FEDERAL COURT OF AUSTRALIA

CNB16 v Minister for Immigration and Border Protection [2019] FCA 2069

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant, a citizen of Pakistan, applies for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia (Circuit Court). The Circuit Court dismissed the applicant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa. The applicant’s appeal to this Court was filed 12 days out of time.

2    The application for an extension of time was heard on 2 December 2019. At the end of the hearing, I dismissed the application. These are my reasons for doing so. As explained in detail below, although the applicant’s delay in commencing an appeal was minor, and did not prejudice the Minister, the ground of appeal proposed by the applicant has insufficient merit.

Background

3    The applicant arrived in Australia in August 2012. He applied for a protection visa in December 2012. The background to the applicant’s claims for protection, and the delegate’s consideration of those claims, were summarised as follows in the applicant’s written submissions filed in the Circuit Court:

3.    The Applicant is a national of Pakistan, born in Piewar Ghundi Khek (Pewar) a village in the Kurram Agency in the Federal Administered Tribal area situated approximately half … [an] hour’s drive from Parachinar, close to the Afghan border. He was born on 1 January 1991. He has never been married or in a de facto relationship. He is of Pashtun ethnicity and a Shia Muslim by religion and a member of the Turi tribe.

4.     On 12 December 2012 the Applicant made a valid application for protection which outlined the Applicant’s claims. The application was based on:

   •     His race and religion as a Shia member of the Turi tribe

•     His actual and imputed political opinion as [an] anti-Taliban pro-Westerner

•     His membership of a particular social group namely ‘failed asylum seekers returned to Pakistan from Western countries’.

5.     The Applicant’s claims at the AAT were set out in:

•     a set of supplementary answers arising from interview prepared by Fragomen Migration agents dated 24 September 2013

•     a statutory declaration dated 11 December 2012

•     a submission addressed to the Tribunal dated 13 May 2016

•     sworn evidence given to the Tribunal on 18 May 2016.

6.     The Applicant claimed fear of harm in his home area of Kurram Agency in the form of violence directed at him as a Shia, as an ethnic Pashto and as a member of the Turi tribe. From approximately April 2007 Shia and Sunni violence escalated into serious armed attacks. Because of Pewar’s proximity to the Afghan border, the village was routinely exposed to armed attacks from Afghan members of the Taliban.

7.     After leaving school at year 8, the Applicant began working for his father in the family grocery business in Parachinar. The business needed to procure stock from Peshawar. The Applicant often travelled with his father on these journeys. To do so they needed to travel by Government convoy. The Applicant has six other siblings: three boys and three girls. He was the fourth-born sibling. All were born between 1986 and 2000. His youngest sibling, a brother called Sajid Hussain, suffered from a serious kidney complaint which caused him to develop kidney stones which required treatment 3-4 times a year. This meant travelling to the dangerous road linking Parachinar to Peshawar.

8.     Following local road closures enforced by the Turi Shia tribe directed at members of the Taliban, the Taliban retaliated by closing the road between Parachinar and Peshawar. Because of the youngest brother’s need for medical treatment which was available only in Peshawar, 3-4 times a year the family was forced to undertake the dangerous journey on the road linking Parachinar to Peshawar which particularly exposed them to armed by the Taliban (sic). The family was in a state of constant fear that using the road would result in death.

9.     The delegate of the Minster, in a decision dated 21 October 2014, rejected the Applicant’s claim for protection. Although the Applicant could demonstrated (sic) all the necessary requirements to meet the definition of ‘refugee’ under the three separate Convention categories - religion, political opinion and membership of a particular social group (Shia Turi tribe member) the delegate found that because it was safe to return to parts of Pakistan other than the Kurram Agency, the Applicant could not demonstrate ‘a real chance’ of persecution and thus his fear of persecution was not ‘wellfounded’. The delegate also found on the basis of country information the Applicant could relocate ‘elsewhere’ in Pakistan ‘eg. Islamabad or Rawalpindi’.

