FEDERAL COURT OF AUSTRALIA

CNW15 v Minister for Immigration and Border Protection [2018] FCA 849

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time within which to appeal dated 19 September 2017 be refused.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court of Australia on 13 October 2016. The Federal Circuit Court made an order that the applicant’s application for judicial review be dismissed. The applicant’s application for an extension of time was filed in this Court on 19 September 2017.

2    The applicant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 24 July 2012. On 26 February 2013, he lodged an application for a Protection (Class XA) visa. On 15 August 2013, a delegate of the Minister made a decision not to grant the applicant a Protection visa.

3    On 21 August 2013, the applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for a review of the delegate’s decision. On 6 August 2015, the Administrative Appeals Tribunal conducted a hearing. The applicant appeared by videoconference and was assisted by his registered migration agent. On 2 November 2015, the Tribunal decided to affirm the delegate’s decision (AAT reasons).

4    On 30 November 2015, the applicant issued an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 13 October 2016, a judge of the Federal Circuit Court heard that application. He delivered a decision and made orders at the conclusion of argument that day. As I have said, he ordered that the applicant’s judicial review application be dismissed. For reasons which are not explained, the primary judge’s published reasons did not become available until 20 July 2017 (CNW15 v Minister for Immigration & Anor [2016] FCCA 3495).

5    On 19 September 2017, the applicant applied to this Court for an extension of time within which to appeal. As part of his application for an extension of time, the applicant put forward a draft Notice of Appeal. In the course of his submissions to this Court, the applicant put forward a draft Amended Notice of Appeal.

The Applicant’s Claims before the Tribunal

6    The applicant’s claims before the Tribunal fell into two broad categories.

7    The first category of claims relates to specific acts which the applicant alleged took place in Afghanistan. With respect, they are succinctly described by the primary judge in his reasons (at [2]-[4]):

The applicant came from a village in the Wardak province. The applicant’s father operated a business transporting goods in his vehicle to Kabul and other cities in Afghanistan. He delivered some goods for a Pashtun man who refused to pay (the customer). The customer and his son assaulted the applicant and his father when they approached him about that.

One week later the applicant was in the local area with some friends when the customer’s son appeared. The applicant's friends assaulted the customer’s son, and the applicant fled from there to a relative’s stall in a nearby marketplace, where he called home and learnt that his father had been taken away by the customer.

The applicant fled to his uncle’s home in Kabul and stayed with his uncle. From there, at his uncle’s behest, he went to Herat where he remained for two months. The applicant came back to Kabul and then left Afghanistan. His father had not returned to the family and the applicant feared harm from the customer, his associates and his son. After arriving in Australia the applicant was told that one of his friends who assaulted the customer’s son had been killed.

8    The second category of claims were described by the Tribunal in its reasons as follows (AAT reasons at [33]):

…The Tribunal now turns to an assessment of whether the applicant holds a well founded fear of persecution based on a convention ground with respect to the only remaining grounds of his protection claims, namely, his ethnicity, his religion and the fact he has spent time in a western country where he has sought asylum.

9    The Tribunal rejected the applicant’s first category of claims. It said that it rejected the applicant’s “entire account” on credibility grounds (AAT reasons at [32]).

10    The Tribunal rejected the applicant’s second category of claims and I will identify particular findings when considering the proposed grounds of appeal.

The application before the Federal Circuit Court

11    The applicant’s judicial review application before the Federal Circuit Court related only to the first category of claims. The challenge in the Federal Circuit Court was that, in the course of dealing with the first category of claims, the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth). The primary judge rejected that argument. He described the contention as follows (at [8]):

…It is asserted that the Tribunal failed to adequately put the applicant on notice that his credibility was in issue in respect of his claimed feud with a family, resulting in his father being abducted and possibly killed.

12    The primary judge referred to the authorities dealing with the requirements of s 425 (SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152; SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002). His Honour analysed the circumstances of the Tribunal’s review and concluded (at [24]):

In my view, the Tribunal’s statement at the beginning of the hearing together with the questions and propositions put to the applicant at the hearing, made that issue as plain as a pike-staff. For those reasons, I am not satisfied that the Tribunal did not meet the obligations imposed on it by s.425 of the Act. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

13    I do not need to analyse the primary judge’s reasons in any further detail because the applicant does not seek to challenge the primary judge’s conclusion that a breach of s 425 had not been shown.

14    The applicant contends that the Tribunal erred in relation to the second category of claims. Such a challenge was not made in the Federal Circuit Court. In fact, the primary judge noted the following (at [7]):

…The Tribunal also dealt with claims concerning potential harm to the applicant for other reasons, but those issues did not arise in these proceedings and I need not set them out at all.

15    The delay in this case has been substantial and the applicant seeks to agitate matters not raised in the Federal Circuit Court.

The application for an Extension of Time

16    The matters to be considered by a court which is determining an application for an extension of time within which to appeal are well-established. They are the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, and public interest considerations should they be relevant to the particular case (AZAEY v Minister for Immigration and Border Protection and Another [2015] FCAFC 193; (2015) 238 FCR 341).

