivered on 4 July 2016. The applicant filed the application for an extension on 23 August 2016. Rule 36.03 of the Rules requires a notice of appeal to be filed within 21 days after the date of the judgment subject of the appeal. The extension sought, therefore, is a period of 29 days.

2    The draft grounds of appeal are these:

(1)    There is a jurisdictional error in the Federal Circuit Court decision.

(2)    The reasons provided by the [Administrative Appeals Tribunal] to the [Minister for Immigration and Border Protection] in support of the [Tribunal’s] recommendation that the [applicant] was not a person to whom Australia had protection obligations were neither logical nor rational.

(3)    Further grounds of appeal will be provided once the applicant has legal representation and the review of the written reasons for the decision has been completed.

LATE DEVELOPMENTS

3    A day and a half before the hearing of the application, the applicant sought pro-bono legal representation indicating that he would be willing to accommodate an adjournment in order for that to take place and for him to instruct counsel. That request was declined. There was no explanation for the request being brought at the last minute. The notice of application for extension was filed in August 2016 and the application was heard in November 2016. It was not demonstrated that there was insufficient time to obtain legal advice or alternative legal representation, or at least to give reasonable notice of an intended adjournment application for that purpose. There is no evidence that any steps were taken in that regard such as to indicate that adjourning the hearing would make it more likely that in the foreseeable future a date could be fixed at which the applicant would obtain legal representation. I have considered, therefore, that there were no arguable grounds for an adjournment taking into account the approach in several cases, including NABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1426 per Whitlam J; NADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 483 per Emmett J; Pannu v Minister for Immigration and Citizenship (No 2) [2013] FCA 1406 per White J; and Hanna v Minister for Immigration and Border Protection [2016] FCA 282 per Jagot J.

4    At the hearing before me no attempt was made to address the two proposed grounds of appeal. The applicant who was in a distressed state focussed entirely on the danger to which he would be exposed if required to return to Afghanistan. He stressed that his life would be at risk.

5    In particular, he focussed upon some new ‘evidence’ which had not been before the Tribunal nor before the Federal Circuit Court. This ‘evidence’ from the bar table was to the effect that in light of the applicant’s activities, the applicant’s brother had received death threats directed towards both himself and the applicant. However, the applicant had not been informed of those threats prior to the application in the Federal Circuit Court and had only been informed 20 days to one month before this hearing. This new information was said to expose the applicant to particular risk.

6    This material was not capable of being relevant either to the proposed grounds of appeal or to any deficiency on the part of the Tribunal or the Federal Circuit Court because the information had come to light only very recently. While the information was not evidence, I nonetheless requested counsel for the Minister, Ms Symonds, to undertake to convey the information to her client so that he could consider whether any further inquiries might be regarded as being warranted. Ms Symonds did so.

7    Over and above that, the applicant stressed that he was suffering from a great deal of mental distress and anxiety.

8    It is necessary however, to turn to the application as made.

BACKGROUND

9    The applicant is a male citizen of Afghanistan who, on 28 November 2012, applied for a Protection (Class XA) visa. He claimed to fear harm on the basis of his ethnicity and religion. As a Hazara Shia Muslim he feared harm from the Taliban and Al Qaida. He also claimed to fear harm as a member of a particular social group, namely, as a failed asylum seeker.

10    In light of the applicant’s particular sensitivity I will use pseudonyms for the particular locations referred to below. The applicant claimed that in 1973 he was born in location A, in Afghanistan. In 1980 he and his family moved to location B due to attacks from Kuchi nomads on Hazaras in his region. In 1991, he and his family moved to Iran as they were worried the applicant would be forcibly recruited into the army. In 1999, he went to live in location C in Pakistan. In 2003, he returned to location B and worked as a taxi driver. However he returned to location C in Pakistan due to stories of taxi drivers being abducted and explosions around location B. In January 2012, he left location C in Pakistan for Australia as the security situation for Hazaras was deteriorating.

11    By a decision made on 4 July 2013, the Minister, through his delegate, declined to grant the visa sought by the applicant.

RELEVANT PRINCIPLES

12    The question of whether a court should grant an extension of time requires an exercise of discretion in which the following factors would ordinarily be considered:

(a)    the length of, and any explanation for, the delay;

(b)    the merits of the appeal; and

(c)    whether there is any prejudice to the respondent albeit that the mere absence of prejudice is not in itself sufficient to justify the grant of an extension of time.

See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 334 per Wilcox J (at 348-349).

13    The delay in the present situation was not substantial; however, it is explained only by reference to matters which do not distinguish the applicant’s situation from that of many other persons seeking relief. In essence, he refers to his lack of legal assistance and lack of education in a statutory declaration made on 18 August 2016 in support of the application. Nonetheless, the question of delay can be put to one side for the time being so that there can be focus on the merits of the proposed appeal and the question of whether it would have reasonable prospects of success.

