FEDERAL COURT OF AUSTRALIA

CNC15 v Federal Circuit Court of Australia [2017] FCA 1540

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH:

1    This is an application for judicial review of a decision of the Federal Circuit Court of Australia (FCC). The FCC refused to grant the applicant an extension of time in which to commence proceedings for judicial review of a decision of the Administrative Appeals Tribunal: CNC15 v Minister for Immigration & Anor [2016] FCCA 2864 (judgment). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    The application for an extension of time was made pursuant to s 477 of the Act. For the applicant it is submitted that the primary judge made a jurisdictional error in the exercise of that power. If the primary judge erred in the manner contended for, an issue would arise as to whether the FCC, as an inferior court, exceeded its jurisdiction in refusing to grant an extension of time such that an order in the nature of certiorari may arise.

3    In the result, I am not satisfied that the primary judge erred in dismissing the application for an extension of time. Accordingly, it is unnecessary to determine whether an error of the kind alleged in these proceedings would go to the jurisdiction of the FCC and so justify the grant of relief.

THE STATUTORY FRAMEWORK

4    The Tribunal’s decision is a “migration decision” for the purposes of the Act: see s 5(1) and s 474A. Section 476(1) of the Act confers upon the FCC the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. To succeed on an application for judicial review under s 476(1) of the Act before the FCC, it is necessary for an applicant to show that the migration decision is affected by jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; s 474 of the Act.

5    An application to the FCC for a remedy to be granted in the exercise of that Court’s jurisdiction under s 476 in relation to a migration decision is to be made within 35 days of the date of the decision: s 477(1) of the Act. In this case, the Tribunal’s decision was made on 28 February 2013.

6    Section 477(2) provides:

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

7    On 27 November 2015 the appellant applied under s 477(2) for an extension of time in which to commence an application for judicial review of the Tribunal’s decision. The application was made two years and seven months after the expiry of the time prescribed in s 477(1). An amended application for an extension of time was filed on 27 April 2017. That application advanced two proposed grounds for judicial review of the Tribunal’s decision. They will be considered below.

8    The considerations to be taken into account in forming the state of satisfaction referred to in s 477(2)(b) of the Act include the length of the delay in commencing the application, the adequacy of any explanation given for the delay and any prejudice that might be suffered by the respondent should the extension of time be granted: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [10]. These same considerations may well be relevant in the exercise of the discretion conferred by s 477(2) once enlivened, although nothing presently turns on that question.

9    At least in cases where an adequate explanation for the delay is given, the FCC’s satisfaction that the grant of an extension of time is “necessary in the interests of the administration of justice” within the meaning of s 477(2)(b) is to be formed having regard to whether the proposed grounds of review have “reasonable prospects of success” or, to use like expressions, are “arguable”, “reasonably arguable” or “sufficiently arguable”: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [63] (Mortimer J) (confirmed on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110), citing SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46] – [48].

10    In MZABP, Mortimer J said (at [63]):

… Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

11    To similar effect, French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 said (at 98) (in the context of an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth)):

The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it.

12    In refusing to make an order extending the time limit, the primary judge concluded that the applicant had not given an adequate explanation for the delay: judgment [34]. In respect of the merits of the proposed application, the judge emphasised that it was not necessary that the applicant demonstrate that he would ultimately be successful: judgment [30]. It was, his Honour recognised, necessary to show that the proposed judicial review proceedings had reasonable prospects of success: judgment [30].

13    The primary judge took into account that the refusal to extend the time “will have a significant impact on the applicant” and that the impact was “one factor to be balanced against the others, including the length of the delay, and the merits of his proposed grounds”: judgment [42]. In respect of the merits, the primary judge was not satisfied that either of the proposed grounds for judicial review had reasonable prospects of success: judgment [43]. The reasons given for that conclusion are extracted at [45] below.

