Federal Court of Australia

ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 816

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    Leave be granted to appeal and the appeal be allowed.

3.    The orders made by the Federal Circuit Court on 12 November 2020 be set aside and the matter be remitted to the Federal Circuit Court to thereafter be determined according to law.

4.    The costs of the proceeding to date in the Federal Circuit Court be costs in the proceeding below.

5.    The respondent pay the applicant’s costs of 30 June 2021.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

LEE J:

A    Introduction

1    On 12 November 2020, a judge of the Federal Circuit Court made a number of orders, including that the appellant’s claim for relief by way of a constitutional writ in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 January 2020, to affirm the decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa, be dismissed: ALP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3070 (primary judgment or J).

2    On 10 December 2020, a notice of appeal was filed in this Court.

3    The order of the primary judge to dismiss the proceeding was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), which is in the following terms:

44.12    Show cause hearing

(1)     At a hearing of an application for an order to show cause, the Court may:

(a)     if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application;

…

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

4    Two things should be observed about r 44.12(1)(a). First, the rule provides that in dealing with an application for an order to show cause, the Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. The use of the word “may” necessarily implies a discretion: s 33(2A) of the Acts Interpretation Act 1901 (Cth). Secondly, as made explicit by r 44.12(2), an order made pursuant to r 44.12(1)(a) is an interlocutory order, not a final order. Relevantly, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal does not lie from a judgment of the Federal Circuit Court exercising its original jurisdiction under a law of the Commonwealth that is interlocutory, unless the Court or a judge gives leave to appeal.

5    The Minister filed a notice of objection to competency in respect of the appeal on 19 January 2021 and, sensibly, at the commencement of the hearing today, Mr Murphy, who appeared on behalf of the appellant, conceded that the appeal ought to be dismissed as incompetent: T2.22.

6    It is against this procedural background that I come to the matter that was argued before me; that is, an application for an extension of time and leave to appeal. Given the application is one for leave to appeal, for the remainder of these reasons I will refer to the moving party as the applicant.

B    THE UNUSUAL PROCEDURAL BACKGROUND

7    It is first necessary to say something about the somewhat unusual procedural background to this matter. The applicant commenced the proceeding below in February 2020 when he was self-represented. Perhaps understandably in those circumstances, it is fair to describe the grounds of the application then articulated as deficient. The three grounds advanced were as follows:

1.     The AAT failed to consider and assess all relevant information provided in support of my application

2.     The AAT failed to judge the merit of the case in light of country information report

3.     Hence, there is highly possibility of legal mistake exists in the AAT refusal decision

(Reproduced without alteration).

8    In late February 2020, orders were made by a Registrar of the Federal Circuit Court fixing the application for a show cause hearing under r 44.12 on 12 November 2020, and directing that the applicant file an amended application “giving complete particulars of each ground of review” by 17 April 2020, affidavit evidence by 8 May 2020 and submissions by 12 June 2020. The applicant did not comply with any of these orders and filed no documents.

9    It appears from the primary judge’s reasons (at J [35]–[37]) that oral submissions were made at the hearing below by the applicant’s solicitor, Mr Mwilambwe, in relation to the difficulties the applicant had faced by reason of having lost his employment and not being able to obtain legal representation due to the COVID-19 pandemic. Although there was no evidence that explained why the applicant did not comply with the orders of the Registrar, it is fair to assume from what is set out in the primary judgment that prior to the retention of solicitors, the applicant faced some difficulty in obtaining sufficient funds in order to be represented.

10    In any event, the evidence read on this application establishes that Mr Mwilambwe was engaged as the applicant’s legal representative on 27 October 2021 to assist with the show cause hearing and amending the originating application.

