FEDERAL COURT OF AUSTRALIA

MZARV v Minister for Home Affairs [2018] FCA 809

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time dated 29 January 2018 be granted.

2.    Costs of the application be reserved.

3.    Time be extended to 24 May 2018 for the Applicant to file and serve a notice of appeal in the form of, or substantially in the form of, the document titled “Draft Notice of Appeal from the Federal Circuit Court of Australia”.

4.    On or before 5 June 2018 the Applicant prepare, file and serve an appeal book.

5.    On or before 5 June 2018 the Applicant file and serve his outline of submissions.

6.    On or before 19 June 2018 the First Respondent file and serve his outline of submissions.

7.    On or before the day 7 days prior to the appeal the parties file and serve lists of authorities.

8.    The appeal be listed for hearing on an estimate of half a day on a date to be fixed in the Court’s appellate sittings.

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 MZARV v Minister for Immigration & Anor [2016] FCCA 2898. By that decision, the primary judge ordered that the applicant's application for judicial review of a decision of what was at the time the Refugee Review Tribunal, and what is now the Administrative Appeals Tribunal (“the Tribunal”), be dismissed. The Tribunal had earlier affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth).

2    The applicant is a male national of Iran. He arrived in Australia on 12 February 2011. On 3 October 2012, having earlier been the subject of a protection obligations evaluation and independent protection assessment, the applicant applied to the Department of Immigration and Citizenship, as it then was, for a visa. That application was refused by a delegate of the Minister on 12 July 2013.

3    On 19 July 2013 the applicant applied to the Tribunal to review the delegate's decision. As I have said, the Tribunal affirmed the delegate's decision on 9 December 2014. Before the Tribunal, and in written submissions made on behalf of the applicant, the applicant made a claim to the effect that as an Ahwazi Arab he would be subjected to persecution if he were returned to Iran. In particular, it was claimed that he had previously encountered harm in Iran owing to his perceived breach of strict Islamic social laws and that further breaches would expose the applicant to additional harm, particularly given the stigma attached to him owing to his alcohol consumption and his Ahwazi ethnicity.

4    In short compass, that claim, which I will refer to as the “relevant claim”, asserted that the applicant would suffer particular and more severe prejudice than that generally experienced by non-Ahwazi Iranians for breaching social laws, including through the drinking of alcohol, by reason of his Ahwazi ethnicity.

5    At least, on a prima facie basis, it is not apparent that the relevant claim was considered by the Tribunal.

6    Before the primary judge, the applicant contended that an integer of his claims had not been considered by the Tribunal and asserted that the Tribunal had engaged in jurisdictional error as a result. Whether that integer or the particular claim which was raised before the primary judge was the relevant claim, or something akin but not precisely that, is not particularly clear.

7    At [2] of the primary judge's decision the nature of the claim that was said by the applicant not to have been dealt with seems to be described in a shorthand way as: “… namely, what might occur to the applicant if he continued to drink alcohol if he was returned to Iran”.

8    The issue before the primary judge seems to have centred upon whether the claim that the applicant said had not been dealt with by the Tribunal had been raised expressly or, alternatively, had been sufficiently clearly raised on the materials to have required the Tribunal to consider it. The primary judge concluded at [51] and [52] that the impugned claim, which, as I say, is arguably what I have described as the relevant claim, was not expressly raised and was not sufficiently clearly raised on the materials as to have required its consideration by the Tribunal.

9    The principles relevant to the determination of an application for an extension of time are well known and are not in contest. Consideration must be given to 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 and the discretion reposed in the court must be exercised according to the individual facts of the case.

10    The Minister contended that an extension of time should be refused on the basis that the delay is substantial and that it is not wholly explained by the applicant. Additionally, the Minister contended that there was no merit to the applicant's proposed appeal.

11    The Minister is right to contend that the delay is substantial. The delay extends for a period of just over 400 days. To explain the delay, the applicant has filed an affidavit. In that affidavit the applicant says that he has suffered as a result of his mental health and that his capacity to recollect events has been hampered. He states that his English speaking abilities are very poor and that he has little knowledge of Australia's legal system. Some background is then given as to the various proceedings before the delegate and before the Federal Circuit Court in which the applicant was involved.

12    From that background it is clear that the applicant has had the benefit of legal assistance from time to time, but that he has been shunted between different lawyers. He deposed that when in late 2016 he was advised that his application before the Federal Circuit Court had been rejected he was only told that his options were to appeal to the Minister or to leave Australia and not told that he had the option of an appeal to this Court. He claims that it was not until September 2017 that he first learnt of his capacity to appeal to this Court and of the time limit associated with such an appeal. At that point he consulted private lawyers, but says that he needed to raise funds to have those lawyers commence proceedings and it took him some time to gather those funds.

13    While I agree with the Minister's submission that the explanation is not wholly adequate, I consider that, nevertheless, an explanation of some substance has been given. In those circumstances, particularly given the consequences for the applicant should his application for an extension of time not be granted, I should consider the merits of his claim.

14    Both parties accept, by reference to the judgment of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, that the question of whether there are reasonable prospects of success should be approached on an impressionistic basis, and that all the court need be satisfied of is that there is an arguable case in the sense that on its face the argument is not plainly hopeless.

15    By reference to the observations I have already made as to what I have called the relevant claim made by the applicant before the Tribunal, and the impressionistic view I have formed as to whether or not that claim was required to be considered and whether or not it was in fact considered, I consider it to be arguable, in the sense that I have identified above, that the relevant claim, being an integer of the applicant's claims, should have been but was not considered by the Tribunal.

16    Accordingly, I consider it to be arguable that the Tribunal's decision is infected by jurisdictional error. In that context, and again taking into account the potentially severe impact upon the applicant of the loss of an opportunity to institute his appeal, it seems to me that the interests of justice require that the application for an extension of time be granted.

Associate:

Dated:    31 May 2018