FEDERAL COURT OF AUSTRALIA

EDV17 v Minister for Immigration and Border Protection [2018] FCA 1980

ORDERS

THE COURT ORDERS THAT:

1.    The application be refused.

2.    The applicant pay the first respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicant applies pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) to extend time to file a notice of appeal. The orders being appealed were made on 8 March 2018. The application to extend time was made on 2 May 2018 and was, therefore, filed outside the 21 days prescribed under r 36.03 of the Rules.

BACKGROUND

2    The applicant is a citizen of Jordan who first arrived in Australia in 2005 holding a student visa. He was granted four subsequent student visas, but an application for a further student visa was refused by a delegate of the Minister for Immigration and Border Protection in 2013 (a decision affirmed by the Migration Review Tribunal). He sought Ministerial intervention on 9 January 2014, but a decision was made not to consider the request on 6 June 2014.

3    On 10 April 2013, the applicant lodged an application for a protection visa, which was determined by the Department not to be a valid application. On 7 July 2014, the applicant made a valid application for a protection visa, claiming to fear harm on return to Jordan because he will publicly criticise the Jordanian government and because he had been involved in many religious and political discussions in Australia with the Sunni religious group, Hizb ut Tahir (HuT). He had become convinced that the political system in Jordan was incorrect and corrupt. He claimed that he had been actively expressing his political opposition to the Jordanian government in Australia. He further claimed to suffer from a medical condition where he is unable to control himself verbally and is unable to judge when expressing his opinions is likely to get him into trouble. At a protection visa interview with a delegate of the Minister, the applicant claimed that he no longer had any interest in HuT’s religious views. He also claimed he would publicly criticise King Abdullah of Jordan.

4    On 26 August 2015, a delegate of the Minister refused to grant the applicant a protection visa. On review to the Administrative Appeals Tribunal, the applicant appeared and gave evidence at the hearing before the Tribunal on 31 July 2017.

5    In its decision, the Tribunal rejected the applicant’s core claims for protection on the basis of adverse credibility findings. It took into account letters the applicant provided attesting to his medical condition as referred to below. But, nevertheless, it found he was not a reliable, credible or truthful witness. The Tribunal found that he had fabricated his claims in order to be granted a protection visa. In particular, it made the following central findings:

(a)    it did not accept that the applicant had been publicly critical of the King of Jordan whilst in Australia, noting his claim to have publicly criticised the King was not raised during his Department interview and he entirely relied on his oral evidence, which the Tribunal found lacked credibility in support of the claim;

(b)    it did not accept that the applicant had an association with HuT as it found it implausible that the applicant could select only the political and not religious aspects of HuT, given that HuT ‘looks to the radical and comprehensive implementation of Islam after seizing authority’;

(c)    it did not accept that the applicant had ever been involved in incidents with members of the Jordanian community in Australia or that he would make anti-royal comments on return to Jordan;

(d)    it did not give much weight to the letters provided by the applicant in support of his claims as neither referred to the applicant being critical of the King, but rather referred to the Jordanian government;

(e)    it did not place much weight on the oral evidence of one witness as he had only heard second hand about the applicant’s involvement in a fight in a mosque as a result of criticising the King and due to an inconsistency with the applicant’s own evidence;

(f)    whilst it accepted that it was plausible that the applicant had criticised the Jordanian government in Australia, it observed that his claim for protection on that basis occurred the month after he had been advised that his ‘failed student visa application would not be considered’;

(g)    referring to country information, it was not satisfied that criticising the Jordanian government would lead to disputes within the community in Australia, given that dissatisfaction with government is a normal part of intra-community dialogue and would be so in Jordan;

(h)    it found that the applicant had no social media presence nor profile and that if he were to criticise the government on return to Jordan, it would be done in private; and

(i)    whilst the Tribunal accepted that the applicant had his mental issues, on the basis of the available country information, and noting that both his parents and siblings live in Jordan, it was satisfied that the medical and social system in Jordan would be able to help him.

6    The Tribunal did not accept that the applicant had a well-founded fear of persecution for any ‘Convention reason’ or that he met the complementary protection criterion.

IN THE FEDERAL CIRCUIT COURT

7    The judicial review proceedings in the Federal Circuit Court of Australia were dismissed. Several grounds were advanced and rejected.

THE PRINCIPLES

8    There are numerous cases dealing with the principles concerning an application for an extension of time to appeal. In Singh v Minister for Immigration and Border Protection (2015) 233 FCR 34 (at [20]), Kenny J considered relevant authorities concerning the r 36.05 and identified factors as to which an applicant should satisfy the Court as being:

 1.    there is an acceptable explanation for the delay;

2.    there would be no undue prejudice to a respondent if the Court were to extend time; and

 3.    there is sufficient merit in the proposed appeal to justify an extension of time.

