FEDERAL COURT OF AUSTRALIA

DWK17 v Minister for Home Affairs [2019] FCA 66

ORDERS

THE COURT ORDERS THAT:

1.    Application for extension of time dismissed.

2.    Applicant to 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

BANKS-SMITH J:

1    The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court dismissing the applicant's application for judicial review of the decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of the delegate of the Minister refusing to grant the applicant a Protection Visa: DWK17 v Minister for Immigration and Border Protection [2018] FCCA 148.

Background

2    The applicant is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival on 26 April 2013.

3    The applicant filed the application for a protection visa in July 2016, and it was refused in October 2016 by a delegate of the Minister.

4    The delegate's decision was automatically referred to the Authority for fast track review under Pt 7AA of the Migration Act 1958 (Cth) (Act). The Authority had before it the material referred under s 473CB of the Act, including a post-interview submission from the applicant's representative that was provided to the delegate.

5    In July 2017 the Authority affirmed the decision of the delegate, and the applicant sought judicial review of the Authority's decision in the Federal Circuit Court.

6    On 24 January 2018 the primary judge dismissed the application, but the applicant did not seek to appeal that decision in this Court until 16 June 2018, several months after the last date for filing, and so requires an extension of time to appeal.

Principles for extension of time

7    In considering whether to grant an extension of time for an appeal under r 36.03 of the Federal Court Rules 2011 (Cth) (Rules), the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

8    The application for an extension of time was filed just over three months outside of the prescribed time period. Accordingly, the extent of the delay is significant, albeit not excessive.

9    Rule 36.05(3)(c)(ii) of the Rules requires an applicant for an extension of time to state why the notice of appeal was not filed within time.

10    The applicant's explanation for the delay is that he could not engage a lawyer for some time to assist him in filing the application due to financial constraints, and that it took him considerable time to organise the necessary money to pay court fees and to engage a lawyer.

11    Lack of legal advice is, without more, an insufficient excuse for failing to file a notice of appeal within the prescribed time period: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] (Farrell J). Further, and in any event, there is no evidence before the Court to suggest that the applicant took any active steps to seek legal assistance, including on a pro bono or reduced fee basis.

12    An inability to pay the filing fee is also an inadequate explanation for a delay in filing a notice of appeal: SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [16] (Markovic J). In the present case, as in SZUMJ, there is no evidence that the applicant took any steps to seek waiver of the filing fee. Nor is there any evidence of the steps that the applicant took in relation to raising the filing fee.

13    The Minister concedes that there is minimal prejudice to the respondents as a result of the delay in bringing an appeal. Mere absence of prejudice is not enough to justify the grant of an extension of time: Hunter Valley Developments at 348-349.

14    To my mind the most important element relevant to the question of the exercise of discretion in this case is the merits of the proposed appeal.

Merits of the proposed appeal

15    In considering whether to grant the extension of time, the Court should consider at a 'reasonably impressionistic level' whether the proposed ground of appeal is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has reasonable prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)).

16    I am cognisant of the fact that the proposed appeal ground is to be considered in the context of those principles. This is not the determination of an appeal. However, it is necessary in order to consider whether the appeal ground could be said to have any merit or any reasonable prospect of success to set out the background to the claim in order to understand the applicant’s contentions.

Protection claim before the Authority

17    In summary, the applicant claims to fear harm from the Taliban and because he is a Hazara Shi'a Muslim, because he has lived in a western country, and because he believes that the Taliban believes that he supports the government and a foreign Non-Governmental Organisation (NGO).

18    He claimed that whilst working as a courier in 2012, he was stopped by the Taliban while he was carrying boxes for delivery to a school. The Taliban discovered these boxes and noticed there was NGO branding on the materials and accused him of working for the NGO. They kept him in a mosque overnight and took his car, but he managed to escape and return home.

19    He claimed that a few days later, he sought help from others in his village to recover his car, but this was unsuccessful and that he was told by those people that the Taliban was looking for him. As a consequence, he moved with his family to Kabul and lived there in hiding for five to six months, and subsequently via a smuggler was able to leave Afghanistan.

The Authority's findings

20    The Authority made the following findings contrary to the evidence of the applicant and relevant to the applicant's submissions on this application.

21    The Authority did not accept that after the applicant was detained by the Taliban and escaped, he sought assistance from community elders to help get his car back from the Taliban. The Authority rejected this claim on the basis that it was inherently implausible that, so soon after his escape from the Taliban, the applicant would deliberately turn the Taliban's attention back on himself and effectively reveal his location to the Taliban by asking people from his village to negotiate with the Taliban.

22    The Authority did not accept that in the two months after being detained by the Taliban, the applicant stayed in his house in Jaghori, for fear that the Taliban would locate him through the assistance of informants. The Authority rejected this claim on the basis of country information which suggested that Jaghori is a Hazara majority area, and non-Hazaras can find it difficult to infiltrate Hazara majority areas without detection, and because the Authority considered it was implausible that the applicant could do all the things he needed to do, such as selling his land and animals, from within his house.

