FEDERAL COURT OF AUSTRALIA

FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the Applicant may commence the appeal to this Court be extended to 16 September 2020.

2.    The draft notice of appeal be treated as the notice of appeal and the appeal be heard instanter.

3.    The Applicant have leave to advance on the appeal the grounds not advanced in the Federal Circuit Court (FCC);

4.    The appeal be allowed.

5.    The orders of the FCC of 25 July 2019 be set aside.

6.    A writ of certiorari be issued quashing the affirmation of the Immigration Assessment Authority of the decision of the Minister’s delegate to refuse the Applicant’s Safe Haven Enterprise Visa XE-790.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on an application for an extension of time in which to appeal against a judgment of the Federal Circuit Court (the FCC) delivered on 25 July 2019: FOA18 v Minister for Home Affairs [2019] FCCA 2204. The hearing proceeded on the basis that if the extension was granted, the Court would also give judgment on the appeal.

2    The applicant is a 36 year old national of Pakistan who arrived in Australia as an unauthorised maritime arrival on 4 May 2013. On 7 April 2017, he applied for a Safe Haven Enterprise Visa (Subclass 790) (SHEV). The grant of the visa was refused by a delegate of the Minister on 12 June 2018 and that decision was affirmed by the Immigration Assessment Authority (the IAA) on 10 October 2018.

3    The applicant’s application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) was unsuccessful.

4    The applicant did not lodge the present application until Sunday, 15 September 2019. It was accordingly taken as filed on Monday, 16 September 2019, some 25 days after the expiry of the 28 day period fixed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR) for the commencement of an appeal.

5    The Court has a discretion to extend the time fixed by r 36.03. The matters bearing on the exercise of the discretion to extend time include the length of the extension sought, the explanation for the appeal not having been commenced in time, the prejudice to the Minister if the extension is allowed, the prejudice to the applicant if the extension is refused, and the interests of justice more generally, including the purpose served by the limitation period.

6    In this case, the applicant requires an extension of time of 25 days. This cannot be regarded as an insignificant period as it is only a few days less than the 28 day period in which the appeal should have been commenced.

7    The only explanation for the appeal not having been commenced in time is provided in an affidavit of the applicant’s solicitor. The applicant was unrepresented in the FCC. The solicitor deposes only that her firm was first approached by the applicant for assistance in relation to an appeal on 20 August 2019; that on 2 September 2019, the applicant had placed the firm “in funds” in relation to the appeal; and that the application for the extension of time was prepared on 13 September.

8    This explanation cannot be regarded as adequate. The applicant does not provide the Court with information as to the steps (if any) taken between 25 July 2019 when the judgment was delivered and 20 August 2019 when he approached the solicitors. On 20 August 2019, the applicant was still within time to bring the appeal. No explanation has been provided for the appeal not having been commenced within the remaining available time but there is an implication that it may have been because solicitors were waiting until they had been placed “in funds”. The Court is not provided with information as to whether the applicant knew of the 28 day period before he approached the solicitors or whether he was informed of the 28 day period when he approached the solicitors. The Court has not been provided with any explanation for the further delay which occurred between 2 September and 15 September 2019 when the application for the extension of time was lodged.

9    It is well established that those seeking a favourable exercise of a discretion to extend time should provide a full explanation for the step in question not having been taken in time. The inadequacy of the explanation may by itself lead to an extension being refused: MZZNU v Minister for Immigration and Border Protection [2017] FCA 496 at [3].

10    It can of course be accepted that many persons in the applicant’s position would be unfamiliar with the processes of the law and unfamiliar with time limitation periods. It is appropriate for the Court to take account of this in many cases. In this case, however, the applicant is described as well educated, having qualified to study for a tertiary degree in Pakistan and he is fluent in English. He was not in detention at any relevant time. It is particularly pertinent that, even though the applicant did approach lawyers within the limitation period, the 28 day period for the commencement of the appeal was allowed to expire and, as indicated, no explanation for that circumstance has been provided.

11    Having regard to all these matters, I do not consider that the Court has been provided with an adequate explanation for the extension of time.