11    The material before the primary judge indicates that on 27 October 2020, Mr Mwilambwe telephoned an employed solicitor of the Minister indicating his involvement in the matter, and that an amended application would be prepared shortly. There was some further communications between the two solicitors, including a further telephone call the next day. Nothing appears to have happened then until 10 November 2020, when the solicitor for the Minister contacted Mr Mwilambwe and asked whether, presumably in the light of the former communications, Mr Mwilambwe intended to become the solicitor on the record, whether he intended to file an amended application and, if so, when it might be expected. As noted above, it appears that Mr Mwilambwe had been instructed to not only assist with the show cause hearing but also amend the application a fortnight earlier.

12    In any event, when the show cause hearing was listed at 11.30am on 12 November 2020, the solicitor had instructions on behalf of the applicant to make two oral applications: (1) an application for leave to amend; and (2) an application for an adjournment: see J [35]. Both of these applications were refused, leading to the dismissal of the proceeding below.

C    THE PROCEEDING IN THIS COURT

13    The applications for an extension of time and leave to appeal seek to agitate an argument that the primary judge erred in failing to grant the applicant leave to amend his application in circumstances where there was an arguable case for relief.

14    There is no need to rehearse well-known authorities in this judgment. Despite the delay in filing the applications, I am satisfied that, in circumstances where there is no particular prejudice pointed to by the Minister, I should extend time in order to allow the application for leave to appeal to be brought. When it comes to the determination of whether leave should be granted, I am further satisfied that in the event I consider the primary judge fell into error in reaching a conclusion that the amended application did not raise an arguable ground of appeal, then I ought to grant leave.

15    It is convenient therefore to proceed directly to the principled approach to determining whether the primary judge fell into error and consider whether the material before the primary judge disclosed an arguable ground of appeal.

C.1    The Principled Approach

16    On 9 June 2021, an affidavit affirmed by Mr Mwilambwe deposed to the fact that at this hearing the applicant would seek leave to rely upon an amended notice of appeal. The Minister opposes the grant of leave. In circumstances where the original draft notice of appeal sufficiently raises the issue as to whether the primary judge fell into error, I do not consider that I should grant leave for the amended notice of appeal to be relied upon. This is because the amended notice of appeal could serve to distract the Court from the true nature of the inquiry; namely, whether the material before the primary judge was such as to give rise to an arguable ground of review.

17    The materials before the primary judge included the proposed amended application which was apparently before his Honour (although for reasons which are not explained in the evidence, was still prepared as if it was being made on behalf of the applicant as being self-represented). Any submissions that were advanced were in support of that amended application and its arguability. In this regard I am at somewhat of a disadvantage because there is no transcript available to shed light on what occurred before the primary judge, and no party sought an adjournment to obtain such a transcript.

18    The proposed amended application before the primary judge was in the following form:

1.    The decision was affected by narrow ultra vires (subject matter) by reason of the Second Respondent (‘the Tribunal’)’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether there is a real chance of persecution relates to all areas of a receiving country. Pursuant to s 5J(1)(c) of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal failed to take into account all relevant information available in making a finding of jurisdictional fact that there is not a real chance of persecution relating to all areas of Pakistan.

2.    The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether the persecution will amount to ‘serious harm’. Pursuant to ss 5J(1)(a), 4(b) and 5 of the Act, the Tribunal failed to take into account all relevant information available in making a finding of jurisdictional fact that the persecution will not amount to ‘serious harm’.

3.    The decision was affected by broad ultra vires (irrelevant considerations) by reason of the Tribunal taking into account considerations of the proximity of risk of serious harm. Pursuant to ss 5J(1)(a), 4(b) and 5 of the Act, the Tribunal took into account irrelevant consideration of the proximity of risk of serious harm. The text of s 5J of the Act does not in itself prescribe the proximity of the serious harm as a mandatory consideration.

4.    The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether there will be ‘significant harm’. Pursuant to s 36(2A) of the Act, in the same veil as ground 1 and 2 above, the Tribunal failed to take into account all relevant material available in making a finding of jurisdictional fact that there is no ‘significant harm’.