ISSUES ARISING ON THIS APPLICATION

14    Section 39B of the Judiciary Act 1903 (Cth) confers on this Court original jurisdiction to hear applications for orders in the nature of constitutional writs directed at the FCC, including in respect of the exercise of that Court’s discretion under s 477(2) of the Act: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, at [11] (Rares, Perram and Wigney JJ). There is no right of appeal from such a decision: see s 476A(3)(a) of the Act.

15    To obtain remedies in the nature of the Constitutional writs, the applicant must show not only that the FCC erred in the manner alleged, but that the errors are jurisdictional in the sense explained by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 and Craig v South Australia (1995) 184 CLR 163, having particular regard to the status of the FCC as a court of record: see s 8(3) of the Federal Circuit Court of Australia Act 1999 (Cth).

16    As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Kirk (at [67]):

The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between ‘on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ’. The Court said that:

‘If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

By contrast, demonstrable error on the part of an inferior court ‘entrusted with authority to identify, formulate and determine’ relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that:

‘a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.’

(Footnotes omitted)

Grounds of review

17    The grounds of review are those set out in an amended originating application dated 27 April 2017. They can be distilled into five propositions:

(1)    The formation of the state of satisfaction prescribed in s 477(2)(b) of the Act is a jurisdictional fact, the existence of which pre-conditions the exercise of the power to extend the time in which an application for review before the FCC may be made;

(2)    The primary judge did not make an order extending the time because he was not satisfied that it was in the interests in the administration of justice to grant the extension within the meaning of s 477(2)(b);

(3)    In so concluding, the primary judge erred in his assessment that the proposed judicial review proceedings had no reasonable prospects of success;

(4)    accordingly the primary judge, “did not actually form the state of satisfaction under s 477(2)(b)”; and

(5)    the absence of the relevant jurisdictional fact caused the FCC to act outside its jurisdiction and/or constructively fail to exercise its jurisdiction.

18    The question of whether the primary judge erred in determining that the proposed proceedings had no reasonable prospects of success is a critical question arising on the appeal. Counsel for the appellant accepts that this application cannot succeed unless that error is established.

NO REASONABLE PROSPECTS

The visa criteria

19    A valid application for a protection visa must be granted if the Minister is satisfied that the prescribed criteria for the grant of the visa are met. Conversely, if not satisfied that the visa criteria are met, the Minister must refuse to grant the visa: s 65 of the Act.

20    In the performance of its review function, the Tribunal was required to arrive at the correct and preferable decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (Bowen CJ and Deane J). That task involved the Tribunal forming (or not forming as the case may be) the state of satisfaction referred to in s 65 of the Act.

21    Section 36(2)(a) relevantly provided:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …

22    The Refugees Convention there referred to is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Convention): see s 5(1) of the Act. For the purposes of s 36(2)(a), Australia has protection obligations under the Convention to persons described in Article 1A(2) of the Convention, namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

(emphasis added)

23    It is well established that the requirement that there be a well-founded fear of persecution contains both subjective and objective elements. There must be a subjective fear of being persecuted, and the fear must be objectively well-founded: “it must not all be in the mind; there must be a sufficient foundation for that fear”: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396 (Dawson J).

24    A visa applicant’s fear will be objectively well-founded if there is a “real chance” that he or she will be persecuted for a Convention reason if returned to his or her country of nationality: Chan at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

25    The extent to which the visa applicant’s home country may afford protection is a question of fact bearing particularly on the objective question of whether the applicant’s fear of persecution, if returned there, is objectively well-founded. That is because the degree of protection in fact afforded by a country in most cases will bear significantly on the assessment of whether there is a real chance that the visa applicant will be persecuted if returned there.

