FEDERAL COURT OF AUSTRALIA

AAM16 v Minister for Immigration and Border Protection [2018] FCA 121

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time be dismissed.

2.    The applicant pay the costs of the first respondent of $1,753.00.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

LOGAN J:

1    The applicant came to Australia by boat on 17 July 2012 without a passport, much less a visa issued under the Migration Act 1958, authorising his entry. It has been accepted subsequently that he is a Hazara Shia Muslim from Afghanistan. The applicant sought a protection visa on the basis of a claimed fear of persecution for reasons of his race, religion and imputed political opinion arising from the time he has spent in Australia.

2    A particular feature of the claim was a fear of persecution by agents of a named Pashtun warlord for reasons of his father’s landholding. That claim was not accepted departmentally. The applicant sought a review of the decision made within the Minister’s department on 7 December 2015. That review resulted in a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the departmental decision not to grant him a protection visa. The applicant then sought the judicial review of that tribunal decision by the Federal Circuit Court.

3    On 9 November 2016, for reason delivered ex tempore, that court dismissed, with costs, the applicant’s judicial review application. On 19 September 2017, the applicant filed an application for an extension of time within which to appeal against the dismissal order made by the Federal Circuit Court. The particular grounds of appeal specified in the draft amended notice of appeal are such that a grant of leave would also be necessary for the applicant to pursue them in that they were not having regard to the grounds of review issues raised before the Federal Circuit Court.

4    The applicant has made an affidavit in support of his application. In that affidavit, he relates, firstly, that it was not until 20 December 2016 that the Federal Circuit Court’s reasons for judgment, as revised from transcript, became available. He also deposes to very particular endeavours, which he made over the course of 2017, prior to September that year, to secure advice and related assistance, with respect to an appeal against the judgment below. Those endeavours appear to have commenced immediately after the Federal Circuit Court’s judgment and reasons were pronounced in November 2016. It is not necessary to set out, in detail, those endeavours. It is sufficient to record that they were persistent on and from November 2016, and entailed seeking advice from particular charities or practitioners who were disposed, voluntarily, to provide assistance to asylum seekers.

5    It is true that the reasons for judgment, as revised, did not become available until after the appeal period, in respect of the lodgement as a right of a notice of appeal had expired. The revision of reasons, from transcript, can only commence when a transcript becomes available. Thereafter, that task, which can be time consuming, must compete with other tasks which fall on the judge concerned. It is a not-uncommon mistake for parties to conceive that reasons for judgment delivered ex tempore have not been published. They have. The reasons for judgment I am presently delivering are being published as I deliver them. It is a feature of our system of justice that, in the ordinary course, courts exercising the judicial power of the Commonwealth sit in public, as I am so doing. The reasons are being pronounced to the public, or such that would wish to attend, and there is no impediment, as I deliver them.

6    Nonetheless, it can be one of a number of relevant factors to take into account that, as revised, reasons have not become available until a later date. The burden faced by a party, who is illiterate in English, untrained at law and a stranger to our system of justice should not be diminished. Neither, though, should parties consider that such factors alone represent a charter for departures from the Court’s practice, which are applicable to all those who invoke its jurisdiction. As was correctly conceded on behalf of the Minister, there is, in the context of the granting of an extension of time, an interplay between the adequacy of an explanation given by an applicant, for delay, and the prospective merits of an appeal. It is always exceptional to grant an extension of time, but to hold that is to do nothing more than recognise that there must be a case made for an extension.

7    Insofar as there is any particular need to refer to any recitation of principle for such propositions. Reference may be made to Re Commonwealth; Ex parte Marks (2000) 177 ALR 481 and to an application of what was said in that case by Kerracher J in his Honour’s recent judgment in BNV15 v the Minister for Immigration and Border Protection (2017) FCA 1048. The Minister quite properly conceded that there was no particular prejudice to him, were there to be a grant of an extension of time. The subject of whether or not a respondent might suffer prejudice is, at a general level of abstraction, pertinent to every extension application. Parties to litigation are, in the ordinary course, entitled, after the expiry of an appeal period, to regard as concluded the controversy as determined by judgment given in the original jurisdiction and to order their subsequent affairs and behaviours accordingly.

8    That is why even though an explanation for delay may be given if there is a particular prejudice, an extension may not be granted. Whilst it is true that neither the Minister personally nor officers of his department have suffered or would suffer any particular prejudice, that is not to say that the Commonwealth, as a body politic and its consolidated revenue as invested in the judicial branch of government may not suffer prejudice by the granting of an extension of time. By that I mean that there is always an opportunity cost to be considered. A case, the subject of the grant of an extension of time, will displace necessarily, in terms of consumption of judicial resources, another. Of course, that displacement may be warranted in the interests of justice in the case in respect of which an extension is sought.

9    That is why it is always pertinent to have regard to the prospective merits of the proposed appeal. As to these, the essence of the proposed grounds of appeal is to be found in paras 6 to 9 inclusive in the draft notice:

6.    The Court in the Federal Circuit Court proceedings and also the Second Respondent in the Tribunal Hearing have not taken a relevant consideration into account, namely that the Appellant claimed to fear harm on the basis of the worsening security situation in Afghanistan.

7.    The Court in the Federal Circuit Court proceedings and also the Second Respondent in the Tribunal Hearing have not asked the correct question, pertaining to whether a young Hazara male would be safe to return to Afghanistan, given the deteriorating security situation in Afghanistan since September 2015.

