FEDERAL COURT OF AUSTRALIA

APR15 v Minister for Immigration and Border Protection [2017] FCA 713

ORDERS

THE COURT ORDERS THAT:

1.    The time in which to file a notice of appeal against a judgment of the Federal Circuit Court of Australia be extended to 30 June 2017.

2.    The applicant has leave to raise new grounds of appeal not before the Federal Circuit Court of Australia in the form of the draft notice of appeal dated 5 May 2017 (“draft notice of appeal”).

3.    By 30 June 2017, the applicant file and serve a notice of appeal in the form of the draft notice of appeal.

4.    Rules 36.51 to 36.56 of the Federal Court Rules 2011 (Cth) do not apply to this appeal.

5.    The appeal book be constituted by:

(a)    the application relied upon in the proceeding below (as amended, if applicable);

(b)    the bundle of relevant documents filed in the proceeding below;

(c)    any part of the transcript of the proceeding below that is relevant and necessary for the hearing and determination of the appeal;

(d)    the reasons for judgment and orders made in the proceeding below;

(e)    the notice of appeal (or, if applicable, the amended notice of appeal), any notice of contention, notice of cross appeal or any related application including any application for extension of time or leave to appeal; and

(f)    any orders of the Court granting an extension of time or leave to appeal.

6.    The appeal book be:

(a)    prepared, filed and served by the lawyer for the appellant;

(b)    printed double sided, unless it is fewer than ten (10) pages in length; and

(c)    filed and served fifteen (15) business days prior to the hearing date, including sufficient copies for the Court (one copy for each judge and a copy for the registry).

7.    The appellant file and serve a written outline of submissions no later than ten (10) business days before the hearing date.

8.    The respondent file and serve a written outline of submissions no later than five (5) business days before the hearing date.

9.    A copy of the particular provisions of the relevant legislation as it applied at the date of the decision under review was made, be filed and served (if not already filed in the proceeding below):

(a)    by the lawyer for the appellant; and

(b)    no later than three (3) business days before the hearing date, including sufficient copies for the Court (one copy for each judge and a copy for registry).

10.    Outlines of submissions not to exceed 10 pages in length, including any annexures and be easily legible using a font size of at least twelve (12) points and one and a half line spacing throughout.

11.    Costs be reserved.

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

REASONS FOR JUDGMENT

DAVIES J:

introduction

1    The applicant has applied for an extension of time in which to appeal against the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse to grant the applicant a protection (class XA) visa.

2    The principles for granting an extension of time were not in dispute. Matters bearing upon the exercise of the discretion are:

(a)    the length of the delay;

(b)    the adequacy of any explanation provided for the delay;

(c)    any prejudice that might be suffered by the respondent occasioned by the delay; and

(d)    the merits of the proposed appeal.

See Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344. Ultimately, an extension of time should be granted if the extension is in the interests of the administration of justice.

3    In the present case, the proposed appeal is approximately 12 months out of time. The reason for the delay is set out in an affidavit affirmed by the applicant and an affidavit of Ms Peggy Kerdo, the applicant’s current solicitor. The reason for the delay may be encapsulated as follows.

4    At the time of the FCC hearing, the applicant had retained the services of another lawyer in Canberra. The FCC judgment was delivered on 18 December 2015 but according to the applicant he only became aware of the judgment in March 2016 when he received a demand for payment of the costs he was ordered to pay the Minister. He contacted his then solicitor who required his fees to be paid up front before doing any more work for the applicant. The applicant could not pay the fees and he deposed that he became very depressed and avoided looking at his situation.

5    In September 2016 the applicant approached Kerdo Legal to advise him about his immigration status and whether he was eligible for a partner visa. He deposed that he was very confused about his immigration status and was not able to tell Ms Kerdo at what stage his application was. It was only after Ms Kerdo had obtained a copy of the FCC decision and explained it to him that he understood what had happened. Ms Kerdo similarly deposed that the applicant was confused about his immigration status, and only able to say that a visa application had been refused three times. The applicant had no paperwork to show Ms Kerdo. He did tell her that he had a lawyer in Canberra whom Ms Kerdo contacted but she was unable to get a clear idea of what had occurred from the previous lawyer and the lawyer was unwilling to release his file as the applicant had outstanding fees. After obtaining a copy of the FCC decision from the internet, Ms Kerdo explained to the applicant what had occurred and what his options were. The applicant was advised that the first step in proceeding with an appeal from the FCC decision was to approach counsel for an opinion on the merits of such an appeal. That advice was received in December 2016 and an application for an extension of time in which to appeal was filed on 23 December 2016. It appears that the application was rejected due to non-compliance with the Federal Court Rules 2011 but Ms Kerdo only became aware of this on 23 January 2017. The application was re-lodged on 27 January 2017.