26    The assessment of a claimed fear of persecution involves “a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33] (Kenny, Griffiths and Mortimer JJ). In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, Gummow and Hayne JJ described the predictive task of the Minister (and hence the Tribunal) as follows:

74.    Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

75.    Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

27    Similarly, in MZYTS, the Full Court explained that the Tribunal’s statutory task involved:

34.    … first, a correct understanding of the basis (or bases) on which the visa applicant says he or she has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

35.    The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. …

28    The application of the criterion in s 36(2)(aa) of the Act involves similar considerations. For the applicant to fulfil that criterion it was necessary that the Minister (or Tribunal on review) have substantial grounds for believing that:

… as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

The applicant’s claims

29    The applicant is a citizen of Afghanistan from the Daikundi province. He is an ethnic Hazara, a Shia Muslim and a Sayyed. In support of his application for the protection visa, the applicant claimed to have a well-founded fear of persecution by the Taliban and Pashtuns because (among other things):

(1)    he had worked as a security guard for international forces in Afghanistan (ISAF) between 2003 and 2005; and

(2)    he was a Shia Muslim and both a Hazara and a Sayyed.

30    The applicant further claimed that road travel in Afghanistan (including in the Daikundi province) was dangerous due to insurgent activity.

31    In written submissions before the Tribunal, the applicant’s migration agent said:

We submit that the situation is not likely to improve in the reasonably foreseeable future for the Hazara people. The persecution of Shia Muslims in Afghanistan is ongoing and only likely to worsen given extreme radical opinions being on the rise, the departing foreign troops and the lack of state protection. …

32    An oral submission to similar effect was made by the migration agent at the Tribunal hearing. In support of these submissions the migration agent provided the Tribunal with country information reports bearing on the question of the future stability of Afghanistan following the then-predicted withdrawal of ISAF troops in 2014.

The Tribunal’s findings

33    In its written reasons for decision dated 28 February 2013, the Tribunal commenced with a summary of some of the principles bearing on the application for review. It identified, correctly, that the availability of “internal protection” in the applicant’s home country was relevant to “whether a fear is well-founded and whether the conduct giving rise to the fear is persecution” (reasons [14]). The Tribunal stated (again correctly) that the question of whether the applicant is a person to whom Australia owes protection obligations requires “consideration of the matter in relation to the reasonably foreseeable future” (reasons [15]). The Tribunal made express reference to the applicant’s submission that the Afghan government could not provide protection to him, “including the risks arising out of the departure of ISAF forces” (reasons [23]).

34    Importantly for the purposes of the present application, the Tribunal rejected the applicant’s claim that he would, if returned to Afghanistan, be identified as a person who had previously worked for the ISAF, and his claim that he would be perceived to be a spy for Western countries. That conclusion was based in part on an earlier finding that the applicant had lived, worked and travelled in Afghanistan over a number of years without incident.

35    The Tribunal then turned its attention to the applicant’s claims founded more generally in his status as a Hazara Shia and a Sayyed.

36    The reasons contain a detailed analysis of country information concerning the security situation in Afghanistan at different points in time up to and including 2012, with particular focus on the applicant’s home province of Daikundi. Several sources are referred to, including reports published by the Department of Foreign Affairs and Trade (DFAT) dated March 2012, July 2011 and June 2010 and a report of the United Nations Human Rights Commission dated December 2010. On the basis of the country information reports, the Tribunal concluded (among other things) that neither Hazaras nor Shias nor Sayyeds were specifically targeted by the Taliban or Pashtuns and that the security situation in the Daikundi province was stable.

37    The then-predicted withdrawal of international forces is expressly referred to at [101] of the reasons in the following terms:

Views about the security situation in Afghanistan currently and into the foreseeable future must be informed by consideration of the forthcoming 2014 ‘draw-down’ of international forces and ongoing debate regarding the negotiations with the Taliban initiated in 2011. None are entirely positive. Respected commentator Dr Antonio Giustozzi suggests that the prospects for a successful political settlement in Afghanistan before 2014 appear limited because the opposition has little respect for the Karzai government, and that what happens after 2012 depends on the ability of the Taliban to adapt. He notes that there are already signs the Taliban are ‘ ... retraining their forces for more conventional operations such as taking towns and cities’ and outlines the possibility of the Afghan state being reduced to Kabul and areas dominated by ethnic minorities in the event of a successful Taliban push in 2014/15.