THE HISTORY

14    The applicant applied to the Tribunal for review of the delegate’s decision on 6 August 2013. On 17 July 2015, the Tribunal wrote to the applicant inviting him to appear before it to give evidence and present arguments. The hearing was later postponed and a new invitation to attend the hearing was issued. The applicant duly appeared before the Tribunal on 22 January 2016 assisted by an interpreter. He was represented in relation to the review by his registered migration agent who also provided written submission on his behalf at the outset on 4 November 2013.

15    By written decision dated 22 January 2016, the Tribunal affirmed the decision of the delegate not to grant the visa. The Tribunal accepted the applicant’s factual chronology which has been summarised above. Against the factual backdrop and available country information, the Tribunal turned to consider with some care whether he faced a real risk of the requisite level of harm if he returned to location B, by reference to the current circumstances and ‘the reasonably foreseeable future’ (emphasis added).

16    By reference to country information the Tribunal:

(a)    did not accept that Hazaras in location B face a real chance of persecution or significant harm now or in the reasonably foreseeable future (at [30]). In coming to this reason, the Tribunal took into account country information which indicated there was no credible evidence that everyday Shia Muslims or Hazaras are systematically targeted in insurgent attacks. The Tribunal found that the risk of the applicant being seriously or significantly harmed in insurgent attacks was remote given the government’s effective control of location B. The Tribunal found that the risk was one faced by the population generally rather than by the applicant personally. It also found that there were no laws, government policies or community prejudice which discriminated against Shias and societal discrimination on the basis of ethnicity was largely manifested by nepotism (at [31]);

(b)    accepted that the applicant would face difficulties obtaining work, and accessing medicines and utilities but such difficulties would not be the result of systemic discriminatory conduct. Rather, such difficulties would arise from the applicant’s individual economic circumstances and the poor economic situation of location B and Afghanistan as a whole (at [33]);

(c)    did not accept that the applicant would face a real chance or real risk of serious or significant harm in location B as a failed asylum seeker or returnee in the absence of recent country information indicating that returnees or failed asylum seekers are discriminated against or subjected to violence (at [34]); and

(d)    found it was reasonable for the applicant to remain in location B to re-establish his life and find employment (at [35]).

17    On that basis, the Tribunal was not satisfied that the applicant would face a real chance of persecution or a real risk of suffering significant harm, either now or in the reasonably foreseeable future, if he returns to location B in Afghanistan.

IN THE FEDERAL CIRCUIT COURT

18    The applicant proceeded with an application for review of the Tribunal’s decision in the Federal Circuit Court by application lodged on 23 February 2016. The grounds of the application, as advanced and argued by counsel on behalf of the applicant were as follows:

The Tribunal erred by:

(a)    misapplying the test for determining whether the applicant is a person to whom Australia has obligations under the convention; and/or

(b)    failed to address an aspect of the applicant’s claims by failing to consider whether the applicant had a well-founded fear of persecution on the basis of his ethnicity (Hazara) or religion (Shia Muslim) in the reasonably foreseeable future as distinct from the present or immediate future (emphasis added).

19    The primary argument for the applicant in the Federal Circuit Court was that his case was analogous to that considered by Justice North in MZYXR v Minister for Immigration and Citizenship [2013] FCA 252. In particular, it was alleged that Tribunal in the applicant’s case had directed itself to the ‘current security situation’ and the question of whether, at present, Shias and Hazaras faced systemic targeting, rather than to an assessment of risk in the foreseeable future. It was argued for the applicant that this conclusion followed from the failure of the Tribunal to refer in its reasons to pieces of country information that spoke in terms of future risk, including country information referring to the planned withdrawal of international forces from Afghanistan. It was argued for the applicant that the Tribunal’s conclusion (at [30]) that employed the language of ‘reasonably foreseeable future’ was best understood as a ‘formulaic reference’ rather than indicating the Tribunal had properly understood and discharged a statutory function.

20    The Federal Circuit Court extensively examined the Tribunal’s reasons and the country information in a decision delivered on 4 July 2016. Close regard was paid to the applicant’s argument based on MZYXR. The primary judge referred, amongst other things (at [9]), of the Tribunal decision record noting that it had identified the issue in the present case as being whether the applicant was a person in respect of whom Australia had protection obligations being assessed upon the facts as they exist when the decision was made by requiring a consideration of the matter in relation to the reasonably foreseeable future.