10.     The Applicant made application to the Tribunal to review the delegate’s decision and maintained his prior claims for protection by making the following claims:

•     in 2008 his maternal cousin lost a hand and a leg to a suicide bomber attack at a pro-Shia election rally for which the Taliban claimed responsibility

•     later that year the Applicant was ambushed in a forest, attacked and stabbed by members of the Taliban for which he needed medical attention

•     in or around 2009 when picking up supplies for his father’s business under a government convoy, Taliban and Sunni Taliban supporters swore and abused the travellers, saying Shias should not be allowed to use ‘their’ road

•     in 2012 the Applicant received threatening phone calls saying that if he was ever seen again in Peshawar he would be killed

•     later in 2012 while on a trip to Peshawar with his brother who needed medical help, at a bazaar, the Applicant had a narrow escape from Taliban members who recognised him from the ambush in the forest

•     he feared returning to his village because he believes he would be harassed, attacked or killed by the Taliban or other anti-Shia organisations and that in other parts of Pakistan he would be targeted by the Taliban who could recognise him as a Shia from his accent, his name and markings on his body

•     he feared returning to Pakistan because of his Shia religion, his imputed political opinions opposed to the Taliban and by reason of belonging to a particular social groups namely Shia Turi tribe members who the Taliban regard as enemies

•     he also feared returning home as he would be recognised by the Taliban as a person corrupted by living in the West and further that government authorities would be unable to protect him a Shia from acts [of] violence and other forms of harassment at the hands of the Taliban.

(Citations omitted.)

Tribunal’s decision

4    On 18 August 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa (AAT Reasons).

5    The Tribunal held that the applicant did not have a profile that placed him at a higher risk of harm than other Pashtun Turi Shia from Kurram Agency. The applicant was not a prominent Shia such as the high profile professionals described in DFAT’s Thematic Report Shias in Pakistan dated 15 January 2016.

6    The Tribunal referred to independent country information about the security situation in Kurram Agency: AAT Reasons at [64]-[73]. The Tribunal accepted that Shia Muslims were, in general, at risk of being targeted for terrorist attacks in Pakistan by Sunni extremist groups. However, the Tribunal found that there was credible country information that indicated that the situation had improved significantly in the Federally Administered Tribunal Area, including Kurram Agency, since 2014: ibid at [79].

7    The Tribunal was not satisfied that the applicant had a well-founded fear of persecution by reason of his Shia Muslim faith; his Pashtun Turi ethnicity; his actual or imputed political opinion against Sunni extremist groups and their sympathisers; his membership of a particular social group comprising of failed asylum seekers returned from the West; his membership of a particular social group comprising of Shia Turi Tribe members; or for any other Convention reason if returned to Pakistan now or in the reasonably foreseeable future: ibid at [80].

8    Ultimately, the Tribunal was not satisfied that the applicant was a person to whom Australia owed refugee or complementary protection: ibid at [82]-[86].

Federal Circuit Court’s decision

9    The applicant filed an application for judicial review of the Tribunal’s decision in the Circuit Court on 8 September 2016. The applicant, who was represented by counsel, filed written submissions and an amended application on 15 January 2019.

10    On 1 May 2019, the Circuit Court dismissed the applicant’s judicial review application and ordered that the applicant pay the first respondent’s costs: CNB16 v Minister for Immigration & Anor [2019] FCCA 1132 (FCCA Reasons). The Circuit Court’s reasoning for this conclusion is considered further below.

Appeal to this Court

11    On 12 June 2019, the applicant filed an application for an extension of time to appeal the Circuit Court’s decision under r 36.05 of the Federal Court Rules 2011 (Cth). The application is supported by an affidavit affirmed by the applicant on 7 June 2019, which the applicant relies upon to explain the delay in filing an appeal. In that affidavit, the applicant deposes to the following, amongst other matters:

(a)    the applicant speaks very little English and has a modest academic background. In Australia, he has largely worked on labouring jobs including factory work, cleaning and taxi driving to support himself;

(b)    the applicant was not made aware of the fact that his application in the Circuit Court had been dismissed until on or around 20 May 2019;

(c)    the dismissal of his application by the Circuit Court came as a huge disappointment to the applicant. He ceased working as a taxi driver and is suffering stress and tension. The applicant is seeking assistance from the Asylum Seeker Resource Centre (ASRC) on a regular basis and has been referred to a psychologist working at the ASRC;

(d)    after learning of the dismissal of his judicial review application, the applicant attended and sought assistance at the office of his previous lawyer, but did not obtain any meaningful information;