38    The passages following at [102] to [106] refer to country information broadly concerning the likely future situation in Afghanistan as a whole. According to the Tribunal, the reports:

(1)    contained views that talks with the Taliban were “unlikely to result in sustainable peace” [102];

(2)    interpreted a particular night-time attack as sign that the Taliban may be returning to attacks against civilians [103];

(3)    indicated that there was some debate as to the significance of other attacks [104], such that, in the words of the Tribunal:

While some praised the response of the Afghan security forces as indicative of their wider capacity to provide enhanced security after the international troops leave, others suggested they had failed to provide adequate protection and that the attacks were a success for the Taliban.

(4)    described recent attacks as a failure of intelligence, demonstrating the “weakness of the Afghan security forces compared with the strength of the insurgents” [105];

(5)    contained statements to the effect that [106]:

Insurgent attacks during 2011 also served to heighten concerns about the security situation, the impending withdrawal of coalition forces, handover of control to Afghan forces and the US-led negotiations with the Taliban.

(6)    suggested that the presence and authority of the Taliban throughout Afghanistan was reportedly increasing [110].

39    The Tribunal concluded that it was not satisfied that the alternate criteria for a protection visa prescribed in s 36(2)(a) or s 36(2)(aa) of the Act were met in the applicant’s case. It found that the applicant would not be identified as a person who had formally worked for the ISAF and that he was not objectively at risk of persecution for that reason. As to the applicant’s claim to fear persecution by virtue of his status as a Hazara Shia and a Sayyed, the Tribunal concluded:

144.    The applicant stated that the Daikundi area is dangerous. The Tribunal does not agree with this statement. The country information cited above states that Daikundi is one of the more stable areas of Afghanistan. DFAT advice maintains that Hazaras were not being persecuted on any consistent basis and did not face any systemic violence or any existential threat. A July 2011 DFAT report states that the challenges facing the Hazara community in Daikundi Province are economic rather than security related. There are no evident protection issues for the predominantly Hazara population, but the province suffers from limited opportunities and infrastructure, geographic isolation and a lack of arable land. Complaints regarding travel outside Daikundi are described as challenges in terms of infrastructure rather than security.

145.    The overall weight of the country information indicates that there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis. Hazaras now enjoy a substantial share in the power structure, and economic and social life of Afghanistan. Their provinces have proved to be amongst the safest in Afghanistan. DFAT reports have recently stated that Hazaras considering emigration were principally influenced by long term economic considerations rather than any immediate risk of persecution. The latest UNHCR Eligibility Guidelines do not make mention of Hazaras and Shias as being groups generally subjected to persecution by reasons of their race and religion but that an assessment of their individual circumstances is required. This was put to the applicant. Nor does the country information indicate that Hazaras are being discriminated against in a manner that would amount to serious harm for the purposes of s 91R(l)(b) of the Act. The country information cited regarding the applicant’s home region is that there are health and education services available. While there are economic factors that do show that there are difficulties arising from the provision of land for employment purposes, as the applicant has put in his statement, it does not indicate that they are denied employment opportunities or access to essential services or discriminated against in any other way amounting to serious harm.

146.    In making an assessment of whether the applicant’s fears as a Hazara Shia are objectively well-founded, the Tribunal has considered carefully the country information submitted by the applicant and his agents. In particular the Tribunal has taken into account the reports of the bomb blasts in Kabul and Mazar-e-Sharif where it appears that Shias were deliberately targeted by a Pakistani based extremist group, Lashkar-e-Jhangvi. The 2011 attack by Lashkar-e-Jhangvi was significant in that it was a sectarian attack in a region where such attacks were rarely seen, indeed the nature of these attacks brought a significant response from both sides of the dispute in Afghanistan. Country information has stated that these attacks were considered ‘rare’ and unlikely to lead to a sectarian war - see above comments from the US Ambassador and a Hazara MP. Whilst these attacks were horrific and targeted at Shias, their unprecedented nature and the lack of Afghani Taliban involvement mean they do not alter the Tribunal’s assessment that Hazara Shias do not face a real chance of persecution, now or in the reasonably foreseeable future. The Tribunal does not consider that the treatment of Hazara Shia by the Taliban or the Lashkar-e-Jhangvi involves systematic and discriminatory conduct amounting to persecution.