6    The Minister opposed the granting of an extension of time on the basis that the delay was excessive, the applicant’s explanation for the delay was inadequate and the proposed appeal does not enjoy any prospects of success. It was not claimed that the Minister would suffer any prejudice.

Delay

7    It was frankly accepted by counsel for the applicant that the delay was significant and the explanation for the delay was not “strong”. However, the Court was asked to take into account that the applicant is not highly educated, his command of English is limited and he has a limited understanding of Australia’s legal system. The Court was also asked to take into account that it appears from the FCC judgment that the applicant was very poorly represented below. The FCC decision is highly critical of the lawyer who appeared for the applicant, stating, amongst other things, that the submissions made by the lawyer were in very large measure bald assertions unsupported by reference to any relevant facts and/or relevant principle. The primary argument advanced for the applicant before the FCC was that the only question to be determined by the Tribunal was whether the applicant was the subject of persecution and all other matters were irrelevant considerations. The submission flowing from that proposition was that the credibility of the applicant and errors, omissions or inaccuracies in the documentation provided by the applicant and/or the applicant’s evidence generally was irrelevant. It was also submitted by the applicant’s lawyer that the FCC should not follow decisions of the Federal Court of Australia rejecting those contentions. Trenchant criticism was made of this submission and the lawyer’s conduct.

8    It may readily be accepted that the applicant did not, and could not, receive the assistance he required from his previous lawyer in order to act upon his appeal rights. Thereafter, once the applicant did engage other lawyers, the process took some time but Ms Kerdo did adequately explain the further delay.

LEAVE TO RAISE NEW GROUNDS NOT BEFORE THE FCC

9    The proposed grounds of appeal are as follows:

(1)    The Court erred in not finding that the decision of the Tribunal was affected by jurisdictional error in that there was a breach of s 425 of the Migration Act 1958 (Cth).

(2)    The Court erred in not finding that the decision of the Tribunal was affected by jurisdictional error, in that the decision was affected by the Tribunal making a number of unwarranted assumptions about the applicant’s claims.

(particulars provided).

10    Both these grounds are new points not raised before the FCC and the applicant requires leave to raise the new points. As the authorities show, the guiding principle is that leave to a argue new ground should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [90]. The Court may grant leave if the point clearly has merit and there is no real prejudice to the respondent in permitting it to be agitated. Generally, leave should be refused in the absence of an adequate explanation for the failure to raise the proposed new ground and the proposed new ground is of doubtful merit. If the proposed new ground has no merit there is no justification for permitting it to be raised for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs at [48]. For the reasons that follow, leave should be granted to raise the proposed new grounds that were not before the FCC.

MERITS OF THE PROPOSED APPEAL

11    It is well established that the Court is not required to have a full hearing in relation to the proposed grounds. As Katzmann J said in SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53]–[55]:

First, while a strong case will weigh heavily in the applicant’s favour, an apparently weak, but arguable case does not weigh against the grant of an extension: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J).

Secondly, as Mortimer J observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], when the question of merits is considered on an application for an extension of time, a court is not concerned with whether the applicant will ultimately succeed, but whether he or she has a reasonably arguable case.

Thirdly, it is not in the interests of justice to extend the time to appeal from a judgment which is plainly right or where the proposed appeal is bound to fail. In such a case it would be futile to do so.

See also MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478.

12    I am satisfied that both grounds are reasonably arguable.

Proposed ground 1

13    The first ground alleges a breach of s 425 of the Migration Act 1958 (Cth) (“the Act”) in relation to the findings about the applicant’s ethnicity and how he is perceived in Iran.

14    The Tribunal reasons record at paragraph [12] that the applicant claimed that if he returned to Iran he would be executed because he had attended demonstrations and claimed his rights as an Ahwazi Arab. The Tribunal reasons also record at [51] as follows:

The applicant is a 31 year old, divorced panel beater from Ahwaz. He fears returning to Iran because he claims that he would be executed by the Iranian authorities because he had attended rallies and claimed his rights as an Ahwazi Arab.