(e)    the applicant sought the assistance of friends in his community and was informed of a contact, Ms Deborah Mercurio, a lawyer who worked for JusticeNET in South Australia. The applicant telephoned Ms Mercurio on 28 May 2019 to explain his predicament. Ms Mercurio could not understand the applicant very well and suggested that he attend her office. The next day, the applicant and his partner drove to Adelaide with parts of his immigration file including the AAT Reasons and some court correspondence. The applicant met with a colleague of Ms Mercurio who assisted him in filing paperwork. Subsequently, the applicant was informed that JusticeNET would not be able to assist the applicant;

(f)    on 3 June 2019, the applicant returned to the offices of his previous lawyer to request his court file. The applicant was informed that he needed to apply to this Court within a 21 day prescribed period. Mr Esser suggested that the applicant speak to someone who could speak his language, Urdu, and referred the applicant to Mr Walid Babakarkhil, a lawyer at Playfair Visa & Migration Services (Playfair). The applicant contacted Mr Babakarkhil and requested the next available appointment at his office to discuss lodging an appeal;

(g)    on 7 June 2019, the applicant attended a meeting at Playfair. The applicant instructed Mr Babakarkhil to lodge an appeal on the applicant’s behalf; and

(h)    Playfair conditionally agreed to assist the applicant on a reduced fee basis. Playfair conducted a review of the applicant’s file and drafted an application and a draft notice of appeal.

12    The applicant’s draft notice of appeal specifies a single ground of appeal as follows:

1.    The primary judge erred by dismissing each and every ground of review of the Tribunal’s decision relied upon by the then Applicant.

13    The application for an extension of time was heard in this Court on 2 December 2019. The applicant appeared in person with the assistance of an interpreter. I asked the applicant various questions about what he viewed was wrong with the decisions of the Tribunal and the Circuit Court. The applicant explained that he sought a visa because it was not safe in his village. He said he had been treated differently from others who had arrived in Australia with him. The applicant said that he had experienced stress as a result of not being granted a visa.

14    The Minister, who was represented by Ms Campbell of counsel, accepted that, having regard to the relatively short period of delay, and the applicant’s explanation for that delay, the Minister could not point to any substantive prejudice if leave was granted to extend the time for the filing of the appeal. However, the Minister objected to the extension of time on the basis that the ground of appeal proposed by the applicant lacked sufficient merit.

Relevant principles – Application for extension of time to appeal

15    The principles relevant to determining whether to grant an extension of time within which to file a notice of appeal were summarised as follows by Perry J in DEC16 v Minister for Immigration and Border Protection [2019] FCA 1285 at [15]-[16]:

The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. …

…in considering the merits of the proposed appeal, the draft grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).

See also Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [16] per Anastassiou J.

Merit of proposed ground of appeal

16    The sole ground of appeal in the applicant’s draft notice of appeal alleges that the Circuit Court erred by dismissing the grounds of review before it. I accordingly take the draft notice of appeal as intending to raise the same grounds of review in this Court.

17    The applicant, who was represented by counsel at the time, alleged in the Circuit Court that:

1.    The Tribunal’s conclusion in para. 82 that the Applicant (based on various Convention reasons) does not have a well-founded fear of persecution if he were returned to Pakistan now or in the future:

(a)    involves a mis-reading or mis-application of legal principle enunciated in Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, see para. 79 –

(b)    involves a mis-reading or mis-application of the so-called ‘real chance’ test, see para. 79, see also para 80 -

18    Although ground (1)(b) made no express reference to it, the applicant contended in the Circuit Court that the relevant misapplication of the “real chance” test occurred by way of the Circuit Court engaging in illogical or irrational reasoning.

Ground (1)(a) – Assessment of chance of persecution

19    The first ground raised by the applicant in the Circuit Court criticised the manner in which the Tribunal assessed the chance of persecution faced by the applicant if he returned to Pakistan. The essence of the applicant’s submission in the Circuit Court was that the Tribunal adopted a “probabilistic” or mathematical approach to calculate the chance of persecution that failed to properly address the applicant’s individual circumstances. To explain, it is necessary to outline the legal principles on which the applicant relied.

20    The applicant alleged in the Circuit Court that the Tribunal misapplied the “legal principle enunciated” in Minister of Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 (Guo). The applicant relied in particular on the emphasised passage in the extract below from Guo at 571-572:

"Well-founded" fear of persecution for a Convention reason

An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a “well-founded” fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In [Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 (Chan)], Mason CJ said:

“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

In the same case, McHugh J said that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.

No doubt in most, perhaps all, cases … the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase. [Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259] is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. …

(Citations omitted and emphasised added.)

