FEDERAL COURT OF AUSTRALIA

ARA15 v Minister for Immigration and Border Protection [2017] FCA 226

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to appeal is dismissed.

2.    The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    This is an application for an extension of time to appeal from a decision of the Federal Circuit Court of Australia (the Federal Circuit Court), delivered on 9 August 2016, dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 April 2015.

2    The applicant is a 56 year old male citizen of Pakistan.

3    The applicant first arrived in Australia on 28 April 2009 on a visitor’s visa, which had been granted on 24 February 2009. On 28 May 2009, whilst in Australia, the applicant lodged an application for a protection visa on the basis of the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the first application). The protection visa application was refused on 6 August 2009 by a delegate of the first respondent, the Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection. The applicant then applied to the Tribunal for review of the delegate’s decision on 31 August 2009. The Tribunal affirmed the decision of the delegate on 21 October 2009.

4    On 16 October 2012, the applicant made another application for a protection visa, this time on the basis of the complementary protection provisions in s 36(2)(aa) of the Migration Act (the second application). The second protection visa application was valid because the applicant had not left Australia since the final determination of his first protection visa application, which preceded the commencement of the complementary protection provisions of the Migration Act. (See SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.)

5    In his second application, the applicant claimed that he feared he would be targeted and killed by the Taliban were he to be returned to Pakistan because he was considered to be a police informer, a traitor of Islam, and to have a political opinion adverse to the Taliban.

6    On 28 May 2014, a delegate of the first respondent rejected the applicant’s second protection visa application. The Tribunal affirmed the decision of the delegate. Subsequently, the Federal Circuit Court dismissed the applicant’s application for judicial review of the Tribunal’s decision.

THE TRIBUNAL

7    The Tribunal hearing took place on 1 April 2015, and the applicant appeared before the Tribunal and gave evidence on that day.

8    At the hearing, the Tribunal granted the applicant additional time to respond to some adverse information pursuant to s 424AA of the Migration Act. The applicant subsequently provided the Tribunal with his response by way of a statutory declaration, dated 7 April 2015.

9    Before the Tribunal, the applicant stated that in 2007 two people came to his home in Rawalpindi, Pakistan, claiming to have been displaced as a result of Pakistani military operations against the Taliban in the Swat Valley. The applicant said that he took pity on them and let them live in his home in Abottabad. Sometime later, said the applicant, he was tipped off by a relative that his “tenants” may be involved in illegal activities. The applicant said that he called the police, who then raided the house and, upon finding illegal weapons, arrested the two tenants. The applicant said that around that time he was informed by the police that the two people who were arrested at his house belonged to the Taliban and were terrorists.

10    The applicant said that because of his decision to take action to alert the police to the suspected illegal activities of his tenants, “the Taliban viewed him as a traitor and police informer and wanted to take revenge against him”. The applicant said that a couple of weeks after the arrests, his shop was burnt down and his family was attacked, resulting in one of his cousins sustaining an injury.

11    Following these events, said the applicant, he moved in to a friend’s house in another city in Pakistan and subsequently hired an agent to organise for his passage to Australia. The applicant contended that if he stayed in Pakistan he would be targeted by the Taliban through its networks and that he would be unable to obtain protection from the government because the Pakistani government was “soft” on the Taliban.

12    As mentioned, upon arriving in Australia in 2009, the applicant originally applied for a protection visa under the refugee criterion, which was refused, before subsequently making a second protection visa application in 2012 in reliance on the complementary protection provisions of the Migration Act.

13    In reviewing the delegate’s decision to refuse to grant the second application, the Tribunal observed that the applicant had relied on “entirely different claims” in respect of the first application and the second application. The applicant’s explanation for the change was, he said, that upon his arrival in Australia, he had found a migration agent to assist him in obtaining a protection visa. The applicant said that he truthfully told his story (as summarised at [9]-[11] above) to the migration agent and that the agent rejected that story and told the applicant that he would make up a new story for the purpose of the applicant’s protection visa application. The applicant also told the Tribunal that he did not know what claims the migration agent lodged. The applicant said that he paid money to the migration agent and that the agent subsequently dissuaded the applicant from attending an interview with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) (the department) and the hearing before the Tribunal.

14    Having considered all of the evidence, the Tribunal found that the applicant was not a credible witness. The fact that the applicant had presented two entirely different stories to the Tribunal was of particular concern to the Tribunal in assessing the applicant’s credibility. The Tribunal rejected the applicant’s explanation of being cheated by a migration agent because it was inconsistent with other evidence and was inherently not credible. The Tribunal did not accept that the applicant would have knowingly permitted the migration agent to provide a false set of claims to the department and then fail to attend the interview with the department and the hearing before the Tribunal, if the applicant had genuinely been sought by the Taliban as he now claimed in the “true story”. The Tribunal found that it was within the applicant’s power to make his initial claim for a protection visa based on what he now said was the “true story”; but that he had not done so because he was using the protection visa process as a means of residing in Australia, and not because he genuinely feared harm in Pakistan on the basis which he now advanced.

