FEDERAL COURT OF AUSTRALIA

AON15 v Minister for Immigration and Border Protection [2018] FCA 373

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application dated 11 October 2017 for an extension of time be granted.

2.    The draft Notice of Appeal filed by the applicant stand as the applicant’s Notice of Appeal.

3.    On or before 14 March 2018, the first respondent prepare, file and serve an appeal book.

4.    On or before 13 April 2018, the applicant file and serve an Amended Notice of Appeal which includes particulars of his grounds of appeal.

5.    On or before 27 April 2018, the applicant file and serve his outline of submissions.

6.    On or before 11 May 2018, the first respondent file and serve his outline of submissions.

7.    On or before 7 days prior to the hearing of the appeal, the parties file and serve their list of authorities.

8.    The appeal be listed for hearing on an estimate of half a day on a date to be fixed.

9.    Costs of today be reserved.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant seeks an extension of time to file an appeal in this Court from a decision of the Federal Circuit Court of Australia published as AON15 v Minister for Immigration [2016] FCCA 3270. By that decision, the primary judge ordered that the applicant’s judicial review application of a decision of the Refugee Review Tribunal (“Tribunal”) be dismissed. The Tribunal had earlier affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the applicant a protection visa.

2    The applicant is a citizen of Pakistan who arrived in Australia on 22 July 2012. He is a Shia Muslim who belongs to the Turi tribe who, prior to leaving Pakistan, had been living with his family in the Parachinar province of the Kurram Agency.

3    Before the Tribunal, the applicant claimed that he held a well-founded fear of being harmed by the Taliban because he is a Shia Muslim of the Turi tribe.

4    The decision of the Tribunal was made on 25 March 2015. In broad terms, the Tribunal accepted that Shia Muslims of the Turi tribe living in the Kurram Agency had been subjected to very substantial violence at the hands of the Taliban since about April 2007. There was evidence before the Tribunal of various killings and other violent incidents perpetrated by the Taliban in the applicant’s home region. That material included a Department of Foreign Affairs and Trade (“DFAT”) report released in December 2013 which assessed the situation as “very volatile” and that “militant sectarian outfits remain very active in the region and have attacked rival tribal/sectarian groups, including Turi and Bangash Shias at a high rate of frequency”. Other evidence before the Tribunal included UNHCR reports made in 2014 which indicated that the UNHCR was involved in attempts to return displace people to the Kurram Agency and that a relevantly significant number of such people were willing to return. One such report stated: “[i]t is evident that general peace in upper and lower Kurram is restored but still the sense of un-securedness prevails among minority groups for return”.

5    The material to which I have referred and other material put before the Tribunal was considered in an assessment made by the Tribunal as to whether the applicant held a well-founded fear that he would be subjected to persecution should he be returned to Pakistan.

6    The Tribunal determined that the level of general violence in the Kurram Agency had dissipated and that the risk to the applicant of being subjected to attacks by the Taliban in his home region was “remote”. On that basis, the Tribunal held that the applicant did not have a real chance of being subjected to serious harm if returned to his home region. For that reason, the Tribunal found that the applicant did not have a well-founded fear of persecution and that accordingly, the applicant was not a person to whom Australia has protection obligations under the Refugees Convention (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).

7    Before the primary judge the applicant was represented by counsel. Two grounds of appeal were raised and rejected. By his first ground, the applicant alleged that the Tribunal fell into jurisdictional error in failing to consider critical evidence provided by the applicant. In broad terms, the applicant contended that the Tribunal was wrong to have found that the level of violence inflicted by the Taliban had dissipated on the basis of a finding made that there were no recorded incidents of violence after April 2014. The applicant sought to rely on material put before the Tribunal evidencing violence post-dating April 2014 and including an attack which occurred on 18 November 2014 in which the applicant’s brother and nephew were killed, and his niece seriously injured, when their van hit a mine on the road.

8    By his second ground, the applicant contended that the Tribunal fell into jurisdictional error when assessing the applicant’s claim against the criteria in s 36(2) of the Migration Act 1958 (Cth) including by misapplying the “real chance” test and determining whether the applicant’s fear of harm was well-founded.

9    The applicant is not now legally represented. It appears that, at least since 25 September 2017, the applicant has been in immigration detention. In an affidavit provided by the applicant, he deposed that at the time of receiving the primary judge’s decision, his lawyer advised him to appeal that decision to this Court. He stated, however, that he was unwell and suffering from various mental and physiological ailments. He claimed that he was unable to think clearly, largely believing that making further applications to a court would exacerbate his symptoms. He deposed that he suffers from anxiety and high blood pressure and that this had a debilitating impact upon him which inhibited him from instituting his appeal. He states that he is regularly medicated and provided some evidence confirming that he has been medicated for hypertension and that he has received counselling including psychosocial counselling. A Social Worker and Relational Psychotherapist has expressed his concern that the indefinite detainment of the applicant in immigration detention has exacerbated the applicant’s deteriorating mental health.

10    The applicant was required to commence any appeal from the judgment of the primary judge by 3 February 2017. His application for an extension of time was made on 11 October 2017, just over 8 months out of time.

11    As the Minister’s submissions correctly record, the matters relevant to the determination of an application for an extension of time include the length of the delay, the explanation for the delay, any prejudice to the respondent if time is extended and the merits of the applicant’s proposed appeal. None of those matters is, of itself, determinative. The discretion reposed in the Court must be exercised according to the individual facts of the case.

12    I accept the Minister’s contention that the length of the applicant’s delay is considerable. I accept the Minister’s contention that the explanation given by the applicant for that delay is not satisfactory. The explanation given is apt to be criticised on the basis that the applicant’s health problems do not necessarily explain why, over the long period in question, he could not have lodged his appeal. I take into account, however, that given his ill health and given the fact that he has been in immigration detention since at least 25 September 2017, the applicant’s capacity to have provided a fuller and more satisfactory explanation may well have been impeded. The Minister does not claim that an extension of time will cause prejudice, although the Minister correctly points out that the public interest requires that there be a timely end to this litigation.

13    I have taken each of those considerations into account as well as an assessment of the prospective merits of the proposed appeal. Whether the proposed appeal has some prospect of success is, to my mind, the consideration of most significance. In my view, although the proposed grounds of appeal are unparticularised and need to be reformulated, on the basis of the contentions made by the applicant to the primary judge, an appeal is not plainly hopeless and that some prospect for its success exists: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] (Mortimer J). In that context, I consider that the interests of justice require that I take into account the potentially severe impact upon the applicant of the loss of an opportunity to institute his appeal.

14    For these reasons, the applicant’s application for an extension of time should be granted.

Associate:

Dated:    19 March 2018