21    The applicant further argued in the Circuit Court that the Tribunal had committed the same error as identified in DZADQ v Minister for Immigration and Border Protection [2014] FCA 754; 143 ALD 659 (DZADQ), which involved the judicial review by Mansfield J (on appeal from the Circuit Court) of a decision of the Refugee Review Tribunal.

22    The relevant passages of DZADQ, which in turn extract the relevant consideration by the Refugee Review Tribunal, are as follows:

53     In my view, the tribunal committed jurisdictional error when reaching the conclusion that the appellant did not have a well-founded fear of persecution on religious grounds. …

54    Although the tribunal made several findings on the appellant’s credibility and expressed serious doubts on the reliability of his evidence, it made several positive findings in his favour. The tribunal was satisfied that he was a Pakistani national. That means Pakistan would be the country he would be returned to if his visa application was denied. The tribunal accepted that he is a Shia Muslim. The tribunal also formed several conclusions after considering numerous materials in relation to country information. The tribunal stated in its reasons (at [137]):

[137] The Tribunal accepts that sectarian violence is a problem in Pakistan. However, as put to the applicant at hearing, when the Tribunal considers that there are estimated to be over 40 million Shia Muslims in Pakistan, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he returns to live with his family in their home in Peshawar, Pakistan. The Tribunal does not accept that there is a real chance that the applicant […] will be persecuted in the context of the sectarian violence in Pakistan if he returns to that country now or in the reasonably foreseeable future. […]

55    Later in its reasons (at [141]) the tribunal said:

[141] Although, as stated above, the Tribunal accepts that sectarian violence is a problem in Pakistan, it does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.

56    The latter passage must refer back to [137] of its reasons, as the interim passages also reflect summary conclusions based on the same material and the rejection of the appellant’s other claims.

57    The first point to note about [141] of the reasons is that it is a rejection of the fact of there being any relevant risk to the appellant by reason of his Shia religion if he returns to Pakistan. What evidence there is to support that is not identified, except perhaps in the statistical approach in [137]. No other country information identified by the tribunal supports the view that Shia Muslims in Pakistan are not the subject of sectarian violence or violence by the Taliban.

…

61     In my view, the reasons of the tribunal, particularly at [137] show that it did not have regard to the country information in the light of its findings. That paragraph, apart from a statistical analysis, does not disclose any reason for the general conclusion which it contains. The tribunal identified and recognised the general risks facing the appellant as a Shia Muslim in Pakistan. However, it proceeded to find that the risk is “remote” because there were over 40 million other Shias in Pakistan. There was nothing else in the tribunal’s reasons that would explain how it considered the risk to be remote besides referencing that number. This differed from the delegate’s approach, which identified those general risks against Shia Muslims, but concluded that relocation to another part of Pakistan would be a reasonable course of action to not be exposed to that risk.

…

65    The tribunal was satisfied that the appellant was as a Shia Muslim at risk of serious harm by reason of his religion. The tribunal however classified that risk as being too remote. In my view, the essential link in the chain of reasoning connecting the two findings was missing. Besides quoting that there are over 40 million Shia Muslims in Pakistan, the tribunal, in its published reasons, did not consider the evidence that underpinned its ultimate finding that the risk was remote. In my view, its task was not done by the numerical analysis. It should have considered the appellants’ particular circumstances. If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the tribunal) stands, it is hard to see how the conclusion of the tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.

66    Accordingly, … I think the tribunal did commit jurisdictional error.

(Emphasis added.)

23    Returning to the present case, the applicant argued in the Circuit Court that the analysis of the Tribunal in the present case was erroneous in the same manner as the Refugee Review Tribunal in DZADQ. The applicant argued that the only link between the generally improved security situation in Pakistan, punctuated by two terrorist events, and the conclusion that the risk faced by the applicant was remote, was the following analysis by the Tribunal:

79.    … The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. …

24    The applicant argued that this analysis by the Tribunal was numerical, and only numerical, and the Tribunal thereby committed the same error as the Refugee Review Tribunal in DZADQ.

25    The Circuit Court held in the present case that the Tribunal’s consideration of the applicant’s circumstances was distinguishable from the manner of consideration undertaken by the Refugee Review Tribunal in DZADQ. The Circuit Court explained as follows:

19.     … In the present case, the Tribunal recorded relevant country information in paragraphs 65 to 76 of its reasons for decision. It was for the Tribunal to assess that country information and draw conclusions from it, not for this court to draw its own conclusions.