15    The Tribunal found the applicant’s evidence regarding his claims to be inconsistent and lack credibility. The Tribunal did not find the applicant to be a reliable, credible or truthful witness and found he fabricated “his entire claim” in order to be granted a protection visa.

16    Under the heading “Ethnicity”, the Tribunal relevantly found as follows:

Although the applicant claims that he is an Ahvazi [sic] Arab, the Tribunal finds that the applicant has a Persian father and Arab mother. This would make him Persian given the patrilineal system in Iran for purposes of citizenship, inheritance and the like. I am satisfied that the applicant would be considered to be Persian and considers himself Persian given the interview was conducted in Farsi rather than Arabic, and his family name is [omitted] which has Persian rather than Arabic roots. His mother’s name [omitted] is Arabic, but is most commonly found in Iran.

17    The Tribunal did not accept that the applicant was demonstrating against restrictions on dress, language and employment problems as an Ahwazi Arab. Nor did the Tribunal accept that the applicant had been discriminated against in his employment because of his Arab ethnicity. The Tribunal also stated at paragraph [57]:

…I also note that the applicant conducted the hearing in Farsi rather than Arabic. It is reasonable to believe that if he was ethnically Arab and committed to asserting his Arab identity he would want to talk in his ethnically native tongue. While he may have learnt Farsi in school, he would have had the opportunity to speak Arabic at home if he was Arab as he claimed, and given he has been committed to the Arab cause since at least 2005 he could have readily improved his Arabic in the last 10 years.

18    The Tribunal also did not accept that the applicant attended demonstrations in support of Ahwazi rights and against the Iranian government, nor that he had been detained and tortured by Iranian authorities. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason then or in the reasonably foreseeable future.

19    Having regard to those findings, the Tribunal also rejected the applicant’s other claims. Under the heading “Complementary Protection”, the Tribunal stated:

Because I do not accept that the applicant is Arab or would be considered to be Arab, that he has attended any pro-Arab demonstrations in Iran or Australia, been detained, tortured, charged or fined, that he has been denied employment opportunities because of his ethnicity or would be prosecuted as a voluntary returnee or for seeking asylum I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. I am also not satisfied that being questioned by immigration officials at the airport on return constitutes anything approaching significant harm.

20    Counsel for the applicant submitted that there was a reasonably arguable case that there had been a breach of s 425 of the Act in relation to the findings about the applicant’s ethnicity and how he is perceived in Iran. Reference was made to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 as authority for the proposition that an applicant is entitled to assume that findings in his favour by the delegate are not in issue at the Tribunal hearing, unless put on notice by the Tribunal. The issue in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs was that the delegate had not based his decision on two out of the three particular aspects of the claim, but the Tribunal used its rejection of those two aspects in reaching an adverse conclusion, without indicating to the applicant that those matters were in issue before the Tribunal. The Court said at [35] and [41]–[43]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

…

The appellant's complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about the nature of Iranian society, when it decided that three aspects of his account were implausible. So, to take one of the three critical issues, when the Tribunal concluded (as it did) that it was implausible that what was said in a conversation between friends over coffee would come to the attention of a fellow member of the appellant's crew and thus be conveyed to the ship's captain, the Tribunal assumed that matters of religious interest would not ordinarily be the subject of gossip in a town in such a way as to come to the attention of a fellow crew member. The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.

But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.

The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.

21    It was submitted that this was precisely what has occurred in this case. The delegate accepted that the applicant was an Ahwazi Arab. There was no suggestion in the delegate’s decision that the applicant’s birth certificate was of any significance. There was no reference to the patrilineal system in Iran, nor whether the applicant would be considered or perceived to be Persian, either generally or because the applicant’s birth certificate showed that his father’s name was Persian. Further, there was no suggestion in the delegate’s decision that anything flowed from the applicant giving his evidence in Farsi, nor was there any suggestion that his ability to speak Farsi was relevant to his claim.

22    Counsel for the Minister argued that a fair reading of the Tribunal’s reasons discloses that the Tribunal questioned the applicant about the following matters, among other things:

(a)    the applicant’s driver’s licence and ID cards;

(b)    the name of the applicant’s father;

(c)    the applicant’s birth certificate;

(d)    his divorce papers, which were related to the issue of his birth certificate;

(e)    the alleged discrimination suffered by the applicant at his work;

(f)    the applicant’s attendance at demonstrations;

(g)    the rights which the applicant said he had asserted.

