Federal Court of Australia

BXA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1513

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time within which to file a notice of appeal from a judgment of the (then) Federal Circuit Court of Australia: BXA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1822 (PJ). The primary judge dismissed the application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the applicant a Safe Haven Enterprise visa (the visa).

2    The applicant did not have legal representation before the primary judge or in the present proceeding.

3    For the reasons set out below, the application for an extension of time should be dismissed.

2.    BACKGROUND

4    The applicant is a citizen of Afghanistan who arrived in Australia in late 2012. On 14 June 2016, he applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm for several reasons including:

(1)    from persons with whom his family was involved in a land dispute (the J Brothers) and/or State authorities, militias, neighbouring Pashtuns, and/or the Taliban at the request of the J Brothers;

(2)    from the Taliban and Islamic State more generally because, since he is a Shia Hazara, he would be imputed to have an anti-‍Taliban or pro-‍Western political opinions and/or because he would be a failed asylum seeker; and

(3)    for the reason that he no longer practices the Shia Muslim religion.

5    On 3 October 2016, the delegate refused to grant the applicant the visa. The applicant’s matter was then referred to the Authority for merits review under the limited fast track review process established by Part 7AA of the Migration Act 1958 (Cth). On 19 April 2017, the Authority affirmed the delegate’s decision to refuse to grant the applicant the visa.

6    On 2 May 2017, the applicant applied to the Circuit Court for judicial review. The application was heard by the primary judge on 26 June 2020. On 15 July 2020, the primary judge delivered judgment.

7    On 18 November 2020, the applicant filed the application for an extension of time in this Court.

8    Orders were made by the Registrar on 23 November 2020 with respect to the filing of submissions in advance of the hearing of the application for an extension of time. The applicant did not file written submissions in advance of the hearing.

9    This application was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-person hearings during the Covid-19 pandemic.

10    On 10 October 2023, the Minister filed written submissions. This proceeding was heard on 10 November 2023. The applicant attended the hearing with his wife and their son who was then four months of age. While the applicant did not file written submissions, he made oral submissions.

11    The applicant’s participation at the hearing before me was facilitated by a National Accreditation Authority for Translators and Interpreters (NAATI) certified interpreter in English and Farsi. The Court is indebted to the interpreter who also translated the Minister’s submissions to the applicant before the hearing commenced. During the hearing the applicant claimed that he had not been provided a copy of the Minister’s submissions in advance of the hearing. I proposed that the applicant be provided an opportunity to make post-‍hearing written submissions. The Minister did not accept that the applicant had not been served with the Minister’s written submissions but did not oppose the applicant being provided with an opportunity to make post-‍hearing written submissions. In those circumstances, I made orders permitting the applicant to file and serve written submissions on or before 24 November 2023, although ultimately he did not do so.

3.    RELEVANT PRINCIPLES

12    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. The discretion to extend time under r 36.05 of the Federal Court Rules is not confined by express criteria, as Finn J pointed out in Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19]. However, there are a range of considerations which may appropriately be taken into account in the exercise of discretion and which are of varying weight depending on the circumstances of the particular case, namely:

(1)    the length of the delay;

(2)    whether the applicant has demonstrated an acceptable explanation for the delay;

(3)    whether the respondent would suffer prejudice if the extension of time were granted; and

(4)    the merits of the substantive appeal, if leave were granted.

See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–‍349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).

13    With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus, in Katoa v Minister for Immigration [2022] HCA 28; (2022) 96 ALJR 819, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:

[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Act] (or s 477(2)) [powers to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

(Citations omitted.)

4.    DISPOSITION OF THE APPLICATION

4.1    Was there an acceptable explanation given for the delay in instituting the proceedings?

14    The Circuit Court decision was given on 15 July 2020. As a result, under r 36.03 of the Federal Court Rules, the appeal to this Court should have been filed by 12 August 2020 but was not in fact filed until 18 November 2020. I consider that the delay of three months is not insignificant, and that the applicant has not provided a sufficient explanation for the delay. As to the latter, the applicant obtained advice from Legal Aid and was aware that the Court had a “strict deadline” to file a notice of appeal: the applicant’s affidavit affirmed on 6 October 2020 at [10]. The applicant claims that he attempted to file a notice of appeal within time but the notice was rejected by the Court Registry: at [10]–‍[11]. However, as the Minister submits, the applicant has not provided any evidence about the nature and dates of his correspondence with the Registry; nor, even if the applicant’s evidence as to his attempt to file the appeal within time were accepted, has he provided an explanation for why it took him a further three months to file a notice of appeal in a form acceptable to the Registry. Nonetheless, if the proposed appeal had some chance of success, the delay in this matter was not so serious that I would have refused the application for an extension of time in the circumstances of this case.