5.    The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether it would be reasonable for the Applicant to relocate to an area of Pakistan where there will not be a real risk where the Applicant will suffer ‘significant harm’. Pursuant to s 36(2B)(a) of the Act, in the same veil as ground 1, 2 and 4 above, the Tribunal failed to take into account all relevant material available in making a finding of jurisdictional fact that it would be reasonable or practical for the Applicant to relocate to another area of Pakistan.

6.    The decision of the Tribunal is otherwise legally unreasonable.

(Reproduced without alteration).

19    Although Mr Murphy did not abandon the other grounds, it is fair to say that the argument before me proceeded on the basis that proposed grounds 1 and 5 were considered to be the high water marks of arguability in the amended application.

20    In respect of proposed ground 1, the primary judge observed the following (at J [40]):

Proposed ground 1 reflects a disagreement with the adverse finding as to there not being a real chance of persecution relating to all areas of Pakistan. The unparticularised assertion of a failure to take into account “all relevant information” does not identify a reasonably arguable error. The Tribunal does not have to refer to every piece of evidence before the Tribunal. The formulation of alleged error by reference to all relevant information appears to invite impermissible merits review and proposed ground round 1 [sic] does not disclose an arguable case of jurisdictional error.

21    In respect of proposed ground 5, the primary judge said (at J [41]):

Proposed round [sic] 5 also refers to “all relevant material” and reflects a disagreement with the adverse findings. Proposed ground 5 fails to identify an arguable case of jurisdictional error.

22    Properly analysed, there are really two issues of arguability that the primary judge had to deal with:

(1)    first, whether or not the proposed amended application was sufficiently arguable so as to allow leave to amend; and

(2)    secondly, whether the Court ought to make an order dismissing the application if it failed to reach the level of satisfaction that the applicant raised an arguable case for the relief claimed (being the issue thrown up by the substantive application).

23    Again, it is unnecessary for me to set out in any detail the principles concerning arguability when it comes to an application for leave to amend. Although Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 establishes that when one seeks to amend a court document, arguability is not a sufficient condition for the granting of leave to amend, it is certainly a necessary one. Accordingly, it was necessary for the solicitor appearing on the application below to establish to the satisfaction of the Court that the amended application raised an arguable ground.

24    In relation to the second way arguability was relevant before his Honour, I was referred to SZTVU v Minister for Home Affairs [2019] FCAFC 30; (2019) 268 FCR 497 (at 518 [92]), where Derrington and Wheelahan JJ said the following in respect of r 44.12:

The condition which engages the power to dismiss an application is satisfaction by the Court that the application raises no “arguable case” for the relief claimed. Adopting the same approach to r 44.12 of the FCC Rules as that taken by Hayne, Crennan, Kiefel and Bell JJ in Spencer v Commonwealth at [58]-[60], we consider that one should begin with the text of r 44.12, which refers to no more than absence of satisfaction that there is an “arguable case”. Consistently with the reasoning of Hayne, Crennan, Kiefel and Bell JJ in Spencer v Commonwealth at [58], we should avoid the creation of a lexicon of words to capture the condition that is stated clearly enough in the text of r 44.12, namely absence of satisfaction that there is an “arguable case”. In evaluating whether there is an arguable case the Court may consider whether the case advanced in the application is reasonably arguable (cf, Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262), but the power to dismiss an application summarily under r 44.12 of the FCC Rules should not be exercised lightly.

25    As I have explained, the focus of this appeal at present is on the failure of the primary judge to give leave to rely upon the amended application. This is because, as the primary judge records, it was common ground below (unsurprisingly in the circumstances) that the then extant application did not raise an arguable ground of review.