23    It was submitted that a fair reading of the Tribunal’s reasons revealed that these matters were directly related to the question of the applicant’s identification as an Ahwazi Arab. Further it was submitted that it was a misreading of the applicant’s claims, and the Tribunal’s reasons, to conclude that the relevant issue was the applicant’s ethnicity, considered in isolation from any other matter. It was submitted that on a proper characterisation of the Tribunal’s reasons, the dispositive issues were whether the applicant had a well-founded fear of persecution on the basis of attending rallies and asserting his rights in connection with his ethnicity as an Arab. Relevantly, it was submitted, the Tribunal disposed of the applicant’s claim not on the basis that the applicant was Persian and not Arab, but because it did not accept that the applicant had attended rallies to assert his rights, or had been discriminated against. In this regard, it was said, the Tribunal did not rely on any finding that the applicant was or was not Arab, but simply rejected the factual claims made by the applicant largely on credibility grounds. It was submitted that it was clear that the applicant was on notice of the relevant issues because the Tribunal clearly discussed with the applicant his attendance at rallies, his alleged discrimination in obtaining and finding work, his birth certificate and the rights which he said he asserted. Alternatively, it was submitted, if the applicant’s ethnicity considered in isolation from other matters was a relevant issue, the Tribunal did in fact alert the applicant to this issue having regard to the matters about which he was questioned. It was submitted that there was no other issue to which such questions could have been directed.

24    I am satisfied that it is reasonably arguable, based on the Tribunal’s reasons, that s 425 of the Act was breached as claimed. I am satisfied that it is reasonably arguable that the applicant’s claim was based on his ethnicity. He asserted his ethnicity as Ahwazi Arab and asserted his ethnicity as the basis for his employment discrimination and the reason he attended the rallies. It is also reasonably arguable that the matters about which he was questioned as recorded in the Tribunal’s decision were insufficient to put him on notice that his ethnicity as an Ahwazi Arab was an issue that arose on the review. The Tribunal’s reasons for decision do not disclose that the Tribunal directly put the applicant on notice that his ethnicity as an Ahwazi Arab was an issue nor did the line of questioning on which counsel for the Minister placed reliance directly raise ethnicity as an issue. As such, there is an arguable case that there was a breach of s 425 of the Act in relation to the findings about the applicant’s ethnicity and how he is perceived in Iran.

Proposed ground 2

25    The second proposed ground is related. This proposed ground focuses on what counsel for the applicant submitted were a “number of unwarranted cultural assumptions” in paragraph [54] of the Tribunal’s reasons which were integral to the Tribunal’s adverse credit findings. The Tribunal’s reasons do not disclose the source material for the Tribunal’s conclusion at [54] that the applicant’s Persian father and Arab mother would “make [the applicant] Persian given the patrilineal system in Iran”, nor the significance of his father’s name, nor the significance of the hearing being conducted in Farsi or the relevance of the applicant’s capacity to speak Farsi rather than, or in addition to, Arabic. Accordingly I am also satisfied there is a reasonably arguable case for impugning the credit findings of the Tribunal: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.

Should the Court refuse the application in the exercise of discretion?

26    It was submitted by the Minister that it would not, in any event be appropriate to remit the matter for reconsideration in circumstances where the Tribunal’s decision rested on separate and independent findings of fact: see, for example VBAP of 2002 v Minister for Immigration and Multicultural Affairs [2005] FCA 965 at [33]; SZYRB v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [29], [88]–[90]. It was submitted that the Tribunal’s rejection of the applicant’s claims regarding his attendance at rallies, his discrimination, his birth certificate and the rights which he said he asserted, were all separate bases for rejecting the applicant’s claim for protection and, thus, even if the Court were to find that the Tribunal failed to alert the applicant to the issue of his ethnicity, this did not undermine the essential legal basis which sustained the Tribunal’s decision, being the factual rejection of his claims of past persecution. However, it cannot be said that an appeal would have no utility, particularly as proposed ground 2 is directed at impugning the findings of fact underpinning the Tribunal’s decision.

Conclusion

27    I am satisfied that the proposed two new grounds are reasonably arguable. Although the delay in commencing the appeal is extensive, I accept the explanation given for the delay and in view of the applicant’s poor quality of representation in the FCC I do not consider that the delay warrants the Court dismissing the application for an extension where the proposed grounds of appeal have been shown to have merit.

Associate:

Dated:    23 June 2017