21    The primary judge also noted that:

(a)    the decision of MZYXR was distinguishable based on the reasoning that was adopted in that case and the structure of the report by the Tribunal, including the particular findings of the Tribunal relied upon by the Court as indicating error (at [23]);

(b)    from reference in the Tribunal’s reasons to the question that the Tribunal had to determine being framed (at [15]), as well as the focus on the reasonably foreseeable future in the body of the Tribunal’s reasons in more than five places, the primary judge was unable to accept the submission that the Tribunal failed to address the issue of the reasonably foreseeable future in determining the applicant’s fear of persecution and whether it was well-founded; and

(c)    on a fair reading of the Tribunal’s decision (at [26]-[29]), the Tribunal was taking into account the future situation and not simply addressing a confinement to the present existing fact. In those paragraphs the Tribunal said:

26.    I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation in Afghanistan and Kabul. In making my findings, I have given considerable weight to reports by the Australian Department of Foreign Affairs and Trade (DFAT) as these are authoritative, recent and the Department has been specifically charged with the provision of this advice to the Australian government. In its September 2015 report, DFAT stated that they are not aware of any credible evidence that everyday Shia Muslims are systematically targeted on the basis of their religious affiliation and that they assessed that Sunni-Shia sectarian violence is infrequent, although occasional violence does occur. They also stated that Hazaras had made significant gains (albeit from a small base) since the Taliban were removed from power in 2001. They stated that while conditions for Hazaras had greatly improved since 2001, they still face some societal discrimination. They stated that they had no evidence to suggest that Hazaras are systematically targeted in insurgent attacks on the basis of their ethnicity alone and that with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan. They assess that Hazaras travelling by road between Kabul and the Hazarajat face a risk that is greater than other ethnic groups though it is unclear whether this is due to ethnic targeting or as a result of the high numbers of Hazaras travelling on this route. They state though that kidnappings of Hazaras are relatively rare in a country-wide context. This overall view of the level of general threat posed to the Hazara community is supported by Professor Amin Saikal of ANU [Saikal, Amin 2012, ‘Afghanistan: The Status of the Shi'ite Hazara Minority’, Journal of Muslim Minority Affairs, March, Vol.32, No.1, pp.80-87].

27.    A Hazara Issues Paper issued by the Department of Immigration in March 2015 stated:

Hazaras in Kabul have not been systematically targeted by insurgent attacks or other ethnic groups since 2001 because of their ethnicity or religion, apart from one deadly attack aimed on a Shia mosque in 2011 where many of the victims were Hazaras [Department of Immigration, Afghanistan: Hazaras Issues Paper, March 2015].

…

Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

In 2014, analysis of attacks in Kabul by insurgents [see European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January http://www.ecoi.net/news/188769::afghanistan/101.general-security-situation-in-afghanistan-and-events-in-kabul.htm] found that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies [European Country of Origin Information Network 2015, General Security Situation in Afghanistan and Events in Kabul, 12 January].

28.    DFAT stated in September 2015 that the government maintains effective, but not absolute control in major urban areas, particular [sic] Kabul. DFAT also specifically reported in relation to Kabul in September 2015:

2.29    Insurgents regularly conduct high-profile attacks in Kabul. DFAT assesses that the primary targets for insurgent attacks are government institutions, political figures, Afghan National Defence and Security Forces (ANDSF), personnel from the Resolute Support mission (the NATO-led mission that replaced the International Security Assistance Force or ISAF on 1 January 2015), other security services, and international organisations. Such attacks often cause significant casualties amongst civilian bystanders in addition to those being targeted. Kabul has seen a marked increase in the number of incidents in 2015 compared to the corresponding period in 2014. According to a Resolute Support mission report for January-April 2015, insurgent attacks in Kabul have increased by around 60 per cent compared with the same period in 2014.

2.30    Representative examples include the series of bombings against employees (including prosecutors and judges) of the Ministry of Justice in May 2015, which killed at least 11 people and injured dozens more; an attack on the Park Palace guesthouse in May 2015 that killed five people, including foreigners; and a car bomb attack near the Ministry of Finance in Kabul which killed eight people and wounded 37 more. Kabul International Airport has been attacked on a number of occasions, with a rocket attack in 2014 landing on the runway apron. Attacks also occur in the vicinity of the airport, including in May 2015 when a European Union vehicle was hit by a vehicle-borne improvised explosive device, killing at least three people and injuring 18 others. On 22 June 2015, the National Parliament building in Kabul was attacked by the Taliban. A suicide vehicle detonated outside the building, followed by gunfire. Twelve people were reportedly killed, including six Taliban gunmen and the suicide bomber, with at least 21 more people injured in the attack. In August 2015, a series of attacks resulted in an estimated 355 civilian casualties (deaths and injuries), the largest number of civilian casualties in a single day since data collection started in 2009.