26    It is convenient for me to deal with proposed grounds 1 and 5 of the amened application separately.

C.2    Proposed Ground 1

27    Read together, ss 5J(1)(c) and 5H(1) of the Migration Act 1958 (Cth) have the effect that a person who would otherwise have a well-founded fear of persecution will not satisfy the refugee criterion for a protection visa in s 36(2)(a) if they can lawfully go to any other part of the receiving country that is inhabited or habitable, and safe: see FCS17 v Minister for Home Affairs [2020] FCAFC 68; (2020) 276 FCR 644 (at 651 [20] per Allsop CJ and at 666 [81] per White and Colvin JJ).

28    Relevantly, in its reasons (at [65]) the Tribunal identified what was said to be the applicant’s “key points”, which included:

•    He claimed to be at risk of discrimination as a Pashtun and as a Shia. For instance, it would be very difficult to obtain a rental property ‘if they don’t recognise your face’. A prospective landlord would not normally rent to a person from Parachinar. The (Sunni) locals regard Shia as infidels, and can kill you.

•    Similarly, the discrimination against Shia tribes is such that it is difficult to obtain employment. If he were to eventually get a well-paid government or professional employment, non-Shia will be resentful (and, by implication, put him at risk of harm).

-    In terms of discrimination, the applicant claimed that his work experience with NADRA [Ministry of Interior’s National Database and Registration Authority] did not serve to illustrate his employability in the country as a whole. He worked for only about a year, and had been posted to Parachinar, which is mostly Shia. His employment prospects in another part of Pakistan are much poorer.

29    The Tribunal then went on to say (at [67]–[71]):

While the applicant’s evidence and country information refer to discrimination against Pashtun and Shia in Pakistan’s large cities, the Tribunal finds there is no real chance of discrimination amounting to serious harm, such as ‘significant economic hardship that threatens [his] capacity to subsist’, or the ‘denial of capacity to earn a livelihood of any kind, where the denial threatens [his] capacity to subsist’, to mention two of the non-exhaustive instances of ‘serious harm’ listed in s.5J(5). It places weight on the applicant’s and his own family’s experiences, for instance, when he studied in Quetta, and his family lived in Islamabad from 2011 to 2013, without incident. The applicant’s work with NADRA, his successful studies in Quetta and his family’s rental arrangements in Islamabad all raise questions as to the frequency and severity of such discrimination; and at least suggest that the applicant and his family were able to manage such risks. Furthermore, the applicant’s work experience in Sydney, as a computer engineer, and his fluent English, may reduce the impact of any discrimination. Having regard to the evidence as a whole, the Tribunal finds there is no real chance of the applicant facing discrimination as a Pashtun, Shia or any combination of related factors (including a Pashtun Shia from Parachinar, and a member of the Bangash tribe), in accommodation, employment or other fields, which individually or cumulatively involves serious harm amounting to persecution.

The applicant also claims to be at risk of sectarian violence as a Pashtun and Shia, and in particular as a Shia professional from Parachinar. He would be at risk both as a Shia with professional skills, returning from the West; and all the more so, if he were to be successful and gain some profile.

Country information indicates that Shia Muslims face security threats from extremist groups, although most Shia face only a low risk of sectarian violence. The Tribunal notes that, as a person who is not currently a devout observer, the applicant would face an even lower risk of being caught up in sectarian attacks against mosques and religious gatherings.

DFAT’s comment that high-profile Shia face an elevated risk of violence (characterised as ‘moderate’) is consistent with reports that Sunni extremists have also targeted Shia professionals and in some instances, government employees. In the applicant’s case, the Tribunal notes that he has IT qualifications, and some work experience as a computer engineer in Pakistan and Australia. However, he is in his late twenties and the Tribunal is not satisfied that his academic or career to date, or his past residency in Australia, would establish for him a profile in Islamabad, Lahore or one of the other large cities outside Kurram Agency.