The proposed grounds for review and submissions before the FCC

40    The proposed grounds for judicial review of the Tribunal’s decision were expressed as follows:

1.    The Tribunal’s decision dated 28 February 2013 is affected by jurisdictional error because the tribunal failed to consider an integer of the applicant’s claim, and thereby constructively failed to exercise jurisdiction. In particular:

1.1.    It was an essential integer of the applicant’s claim that he feared persecution in the reasonably foreseeable future, by reason of the withdrawal of the international security forces from Afghanistan (which forces he had assisted while in Afghanistan);

1.2.    In making its decision, the Tribunal failed to make a finding in relation to and/or address at all, whether the withdrawal of the international security forces would, or might reasonably be expected to, have any bearing on the applicant’s risk of future persecution, whereof there was a constructive failure to exercise jurisdiction.

2.    The Tribunal’s decision was affected by jurisdictional error in that by finding at paragraph [163] that the applicant did not have substantial grounds for believing that there was a real risk he would suffer significant harm it did not engage sufficiently or at all, in a probative reasoning process, and thereby failed to exercise jurisdiction. In particular:

2.1    The Tribunal’s reasons at paragraphs [141], [147], [149], [151], [153] and [161] do not consider (notwithstanding that a proper exercise of jurisdiction required such consideration) the evidence and conclusion accepted by the Tribunal at paragraph [101].

41    In the proceedings before the primary judge, Counsel for the applicant acknowledged that the Tribunal had adverted to the applicant’s claim that the predicted withdrawal of international troops formed a basis for his claimed fear of persecution and that the Tribunal had, at [101] of its reasons, referred to the necessity to consider the impending withdrawal when assessing the future security situation in Afghanistan. The Tribunal had, Counsel submitted, failed to make findings as to the personal consequences for the applicant of the likely deteriorating security situation in Afghanistan upon the withdrawal of international forces. The case was not one in which the Tribunal had failed to make any reference in its reasons to an issue. Rather, the case was one in which the Tribunal, having adverted to the issue, failed to engage with the evidence bearing upon it and ultimately failed to grapple with and determine it. More particularly, the Tribunal had failed to engage in any probative reasoning process concerning the implications of the evidence to which it had referred at [101], so it was submitted.

42    Before the primary judge, as on this application, Counsel for the Minister acknowledged that the determination of whether there is an objective basis for a person’s claimed fear is a central part of the predictive or speculative task to be performed by the Tribunal, and that the task involves the finding of facts about the circumstances in the person’s country of nationality at the time that the person is likely to be retuned there. Counsel for the Minister submitted that the Tribunal’s reasons fairly disclose its process of reasoning, in that the Tribunal expressly:

(1)    adverted to (and thereby implicitly recognised the claim) about the impending withdrawal of international forces;

(2)    referred to a body of up-to-date country information regarding the applicant’s province of Daikundi; and

(3)    evaluated the competing country information, then expressed a preference for the country information to which it had earlier referred.