9    Her Honour observed in that decision (at [21]):

The above-mentioned considerations are not, of course, exhaustive and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with whom Edmonds J agreed).

10    Similarly, Derrington J observed in AEL15 v Minister for Immigration and Border Protection [2017] FCA 1295 (at [4]):

The factors which ought generally to be taken into account in determining whether to grant an extension of time in which to appeal include the extent of the delay, any explanation for the delay, any prejudice which the respondent may suffer by reason of the delay and, finally, the merits of any proposed appeal (see Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243, [15]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [15]-[19]). It is now well accepted that there is no requirement that “special” or “extraordinary” circumstances be shown before an extension of time is granted. However, the court must be satisfied that it is proper to extend time noting that the prescribed period imposed by the rules is not to be easily ignored. This generally requires that an applicant must show an acceptable reason for the delay. It is also now well recognised that the mere absence of prejudice to the respondent is not sufficient to justify the granting of an extension.

11    The applicant has provided an explanation in an affidavit as to the delay in that he could not afford the amount that a lawyer advised him an appeal would cost and that he was refused legal aid. The applicant has gone into detail on that account and while the Minister does not accept the explanation and opposes the extension on several grounds, I am satisfied in this case that the appropriate focus is to be on the merits of the proposed grounds.

12    The affidavit not only goes into detail on the advice as to the costs of an appeal, but also annexes the written advice from a consultant psychiatrist as to the mental condition which the applicant suffers. The condition is essentially chronic anxiety with symptoms of obsessive compulsive disorder to be ‘edging on the psychotic side’. Medicine is prescribed for the applicant, but his prognosis is not favourable. This material is relevant to the second draft ground of appeal, as will be seen.

DRAFT GROUNDS OF APPEAL

13    There are two draft grounds of appeal. The first is that the primary judge erred in not finding that the decision of the Tribunal was affected by legal unreasonableness. This is particularised as being that the Tribunal’s finding that the applicant had not raised the claim that he had been critical of King Abdullah in the course of his interview with the delegate ‘was perverse’.

14    The second draft ground of appeal is that the primary judge erred in failing to find that the Tribunal had not addressed the applicant’s claim that he was unable to control what he said.

First draft ground

15    In respect of this ground, it is argued for the applicant that the Tribunal’s finding hinges on the proposition that the applicant had not raised this claim in the course of his interview with the delegate as stated at [32] of the Tribunal’s decision, which reads as follows:

His claims regarding his public criticism of King Abdullah were not raised during his DIBP interview. I do not accept that this was because he meant the king when he referred to the government, and that his agent had misunderstood what he said and had never read back to him what she wrote. He was specifically asked during the DIBP interview whether his agent had read his application back to him and he said that they had. He has no evidence, such as social media entries, letters, texts or emails that may indicate he has publicly criticised King Abdullah and it relies entirely on his oral evidence which I have found to lack credibility.

(Emphasis added.)

16    The primary judge accepted that this was the case when he said (at [8]):

The Tribunal took into account the letters the applicant provided attesting to his medical condition, which were summarised as anxiety and obsessive compulsive disorder, bordering on psychotic. When assessing his credibility, the Tribunal found that the applicant was not a reliable, credible or truthful witness. The Tribunal found that the applicant fabricated his claims in order to be granted a protection visa. The Tribunal found it did not accept that the applicant had been publicly critical of King Abdullah while in Australia, noting his claim to have publicly criticised the King was not raised during his protection interview and that the applicant relied entirely on his oral evidence which the Tribunal found not to be credible.

(Emphasis added.)

17    However, the applicant observes and submits that it is clear from the delegate’s decision that the applicant did in fact raise his public criticism of King Abdullah in his interview. What the delegate recorded from the interview was that:

… He claimed that he may over react and be aggressive when discussing his political opinion to others in Jordan. He claimed that when he hears news about the Jordanian government and the king he cannot shut his mouth and he will openly express his political opinions in public. …

…

… He was asked to clarify what political opinion he holds that would create difficulties for him in Jordan and he responded his political opinion against the government and the King. …

…

The applicant claimed that in Australia he accused the Jordanian King of being a thief and a gambler, and the King would take money from the Jordanian people to recover the debts from his gambling. …

(Emphasis in the original.)

18    The content of the first sentence of [32] of the Tribunal’s decision, the applicant says, is clearly incorrect and could only be regarded as being perverse. The claim that he was publicly critical of the King and continued to be so in Jordan was a principal claim and, therefore, the applicant says, this error is highly material. The applicant relies on recent cases in which ‘perverse’ reasoning on critical issues were found to constitute jurisdictional error, for example, Chan v Minister for Immigration and Border Protection [2018] FCA 1323 (at [34]-[36]).