20.     In addition, in paragraph 65 of DZADQ, Mansfield J said that the Tribunal should have, but failed to, consider the applicant’s particular circumstances. Relevantly, the present applicant’s particular circumstances were that he was a Shia Muslim from the Turi tribe and from Kurram Agency. The Tribunal considered the risks facing such people at length, and in the light of country information, and concluded that the applicant did not have a well-founded fear of harm for reasons of generalised violence.

21.     I am not persuaded that the Tribunal made a DZADQ -type error or misapplied the test in Guo. In assessing whether a fear is well-founded, it is necessary to consider the degree of likelihood of the feared event occurring. That requires an assessment of degrees of probability. In the present case, the Tribunal assessed the country information, and the applicant’s circumstances, and reached a conclusion which was open to it. This ground is not made out.

26    I agree with the Circuit Court. To start, the Tribunal did not misapply Guo. The relevant principle extracted from Guo and applied by the Tribunal at [79] was the High Court’s statement that “[c]onjecture or surmise has no part to play in determining whether a fear is well-founded”. The Tribunal’s view was that, given the attack in Parachinar on 13 December 2015 was the first in almost two and a half years, it would be speculative to deduce from that incident that there had been a deterioration in the security situation such that the applicant would face a real chance of persecution. In accordance with the relevant principle in Guo, the Tribunal did not engage in such speculation. I do not discern error in this approach.

27    Second, the Circuit Court was correct to distinguish DZADQ with the present case. The relevant fault of the Refugee Review Tribunal in DZADQ was to uncritically calculate the chances of the non-citizen in that case experiencing persecution simply by reference to the size of the broader population (i.e. there are over 40 million Shia Muslims in Pakistan, therefore the chances of one particular Shia Muslim being harmed is minor), rather than actively engage with the country information before it to determine whether a real chance of persecution existed in the non-citizen’s particular circumstances. As stated by the Circuit Court, the consideration by the Tribunal in the present case was different. The Tribunal assessed the applicant’s individual claims at [49]-[59]. It then outlined and considered significant country information at [65]-[76]. Although the Tribunal did refer to statistics regarding the decline in violence in Pakistan, the Tribunal’s reasoning was not merely numerical, as alleged by the applicant. The Tribunal considered the applicant’s personal circumstances, and the relevant country information, and reached a conclusion that was open to it.

28    For these reasons, the Circuit Court did not err in dismissing ground (1)(a) raised by the applicant in that court.

Ground (1)(b) – Reasoning regarding incident in forest

29    The second ground raised by the applicant in the Circuit Court alleged that the Tribunal engaged in illogical or irrational reasoning in relation to a particular incident that the applicant claimed to have occurred while collecting wood in the forest in Pakistan in 2008. The key paragraph of the Tribunal’s reasons is as follows:

53.    The Tribunal does not accept the applicant’s claim that sometime in about 2008 he was ambushed by three Taliban members when he was collecting wood in the forest, about an hour walk from Pewar. When queried about this incident by the Tribunal at the hearing, the applicant indicated that he was beaten, stabbed in the arm, the militia helped him and took him to their hospital. He told the Tribunal that if the militia had not been there he would have been killed by knife. When the Tribunal asked the applicant why the Taliban stabbed him in the arm he said it was because he was escaping, he was running and they got him on the arm. However, in his statutory declaration of 11 December 2012 he stated that ‘Two of the Taliban members held me so I could not escape and the third Taliban member used his knife to stab my left arm’. He also stated that the militia escorted him to the edge of the forest and he made his way home and was then taken to his village doctor for treatment. The applicant’s representative reiterated this account in his submission of 13 May 2016, stating that ‘Two of the Taliban members held him down while the third individual stabbed the Applicant’s left arm. About five minutes later, four local tribal militia arrived after hearing the Applicant’s screams and scared the Taliban away.’ The Tribunal, noting the findings of the delegate regarding this issue in his decision record, provided to the Tribunal by the applicant, also queried the applicant about why he had not raised this issue at his initial entry interview. The applicant and his representative have commented that the applicant was suffering seasickness at the time, the interview was relatively brief and focused on his family members and why he left Pakistan more generally, and that the applicant said he left Pakistan because of the Taliban. However, the Tribunal notes from the delegate’s decision record that this interview was held over a month after the applicant’s arrival in Australia, and that he was asked on several occasions to articulate why he had left Pakistan and whether there were any additional reasons for his departure beyond his initial response. While the Tribunal accepts that the applicant may have had some health issues at this time it does not accept that he was suffering seasickness so long after his arrival. The Tribunal finds that the applicant would not have been asked specifically about this or other incidents because the interviewer had no knowledge of them, but considers it reasonable to conclude that, given the significance of this matter to the applicant’s claims to fear the Taliban (noting he indicated to the Tribunal that he considered the Taliban members intended to kill him) the Tribunal considers he would have touched on it even if he felt he did not need to provide all the details at that initial interview. Accordingly, the Tribunal … [gives] some weight to the fact that the applicant did not mention this incident at his initial entry interview. The Tribunal also gives weight to the clear discrepancies between the applicant’s account at interview and in his written statement regarding why he was stabbed in the arm and where he received medical treatment. While the Tribunal considers it plausible that the applicant may have gone to the forest to collect wood and plausible that he saw Taliban members while doing so and fled, the Tribunal considers that the applicant has exaggerated this incident and does not accept that the applicant was apprehended, beaten, held and/or stabbed by Taliban members sometime in 2008.