17    In this case, the delay is substantial. The decision and orders of the Federal Circuit Court were made on 13 October 2016. The applicant had a legal representative before the Federal Circuit Court and the primary judge delivered reasons and made orders at the conclusion of the submissions on that day. The time within which to file a Notice of Appeal in this matter was 21 days (Federal Court Rules 2011 (Cth) r 36.03). As I have said, the application for an extension of time was filed on 19 September 2017. The application is out of time by approximately 10 and-a-half months. Even after the published reasons were made available to the applicant, there was a further delay.

18    The applicant’s explanation for the delay is set out in an affidavit affirmed by the applicant on 14 September 2017. It is as follows.

19    The applicant refers to the fact that he contacted the Court and his previous lawyers with a view to obtaining the Federal Circuit Court’s reasons for decision. The reasons for decision were delivered on 13 October 2016, but as I have said, the published reasons were not given to the applicant until 20 July 2017, or shortly thereafter. The applicant states that his previous pro bono lawyer was unable to help him, nor was another lawyer that he contacted, being a man by the name of “Justin”. The applicant states that he was contacted by the Department of Immigration and Border Protection and he advised the Department that he was going to appeal. He does not state when that occurred. The applicant then approached various organisations and individuals for assistance, but none of them were able to help him. Except for the first organisation, he does not provide any details as to when he approached those organisations or individuals. The details he provides are as follows:

(1)    In December 2016, he approached the Toowoomba Refugee and Migrant Support, but neither they, nor an organisation he identifies as QPILCH, were able to assist.

(2)    He approached the Uniting Church in Indooroopilly, Brisbane.

(3)    He approached Mr Terry Fisher who is a solicitor and who obtained the published reasons for him, but then was unable to assist any further.

(4)    He approached the Asylum Seeker Resource Centre in Melbourne and then the Refugee and Immigration Legal Services, but neither of these organisations were able to assist.

20    The applicant states that his English is “extremely limited” and that he is impecunious. Before he engaged his present lawyer, he was not able to find anyone to assist him. He became aware of his present lawyer because he had assisted other Hazaras.

21    The applicant’s explanation for the delay is unsatisfactory in a number of respects. It is true that his English is “extremely limited”, but he did have a lawyer to assist him. His explanation lacks details as to the relevant chronology, why it was that various organisations and individuals were not able to help him and the precise significance of the absence of published reasons. This is in a context where the delay by the applicant is substantial. There is much to be said for refusing the application for an extension of time, having regard to the length of the delay and the deficiencies in the explanation for the delay. Nevertheless, I will proceed to examine the other considerations.

22    This is an application for an extension of time within which to appeal and not the appeal itself. Nevertheless, a court is most unlikely to grant an extension of time in the absence of an arguable case. In a case of substantial delay such as this case, whether there is any merit in the appeal will be carefully considered. I consider that matter below.

23    The prejudice to the applicant if an extension of time is not granted is that he will not be able to pursue an appeal with a view to having the decision of the Tribunal overturned. There is no obvious prejudice to the first respondent if an extension of time is granted. The importance of the finality of litigation is a matter to be taken into account.

24    As far as the merits of the proposed appeal are concerned, I can address that matter by reference to the draft Amended Notice of Appeal. The point to be noted at the outset is that the applicant would be “appealing” against matters not considered by the Federal Circuit Court because he did not raise them in that Court. In one sense, he is seeking to raise a first instance judicial review application before this Court. There is no explanation as to how and why this has come about. He was represented before the Federal Circuit Court and he is represented before this Court. He would need leave to raise the matters he seeks to raise and there are serious obstacles in the way of a grant of leave (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510). Without leave, this appeal has no merit.

25    In essence, the proposed grounds of appeal raise two issues. The first is an allegation that the Tribunal committed a jurisdictional error in deciding that the risk of the applicant suffering serious harm in Afghanistan by reason of his ethnicity as a Hazara man was remote. The second is an allegation that the Tribunal committed a jurisdictional error in deciding that the applicant would not suffer a serious risk of harm in Afghanistan by reason of the fact that he would be a failed asylum seeker from a western country.

26    With respect to the first issue, the applicant made a number of submissions.

27    First, he submitted that the Minister’s approach to Hazara men returning to Afghanistan was inconsistent. He sought to tender a consent order made by the Federal Circuit Court on 18 August 2006 in a matter, ABE16 v Minister for Immigration and Border Protection and Another. In that consent order, there was an acknowledgement that the Tribunal in that case had failed to consider the applicant’s claim based on the worsening security situation in Kabul. Leaving aside whether a Court record needs to be tendered, I do not propose to have any regard to it because it is irrelevant. The issue is whether the Tribunal in this case, and on the evidence before it, committed a jurisdictional error.

28    Secondly, the applicant submitted that the Tribunal “downplayed” (to use the words of the applicant’s counsel) certain Department of Foreign Affairs and Trade (DFAT) reports which suggested, so the applicant contended, that Hazaras faced a greater risk of harm in Afghanistan than other ethnic groups and were being systematically targeted on the grounds of their ethnicity. The terms in which this submission was put suggested that it was a challenge to the merits of the Tribunal’s decision and that was confirmed on an analysis of the Tribunal’s reasons. The Tribunal considered the security situation in Afghanistan at some length. It referred extensively to the following: DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 26 March 2014; DFAT Country Information Report, Afghanistan, 18 September 2015; and DFAT Thematic Report, Conditions in Kabul, 18 September 2015.