19    Significantly, this ground was not raised before the primary judge (other than what was said at [8]), but the applicant says it has obvious merit. Where there is clear merit in a proposed ground then leave to raise it on appeal is more readily given. The applicant refers to the decision of Chan where Yates J dealt with a case where new grounds were sought to be raised and where the proceeding below had been conducted by a solicitor. Yates J cited Mortimer J in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279, where her Honour said (at [30]):

In circumstances where there is no general scheme of legal assistance available to a person in the appellant’s position, and where persons such as the appellant must navigate their way through a legally and procedurally complex system without functional English and without any real understanding of the Australian legal system or Australian law, if there are people prepared to assist such individuals to raise an argument which is not fanciful and has some reasonable legal basis, in my opinion it is in the interests of the administration of justice, and the affording of a fair process to persons in the appellant’s position, that such arguments are considered by the Court. Ultimately, this Court’s function on appeal from a decision invoking the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process.

20    Her Honour also made the following observations in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 (at [25]):

It is clear from the passages to which I have referred in Haritos that a relevant factor to the exercise of the Court’s discretion will be the nature of the point to be raised and its merit. As the appellant submitted, the merit of any proposed ground of appeal will be an important consideration: see for example BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66] (Allsop CJ). The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

21    From my perspective, and consistently I think with those authorities, I would have no difficulty in granting an extension of time within which to raise a new ground on appeal if I were satisfied as to the merit of the ground. That is the main question to which I will now turn.

22    Although the Minister’s counsel provided a construction of [32] of the Tribunal’s decision which, combined with other evidence, might make the first statement in [32] plausible, I think the better view is that there was a slip in [32]. It was conceded by the Minister before the Federal Circuit Court (in written and oral submissions) that the Tribunal’s finding (at [32]), that the applicant’s claim regarding his public criticism of the King was not raised during the protection visa interview, appeared to be incorrect. The Minister observed that the Tribunal may have meant to have referred to the absence of any reference to public criticism of the King in the protection visa application, which was what was put to the applicant during the hearing and expressly recorded in the Tribunal’s decision (at [19]):

It was put to him that in his protection visa application there was no mention of abusing the king. He claimed that he told the interviewer that this was what he did. In Jordan sometimes if you criticise the government they mean the government. - he meant the king and the government Asked why he didn’t simply say the king during the interview if that’s what he meant, he claimed that this was not his mistake.. His agent misunderstood what he meant when he filled out the application. He was talking, she was writing and then she completed the form. He claimed that she never read back to him what she wrote.

(Emphasis added.)

23    In my view, this is the better reading of [32]. I do not consider that this is actually an incorrect finding of fact, but rather, a minor slip for the clear reason that the express reference in [19] is to the absence of reference to the issue in his application being put to the applicant in the course of the Tribunal hearing. Equally, the Tribunal concluded that apart from the applicant’s oral evidence, which it found lacked credibility, the applicant had no evidence that he had ever publicly criticised the King. This submission appears to have been accepted by the primary judge, where his Honour said (at [24]):

… [T]he applicant took issue with the Tribunal’s adverse credibility finding by reason of the applicant not referring to the King in the context of his claim for protection and his alleged abusing of the King and referred to the applicant’s allegation that this was a mistake. The Tribunal’s reasons expressly refer to raising with the applicant that it was put to him during the interview that he told a person that his application was written down and read back to him and that that was inconsistent with his assertion that the agent had made a mistake. The Tribunal took into account the absence of any claimed abuse of the King in its adverse findings. That was both logical and reasonable. The adverse findings by the Tribunal in that regard were open to the Tribunal. No jurisdictional error is made out ...

(Emphasis added.)

24    In my view, the better reading of [32] of the Tribunal’s decision is one in light of the context and, in particular, [19] of the Tribunal’s decision, that the Tribunal has used the word ‘DIBP interview’ when it meant to say ‘protection visa application’. It is true that later in [32] the Tribunal does refer to the ‘DIBP interview’, noting that the applicant was specifically asked whether his agent read his protection visa application back to him, but this is more likely the repetition of a minor error at this point, rather than supportive of the fact that the Tribunal deliberately intended to refer to the ‘DIBP interview’ and was, therefore, clearly wrong.

25    Of course, it is well-established that reasons of this nature must be considered without an eye attuned to the perception of error, as noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272). Further, if it was simply an error of fact taken alone, it would not constitute jurisdiction error in any event, but the applicant pitches the error at the level of being ‘perverse’. The Tribunal’s reasons as a whole need to be construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 per Neaves, French and Cooper JJ (at 287), in which it was said that the Court should not be ‘concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts’. The fact is that the incorrect word was used but, all matters considered, it appears to me that usage of ‘DIBP interview’ was a slip and does not reflect any basic error of the nature contended for by the applicant (i.e. perversity) in this draft ground of appeal.

26    I am not satisfied that the draft ground of appeal would have sufficient prospects of success to warrant leave being granted.