12    The Minister does not claim to have been prejudiced by the applicant’s delay in filing the application.

13    As in many cases, a principal matter bearing upon the grant of an extension of time is the extent of any prejudice to the applicant if the extension is refused. This requires assessment of the merit of the applicant’s proposed grounds of appeal. That being so, the parties were asked to make submissions concerning the merits of the grounds as though on the hearing of a substantive appeal.

The applicant’s claims

14    The applicant’s claims, as summarised by the IAA, were as follows:

•    He is a Shia Muslim of Pashtun ethnicity from Turi tribe and a citizen of Pakistan.

•    In April 2006 he was kidnapped by men believed to be members of the Taliban whilst travelling between Peshawar and [redacted]. He was made to pray in front of his kidnappers to determine whether he was Shia. However he pretended to be Sunni. A ransom was paid and he was released after 29 days with an agreement that he would not tell the police about the incident.

•    After the kidnapping he was traumatised and remained at home until mid-2008 when he moved to the United Arab Emirates (UAE) to work in various roles.

•    During this time his family was involved in the construction of a Shia mosque in Peshawar and between 2007 and 2010 his family received numerous letters warning against the building of the mosque and threatened to bomb it and the family houses.

•    Between April 2011 and November 2012 he returned to [redacted] in Pakistan to get married. While he was in Pakistan he was in the vicinity of an explosion in the market in [redacted] which killed a number of Shias.

•    He returned to UAE briefly but after two months came back to Pakistan and was unemployed from the end of 2012 until April 2013 when he left Pakistan to travel to Australia.

•    In 2013, while he was in detention in Australia, he learnt that the mosque his family were involved in building had been bombed by the Taliban, killing 13 people.

•    In August 2016 his younger brother was killed in a car crash which he suspects was actually a homicide in retaliation for him having prayed in a Sunni mosque.

•    His family continue to move between [redacted] and Peshawar, depending on the security situation.

•    He fears that if he is returned to Pakistan he will be persecuted and killed at the hands of Sunni Muslims and the Taliban because he is Shia and his family had been involved in the construction of a Shia mosque in Peshawar. He also fears he may be kidnapped again because he has demonstrated an ability to pay a ransom.

•    He fears he will arrested and imprisoned by the Pakistani authorities because he has no passport or money and because he sought asylum in Australia.

The proposed grounds of appeal

15    The draft Notice of Appeal accompanying the application for the extension of time contained a single ground. This was a complaint that the IAA had not had regard to an integer of the applicant’s claims with respect to the reasonableness of possible internal relocation within Pakistan, namely, the risk of arrest and detention without charge.

16    The applicant no longer pursues that ground. His amended draft Notice of Appeal contains two grounds:

1.    The Federal Circuit Court erred in failing to find that the IAA had failed to consider a claim made by the applicant.

Particulars

(a)    The IAA failed to consider the claim that the applicant had abandoned his faith and was thus an apostate.

(b)    Further and alternatively, the IAA failed to consider a claim arising from the material before the IAA regarding blasphemy in light of the applicant’s claim to have abandoned his faith.

(c)    Further and alternatively, the IAA’s consideration of the reasonableness of relocation failed to have regard to the applicant’s claim to have abandoned his faith.

2.    The Federal Circuit Court erred in failing to find that the IAA had unreasonably failed to exercise or consider exercising its discretion under s 473DC(3) of the Migration Act to get new information from the applicant by inviting him to an interview.

Particulars

(a)    The delegate’s acceptance of the applicant’s evidence regarding his kidnapping, despite some elements being “far-fetched”, was based on the truthful appearance and demeanour of the applicant in the interview with the delegate.

(b)    The IAA’s failure to invite the applicant to an interview to observe the demeanour of the delegate before rejecting his evidence regarding his kidnapping was unreasonable.

17    Counsel for the applicant acknowledged that neither matter in the proposed grounds had been argued in the FCC. In that circumstance, the applicant also needs permission to argue the new issues on the appeal. Permission of that kind is more likely to be granted when the new matter sought to be advanced on appeal is a matter of construction, a point of law, or a matter on which further evidence could not have been advanced at first instance: Water Board v Moustakas (1988) 180 CLR 491 at 497; O’Brien v Komesaroff (1982) 150 CLR 310 at 319. Subject to one possible qualification to be mentioned later, the proposed grounds of appeal seem to be of this character. Accordingly, I proceed on the basis that, if the grounds have merit, and an extension of time is otherwise appropriate, it would be appropriate to permit the applicant to advance them on the appeal: see CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [35]-[38].

