FEDERAL COURT OF AUSTRALIA

BAM16 v Minister for Immigration and Border Protection [2017] FCA 1502

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondents’ costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    The applicant, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) seeks, an extension of time within which to appeal from a judgment of the Federal Circuit Court delivered on 9 September 2016: BAM16 v Minister for Immigration and Border Protection [2016] FCCA 2378. His application was filed on 19 July 2017.

2    The applicant relies, in support, upon his affidavit affirmed on 17 July 2017 which annexes a draft notice of appeal containing seven grounds.

General principles

3    The applicable principles in an application for an extension of time to file a notice of appeal were recently summarised by Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [2]:

The power afforded to this Court pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) to grant an extension of time in which a party might appeal from the Federal Circuit Court is discretionary. The rule itself imposes no fetter on the matters which the Court might consider when exercising the discretion. That said, it must necessarily be exercised in a principled manner constrained by the interests of justice and the subject matter and purpose of the legislation in which it is found. The relevant principles to apply in dealing with an application of this nature were succinctly stated by Katzmann J in Dunlop v Fishburn (No 3) [2012] FCA 315 at [9] and [10] in the following terms:

9. The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.

10. The requirement in the former Rules (O 52 r 15(2)) that an applicant show “special reasons” has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court’s discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply:

(a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b) The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(c) Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(d) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;

(e) The merits of the appeal are to be taken into account.

See also the discussions in Mohammed v Minister for Immigration and Border Protection [2015] FCA 184; (2015) 231 FCR 243 at 246-247, [15]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]- [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

4    In this case, a notice of appeal should have been filed by 30 September 2016: r 36.03 of the Rules. The Applicant is therefore more than nine months out of time. Where the length of the delay is significant, an extension of time, in which to commence judicial review proceedings to quash an act, decision, or judgment ought only be granted in an exceptional case: Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [13].

Background

5    The following summary of the background and the proceedings in the Administrative Appeals Tribunal (Tribunal) and the Federal Circuit Court (FCC), which is uncontroversial, is substantially drawn from the parties’ written submissions.

6    The applicant is a citizen of Pakistan. He arrived in Australia on 9 June 2012 as an unauthorised maritime arrival, and lodged an application for protection on 9 September 2012.

7    The applicant claimed to fear harm from the Taliban and from the Tehrik-i-Taliban Pakistan by reason of his Turi ethnicity, Shia religion, political beliefs and on the basis that he was a well-known taxi driver.

8    The Minister for Immigration and Border Protection’s (Minister) delegate (Delegate), in considering the protection visa application, was not satisfied that there was a real chance of the applicant being persecuted for a reason grounded in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and was not satisfied that the applicant had a well-founded fear of harm in Pakistan.

9    The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was real risk that the applicant would be subject to significant harm.

10    On 21 November 2014, the delegate refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

Proceedings in the Administrative Appeals Tribunal

11    On 27 November 2014, the applicant applied for review of the Delegate's decision by the Tribunal.

12    By letter dated 2 December 2015, the Tribunal invited the applicant to appear at a hearing before it scheduled for 28 January 2016 to give evidence and present arguments. He appeared before the Tribunal on that day and gave evidence with the assistance of a Pashto interpreter. The applicant's representative was also present.

13    On 5 February 2016, the applicant's migration representative provided supplementary submissions together with further material in support to the Tribunal.

14    On 5 April 2016, the Tribunal affirmed the delegate's decision not to grant the visa.

15    The Tribunal accepted the applicant's claims regarding the security situation in Parachinar, Pakistan in 2007 and 2008 and found that the applicant's claims of attacks in the area were plausible and consistent with independent information. The Tribunal further accepted that in February 2012, the applicant's home area and the surrounding district were the subject of considerable violence and that at that time and until recently, there would have been a real chance of serious harm as a Shia from Parachinar who drove a taxi.

16    However, the Tribunal, after considering the applicant’s evidence, did not accept that the applicant left his home area because he was specifically targeted by the Taliban and/or Sunni extremists or because he had experienced any harm or threats of harm from any person or group including the Taliban and/or Sunni extremists. Further, the Tribunal did not accept the applicant's evidence that his family remained safe because they stayed in their home and did not go out, noting the applicant's evidence that his brother and cousin had travelled to Rawalpindi.