(Emphasis added.)

30    The applicant argued in the Circuit Court that the illogicality or irrationality engaged in by the Tribunal was existent in the last sentence of this paragraph (as emphasised above). The applicant moreover contended that the Tribunal relied on, but did not identify, the “clear discrepancies” between the accounts given by the applicant in his written material and in the Tribunal hearing.

31    I agree with the Circuit Court that “it is clear that the discrepancies included whether the applicant was stabbed while being held down or stabbed while escaping, and whether the militia took the applicant to their hospital or left him at the edge of the forest to make his own way to the doctor”: FCCA Reasons at [27]. I also agree with the following analysis by the Circuit Court in response to the applicant’s submission that these discrepancies were minor:

30.     … the applicant relied on Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 76, where Burchett J said at paragraph 5:

Although, in this case I have concluded that the central question of the credibility of the applicant’s story, including the importance of his demeanour, must have ultimately dictated the decision, and that no error of law actually affected it, I think in the circumstances the applicant was well entitled to seek the only form of review open to him. The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service. However, in this case, for the reasons I have already given, the application must be dismissed; but I make no order as to costs.

31.     In the present case, I do not accept that the discrepancies were minor. The two accounts are significantly different in relation to matters that the applicant could have been expected to be very clear about, namely, whether he was held down and stabbed or stabbed while running away, and whether he was escorted by the militia to hospital or left by them at the edge of the forest.

32.     The applicant accepted that his claims about his medical treatment were inconsistent, but argued that his two accounts about the stabbing could have been consistent. The applicant said that two Taliban members could have grabbed him while he was running away and the third might have stabbed him. However, it seems to me that the Tribunal’s interpretation of the applicant’s accounts was open to it and were a reasonable and natural understanding of the applicant’s evidence.

32    The applicant further argued in the Circuit Court that the interviewer at his entry interview made it difficult for him to specifically mention the incident in the forest. But it is clear from the record of the entry interview, as extracted at [35]-[48] of the FCCA Reasons, that the applicant had sufficient opportunity to mention the incident.

33    The Circuit Court’s conclusion in respect of ground (1)(b), with which I agree, was as follows:

49.    It seems to me that the applicant had many opportunities in his entry interview to say what he wished about his experiences with the Taliban. He did not mention the ambush in the forest. It was open to the Tribunal to place weight on the fact that the applicant did not mention the ambush in the forest in his initial entry interview.

50.     I am not persuaded that the Tribunal’s process of reasoning in paragraph 53 of its reasons for decision was illogical or irrational. I am not persuaded that the Tribunal was not entitled to place weight on the fact that the applicant did not mention in his entry interview the ambush in the forest. This ground is not made out.

34    Accordingly, my view is that the Circuit Court did not err in dismissing ground (1)(b) raised by the applicant in that court.

Conclusion

35    My view is that the proposed ground of appeal raised by the applicant in this Court has insufficient merit. As such, although the applicant’s delay in commencing an appeal was minor, and did not prejudice the Minister, my view is that an extension of time ought not be granted in the circumstances of this case.

36    The application for an extension of time to file a notice of appeal will be dismissed. The applicant will pay the first respondent’s costs of and incidental to the application.

Associate:

Dated:        10 December 2019