43    The Minister’s position is otherwise conveniently summarised in this passage from its written submissions before the primary judge (at [18]):

The Applicant’s real concern is that the Tribunal did not make a finding about the impact of withdrawal of troops. There are 2 answers to this. First, the Tribunal was not required to give a line-by-line refutation of the evidence where the Tribunal made contrary findings of fact. Secondly, the fact that the Tribunal did not go into further detail (as the Applicant would have it) means that the Court is entitled to take the reasons as setting out the findings of fact the Tribunal itself considered material to the decision, and as reciting the evidence and other material which it considered relevant to the findings it made. That the Tribunal preferred the country information about Daikundi, where the Applicant claimed to fear persecution, and this [namely, the troop withdrawal issue] was therefore debased or subsumed into a contrary finding of fact of greater generality.

(Footnote omitted)

44    Thus, in the proceedings before the primary judge, as here, it was not contested that the withdrawal of the international forces was a sufficiently material aspect of the applicant’s claim to fear persecution, so as to oblige the Tribunal to engage with the issue and determine it. The obligation of the Tribunal to consciously engage with and determine what may be described as the “essential integers” of a claim for protection are stated in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] and need not be repeated here. The issue before the primary judge turned upon the interpretation to be placed on the Tribunal’s reasons in accordance with established principles. It is to be borne in mind that the task of the primary judge was to ascertain not whether the respondent’s submissions or the applicant’s submissions as to the ultimate outcome should be accepted, but rather to ascertain whether the applicant’s proposed grounds of review were fairly arguable.

Reasons of the primary judge

45    The reasoning of the primary judge is disclosed in the following passages of the reasons for judgment:

30.    As I have already noted, the matters to which the Court can properly have regard when considering whether or not to extend time under s.477 are unconfined. Ultimately I must be satisfied that it is in the interests of the administration of justice to grant the extension sought. With respect to the merits of the proposed grounds of application, it is not necessary that an applicant demonstrate to the Court that the proposed grounds will ultimately be successful. What is necessary is that they at least have a reasonable prospect of success. Close consideration must necessarily be given to the merits of the proposed grounds.

31.    The discretion to grant or refuse an application to extend time must be exercised judicially. It becomes a question of balancing competing interests. It is a relevant consideration that there is a significant public interest in finalising legal disputes. It is for the applicant to advance a plausible reason for the delay in commencing the proceedings in this matter. Counsel for the first respondent referred me to the following extract from Re Commonwealth of Australia; Ex parte Marks at paragraph 16:

…

34.    I am not satisfied that the applicant has provided an adequate explanation for the delay in this matter. …

…

42.    I have taken into account the fact that a refusal to extend time in this matter will have a significant impact on the applicant. This is one factor to be balanced against the others, including the length of the delay, and the merits of his proposed grounds.

43.    With respect to the merits of the proposed application for judicial review, I am not satisfied that either ground of review has reasonable prospects of success. I accept the submission of the first respondent that the Tribunal made a finding of greater generality with respect to the position of Hazara Shias and that this rendered making a specific finding with respect to the likely impact of the withdrawal of international forces unnecessary. I am not satisfied that the proposed argument that the Tribunal did not engage in a probative reasoning process, or that it misapplied or misconstrued the relevant test, has reasonable prospects of success.

44.    Accordingly, I am not satisfied that it is in the interests of justice to extend time in which to make the application for judicial review.

Consideration

46    The Tribunal clearly understood the applicant’s claim as one involving an allegation that the withdrawal of international forces from Afghanistan affected both the subjective and objective assessment of whether he had a well-founded fear that he would be persecuted for a Convention reason if returned to Afghanistan. It expressly acknowledged and fairly summarised the applicant’s submission on that issue and its reasons contain correct statements of principle as to the predictive nature of its statutory task.

47    The Tribunal’s reasoning concerning the future situation in Afghanistan is to be understood against the background of its earlier unchallenged finding that the applicant would not be identified as a person who had previously worked for the ISAF. It is clear from the Tribunal’s reasons, read as a whole, that it did not consider the applicant’s risk of harm to be any greater than that faced by any Shia Muslim of Hazara ethnicity residing in the Daikundi province.

48    In the course of considering country information concerning the security situation in Afghanistan as a whole, the Tribunal expressly referred to the necessity to assess the situation in the context of the impending withdrawal of international forces.