The applicant provided some examples of individuals from Parachinar who had been attacked, although there is little information about what factors might lie behind particular incident (such as an individual’s profile or the precise circumstances that led to an attack). As noted above and discussed at [the] hearing, the incidence of violent attacks against Pashtuns, Shia and/or Shia professionals is low and, at least in recent years, declining. The Tribunal finds on the material as a whole, and particularly taking into account the applicant’s past experiences and profile, that he does not face a real chance of being targeted as a Pashtun, Shia, a Shia professional or any combination of these factors, outside Kurram Agency (for instance, in a major city such as Islamabad or Lahore).

(Emphasis added, citation omitted).

30    The Tribunal (at [63] and [69]) accepted that there was evidence (including from DFAT) that “most Shia in Pakistan face a low risk of sectarian violence”. However, the applicant submits that in looking at his past experience outside the Kurram Agency, the Tribunal does not appear to have made any reference to an aspect of the applicant’s claims (which was accepted by the delegate (see delegate reasons (at [65]))) that the applicant had prior experience of being a victim of one terrorist bomb attack against Shias in Quetta and a witness to another similar attack. These events, it is said, were independently verified by: (a) documentation confirming the applicant’s address in the area at the relevant times; and (b) news reports of the two bombings.

31    The applicant contends that the Tribunal was statutorily required to consider whether the risk of sectarian violence to Shias outside the Kurram Agency, while “low”, nevertheless amounted to a real risk that the applicant would suffer serious harm in all areas of Pakistan, and that the Tribunal failed to undertake this aspect of the statutory task. It is said that instead, the Tribunal (at [66]–[67]) considered other risks of harm (such as employment discrimination) and then focused (at [71]) on the discrete question of whether the applicant will be at “an elevated risk of violence” as a “high profile Shia”. Given that the Tribunal was not satisfied the applicant was a “high profile Shia”, the applicant submits that the Tribunal was required to consider whether there was a real chance the applicant would suffer serious harm because of the more general “low risk of sectarian violence” confronting Shias throughout Pakistan. Having failed to do so, it is said that the Tribunal’s reasons were infected by jurisdictional error.

C.3    Proposed ground 5

32    Section 36(2B)(a) of the Act has the effect that a person who is otherwise at a real risk of suffering significant harm in a receiving country will not satisfy the criterion for a protection visa in s 36(2)(aa) if “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.

33    The applicant submits the determination of this question involved two stages of inquiry.

(1)    first, the Tribunal had to determine whether, objectively, there was no appreciable risk of the occurrence of the feared harm in another part of Pakistan; and

(2)    secondly, if, as here, the Tribunal was satisfied there was not an appreciable risk of the applicant suffering significant harm in another part of the country, namely Islamabad or Lahore, the decision‑maker was then required to determine whether the relocation of the applicant to Islamabad or Lahore was reasonable, in the sense of practicable, having regard to the applicant’s particular circumstances.

34    It is said that the Tribunal in the present case undertook these two tasks in reverse order and only reached a conclusion as to the first stage of the inquiry. This had the tendency, it is said, to elide the two stages of the inquiry.

35    The relevant parts of the Tribunal’s reasons (at [83]–[84]) are in the following terms:

The Tribunal finds that in areas outside Kurram Agency (such as Islamabad and Lahore), there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.

The Tribunal concludes that there are areas outside Kurram Agency (such as Islamabad and Lahore) where there would not be a real risk that the applicant will suffer significant harm; and that, having regard to his circumstances as a whole, it would also be reasonable for him to relocate to such an area. Therefore, there is taken not to be a real risk that he will suffer significant harm in Pakistan: s.36(2B)(a).

36    Further, it is said that beyond stating its findings in the conclusory terms set out above, the Tribunal failed to consider whether the “low risk of sectarian violence” to Shias outside of the Kurram Agency amounted to a “real risk” of “significant harm” for the purposes of s 36(2B)(a) of the Act. It is said that it is not to the point that the Tribunal did consider (at [81]) that other types of risked harm – such as employment and housing discrimination – did not amount to “significant harm”, but that this consideration underscores that no intellectual exercise was undertaken with respect to the “low risk of sectarian violence”, and this failure amounted to jurisdictional error.