29    The Tribunal accepted that the security situation across Afghanistan had worsened over the 12 to 18 month period prior to its decision due to anti-government groups intensifying their efforts and the withdrawal of international military forces. The Tribunal discussed the position of Hazaras which it described as a visibly distinct ethnic group in Afghanistan. The Tribunal accepted statements in the DFAT Country Information Report to the effect that as at September 2015 no particular ethnic group was systematically targeted solely on the basis of ethnicity. The groups that were targeted were those associated with the international community or the government. The Tribunal also referred to the 2014 DFAT Report (AAT reasons at [40]) and then said (AAT reasons at [42]):

In 2013 DFAT received allegations that Hazaras had been killed on roads to and from the Hazarajat but DFAT found that there was no reliable evidence that insurgents disproportionately target Hazaras on any road in Afghanistan. In its more recent report on Afghanistan released in September 2015 DFAT stated that Hazaras travelling by road between Kabul and the ‘Hazarajat’ can face a risk greater than other ethnic groups.

30    The applicant contended that the Tribunal should have made a finding in accordance with paragraph 3.9 of DFAT Thematic Report of September 2015. That paragraph is referred to in a footnote to paragraph 42. That footnote (Fn 44) reads:

DFAT Country Information Report Afghanistan 18 September 2015 at 3.15. See DFAT Thematic Report Conditions in Kabul 18 September 2015 at 3.9 in which the same statement is made about the risk for Hazaras when travelling to Kabul from other parts of Afghanistan by road. DFAT again stated that it is not clear whether that greater risk is due to ethnic targeting or because high numbers of Hazaras travel from the Hazarajat to Kabul.

31    The Tribunal then referred to kidnappings which had taken place and the uncertainty surrounding the motives for those kidnappings. It then referred to the fact that as at September 2015, DFAT assessed that no particular ethnic group was being systematically targeted on the basis of ethnicity. The Tribunal said that the risk of the applicant suffering serious harm in his native area was remote because there had not been any large-scale ethnic violence for a number of years, the country information that Hazaras were not being systematically targeted because of their ethnicity and religion, and the fact that the applicant did not come within the profile of people who are targeted by anti-government groups (that is to say, those people who supported or were associated with the Afghan government or the international community) (AAT reasons at [47]).

32    The Tribunal was required to address the claim and assess it having regard to the evidence. It addressed whether Hazaras were being systematically targeted and, in my opinion, reached a conclusion that was open to it.

33    Thirdly (with respect to the first issue), the applicant claimed that the Tribunal failed to address a claim that the security situation would or could worsen.

34    The applicant referred to the fact that on two occasions (AAT reasons at [54] and [81]) the Tribunal said that it would not speculate as to the future situation in Afghanistan. It acknowledged that there was an increase in conflict and civilian casualties and it was changing. To my mind, this is not a failure to address the issue, but an assessment open to the Tribunal on the evidence. A submission that the Tribunal should have addressed a matter in a particular way is a submission as to the merits.

35    I turn to the second issue. As I understood it, the applicant submits that the Tribunal found no risk of serious harm on the basis that the applicant would modify his behaviour and that such an approach was inconsistent with the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473.

36    The Tribunal said (AAT reasons at [50] and [53]):

…If it was the case that Hazaras were systematically targeted on roads (and in their own areas) there would be far more frequent reports of that actually occurring beyond the isolated incidents cited above in this decision. Accordingly, the Tribunal infers that the risk of the applicant suffering serious harm travelling from Kabul to Jalrez is remote. The Tribunal has considered the possibility that the applicant may have to travel out of Jalrez or his village after he resumes his life there. It would be highly speculative for the Tribunal to assess when that would be, how often and to what extent. The applicant did not advance a specific claim about any need for him to travel into and out of his village or district. Further, because he is not a witness of truth the Tribunal has no credible evidence about his and his family's lives in the native village and their needs in that respect. The applicant claimed his father drove a vehicle in and out of the native area, but, because the applicant is not a witness of truth, the Tribunal finds that it has no credible evidence about that or how he and his family supported themselves and lived.

…

In addition, on return to Afghanistan, including in travel from Kabul back to his native village in Jalrez, the applicant will not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government or the international community just for having spent time in Australia. Certainly, this applicant expressed no desire to do so and refraining from such conduct to avoid the risk of anti­government groups perceiving him as such is not in itself persecutory as that concept was discussed in Appellant S395/2002 v MIMA (2003) CLR 473.

37    There is no substance in this submission. The Tribunal did not require the applicant to do anything. It simply made findings as to what he was likely to do.

38    The proposed appeal is not reasonably arguable and, in those circumstances, and having regard to other matters I have identified, the extension of time should be refused.

Conclusion

39    The applicant’s application for an extension of time within which to appeal is refused.

Associate:    

Dated:    7 June 2018