2.31    The ANDSF and international forces have put in place a range of counter-measures to prevent and respond to insurgent attacks in Kabul. There are numerous checkpoints along highways leading to Kabul, at major intersections and at government and international institutions within Kabul. These provide a deterrent to insurgent attacks by increasing the risk that insurgents will be detected prior to undertaking attacks in Kabul. ANDSF are quick to respond to insurgent attacks when they occur. Nonetheless, violent attacks within the city are common [Department of Foreign Affairs and Trade, DFAT Thematic Report, Conditions in Kabul, 18 September 2015].

29.    I have taken into account the reports of regular insurgency attacks on Kabul taken place but these need to be seen in the context that Kabul has a population of four million and that the government maintains effective control of Kabul and has a range of counter-measures in place to prevent and respond to insurgent attacks. I have taken into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualties amongst civilian bystanders. I am of the view that the available country information considered as a whole indicates that the chance or risk of the applicant being seriously or significantly harmed in such a circumstance would be best described as remote, and not a real chance or real risk. Furthermore, on the available country information, I consider the risk of getting harmed in an attack by insurgents is one faced by the population generally and not the applicant personally: s.36(2B)(c) of the Act.

22    The primary judge concluded that the Tribunal properly engaged with the question that it was required to address and as such as the adverse findings by the Tribunal were open to it and not the subject of any jurisdictional error.

23    His Honour decided there was no constructive failure to exercise the Tribunal’s jurisdiction and no jurisdictional error by misapplying the relevant test or failing to address the applicant’s claims.

CONSIDERATION OF THE PROPOSED GROUNDS

24    As indicated, the two essential grounds advanced by the applicant without any elucidation are jurisdictional error and illogical or irrational conclusions. The generality of these grounds makes it difficult to identify precisely the alleged deficiency other than a complaint with the conclusion itself.

25    In the absence of any other obviously arguable grounds, it may be reasonable to proceed on the basis that the applicant may seek to advance the same grounds argued before the primary judge by counsel on his behalf. In relation to those grounds however, the Minister contends for the reasons identified in the primary judge’s decision that such challenge to the decision of the Tribunal could not succeed.

26    In my view, the primary judge was correct to conclude that the Tribunal had not failed to address the issue of the reasonably foreseeable future in determining the applicant’s fear of persecution and that it was correct in concluding that the decision of MZYXR was distinguishable from the present case.

27    The Tribunal’s consciousness of its obligation to look at the ‘reasonably foreseeable future’ was reflected throughout its decision where it expressly grappled with this concept in [25], [30], [36] and [37] of its decision record. This in turn followed from the Tribunal’s express identification (at [15]) that its assessment ‘requires a consideration of the matter in relation to the reasonably foreseeable future’.

28    Although the applicant was critical of the failure of the Tribunal to deal with particular extracts of country information, it is clear that such extracts referred to the security situation in Afghanistan generally, and were contrary in some cases to those that dealt specifically with the applicant’s home area of location B. For example, whilst the 2015 DFAT report included a statement to the effect that the security situation in Afghanistan was fluid and had deteriorated, such statement was qualified by the observation that ‘the security situation is better in areas where the government forces maintain strong control, such as major urban areas like location B’.

29    The Tribunal summarised that statement in [29] of its decision record, set out at [21(c)] above.

30    In all these circumstances I consider that the Tribunal:

(a)    was well aware of the need to look to the reasonably foreseeable future;

(b)    adopted wording which made it clear that it was taking a forward-looking approach to its consideration of this issue;

(c)    carefully engaged with relevant country information in the process of its analysis; and

(d)    reached conclusions based on findings that were dispositive.

31    The applicant’s case can be distinguished from MZYXR because in that case the Tribunal had extracted a large body of country information in a separate part of the decision and then engaged with the individual paragraphs of the information in a section containing its reasoning (see the observations of North J IN MZYXR at [11]-[13] and [17]).

32    In this instance, the Tribunal applied country information at points relevant to its consideration of the various issues. Additionally, and in contrast to MZYXR, the dispositive findings of the Tribunal were informed by consciousness and consideration of issues specifically referable to location B and its conclusion that the applicant would not face a real chance of persecution or a real risk of suffering significant harm if he returned to location B, was a conclusion that reflected the tenor of the country information relevant to the applicant’s specific home area.

33    This can be contrasted to MZYXR and the analysis by North J at [19]-[21].

CONCLUSION

34    As there is no discernible error in approach taking by the Tribunal or indeed in the careful assessment of that approach made by the primary judge on judicial review, the best grounds of appeal which can presently be envisaged would not enjoy a reasonable prospect of success. In those circumstances the application for an extension of time should be refused with costs.

Associate:

Dated:    23 December 2016