Ground 1 – apostasy

18    As is apparent, the applicant wishes to contend in Ground 1 that the IAA failed to consider three related claims: his claim that he had abandoned his Shia faith and was thus an apostate; a claim regarding blasphemy in light of his claim to have abandoned his faith; and the significance of his claimed abandonment of his faith and his ability, reasonably, to relocate to other places in Pakistan.

19    In the statutory declaration made by the applicant on 7 February 2017 in support of his application for a SHEV, the applicant said:

[6]    I am Pakistani. I am a member of the Turi tribe. I am a Shia Muslim. While I was in Pakistan I was a practising Muslim. I attended mosque every Friday. I abandoned the faith after in (sic) April 2008. I lost my faith due to the harm that I suffered as a practising Muslim and a kidnapping of which I was a victim in 2006.

20    Counsel for the applicant submitted that the applicant’s claim to have “abandoned the faith” constituted apostasy. This obliged the IAA, counsel submitted, to consider the applicant’s claim to have abandoned his faith and to consider whether he faced a real chance of serious harm or a real risk of significant harm as a result. Counsel referred to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 in which Gummow and Callinan JJ, said, at [24] that “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord [the applicant] natural justice …”. See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, (2001) 233 FCR 136 at [42]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at [46]-[49], and the review of the authorities by Perry J in DWR16 v Minister for Immigration and Border Protection [2019] FCA 2021 at [79]-[82].

21    Counsel also referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 in which Black CJ, French and Selway JJ held, at [58], that the Refugee Review Tribunal was required to deal with the case raised by the material or evidence before it and was not limited to the “case” articulated by the applicant on the basis of that material. The Court went on to say, at [58], that:

[T]he unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

22    Finally, counsel submitted that the IAA’s failure to have regard to the applicant’s claim to have abandoned his faith affected its consideration of the risk he would face if he relocated to another area of Pakistan and the reasonableness of such relocation. Counsel noted that the IAA had considered these matters only on the basis that the applicant was a Turi Shia:

I do not consider that the applicant, as a Turi Shia in Islamabad, will face harassment on the basis of his Pashtun ethnicity as, due to his religion, he would not be suspected of being with the Taliban.

(Emphasis added)

23    The IAA had to consider, counsel submitted, whether the assessment of risk will be different in the case of person who had abandoned the Shia Islam faith.

24    It can be accepted that the applicant’s abandonment of his Shia Muslim faith amounts to apostasy: W161/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 285 at [31]-[32]. However, the difficulty for the applicant is that, read in context, his statement that he had abandoned his faith was not part of his claims for protection but simply part of the statement of his personal circumstances. This is made very evident by the fact that his statement concerning the abandonment of his faith appears in his statutory declaration under the heading “Background and history” and does not appear at all in the following six pages in which he sets out his claim for protection and the basis for that claim.

25    Moreover, far from relying on his abandonment of his faith, the applicant relied expressly on his being Shia. He gave his religion as Shia Muslim in his entry interview and in the application for the SHEV which he lodged on 6 April 2017. In the same paragraph in his statutory declaration in which he deposed to his abandonment of the faith, the applicant still described himself as “a Shia Muslim”. Counsel for the applicant sought to minimise the significance of these statements by submitting that they indicated only an acknowledgement by the applicant that he is “culturally” a Shia Muslim, and by pointing to passages in which the applicant had relied on his family’s active practice as Shias in contrast to his own. Whether or not this be correct depends on some nuances in the use of the term Shia which were not the subject of evidence. What does seem reasonably clear, on a fair reading of the material is that, the applicant was invoking his status as a Shia Muslim, and not a Sunni Muslim, as the basis for his apprehensions.

26    The applicant did not make any claim that he had announced in Pakistan his abandonment of his faith, or that it had become known by other means or that he feared harm on account of that abandonment. Nor he did draw the Tribunal’s attention to any material indicating that those who have abandoned their fail are at risk of harm on that account.