17    In respect of the applicant's risk of future harm, the Tribunal did not accept that there was a real chance that the applicant would be targeted by the Taliban or any other Sunni extremist groups or individuals if he returned to Pakistan. The Tribunal did not accept that the applicant would face harm on the return journey to his home area, nor did the Tribunal accept that the applicant would face harm if he continued to travel on roads in his home area.

18    The Tribunal was satisfied that there had been significant changes to the security situation, and that the applicant would be able to resume his business as a taxi driver and travel on the road from Parachinar to other parts of Pakistan including around his home area. Given the significant changes to the security situation in Parachinar and the Kurrum Agency, the Tribunal accepted that whilst there was some level of risk to the applicant in the context of terrorism and generalised violence, that risk was remote. Further, the Tribunal was not satisfied that the applicant had any particular profile before he left Pakistan that would result in him being viewed adversely, or that he would face a real risk of harm because he spent time in Australia, a Western country, or unsuccessfully sought asylum. The Tribunal was not satisfied that the applicant faced a real risk of suffering serious harm were he to return to Pakistan. On the basis of its anterior findings of fact, the Tribunal was not satisfied that the applicant faced a real risk of suffering serious harm for any Convention reason upon his return to his home area.

19    The Tribunal concluded that it was unable to be satisfied that there was an attempted kidnapping of the applicant’s brother and cousin, as claimed by him, without further information, which the Tribunal requested and the applicant did not provide.

20    Accordingly, the Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk that the applicant would suffer significant harm as defined by s 36(2A) of the Act. The Tribunal found that the applicant failed to satisfy the criteria under s 36(2) of the Act and affirmed the decision of the Delegate.

Proceeding in the Federal Circuit Court (FCC)

21    On 3 May 2016, the applicant filed an application for a constitutional writ within the FCC's jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 5 April 2016 affirming the decision of the Delegate not to grant the applicant a protection visa.

22    The three grounds of the review application were:

Ground 1 - The Tribunal member fail [sic] to provide me with a fair hearing.

Ground 2 - The Tribunal failed to follow rules of natural justice.

Ground 3 - The Tribunal committed error of law.

23    On 9 September 2016 the Primary Judge dismissed the application for the following reasons.

Ground 1

24    To the extent that this ground alleged that the applicant did not have a fair hearing, the Primary Judge found that the applicant did have a real and genuine hearing before the Tribunal where he presented his claims and evidence.

Ground 2

25    The Primary Judge found that the applicant was able to attend a hearing to advance his claims and present submissions to the Tribunal in support of his claims and, that the Tribunal identified the applicant's claims and evidence and engaged in an evaluation of the applicant's evidence and relevant country information. The Primary Judge further observed that the adverse findings made by the Tribunal were open to it on the material before it, and that as a result, Ground 2 fails to make out any jurisdictional error.

Ground 3

26    The Primary Judge concluded that Ground 3 was a bare allegation of an error of law and that he was not satisfied that the Tribunal had failed to comply with its statutory obligations or acted in excess of its power to conduct the review.

27    In relation to the submissions made orally by the applicant at hearing, the Primary Judge found that the submissions amounted to an impermissible challenge to the merits of the application and that it was a matter for the Tribunal to determine the weight it placed on country information. The Primary Judge found that there was no material before him to establish that the Tribunal failed to afford the applicant procedural fairness.

Application for leave to appeal

Explanation for delay

28    The various explanations proffered by the applicant for the delay include that he was ‘disturbed’ by the illness of his grandfather with whom the applicant had a deep emotional attachment, ‘depressed and shocked’ over his grandfather's subsequent death, and ‘depressed and shocked’ over the adverse outcome of his case and due to ‘financial worries’ because of a loss of Centrelink support, altogether preventing him from pursuing an appeal.

29    There is a presumption that a litigant of full age is competent to manage his or her affairs: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [26]. The contrary has not been proven and in particular, this cannot be said to be a case where a lack of capacity is clear enough so as not to require medical evidence: L v HREOC at [23]-[27]. The applicant did not provide expert medical evidence as to his claimed conditions nor evidence as to how these prevented him from filing his application. Nor was there evidence as to the applicant's financial situation. Without further justification, impecuniosity is not a satisfactory explanation for the substantial delay: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].