15    The Tribunal observed that aspects of the applicant’s claims were “confused, inconsistent and not credible” and concluded that he had “manufactured the totality of his claims regarding his experiences in Pakistan”.

16    The Tribunal accepted the applicant’s claims and evidence regarding increasing religious extremism in Pakistan, the reach of the Taliban’s networks throughout the country, problems in relation to human rights abuses and some breakdown in the rule of law and democracy in Pakistan. However, the Tribunal did not accept that the Taliban or any of its associated groups had any interest in the applicant, and so did not accept that there was a real risk that the applicant would face significant harm by reason of being considered to be a police informer, traitor of Islam or a person viewed as having a political opinion opposed to the Taliban. Thus, the Tribunal found that the applicant did not satisfy the criteria for complementary protection under the Migration Act.

THE FEDERAL CIRCUIT COURT

17    On 7 May 2015, the applicant brought an application for a constitutional writ within the Federal Circuit Court’s jurisdiction pursuant to s 476 of the Migration Act. The applicant relied on three grounds of review before the Federal Circuit Court. In summary the grounds were:

(a)    the Tribunal incorrectly identified the relevant law or incorrectly applied the law to the facts;

(b)    the Tribunal disregarded relevant facts and considered irrelevant facts; and

(c)    the applicant was not afforded a fair hearing before the Tribunal and that the Tribunal was biased.

18    The Federal Circuit Court concluded that none of the three grounds of review revealed any jurisdictional error and, accordingly, dismissed the applicant’s application for judicial review.

THE APPEAL

Application for an extension of time

19    On 19 September 2016, the applicant brought an application for an extension of time to appeal to this Court. The decision of the primary judge was made on 9 August 2016 – the same day as the hearing. The primary judge delivered ex tempore reasons. The written reasons were subsequently published on 25 August 2016.

20    In an affidavit sworn on 14 September 2016, the applicant said that his delay in seeking to appeal the Federal Circuit Court’s decision resulted from a delay in receiving the Federal Circuit Court’s reasons and him not understanding the time limit in which to lodge an appeal.

The proposed grounds of appeal

21    The applicant filed a draft notice of appeal which purported to identify 20 proposed grounds of appeal.

22    The document does not satisfy the requirements of a notice of appeal specified in Rule 36.01 of the Federal Court Rules 2011 (Cth). The applicant did not seek to identify any error by the primary judge. Rather, the draft notice of appeal is to a large extent a narrative directed to the merits of the applicant’s application for a protection visa.

23    The first respondent accepted that the delay was relatively short and that there was a delay in the provision of the primary judge’s written reasons which to an extent explained the applicant’s delay. The first respondent, however, contended the application for extension of time to appeal should be dismissed because there was no reasonable prospect of success for the appeal which the applicant proposed to bring.

24    In my view, the application for an extension of time should be dismissed because the appeal which the applicant proposes to bring has no reasonable prospect of success. This is because the draft notice of appeal fails to identify any error by the primary judge. However, even if the draft notice of appeal was to be construed as alleging the primary judge erred in dismissing each of the grounds of review, the application would still lack a sufficient prospect of success.

25    As to the first two grounds of review, the primary judge found that the Tribunal identified the appropriate law and engaged in a fact finding exercise which addressed the applicant’s claims. The primary judge observed that the Tribunal did not accept the applicant’s version of events because it did not accept that the applicant was a credible witness.

26    The primary judge found that it was open to the Tribunal to come to that view and that the first and second grounds of review should be dismissed.

27    I observe that in his draft notice of appeal, the applicant did refer to the case of W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 in support of a proposition that adverse credibility findings by a Tribunal cannot be founded on bare assertion of implausibility. In my view, the adverse credibility findings made in this case were reasoned and, as the primary judge found, were open to the Tribunal.

28    In my view, the primary judge did not err in dismissing the first two grounds of review.

29    As to the ground of review based on bias and denial of procedural fairness, the primary judge found that the applicant had failed to discharge the onus of demonstrating bias; nor was there anything in the material to show the applicant did not get a fair hearing before the Tribunal. The applicant made no oral submissions impugning these findings. In my view, the primary judge did not err in rejecting this ground of review.

30    I observe that at the hearing in this Court, the applicant, in effect, initially applied for an adjournment so that he could engage a lawyer. However, I rejected that application because the applicant filed his application on 16 September 2016 and has had enough time in the ensuing period to find a lawyer. Further, there was no evidence before the Court in relation to the applicant’s attempts to find a lawyer.

31    The applicant also said that the Tribunal had not referred to the evidence he gave about a man called Rajish. However, it is apparent that the Tribunal did at [21] of the decision record refer to that evidence.

32    The application is dismissed.

Associate:

Dated:    9 March 2017