23    The Authority did not accept that the applicant stayed at home in Kabul for five to six months while looking for someone to assist him in leaving the country. This finding was in part based on the Authority's findings that there was no indication that the Taliban took any steps to try to locate or intercept him, and also based on what it considered to be an implicit inconsistency in the applicant's evidence that he stayed in hiding in Kabul for five to six months but at the same time was able to look for someone to help him leave.

24    The Authority was not satisfied that the Taliban had any adverse interest in the applicant after he escaped from their custody or at the time he left Afghanistan. Nor was it satisfied that the Taliban had been interested in him during the (then) four or five years since he left Afghanistan and during which his family continued to reside in Kabul, or had any current interest in him.

25    The Authority had regard to various matters in coming to this view. It considered that based on publicly available Facebook posts and photos, it seemed that the applicant's family were engaged in the community in Afghanistan: they attended a university graduation, his younger brother had made achievements in Taekwondo and there were photos that suggested a close connection with family and friends. The applicant disputed certain elements of the evidence (that his brother attended University) but such evidence was not decisive and the Authority was satisfied of its position 'in any case'. The Authority found and took into account that there was no evidence that the family had been approached or had any problems despite their connection with the applicant. Further, the Authority took into account that the applicant had knowingly maintained a Facebook profile in which he (wrongly) claimed to have worked for the Afghan Ministry of Foreign Affairs (MFA) and so had chosen to embellish his profile, a step it considered inconsistent with the behaviour of someone who continues to fear the Taliban. Further, it was not satisfied that the Taliban would have stumbled on his Facebook page or had accessed it or has otherwise identified him as an alleged MFA employee.

26    The Authority reached conclusions about the chance of serious harm that the applicant may face, basing its conclusions on an analysis of country information.

27    The Authority found that the applicant faced a small but real risk of harm if he resumed work around Jaghori.

28    The Authority accepted that the applicant's home region is Jaghori. It did not accept that he had a well-founded fear of persecution within the meaning of s 5J of the Act. It noted in particular that it was open to the applicant to close or otherwise manage his Facebook page. Country information did not support a finding that Hazara Shi'as are targeted and harmed in ethnic or religious attacks in the Jaghori district. The Authority was prepared to accept that the applicant faces a small but real chance of serious harm if he were to work as a driver on the roads outside Jaghori but that chance did not extend to all parts of Afghanistan as the receiving country. It otherwise considered carefully the elements of the definition of 'well founded fear of persecution' and was not satisfied that the applicant is of personal interest to insurgents or extremists. Although there might be some discrimination upon his return, it would not amount or lead to serious harm. It also considered that it was open to and reasonable for the applicant to relocate to Kabul and therefore the applicant did not meet the complementary protection criteria of s 36(2)(aa) of the Act.

Before the Federal Circuit Court

29    The applicant raised four grounds of appeal before the Federal Circuit Court. These were:

(a)    an unparticularised ground of 'jurisdictional error';

(b)    bias on behalf of the decision-maker, based on conscious or unconscious prejudice evinced by the decision-maker ignoring relevant material;

(c)    the decision-maker asked the wrong question; and

(d)    the decision-maker did not follow the correct procedure in assessing the evidence.

30    The primary judge noted that the applicant had not identified the nature of the jurisdictional error relied upon. The primary judge considered that the Authority's review was comprehensive and that there was nothing in its decision to suggest that it had identified a wrong issue, asked itself a wrong question, ignored relevant material or relied on irrelevant material in reaching its decision.

31    The applicant had not adduced any evidence as to why the Authority was affected by bias, other than to make a general statement that the Authority was biased because it ignored unspecified relevant material. The primary judge considered that there was no evidence that the Authority had a pre-existing state of mind or did not bring an impartial mind to the assessment of the material before it.

32    The primary judge found that the Authority had thoroughly addressed and considered each of the applicant's claims, and had asked the questions required of it by s 36(2)(a) and s 36(2)(aa) of the Act.

33    The correct procedure to be followed in a fast track review is a review on the papers provided by the delegate (Pt 7AA of the Act). The primary judge found that the Authority reviewed the documents, considered the evidence and formed its own views, as it was required to do, and said that the Authority was entitled to accept, reject or give weight to evidence as it considers appropriate in all the circumstances. The primary judge found that the applicant had not led any evidence to suggest that the Authority failed to give proper, genuine and realistic consideration to the applicant's claims and evidence.

34    Accordingly, the primary judge dismissed the grounds raised by the applicant.

35    The primary judge additionally reached conclusions on the considerations raised by the Full Court of this Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [82] (Kenny, Tracey and Griffiths JJ) (BBS16). The primary judge found that the Authority was not required to ask itself the questions raised in BBS16 because it did not accept that the applicant had in fact altered his behaviour in fear of Taliban repercussions. The primary judge found that although the Authority accepted the applicant's submission that he moved after being detained by the Taliban, s 5J(1)(c) of the Act requires that a fear of persecution must relate to all areas of the receiving country, and having found that the applicant moved from Jaghori to Kabul without being further sought by the Taliban the Authority did not appear to have committed an error of the type identified in BBS16.

Grounds of appeal

36    The applicant's draft grounds of appeal provide for one ground, drafted as 'Jurisdictional error due to no following or facts presented'.