30    It was further submitted that he could neither speak nor read English. The applicant also submitted that he had no understanding of the Australian legal system and laws, and thus did not understand there was a period of time for filing a notice of appeal however the applicant is in no different position to other applicants for judicial review under the Act, who have limited English language skills and are able to file their applications within the prescribed time limits: WZAWB v Minister for Immigration and Anor [2016] FCCA 1345 at [91].

31    The Minister accepts that there is no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making:

32    I am not satisfied by the applicant’s explanations for the delay. Nonetheless, I will consider the applicant’s draft grounds of appeal and whether they disclose that the decision of the Primary Judge is attended by sufficient doubt to warrant an extension of time being granted.

Draft grounds

33    There are 7 grounds in the applicant’s draft notice of appeal. The applicant’s counsel, in written submissions, in effect, concentrated principally on two broad grounds.

(1)    whether an extension of time is necessary in the interests of the administration of justice; and

(2)    whether the applicant was denied procedural fairness and, if that is the case, the judgement of the FCC suffers from jurisdictional error.

34    Nonetheless, I will deal with all of the grounds. Several may be considered in combination.

Ground one

35    This ground asserts that the interpreter provided for the purpose of the FCC hearing was inadequate. However the applicant has not provided evidence demonstrating that misinterpretation occurred nor how any misinterpretation did in fact occur or, further, how any such misinterpretation could have resulted in the hearing being unfair.

36    Unlike other “interpretation” cases I do not have the benefit of the full transcript: cf Perera v Minister for Immigration, Multicultural and Indigenous Affairs [1999] FCA 507 at [38]-[39]. As Allsop CJ noted in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5], albeit in the context of alleged misinterpretation before the Tribunal as opposed to the FCC:

[w]hether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

37    His Honour considered relevant authorities on this particular issue at length, endorsing also Kenny J’s examination of the place of adequate interpreting in Perera including, at [14], her Honour’s statement at [38] that the question was:

whether the material … is sufficient to make out [the] case that the interpretation …was so incompetent that [the appellant] was prevented from giving [their] evidence.

38    There was no proven misinterpretation.

The reasons for judgment demonstrate the contrary position as to the adequacy of the interpretation. As the Minister submits:

(1)    the applicant first stated that he understood the Court (through the interpreter);

(2)    the applicant then raised an issue regarding the standard of interpretation whilst the interpreter was reading the first respondent's submissions to the applicant;

(3)    the Court was re-convened and the Court went through the submissions paragraph by paragraph, through the interpreter, with the applicant confirming that he understood what had been said;

(4)    the applicant raised no further issue in relation to the standard of interpretation;

(5)    the applicant made detailed submissions after hearing the submissions of the first respondent; and

(6)    the Primary Judge was satisfied that the interpreter was able to communicate effectively with the applicant and the interpreter's accent did not in any way prevent the applicant from having a real and genuine hearing before the Court.

39    The factual assertion as to inadequacy of interpretation is groundless.

40    Moreover, as the Primary Judge stated at [21], the applicant, after raising the issue as to purported inadequacy of interpretation, and following the approach adopted by the Primary Judge referred to, raised no further issues on this subject.

41    The applicant then proceeded to put detailed submissions before the Primary Judge following the Minister’s submissions. He did not suggest that he was not in a position to argue his case because he had, for the first time, the content of the Minister’s submissions interpreted for him at the hearing before the Tribunal.

42    There is no evidence to support the submission that the interpreter was not accredited by National Accreditation Authority for Translators and Interpreters. No appealable error is revealed by this ground.

Ground two

43    This ground asserts that the Primary Judge did not provide the applicant with the opportunity to go through the Minister’s written submissions and that he had not been provided with a copy of the submissions in advance. To an extent, this ground overlaps with the first ground, concerning as it does, in part, the adequacy of interpretation.

44    The applicant was served with a copy of the Minister’s submissions on 7 September 2016 two days before the hearing by both email and express post in accordance with the orders of the Primary Judge dated 24 August 2016.