8.    The Court in the Federal Circuit Court proceedings and also the Second Respondent in the Tribunal Hearing have made a jurisdictional error by misinterpreting and/or misapplying the ‘real chance’ test, as set out in Chan v Minister for Immigration and Ethnic Affairs.

Particular

The Second Respondent and/or the Court has not applied the ‘real chance’ test correctly, in that it has misinterpretered and/or misapplied the meaning of the words ‘farfetched’ and ‘remote’ and has not adequately considered all of the circumstances provided by the DFAT documentation, particularly those contained in the document “DFAT Thematic Report: Conditions in Kabul”. Further, the Second Respondent and/or the Court has also not taken into account the deterioration of the security situation in Kabul and Afghanistan, with the revitalisation of the Taliban and ISIS, thus increasing the likelihood and severity of harm occurring to the Appellant.

9.    The decision making process regarding Hazara refugees has been inconsistent and intermittent and the sources relied upon in the decision making process have been conflicting, contradictory and generally unreliable. All Hazaras from Afghanistan are subject to the same fact pattern, given that they all have Asiatic facial features, are of the Shia religion and are unable to blend in to the general population, who are of Pashtun ethnicity and Sunni religion. The Hazaras are a very peaceful segment of the Afghanistan population, but are the sworn enemies of the Pashtuns, who would do the Hazaras significant harm, if the opportunity presented itself.

10    Regard to the Tribunal’s reasons for judgment at [83] and [126] discloses what, in my view, is an unremarkable recitation of the Tribunal’s understanding of what is entailed in a well-founded fear of persecution. It is there stated:

83.    In light of its findings set out above, the Tribunal must consider whether the applicant’s fears of being harmed on return are ‘well-founded’. The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:

… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

    The High Court’s decision in Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring, however, the chance of it occurring must be more than “far-fetched” or “remote”, and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation.”

…

126.    Fourthly, an applicant’s fear of persecution for a Convention reason must be ‘well-founded’. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent.

11    The recitation of the Tribunal’s understanding as to what may constitute a well-founded fear was not gainsaid in the submissions made on behalf of the applicant. The reference by the Tribunal to the particular observation made in Chan v Minister for Immigration and Ethnic Affairs by Mason CJ (1989) 169 CLR 379 at 389 was particularly apt. Even though it seems unlikely that there is any prospect of success in demonstrating a misunderstanding of what may constitute a well-founded fear of persecution, there was, nonetheless, a failure to engage with a particular aspect of the claim made by the applicant and a conclusion on the material before the Tribunal which was not reasonably open in relation to whether a well-founded fear of persecution existed to the Tribunal member’s satisfaction.

12    It is put that the Tribunal did not have regard to the applicant’s claim of a deteriorating security situation and to particular alleged inconsistencies in country information from diplomatic sources. The Tribunal’s reasons disclose that with commendable fairness the Tribunal put to the applicant for comment particular then recently received reports from diplomatic sources. These, together with other material and the applicant’s response then formed part of the material evaluated by the Tribunal. The Tribunal’s reasons at [106] are the culmination of what seems to me having regard to the reasons a very careful evaluation indeed of whether there was, according to the Tribunal’s correct understanding of what might constituted a well-founded fear of persecution, a well-founded fear in the applicant’s case, having regard to his particular claims and particular circumstances.

13    The Tribunal observed, at [106]:

106.    In making these findings the Tribunal has also taken into account the independent information which indicates that, with the gradual withdrawal of international forces, there has been an increase in conflict and civilian casualties; however, having carefully considered the evidence and information as a whole, the Tribunal considers that it would be far too speculative to find that the situation in Afghanistan will change in the reasonably foreseeable future such that there is a real chance the applicant will suffer harm for reasons of his being a returnee from a western country, or for being a failed asylum seeker, or a failed Hazara asylum seeker, or a young Hazara male in any of those circumstances. Accordingly, the Tribunal does not accept that there is a real chance that the gradual withdrawal of international forces would cause the applicant to suffer serious harm in Kabul for any of these reasons in the reasonably foreseeable future.

The Tribunal also considered the subject of what might befall the applicant in the event of a return to Afghanistan under the subject of complementary protection. Once again, these to me exhibit a careful evaluation of the material before the Tribunal and the conclusion and the reaching of a conclusion reasonably open. In particular, the Tribunal formed the view that the applicant was likely to return to and remain in Kabul and notwithstanding the gradual withdrawal of international forces, was not exposed any more than any other member of the population of that very large city to any particular risk of harm.

14    In particular, the Tribunal was entitled not to accept that he would be exposed to any particular harm based on his ethnicity. In short, then, though the time which has lapsed since the Federal Circuit Court’s orders were pronounced is significant, there is what I consider to be a reasonable explanation for why it was not until September that the applicant filed his application. It is just that having regard to the proposed grounds of appeal, they are not attended with sufficient or, in my view, any prospect of success such as would warrant the granting of an extension of time. In making that observation, I do not diminish the worth of the submissions made on behalf of the applicant by Mr Markwell of counsel who has truly, with respect, said everything which might have been said in favour of the granting of an extension. For these reasons, the application will be dismissed.

Associate:

Dated:    28 February 2018