4.2    Prejudice

15    The Minister accepts that the grant of an extension of time would not cause the Minister any prejudice. However, that factor is essentially neutral given that a lack of prejudice to the Minister alone is not a sufficient reason to grant the application: Hunter Valley Developments at 349 (Wilcox J).

4.3    Merits of the proposed appeal

16    I now turn to the merits of the draft notice of appeal. In the draft notice of appeal, the applicant raises two proposed grounds of appeal:

1.    I believe my life is in real danger and I will be killed by the Taliban if I return back to any city in Afghanistan.

2.    I believe the IAA decision is unfair therefore I am applying for an appeal.

(Emphasis added.)

17    The Minister submits that neither ground was raised before the primary judge and therefore the applicant would also require leave to advance each ground of appeal. The grounds of judicial review in the Circuit Court were that:

1.    The Assessor failed to properly consider all of my claims.

2.    The Assessor did not give me a chance to comment on one aspect of my claims.

18    I do not accept that leave to appeal would be required for the reasons I explain at paragraphs [22] and [27] below.

4.3.1    Ground one of the draft notice of appeal

19    In relation to ground one of the proposed appeal, the reference to “any city” refers to an issue raised in the applicant’s statutory declaration dated 9 June 2016 that there was nowhere in Afghanistan to which he could safely be relocated, including Kabul: at [25]–‍[27].

20    In refusing to grant the visa, the delegate found that there was a real chance that the applicant would be killed due to his race, religion, and his actual or imputed political opinion if he were to return to his home area in Afghanistan. However, the delegate found that it would be reasonable for the applicant to relocate to Kabul and there was not a real risk that the applicant would suffer significant harm in Kabul.

21    On review, the Authority was satisfied that “the applicant would face a real chance [of] being abducted and/or killed by an insurgent, and/or a criminal, group for reason of his being a Shia Hazara while travelling the roads through rural areas under the influence of such groups in the course of returning [to] his home area”: at [24]. The Authority considered that this amounted to serious harm: at [24]. In relation to the question of relocation, the Authority found (at [40]) that:

I accept that in Kabul the applicant may face a real chance of experiencing some low level discrimination, including in the employment market, for reason of being a Shia Hazara and/or as a consequence of not being a member of a particular family or tribal group and/or as a consequence of his no longer practising Islam by saying prayers or fasting. However, on the evidence, I am not satisfied that in Kabul the applicant would, on this basis, face a real chance of being denied the capacity to subsist or of suffering serious harm of any kind. Other than the real chance of perhaps experiencing some low level discrimination, and having regard to the totality of the circumstances, I am not satisfied that the applicant would face a real chance of suffering harm of any other kind in Kabul. I am therefore not satisfied that the applicant would face a real chance of serious harm in Kabul.

22    In oral submissions to the primary judge, the applicant “disagreed with the assertions that he could relocate to Kabul”: PJ at [33]. Ground one of the proposed notice of appeal is, therefore, a restatement of the applicant’s disagreement with the Authority’s finding that he could relocate to Kabul. While this issue was not formally included in the applicant’s grounds of review below, in circumstances where the applicant is self-‍represented and the tenor of ground one was raised before the primary judge, I do not consider that leave would be required in order for the applicant to raise this issue on any appeal.

23    With respect to this ground, the primary judge relevantly found that (at [33]–‍[34]):

The disagreement with the findings by the IAA does not identify any jurisdictional error. The IAA took into account country information and made adverse findings in relation to the applicant’s ability to relocate to Kabul that were open for the reasons given by the IAA.

Further, it was apparent that the IAA took into account the applicant’s personal circumstances in determining whether it was reasonable for the applicant to relocate to Kabul. Nothing said by the applicant in relation to his disagreement as to the findings of the IAA concerning Kabul identified any jurisdictional error.

Further, to the extent that the applicant referred to more recent events in Kabul, that is not a matter that is capable of giving rise to jurisdictional error by the Tribunal. That is because information concerning the applicant’s claims that was not before the IAA is not capable of giving rise to any jurisdictional error.

24    Ground one of the proposed appeal focuses upon the applicant’s disagreement with the Authority’s finding that he could relocate and does not in terms allege that the Circuit Court made any error. Furthermore, even if the ground is read as an allegation that the Circuit Court erred in failing to uphold the applicant’s submissions with respect to the Authority’s relocation finding, the ground does not identify any error of law but rather express his disagreement with the Authority’s finding of fact.