45    The FCC reasons for judgment indicate that the applicant raised before the Primary Judge, that he had not yet read the written submissions of the Minister. The Primary Judge deals with this in the way set out in his reasons at [19]-[20]:

19.    The Court then identified the evidence. At the conclusion of the evidence, the applicant indicated that he had not yet read the written submissions of the first respondent. The Court directed the interpreter to read the first respondent’s written submissions to the applicant. The reading of those submissions to the applicant was then commenced. Those submissions contained some 17 paragraphs.

20.    When the interpreter reached paragraph 11, the applicant raised with the Court an issue regarding the standard of interpretation as he could not understand the interpreter’s accent. The Court reconvened to ascertain from the applicant the nature of the problem in relation to the applicant understanding the interpreter. The Court went through, paragraph by paragraph, the submissions through the interpreter with the applicant, and the applicant confirmed that he understood what was said by the Court. The Court is satisfied that the interpreter was able to communicate effectively with the applicant, and that the interpreter’s accent did not in any way prevent the applicant form having a real and genuine hearing before this Court.

46    This approach was eminently fair and reveals that the applicant had an adequate appreciation of the content of the submissions. The evidence supports the finding that he did receive a copy of the submissions prior to the hearing.

47    Ground 2 is without substance.

Grounds three and seven

48    The applicant requires leave to raise these grounds of appeal as they were not raised in the court below: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [79]. The grounds assert that the Tribunal's decision was based on ‘hearsay evidence’, that the Tribunal failed to consider the risk of harm faced by the applicant in the reasonably foreseeable future and that the Tribunal relied ‘too much’ on the material provided by the Minister.

49    As to the question of the weight given by the Tribunal to the country information, it is, as the Minister submits, well established that the choice of, and weight to be given to country information is a matter for the Tribunal: NAHL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. Furthermore, I accept that country information post-dating the Tribunal's decision is inadmissible and irrelevant to the issue of whether the Primary Judge made any appellable error.

50    The submission that the Tribunal misapplied the relevant law is unfounded. The Tribunal set out the relevant law in annexure A to its decision and made express findings that the applicant did not have a well-founded fear of persecution if returned to his home country now or in the reasonably foreseeable future.

51    I would refuse leave to raise these grounds which are, in any event, without merit.

Grounds four and five

52    These grounds asserts that the primary Judge was biased, did not provide the applicant with the opportunity to amend his grounds of review and considered only the grounds raised in the written application.

53    I have treated the allegation of bias, in context, as one of apprehended bias, based on the assertion that the Trial Judge failed to take into consideration the appellant’s arguments put forward during the hearing, other than those mentioned in the written application.

54    The relevant test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Johnson v Johnson (2001) 201 CLR 488 at 492 [11]-[12].

55    There is no material to support such a serious allegation, nor the suggestion of a denial of procedural fairness. Orders made on 7 June 2016, provided the applicant with the opportunity to file and serve an amended application. He was afforded the opportunity, at the hearing, to make oral submissions. His submissions were considered by the Primary Judge at [22]-[28] but were found not to identify legal error. The Primary Judge's conclusions, after affording the applicant a proper hearing, are far removed from establishing apprehended bias.

Ground six

56    This ground asserts that the Tribunal failed to take into account the applicant's claim that he would face harm as a result of ‘tribal animosities’ due to his transportation of injured and martyred persons to hospitals. Again, he requires leave to raise this ground of appeal which was not raised below: Gupta at [79].

57    There was no claim by the applicant, before the Tribunal, that he feared harm as a result of his transportation of injured or martyred persons. The Tribunal was not required to consider a claim not made nor one which did not squarely arise on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[59]. His evidence before the Tribunal concerning his claimed fear of harm as a result of his employment as a taxi driver was limited to the claims that he had been threatened and that he was known everywhere. The Tribunal considered the claims made by the applicant and made findings in relation to those claims that were open to it.

58    No jurisdictional error on the part of the Tribunal has been established nor is there appealable error in the Primary Judge's reasons.

Orders

59    The application for an extension of time and leave to appeal will be dismissed with costs.

Associate:

Dated:    22 December 2017