37    The ground is not particularised, and ordinarily such an unparticularised ground would be dismissed. However, I invited the applicant to explain his complaints to me during the hearing. The applicant said that he took no issue with the primary judge's reasons but the problem was the Authority's decision. Having regard to the fact that the applicant was self-represented, and despite his submission, I proceeded on the basis that in seeking to appeal, the applicant asserted the primary judge erred in failing to discern jurisdictional error on the part of the Authority.

38    The applicant referred to various findings of the Authority which he disputed. They can be collected as follows:

(a)    the Authority was wrong in finding that the Taliban had not been looking for the applicant while he was in Australia and then finding on that basis that it was not satisfied the Taliban would look for him if here were to return to Afghanistan;

(b)    the Authority was wrong in finding, based on photos, that his family were living comfortably in Kabul when, regardless of the snapshot of their lives indicated by the photos, they were living in hiding;

(c)    the Authority was wrong in finding that when he went to Kabul he did not live in hiding and also in finding that he lived there full time; and

(d)    the Authority was wrong in finding that he sent people to get his car back.

39    This can be seen as an attempt to seek impermissible merits review. But even addressing the identified matters, in each case one can see from the summary of the Authority's reasoning set out above that it had a basis for making the findings that it made and its reasoning is disclosed. In my view, the findings that it made were open to it on the evidence before it.

40    The Authority did not rely only on the lack of any evidence that the Taliban had been looking for him while he was in Australia in considering the risk of harm or persecution upon his return. It considered the position of the applicant before he left Afghanistan, the manner in which his family have been living during the period he has been in Australia (see the matters I have set out at [25] above) and country information.

41    The Authority explained the basis upon which it was not satisfied that the applicant and the family had been living in hiding. It referred to evidence that suggested the applicant was able to achieve certain tasks that it was unlikely he could have achieved whilst in hiding and the Facebook evidence that suggested his family members were able to engage at least to some extent in the community, taken with the lack of evidence that they had been approached or harmed by the Taliban or insurgents despite their association with the applicant. Even if the Authority made an error of fact as to the amount of time he lived in Kabul, such error of fact without more does not establish jurisdictional error. The Authority considered the claims of the applicant as to hiding in both Kabul and Jaghori.

42    As to the finding about the alleged steps to seek the return of the car, the Authority explained that its doubts were based on what it considered an inconsistency in the applicant's conduct in taking a step that might disclose his whereabouts. The finding was open to it on the evidence before it and the inference has a disclosed logical basis.

43    In those circumstances, the applicant has failed to identify an error on the part of the Authority that comprises jurisdictional error. The applicant has not persuaded me that the Authority asked itself the wrong question, identified a wrong issue, took into account an irrelevant consideration or failed to take into account a relevant consideration or made a decision that is legally unreasonable. There was no suggestion the Authority failed to comply with its procedural fairness obligations under Pt 7AA of the Act.

44    In the circumstances, I do not consider the Authority's reasons disclose jurisdictional error and accordingly no error is disclosed in the decision of the primary judge. It follows that I do not consider the proposed appeal would have any reasonable prospect of success.

The doctor's letter

45    Before concluding, I note that on the first occasion this matter came before me, counsel for the Minister properly provided to me a copy of a general practitioner's letter. The applicant had provided it to her as counsel but not to the Court. The letter suggested that the applicant would benefit from an adjournment of his hearing for some six to twelve months so he could 'sort out his mental health problems' and prepare better for court. It stated that the applicant has been suffering from depression and post-traumatic stress disorder and he had recently seen a psychiatrist and started antidepressant medication. It said the applicant had been unable to concentrate on his case due to his mental health issues.

46    There is no doubt that the doctor's letter portrayed the applicant's condition in very generalised terms only. The prospect of the grant of an adjournment for six to twelve months based only on that letter was very low. Regardless, the applicant did not seek an adjournment when the matter came before me for hearing on 13November 2018 and did not seek to rely on the doctor's letter or further medical evidence.

47    However, having read the letter and noted the comment as to potential difficulties with concentration, I was concerned to ensure that the applicant was given every opportunity to take his time to reflect on his submissions and gather his thoughts. I should add that the applicant was clearly both thoughtful and intelligent and, considering the nature of his oral submissions, he had clearly understood the Authority's written reasons. I adjourned the hearing for 15 minutes between the Minister's submissions and the applicant's reply submissions. I also invited the applicant to file further written supplementary submissions. As none were received, and because English is not the applicant's first language, I also reconvened the hearing briefly in December 2018 so that I could ask the applicant if, with the benefit of time, there was anything else he wished to add in support of his application. The applicant attended (with an interpreter) but said that he did not think he had missed out anything he wished to say, and that he had provided the details he wanted me to consider. In the circumstances, I was satisfied that the applicant had the opportunity to address me on all the matters he wished to address.

Conclusion

48    Taking into account the lack of any persuasive explanation for the delay, but more particularly the lack of any reasonable prospect of success of the proposed appeal, the application for an extension of time is dismissed. Costs should follow the result in the usual way.

Associate:

Dated:    6 February 2019