FEDERAL COURT OF AUSTRALIA

CLS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 237

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application for an extension of time be dismissed.

3.    The applicant pay the first respondent’s costs in the sum of $3,000.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant is a citizen of Pakistan who arrived in Australia in 2012 as an unauthorised maritime arrival. On 27 June 2018, the Federal Circuit Court dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the “Authority”) which had affirmed a refusal by a delegate of the first respondent (the “Minister”) to grant a Safe Haven Enterprise (subclass 790) visa. Before the Federal Circuit Court, the applicant was unrepresented. He remained so, although, for a period of time following the handing down of the decision below, he received some legal assistance from a solicitor in Victoria. The applicant sought to appeal the decision of the Federal Circuit Court, but he was 140 days late in filing with this Court the necessary papers. He seeks an extension of time. The hearing of that application was delayed pending the handing down by the High Court of Australia of its decision in BVD17 v. Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 on 9 October 2019.

Proceeding Below

2    The applicant’s claims for protection were accurately summarised in the Minister’s written submissions as follows:

The applicant’s claims were set out in a statutory declaration accompanying his invalid Protection visa application and in a further statutory declaration provided with the SHEV application, and can be summarised as follows:

(a)    From 2004, he began experiencing situations where his life and the lives of his family and friends were in danger;

(b)    In 2009, two people in the shop behind his were targeted and killed;

(c)    In August 2009, he was threatened with death if he did not close his shop and also received a threat letter. He closed his shop the day after the incident and worked in another shop;

(d)    In 2010 or 2011, two motorbike riders drove past him and shot three Shi’a people in front of him;

(e)    He had participated in protests against the Pakistani government; and

(f)    In 2012, he left Pakistan because the situation in Pakistan worsened.

3    The Authority’s decision was also accurately summarised in the Minister’s written submissions as follows:

The Authority had regard to the material referred by the Secretary under s 473CB of the Act: [3]. The Authority accepted the applicant’s factual claims. It accepted that he was of Hazara ethnicity and Shia religion: [5], that there had been violence against Shias in Quetta, Balochistan ([7]) and that the applicant had witnessed incidents of violence targeting Shias ([8]). The Authority further accepted that the applicant had his own shop, received threats in the aftermath of the killing of Sher Ali Haidari that were related to his ethnicity and religion and thereafter closed the shop. The Authority also accepted that the applicant had attended protests and rallies against the violence experienced by the Hazara Shia community: [8].

The Authority was not satisfied that the persons who had threatened the applicant in the past had any ongoing interest, given the lack of further threats and violence directed towards him: [11]. The Authority however accepted that there was a real chance of the applicant suffering harm as a result of sectarian violence in Quetta due to his race and religion ([12]-[14]) and that the authorities were unable to provide protection in Quetta ([15]).

The Authority went on to consider whether the real chance of persecution related to all areas of Pakistan. Having regard to country information, the Authority found that it was not satisfied that there was a real chance the applicant would suffer harm in Islamabad on the basis of his ethnicity or religion ([18]) or occasional involvement in protest activities ([19]). As the real chance of persecution did not relate to all areas of the receiving country s 5J(1)(c) was not met: [21].

Relying on its anterior findings, the Authority was satisfied that there was a real risk that the applicant would suffer significant harm in Quetta: [25]. The Authority however found the applicant would not face a real risk of significant harm in Islamabad and that it was reasonable for him to relocate: [27]-[30].

4    The decision of the primary judge may be found at: CLS16 v Minister for Immigration and Anor [2018] FCCA 2640.

Applicable Test

5    The principles for determining whether to grant an extension of time are well settled. They include a consideration of the extent of the delay, any prejudice the respondent might suffer because of that delay, the explanation for the delay and the merits of the proposed appeal: Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] per McKerracher  J.; SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.; Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J. A court should consider the prospects of success at a reasonably impressionistic level: MZABP v. Minister for Immigration and Border Protection (2015) 242 FCR 585 at 597-599 [62]-[66] per Mortimer J.; Jackamarra v. Krakouer (1998) 195 CLR 516 at 521-522 [7]-[9] per Brennan C.J. and McHugh J.

Application of Test

6    Whilst the delay of 140 days may seem significant, I am, on balance, satisfied that there was an adequate explanation for it. That explanation is found in an affidavit affirmed by a Victorian solicitor (a Ms P. Kerdo of Kerdo Legal) who formerly acted for the applicant; I took the applicant to rely upon that affidavit. I shall say something more about the conduct of that solicitor below. For the moment, she deposed to a “practice” of the learned primary judge of not giving written reasons for his decision unless requested to do so by the parties. The learned primary judge made orders dismissing the applicant’s proceeding on 27 June 2018. It should be made clear that the learned primary judge gave oral reasons for his decision which, I infer from his Honour’s subsequently published judgment, were comprehensive. Days later, on 2 July 2018, the applicant approached the Victorian solicitor to seek advice about a possible appeal. At that stage, all the applicant could give the solicitor was a letter from the solicitors for the Minister which enclosed the order made by the learned primary judge for final disposition. The Victorian solicitor then tried to look for the reasons of the learned primary judge on the internet without success. That is because at that time there were no such written reasons.

7    The solicitor then wrote to the Minister’s solicitors on 12 July 2018 and they responded by suggesting that she should contact the Federal Circuit Court because of the learned primary judge’s “practice” of not publishing written reasons. It may be doubted whether any such “practice” in fact existed. Rather, I infer, consistently with the enormous workload of the Federal Circuit Court, that his Honour gave an ex tempore judgment, which in due course would have been published.