27    As indicated, although the applicant’s statutory declaration set out in some detail why he felt that he had been forced to leave Pakistan, the harm he claimed to have experienced in Pakistan and the harm he fears if he returns to Pakistan, he did not make any reference at all to his abandonment of his faith in that regard. Nor did the written submission which his former solicitor provided to the IAA. Instead, the applicant relied for his fear of harm on his status as Shia. By way of example, his statutory declaration stated:

[35]    … I think that they will attack or kill me because I am Shia and my family has been involved in the construction of a Shia mosque in Peshawar and are still involved [in] the Shia community throughout Pakistan.

[36]    I also fear that I might be kidnapped again and killed if the kidnappers discover that I am Shia and that I have returned to Pakistan.

…

[38]    … I fear that [the apprehended sources of harm] will inflict this harm on me because I am Shia …

[39]    I think the Sunni Muslins will harm me because they are targeting Shia throughout Pakistan. I think that I am [a] particular target as my family and I have been involved heavily with the Shia community.

…

[44]    The Sunni and the Taliban regularly target Shia Muslims in Pakistan and the authorities are unable to offer protection. I fear that I will be at a greater risk than an average member of the Shia community as my family have been heavily involved in the Shia community.

(Emphasis added)

28    Further, the submission of the former solicitor relied expressly on the delegate’s acceptance that the applicant faced a real chance of persecution in a particular part of Pakistan on account of his “combined race and religion”.

29    The applicant’s counsel referred to the report from the Department of Foreign Affairs and Trade providing country information about Pakistan which was before the IAA. That report indicates that those who are guilty of, or even suspected of, blasphemy, face real risks of serious harm. However, the report does not support counsel’s submission that abandonment of Islam is often seen as blasphemous. The relevant paragraphs states only:

Religious conversion from Islam, while not illegal, is often seen as blasphemous and can result in either prosecution under blasphemy laws or familial or communal violence (or both).

30    There was no other material before the IAA indicating that an abandonment of the Shia faith is regarded in Pakistan as a form of blasphemy.

31    In these circumstances, I do not consider that a claim based on the applicant’s abandonment of his faith had been squarely raised by the applicant so as to require that it be addressed. It was plainly not a “substantial, clearly articulated argument” of the kind discussed in Dranichnikovi. The IAA did not commit jurisdictional error by not addressing it.

32    In these circumstances, I do not consider Ground 1 in the draft Notice of Appeal to be reasonably arguable.

Ground 2 – no interview by the IAA member

33    This proposed Ground has its origins in the different assessments made by the Minister’s delegate and the IAA member concerning the truthfulness of the applicant’s account of having been kidnapped in 2006.

34    The delegate’s assessment was as follows:

Whilst I find elements of the applicant’s kidnap far-fetched, he was consistent in this claim of kidnap since his Entry interview and I found overall his account [of] the kidnap and surrounding circumstances was sufficiently detailed and his responses to questions appeared spontaneous and as if being recalled from memory. Country information supports the plausibility that the applicant was kidnapped and held for ransom by criminals associated with the Taliban or other Sunni militant groups in [redacted] in 2006, given the relatively high numbers of reported kidnaps and significant presence of Sunni Pashtun militant elements in the region and I accept his account of [his] experiences as stated. However, based on the information provided by the applicant, whilst I am prepared to accept as plausible [that] the kidnap was orchestrated by the man named “Rafiq” who posed as his client in Islamabad and who may have suspected the applicant was Shia, the motivation for the kidnap appears primarily to have been a financial one. I consider the facts (sic) the applicant was able to convince his captors that he was Sunni and that they released him unharmed after his family paid a ransom is evidence [that] they did not have information about his religion (or that of his family) prior to the kidnap and that rather he was targeted primarily as a person of financial means, being a marketing executive and stockbroker and I accept this as fact. I do not accept the applicant was kidnapped by Sunni militants for the primary reason of his Shia religion.