C.4    Consideration

37    The Minister contends that it is clear that the Tribunal properly considered the risk of harm, whether serious or significant, to the applicant based upon discrimination and the potential for sectarian violence in areas outside the Kurram Agency by reference to the framework advanced by the applicant and in accordance with the applicable authority: citing, most recently CSZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 156 (at [9]–[10] per Jagot, Charlesworth and Snaden JJ).

38    Mr Murphy concedes, correctly, that the amended application, including as to proposed ground 1, was not a model of drafting. Indeed, it is lacking in particularity and expressed at a high level of generality. I have no doubt that the primary judge was not assisted in the way I have been by detailed written submissions and the able articulation of the argument orally. Part of this was likely due to the fact that what his Honour was dealing with was a summary proceeding, which does not allow for extended consideration of potential arguments and requires, as the Registrar made orders to facilitate, proper particularisation of the grounds relied upon.

39    All of these considerations may explain why the primary judge came to the view that he did, but they also point to the need for caution in approaching issues of arguability, particularly when the circumstances are such that the refusal of an application for leave to amend will effectively amount to a final disposition of the case and the extinguishment of someone’s rights. It is unnecessary for me to express a view as to proposed ground 5, but it seems to me that proposed ground 1 does reach the level of raising an argument which could properly be described as arguable. Upon close examination, it may not be regarded as strong, but I think it is sufficient for the Court to be alive to the fact that it was appropriate that leave be granted, at least to advance this ground, and for the matter to then be determined on the merits.

40    I stress, however, that the issue of arguability is an evaluative process which, at the stage the primary judge was called upon to determine it, was an impressionistic one. It is regrettable that the primary judge was called to make this assessment with a less than lucid proposed amended application and in the circumstance of a show cause hearing, which would not have required extended reflection. Further, the whole necessity for there to be a show cause hearing was caused by failures of the applicant to file a coherent amended application.

D    CONCLUSION AND ORDERS

41    It follows in all the circumstances that I consider the primary judge fell into error in refusing leave to amend the application. His Honour should have formed the view that proposed ground 1 of the amended application raised an arguable case for the relief claimed and, in those circumstances, should not have reached the level of satisfaction that there was no arguable case and proceeded to dismiss the application under r 44.12. It seems to me that the appropriate course is therefore to allow the application for leave to appeal and set aside the orders made by the Federal Circuit Court on 12 November 2020.

42    Like the position in DVO16 v Minister for Immigration and Border Protection [2019] FCAFC 17; (2019) 271 FCR 342 (at 362 [96] per Stewart J), counsel for the Minister accepted that the refusal of leave to amend below had been on the basis that the prospects of a ground succeeding were too low and accepted that if this Court found that a ground was arguable, leave to rely on the amended application below should have been granted. Like in that case, it appears to me the appropriate exercise of discretion is to remit the matter to the Federal Circuit Court for reconsideration rather than dealing with it for the first time in the appellate jurisdiction of this Court.

43    I then come to the question of costs. Needless to say, this matter raises no point of general principle and turns on its own particular facts. Part of those facts is the less than satisfactory way this litigation has been conducted prior to the involvement of Mr Murphy. The regrettable procedural history of this matter has caused delay and a show cause hearing would have been unnecessary if proper attention had been given to the filing of a document in terms of the amended application at the commencement of the proceeding. Indeed, even now, as counsel for the applicant recognises, there will be a need to amend the application in the Federal Circuit Court to articulate properly the nature of the case the applicant wishes to advance.

44    In all the circumstances, I think the appropriate exercise of discretion is to order that the costs of the proceeding to date be costs in the proceeding below, to be determined by the primary judge at the time of the final disposition of the proceeding. In respect of the proceeding in this Court, I think that the applicant should have his costs of today.

Associate:

Dated:    19 July 2021