49    The Tribunal rejected the applicant’s claim that the Daikundi region “is dangerous” (reasons [144]). In doing so, the Tribunal referred to country information provided by the applicant concerning the targeting of Shias by a Pakistani based extremist group. It found that such attacks “do not alter the Tribunal’s assessment that Hazara Shias do not face a real chance of persecution, nor in the reasonably foreseeable future”. It is clear from that conclusion that the Tribunal’s earlier assessment as to the security situation in the Daikundi province related not only to the situation as it pertained at the time of its decision, but into the foreseeable future. In the paragraphs disclosing its reasoning and conclusions, the Tribunal expressly referred back to the detailed country information set out earlier in its reasons, which must be taken to include the country information referred to at [101] – [106] concerning the likely effects of the forces withdrawing, particularly the increased risk of Taliban insurgency. Those findings must read in the context of other country information supporting its conclusion that the Taliban had little or no influence in Daikundi, that there was no evidence of a general campaign by the Taliban insurgents to target Hazara Shias, that Hazaras were not being persecuted on a consistent basis and that they now enjoyed a substantial share in the power structure, and economic and social life of Afghanistan.

50    It is significant that the Tribunal’s reasons at [102] – [106] (summarised at [38] above) both expressly and impliedly contemplate the effects of the impending withdrawal.

51    It is to be accepted that the reasons of an administrative decision maker may be open to differing interpretations. In determining whether the applicant’s proposed grounds of review had reasonable prospects of success, it was necessary that the primary judge identify whether the interpretation of the Tribunal’s reasons contended for by the applicant was one that was reasonably open. Implicitly, the primary judge held that it was not. I respectfully agree with that conclusion.

52    The primary judge was entitled, indeed obliged, to reject inferences that might be drawn if the Tribunal’s reasons were to be overzealously approached “with an eye attuned to error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (per Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 — 272 (per Brennan CJ, Toohey, McHugh and Gummow JJ). The approach to the reasons contended for by the applicant, with respect, infringes that principle in that it impermissibly seizes upon what is not expressed in a limited portion of the reasons without regard to what is either express or clearly implicit in the whole. Once it is accepted (as it must be) that the effect of the withdrawal of international forces was adverted to by the Tribunal, and once the cross-referencing in the reasons is fairly taken into account, it must follow that the Tribunal rejected the applicant’s contention that the security situation in Daikunki would materially deteriorate upon the forces withdrawing, so as to expose him personally to a greater risk of persecution. The Tribunal’s conclusions in respect of that question may well be factually wrong, and perhaps seriously so. But it cannot be said that the Tribunal did not engage with the question at all.

53    There was no contention raised before the primary judge that the Tribunal’s factual conclusions were affected by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and it is therefore unnecessary to determine whether the Tribunal’s ultimate conclusion was one open to be drawn on the material before it.

54    I am satisfied that the primary judge did not err in determining that the applicant’s proposed grounds for judicial review had no reasonable prospect of success and, accordingly, did not err in concluding that it was not, for the purposes of s 477(2)(b) of Act, necessary in the interests of the administration of justice to make an order extending the time in which the judicial review proceedings may be commenced.

CONCLUSION ON THIS APPLICATION

55    In the result, it is not necessary to determine whether an error of the kind argued on this application went to the jurisdiction of the FCC so as to render the judgment and orders of the primary judge amenable to judicial review by this Court.

56    For completeness, it should be noted that the applicant in that respect relied upon the earlier judgment of this Court in AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401. Counsel for the Minister contended that that judgment was distinguishable or, if not distinguishable, plainly wrong such that it should not be followed by the very judge who decided it. In the result, no occasion arises for awkward self-leave of the kind urged on behalf of the Minister. The question of whether AZAFX was correctly decided is to be left for a case in which the outcome must turn upon it.

Associate:

Dated:    20 December 2017