Second draft ground

27    I turn then to the second draft ground of appeal in which there is a complaint about the Tribunal’s understanding of the nature of the applicant’s condition and how his symptoms would impact upon the risk that he faced. This ground turns on the applicant’s contention in his protection visa application that his medical condition had the result that he could not control himself verbally when convinced of something and was unable to judge when expressing his opinion was likely to get him into trouble and have him publicly expressing his passionate opposition to the Jordanian government and the way it ruled the country.

28    This ground was dealt with in the reasons for judgment in the Federal Circuit Court (at [22]-[23]):

22.    In relation to the third point raised by the applicant, the applicant took issue with the Tribunal’s reasoning that took into account the absence of any social media, letters, texts or emails indicating that the applicant had publicly criticised King Abdullah. Given the nature of the applicant’s claims, that was a relevant consideration for the Tribunal to take into account. The applicant’s disagreement with the Tribunal taking that matter into account does not identify any relevant jurisdictional error and it was open in that regard to the Tribunal to find that the applicant has no social media presence or profile and if he were to criticise the government on return it would be done in private and hence he would have no public profile. Those findings were logical and reasonable.

23.    The applicant also complained in that regard that his mental condition impacted on his ability to control himself and that the Tribunal had misunderstood his claim. The Tribunal’s reasons do not reflect any misunderstanding of the applicant’s claims in that regard, but rather reflect adverse findings in respect of the applicant’s credit because of inconsistencies, delay and timing of the application for protection. The Tribunal also found that as the applicant has a mental condition the authorities would take that into account if criticisms wherever made were to be made in the public sphere. It was in that context that the Tribunal was not satisfied that there is a real chance that the applicant would suffer serious harm if he were to return to Jordan. No jurisdictional error is made out by ground 3 or by point 3 raised by the applicant.

29    The Tribunal accepted (at [35]) that it was plausible that the applicant had criticised the Jordanian government while he was in Australia. It is true that (at [36]) the Tribunal found that state corruption is able to be discussed publicly in Jordan, but there was no finding that all public criticism of the government would be tolerated.

30    It is submitted for the applicant that the Tribunal’s reasoning (at [37]) completely fails to appreciate the nature of the claim being made by the applicant as supported by the medical evidence. At [37], the Tribunal said:

As noted previously, the applicant has no social media presence nor profile and if he were to criticise the government on return to Jordan it would be done in private and hence he would have no public profile. In addition, he has a mental health condition which the authorities would also take into account if his criticisms were ever to make it into the public sphere. Given this, I am not satisfied that there is a real chance that he would suffer serious harm if he were to return to Jordan.

31    The applicant complains that his compulsive disorder means that he will be unable to control his speech. This means he will not restrict the voicing of his opinions to private occasions as he does not have the self-control to restrict when he voices his opinions. Further, he means what he says but cannot control when he says it, so his medical condition would not make a difference as to how the authorities treated him for what he said.

32    For these reasons, the applicant asserts that the primary judge’s observations (at [22]-[23] and cited above), that it was open for the Tribunal to find that the applicant would only criticise the government in private if he were to return to Jordan, does not address the applicant’s complaint that the compulsive nature of his condition was not taken into account by the Tribunal.

33    In my view, it is important to recall that the Tribunal found the applicant’s claims to be fabricated. It did not accept that the applicant was a reliable, credible or truthful witness and it did not accept that the applicant had been publicly critical of the King, that he had an association with HuT or that he had made any anti-royal comments in Australia. The Tribunal was concerned about the timing of the claim that the applicant had criticised the Jordanian government while in Australia. It did not accept that the applicant had ever expressed the political views he claimed to have expressed and claimed would place him at risk of harm.

34    Rightly or wrongly, the Tribunal concluded as a matter of fact, by reference to country information, that the issue of state corruption is able to be discussed publicly in Jordan. However, it also went on to find that, even if, contrary to its conclusion, the applicant were to speak out against the government on his return to Jordan, he would do so privately and avoid a public profile.

35    However, most importantly, even if some of these findings could be challenged as failing to understand the central complaint of the applicant, there is an important finding by the Tribunal (at [37] and cited above) which expressly took into account the possibility that he might voice his opinions in Jordan and these opinions might enter the public sphere. The Tribunal considered on the basis of earlier findings supported by country information that the applicant’s mental health condition would be taken into account if this occurred. Whilst the applicant did assert that his medical condition would not make any difference as to how the authorities would treat him for what he said, this was a question of fact for the Tribunal to determine. It duly considered the correct question and provided an answer within jurisdiction, as it was entitled to do.

36    In my view, draft ground 2 would not succeed.

CONCLUSION

37    It follows that there is insufficient merit in either draft ground to warrant an extension of time within which to appeal. The application must be refused with costs.

Associate:

Dated:    10 December 2018