(Emphasis added and footnotes omitted)

35    The IAA member accepted as plausible that a criminal network associated with the Taliban and other Sunni militant groups had been active in Islamabad and Khyber Pakhtunkhwa in 2006 and that kidnappings for ransom did occur. However, unlike the delegate, the IAA considered the applicant’s claims about being kidnapped were not credible, noting:

    the applicant did not fit the profile of a person likely to be targeted for kidnapping for ransom or because of his Shia religion;

    the applicant’s account of the way in, and the place at, which he was kidnapped involved implausibilities; and

    the applicant’s claim that he was so traumatised that he had to stay at home for over a year after the kidnapping was not consistent with his activities during that year, including courting his wife and his undertaking of a course of study in Peshawar.

36    Accordingly, the IAA member concluded:

I do not accept that the applicant was targeted in Islamabad or kidnapped and held for ransom in [redacted] on suspicion of being a Shia Muslim or at all.

37    This finding led to the rejection by the IAA of several of the applicant’s claims, namely, his claim that his family had received a letter from the Taliban threatening to kidnap him again, his claim that he knew it was the Taliban who had kidnapped him, his claim that the Taliban knew he was Shia, his claim that it would, accordingly, be unsafe for him to return to Pakistan and his claim to fear returning to Islamabad. The IAA member also made use of this finding in relation to the applicant’s claim for complementary protection, saying:

I do not accept that the applicant was ever kidnapped or that he is at any risk of harm on this basis. Consequently I reject his submissions that he cannot relocate to Islamabad because he is apprehensive about his safety and that this might compromise his ability to secure work and establish other connections.

38    Counsel’s submission concerning Ground 2 was based on the circumstance that, despite the delegate regarding some elements of the applicant’s account of the kidnapping as “far-fetched”, the delegate had accepted it. The emphasised passage in the delegate’s reasons set out above indicates that a significant reason for the delegate’s assessment was the applicant’s demeanour in the interview. That being so, counsel submitted, the IAA’s rejection of the same evidence without having invited the applicant to an interview so as to make its own observations of his demeanour was legally unreasonable. The submission in short was that, as the delegate’s reservations (which given the delegate’s use of the term “far-fetched” had been significant) had been overcome by the applicant’s demeanour, it was legally unreasonable of the IAA member to reject the account on grounds which included implausibility without also making observations of the applicant’s apparent sincerity in giving the account. Put slightly differently, it had been legally unreasonable of the IAA to reach a different decision on a critical matter without having the same material (the observations of demeanour) as did the delegate.

39    The IAA conducted its review as a Fast Track Review under Pt 7AA of the Act. Part 7AA allowed the IAA member to interview the applicant but did not require the members to do so. Section 473DC provides:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

 (a)    in writing; or

 (b)    at an interview, whether conducted in person, by telephone or in any other way.

40    It seemed to be common ground that the hearing personally by the IAA member of the applicant’s account is within the description of the “new information” for the purposes of s 473DC.

41    It is established that the various powers conferred on the IAA by Div 3 of Pt 7AA of the Act (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 264 CLR 217 at [21], [86], [97]; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, (2017) 253 FCR 475 at [82].

42    Both parties referred to DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 366 ALR 665 in which it was held that the failure of the IAA to consider whether or not to exercise the power under s 473DC(3) to interview the applicant when assessing his claims of sexual assault and when considering the significance of “inconsistencies” in the account was legally unreasonable. That was in the context that the Minister’s delegate had said that she was satisfied, having regard to the applicant’s demeanour, that the sexual assaults had occurred, despite some identified inconsistencies in the applicant’s account.

43    It is not necessary presently to refer in detail to the authorities concerning legal unreasonableness. In addition to Li, reference may also be made to CRY16; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, (2018) 264 CLR 541. The confined scope and context-specific operation of the limitation imposed by the requirement that a decision be legally reasonable is to be noted: SZVFW at [52].

44    The review of the authorities and summary of the relevant principles by Griffiths and Steward JJ in DPI17 at [35]-[38] with respect to the IAA’s power derived from s 473DC also makes it unnecessary to engage in the same exercise presently. I gratefully adopt that review. I note the following matters:

(a)    the power of the IAA is to get any documents or information (new information) that were not before the Minister when the Minister made the decision under s 65 and which the IAA considers may be relevant, s 473DC(1);

(b)    the IAA does not have a duty to get, request or accept any new information, but there is nothing in Pt 7AA of the Act to preclude it from doing so, s 473DC(2);

(c)    the assessment of legal unreasonableness is fact dependent and requires evaluation of the evidence, at [37];

(d)    there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC, at [37]; and

(e)    a mere failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone jurisdictional error, at [37].