8    On the same day, assuming that the alleged “practice” existed, the Victorian solicitor emailed the learned primary judge’s associate and requested the provision of reasons. The Federal Circuit Court responded on 17 July 2018 and advised the solicitor to file a Notice of Address for Service. This took place on 6 August 2018. The reasons for judgment were then supplied swiftly on 18 September 2018.

9    On 19 October 2018, an attempt was then made by the Victorian solicitor to file an application in this Court for an extension of time within which to file a Notice of Appeal. The solicitor then went on leave for two weeks. Four weeks after the lodging of the papers, the Victorian solicitor discovered that they had been rejected by this Court because she had lodged the application in the wrong District Registry. On 5 December 2018, the necessary papers were then finally filed in the Western Australian District Registry.

10    In my view, the foregoing chronology of events demonstrates, on balance, a sufficiently persistent attempt by the applicant and his solicitor to prosecute this appeal.

11    I am also satisfied that the Minister will not suffer any relevant prejudice if I were to grant an extension of time.

12    However, there are significant problems with the merits of the proposed appeal. The sole proposed ground of appeal was in the following terms:

The Court erred by not finding the decision of the Immigration Assessment Authority was affected by the following jurisdictional errors:

1.    The Immigration Assessment Authority erred by not taking into account relevant information.

Particulars

(a)    The Immigration Assessment Authority found that the Appellant could move to Islamabad and be safe from persecution, but did not take into account the distinctive facial features of the Appellant as an ethnic Hazara that would immediately make him recognizable and vulnerable to harm.

13    For the reasons which follow that proposed ground of appeal is bound to fail. As the Minister pointed out in his written submissions, the issue of recognition of the applicant as an ethnic Hazara was addressed by the primary judge at [46] as follows:

The applicant noted, in particular, his easily identifiable features and the cost of living in Islamabad. Having reviewed the Authority’s decision it is noted that the Authority did assess the risk of harm in Islamabad on the basis of ethnicity (CB 240 at [18]) and the likelihood that the applicant would be able to work and survive financially in Islamabad (CB 242 at [29]). It did so within the context of the country information before it and its conclusions were entirely open to it having assessed that country information.

14    In my view, the Authority expressly considered the likelihood that the applicant would be identified as an ethnic Hazara in Islamabad. This is what it said (at [18]):

As I have found above, I am not satisfied that the persons who previously threatened the applicant have any ongoing interest in him and am therefore not satisfied that there is a real chance that they would seek to locate him outside Quetta, whether in Islamabad or elsewhere. Considering the above information regarding the situation in Islamabad, while I have taken into account that the applicant would be easily identifiable as a Hazara Shia, I am not satisfied that there is a real chance that he would suffer harm in Islamabad on the basis of his ethnicity or religion.

(Emphasis added.)

15    It is therefore clear that the Authority took account of the fact that it was likely that the applicant would be identified as an ethnic Hazara. Having done so, it was a matter for the Authority to give weight to that matter in determining whether the applicant satisfied the applicable requirements of s. 36 of the Migration Act 1958 (Cth.).

16    Before me, the applicant complained that he had been abandoned by his solicitor at the last moment and had been left in a helpless position. In that respect, very shortly before the hearing on 20 February 2020, and without explanation, the Victorian solicitor gave notice that she had ceased to act for the applicant. I interpolate here that earlier, on 20 January 2020, the Victorian solicitor sent an email to the Court under the misapprehension that the application was to be heard on that day. That email stated:

I am very sorry to be notifying the Court at such a late time, but my client is unwell and cannot attend today. In addition, I have only returned from leave today and received a late email from Counsel we had briefed to look at this matter stating that he was unable to assist in this matter.

My client understands that costs for today’s hearing will be borne by him but requests whether this matter can be relisted to allow him to brief alternative Counsel.

As it happened, an adjournment was not necessary. The contents of the foregoing email does, however, raise concerns about the Victorian solicitor’s general conduct in providing legal services to her client.

17    In the absence of legal assistance, the applicant made the following submissions. He said he deserves a chance to live in Australia. He said he had lived in Australia for eight years away from his family; that he was fit and healthy and able to work; that he had committed no crimes in Australia; that he could not pay for another lawyer to represent him, although he did ask for additional time to find a legal representative; that he could not be sent to Islamabad as it was too dangerous for a person of Hazara ethnicity to live in that city; that it was too expensive to live in that city; and that he had done the right thing in retaining the Victorian solicitor whose fees he had paid.

18    I have considerable sympathy for the applicant who appeared before me to be an upright, honest and dignified individual. However, regrettably, none of what he said engaged with the submission of the Minister that the Authority had expressly taken into account the fact that he would be recognised as an ethnic Hazara contrary to the sole proposed ground of appeal.

19    In my view, the applicant has failed to persuade me that his sole proposed ground of appeal has any merit. In such circumstances, and with great respect to the applicant, the application for an extension of time is rejected with costs. I otherwise agree with the Minister’s submission about the desirability, having regard to the nature of the present matter, of making an order for costs fixed in the sum of $3,000.

20    I finally note that Ms Kerdo’s conduct in this matter should be brought to the attention of the Victorian Legal Services Commissioner. In particular, a very last-minute abandonment of her client in the circumstances of this case requires an explanation which should be given to the Commissioner. I will therefore direct a District Registrar of this Court to forward a copy of these reasons to the Commissioner for her consideration.

Associate:

Dated:    28 February 2020