45    In DPI17, the Minister had not contested the proposition that the IAA had failed to consider the exercise of the power under s 473DC in relation to the issue of whether or not sexual assaults claimed by the applicant had in fact occurred and in relation to inconsistencies identified by the IAA member in the applicant’s account, at [44]. No such concession was made in this case.

46    Proof that the IAA member did not consider exercising the power in s 473DC(3) is essential for a claim that the omission to do so was unreasonable: ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [46]-[49]. Counsel for the applicant contended that the failure by the IAA member to make any reference to s 473DC(3), let alone to make any mention of having considered the exercise of the power, was sufficient to indicate that it had not been considered. There may be cases in which the mere absence of reference by an IAA member to consideration of s 473DC(3) will be sufficient to support an inference that the power was not considered. Whether that be so does not need to be considered as, in my view, an implication arises from the IAA’s reasons in the present case that it was not considered. With respect to the information before the IAA, the member said:

[3]    I have had regard to the material given by the Secretary under s.473CB of [the Act].

[4]    On 4 July 2018 the applicant’s representative provided a submission without argument in support of the applicant’s claims that he was kidnapped by the Taliban primarily as a result of his Shia religion. The submission also contains argument (sic) about the delegate’s finding that he could safely relocate to Islamabad or Rawalpindi. I have had regard to these arguments in this decision. I do not consider that the submission contains any new information.

47    These paragraphs suggest that the IAA member was taking some care to indicate the material which had been considered and the propriety of doing so. Given this evident care, had the IAA member adverted to the question of whether to invite the applicant to give oral evidence on the issue concerning his kidnapping, it is natural to expect that it would have been mentioned in this context. That being so, an inference fairly arises from its absence that it was not considered: cf ASB17 at [46]-[49].

48    I raised with the parties whether this was an issue on which the Minister could fairly contend that, had the matter been raised in the FCC, further evidence could have been led. Counsel for the Minister did not raise that as an objection.

49    Accordingly, I consider that Ground 2 may be considered on the basis that it alleges both a failure by the IAA to consider exercising, or a failure to exercise, the discretion under s 473DC(3) to request the applicant to give evidence before it so that an assessment could be made of the applicant’s sincerity or otherwise in giving the account.

50    The delegate did not identify the particular elements of the applicant’s account of his kidnapping which were regarded as “far-fetched”. The delegate’s use of the term “far-fetched” suggests that the delegate considered that some aspects of the applicant’s claims concerning the kidnapping were improbable, perhaps highly improbable. Despite that assessment, the delegate accepted the applicant’s account, for four reasons:

(i)    the applicant had been consistent in his claim of kidnap since his Entry Interview;

(ii)    his account of the kidnap and surrounding circumstances was detailed;

(iii)    his responses to questions had appeared spontaneous and as if being recalled from memory; and

(iv)    country information supported the plausibility of kidnaps of the kind claimed by the applicant as having occurred.

51    The IAA member accepted the second and fourth of these matters and, although identifying some inconsistencies in the applicant’s account, does not seem to have regarded them as significant. This means that the critical matter on which the IAA member reached a different view about the kidnapping was the credibility of the applicant’s account. In finding that the applicant’s claims about being kidnapped were not credible, the IAA member assessed the circumstances described by the applicant as “illogical”. There were three aspects to the IAA’s assessment of illogicality.

52    First, the applicant did not appear to fit the profile of a person likely to be targeted for kidnapping for ransom or because of his Shia religion due to the following factors:

    he was a relatively junior person in his claimed employment;

    he was no longer being supported by his father;

    he was working in his first job; and

    he was not a wealthy businessman.

53    Secondly, the circumstances in which the kidnapping was said to have occurred seemed curious. The IAA considered that, if a criminal network had thought that the applicant’s family could pay a ransom, it would have made more sense for it to have enticed him to a meeting house or office in Islamabad, Peshawar or [redacted] and to have detained him there while they sought the ransom. Instead the alleged kidnappers had engaged in seemingly complex conduct and relied on a plan the success of which depended on multiple variables, namely, having Rafiq befriend the applicant over a period of several months; Rafiq then persuading the applicant to travel with him from Islamabad to [redacted]; travelling in Rafiq’s car but with the applicant, at Rafiq’s request, driving the car; the car stopping at [redacted] at Rafiq’s request so that Rafiq could make a phone call (with the implication that this was a pretext); a man with a naked crying baby asking to be driven to a clinic so that medical attention could be obtained for the baby (again with the implication that this was a pretext); and the clinic being in a relatively isolated location in a mountainous area, and the kidnappers waiting in that area. It is unsurprising that the IAA member considered that there must have been simpler alternatives available to the group had it been intent on kidnap.

54    Finally, the IAA member considered that the applicant’s claim that, after being rescued from the kidnap, he had been so traumatised that he had barely left his house for over a year was not consistent with his claim that, during the same period, he had met and courted his wife and had undertaken a course of study in Peshawar in 2007.

55    The IAA member concluded:

Overall, the applicant’s profile, the illogical nature of the claimed kidnapping and his misleading account of his actions in the year after the claimed kidnapping, lead me to consider that the claimed kidnapping did not occur at all. I do not accept that the applicant was targeted in Islamabad or kidnapped and held for ransom in [redacted] on suspicion of being a Shia Muslim or at all.

56    The IAA member had the same written material as did the delegate and was able to (and it may be inferred, did) listen to the audio tape of the delegate’s interview with the applicant. It was not suggested that a videotape was also available. This was not a case of a decision-maker being confined only to the written record. Listening to the audio tape must have allowed the IAA member to make some assessment of the apparent spontaneity of the applicant’s responses and of the manner in which they were given. Despite that, it is unlikely that the member’s ability to do so was as complete as that of the delegate who both saw and heard the responses.

57    It may have been open to the IAA member to regard his or her own de novo assessment of the materials as raising reservations about the credibility of the applicant’s account which were so strong as not capable of being overcome by observing the applicant give his account over again. In circumstances of that kind, it could not be said to have been unreasonable, let alone legally unreasonable, for an IAA member to take the view that it was not necessary to see the evidence given again. However, that is not this case, or at least there is no indication that it is so. The IAA member has not described such a process of reasoning.

58    It is also pertinent that the IAA member rejected other aspects of the applicant’s claims which were significant, including his claims that the Taliban had sent threatening letters to his family, that his family had a profile as Shias known outside their home community, that (with the possible exception of his brother for a short period) the family had been involved in the building of the Shia mosque in their neighbourhood, that the family had been targeted or affected by the mosque bombing in 2013, and that, while the applicant may have been near to the bombing in [redacted] in 2012, he had not been personally targeted or harmed, and that his brother had been murdered in 2016 due to his Shia religion. It is possible that these assessments could also have informed the IAA member’s assessment of the veracity of the applicant’s account of the kidnapping. However, the IAA member has not said that that was so, and the structure of the member’s reasons suggests that he or she addressed the kidnapping claim before considering his other claims. Further, and contrary to the submission of counsel for the Minister, these matters cannot be regarded as providing an evidentiary basis for the rejection of the applicant’s claims which is independent of his own evidence and the credibility of that evidence.

59    Moreover, the delegate had also rejected a number of the applicant’s other claims. In particular, the delegate regarded the applicant’s statements concerning the bombing of his local mosque and the level of his brother’s involvement in its construction as being “inconsistent, unconvincing and not supported by country information” and was not satisfied that the applicant had been wholly truthful about those matters. The delegate did not accept that the applicant’s brother had been murdered in 2016 due to his Shia religion, did not accept that the applicant had been kidnapped because he was Shia and did not accept that the applicant’s family had received a threatening letter from the Taliban. Despite those assessments, the delegate’s observations of the applicant’s demeanour in giving his account of the kidnapping had been sufficient to influence the assessment of that claim.

60    It could also be said that the claimed kidnapping had occurred well in the past (some seven years before the applicant left Pakistan and 12 years before the IAA review). This could be said to diminish its significance. Nevertheless, the kidnapping claim was an important part of the applicant’s claims.

61    Apart from the matters just discussed, a number of matters suggest that the IAA’s failure to consider exercising the s 473DC(3) power was unreasonable. The IAA member disbelieved the applicant on an important element of his claims in circumstances in which the applicant’s manner of responding to questions in the interview, including his demeanour, had been sufficient to persuade the delegate of the credibility of those matters; the IAA member knew that that was so; the IAA member knew that, with the exception of the relatively short submission from the applicant’s then solicitor, he or she had the same material as had the delegate; the IAA member did not know the matters which the delegate described as far-fetched and so did not know whether they were the same as the matters identified by the IAA member as being “illogical”; the IAA member may be taken to have known that demeanour could be the difference between acceptance and rejection of the applicant’s claims; the IAA member knew that he or she did not, to that extent, have the same material as did the delegate; and the IAA member did not have material which was independent of the applicant’s own account which called into question the reliability of that account.

62    It is one thing for the IAA to have acted in a way which is, objectively considered, unreasonable. Legal unreasonableness in the sense explained in Li and in the subsequent authorities involves a more stringent standard. The cases in which it is found tend to be exceptional.

63    In DPI17, Griffiths and Steward JJ held, at [46], that in the circumstance in which the IAA member was aware of the delegate’s reliance on a positive assessment of the applicant’s demeanour in making findings about an important matter, it was legally unreasonable for the member, in the absence of a sufficient independent evidentiary basis, to fail to consider whether to exercise the power under s 473DC(3) to invite the applicant to attend for an interview.

64    There are, as counsel for the Minister submitted, some factual differences between the circumstances of this case, and those considered in DPI17. However, in my view, the same conclusion should be reached in this case, for the same reasons given earlier for the conclusion that the IAA member’s failure to consider exercising the power was unreasonable.

65    Strictly speaking, this conclusion makes it unnecessary to consider whether the IAA’s failure to exercise the power was also unreasonable. However, had it been necessary to do so, I would also have found that it was.

66    I do not mean to imply by this decision that an IAA member may never make a finding which differs from a demeanour-based finding of the Minister’s delegate. The IAA member may, having considered a matter, conclude that an exercise of the s 473DC(3) power is unnecessary or inappropriate, for example, when there is independent evidence justifying the different approach, or when the member considers his or her own analysis and assessment so persuasive that it could not be overcome by demeanour-based findings. However, as indicated, I am satisfied that the IAA member did not engage in any consideration of that kind in the present case.

67    Counsel for the Minister did not raise any issue concerning the materiality of the error in this case. It would have been difficult to do so, given the significance to the IAA’s findings of its rejection of his kidnapping claim to which I referred earlier. Plainly, had the IAA member considered the exercise of the power, it may have decided to exercise it, and that may have led of a different assessment to the applicant’s claims.

Granting an extension of time

68    I return to the question of whether an extension of time should be granted. My conclusion concerning the merit of Ground 2 indicates that, without an extension of time, the applicant will have lost the ability to challenge the IAA decision despite it being affected by jurisdictional error. That is a significant matter. So also is the inadequacy of the applicant’s explanation for being out of time. However, I am satisfied, having regard in particular to the merit of Ground 2, that it is in the interests of justice for an extension of time to be granted.

Conclusion

69    As indicated at the commencement of these reasons, counsel were requested to argue the merits of the application as though on the appeal, so that judgment could be given on the appeal in the event that the extension of time is granted.

70    Accordingly, I make the following orders:

(1)    The time within which the applicant may commence the appeal to this Court be extended to 16 September 2020.

(2)    The draft notice of appeal be treated as the notice of appeal and the appeal be heard instanter.

(3)    The applicant have leave to advance on the appeal the grounds not advanced in the Federal Circuit Court;

(4)    The appeal be allowed.

(5)    The orders of the Federal Circuit Court of 25 July 2019 be set aside.

(6)    A writ of certiorari be issued quashing the affirmation of the Immigration Assessment Authority of the decision of the Minister’s delegate to refuse the applicant’s Safe Haven Enterprise Visa XE-790.

71    I will hear from the parties as to costs.

Associate:

Dated:    11 June 2020