25    It is understandable that the applicant’s concerns should focus upon his claims to fear harm. However, the jurisdiction of the Circuit Court was confined to deciding whether the Authority’s decision was made lawfully under the Act. On an appeal, this Court in turn must decide whether the Circuit Court wrongly held that there was no jurisdictional error, that is, that the Authority did not make a serious and material legal mistake (to use lay terms). The Authority would make a jurisdictional error if, for example, it misunderstood the criteria by which the applicant’s visa application was required to be assessed, or if it failed to consider a substantial claim to fear harm made by the applicant: see, generally, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

26    Thus, neither this Court nor the Circuit Court has jurisdiction to grant the applicant a visa or to consider whether he meets the criteria for the grant of a Safe Haven Enterprise visa including whether, as ground one effectively alleges, his claims to fear harm should be accepted: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). I do not therefore consider that the primary judge erred in considering this issue. In common with the applicant’s submission before the primary judge, proposed ground one impermissibly asks the Court to reconsider the merits of the applicant’s visa application and therefore has no real prospects of success.

4.3.2    Ground two of the draft notice of appeal

27    In circumstances where the applicant is self-‍represented, I consider that proposed ground two should fairly be understood as an allegation that the Authority denied the applicant procedural fairness. While a ground in these terms was not raised before the primary judge, the second ground of review before the primary judge was that the Authority “did not give [the applicant] a chance to comment on one aspect of [his] claims”. As such, I consider that this issue was also raised before the primary judge and, therefore, it would be unnecessary to grant leave to raise this ground on an appeal if I were to grant the extension of time.

28    The primary judge correctly identified that the Authority is generally required to review a fast track reviewable decision without receiving new information from the referred applicant: PJ at [42]. In other words, the “primary requirement” in Part 7AA of the Act is for the Authority to review a decision referred to it “by considering the review material provided to the Authority under s 473CB [by the Secretary] without accepting or requesting new information and without interviewing the referred applicant” (citing s 473DB of the Act): Plaintiff M174/2016 [2018] HCA 16; (2018) 264 CLR 217 at [22] (Gageler, Keane and Nettle JJ). As such, the failure to receive new information from the applicant would not in itself amount to a breach of procedural fairness.

29    Further, the issue of whether the applicant could relocate to Kabul was raised by the delegate with the applicant and the subject of submissions from the applicant. It follows that this is not a case where the Authority unreasonably failed to exercise its power under s 473DC of the Act to invite the applicant to give new information on the issue of relocation, as the primary judge held: PJ at [43]–‍[44].

30    For these reasons, I do not consider that ground two of the proposed notice of appeal has any reasonable prospects of success.

4.3.3    Additional issues raised in the applicant’ oral submissions

31    In oral submissions, the applicant raised the following issues:

(1)    In summarising the Authority’s decision, the primary judge referred to the fact that during the visa interview the delegate “put to the applicant … that there was reliable information that he had transferred money to a particular person. That person had his brother’s name, which suggested his brother was alive and that the applicant had supplied false information to the department”: PJ at [9]. The applicant submits that this was a mistake and that he had sent money to his father, and not to his brother.

(2)    The situation in Afghanistan has changed, with the Taliban now governing the entire country. The applicant’s wife is an Australian citizen, his son was born in Australia, and they would not be able to live in Afghanistan so that he would be separated from them if he were returned.

32    These matters were not raised before the primary judge and as such, leave would be required to raise them for the first time on appeal. In any event, they do not identify any error in the Authority’s decision but impermissibly ask the Court to reconsider the merits of the applicant’s visa application.

4.3.4    Whether the Authority complied with s 473DD of the Act

33    The Minister, as a model litigant, raised the fact that the Circuit Court judgment was delivered before the High Court’s decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 concerning s 473DD of the Act. That section provides that:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 5; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

34    In AUS17, the High Court confirmed that, while paragraphs (a) and (b) of s 473DD were cumulative, the Authority must consider subparagraphs (i) and (ii) of s 473DD(b) before considering s 473DD(a). This was because it was not possible for the Authority to determine whether there were exceptional circumstances justifying a consideration of the new information for the purposes of paragraph (a) without first addressing the criteria in paragraph (b), namely whether the new information could have been provided to (relevantly) the delegate or is credible personal information. As Kiefel CJ, Gageler, Keane and Gordon JJ explained (at [10]–‍[11]):

Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstances that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).

35    In the present case, there were three types of new information before the Authority:

(1)    a new claim in a letter from the applicant’s solicitors indicating that the applicant had abandoned Shia Islam, and which the Authority took to imply that he no longer holds the faith of Shia Islam at all. That letter relevantly stated:

During the Delegate's interview, the Applicant provided evidence that since arriving in Australia, he had ceased practising his former religion (ie. Shia Islam). Having abandoned the Shia religion, the Applicant raised claims at interview that he feared that, if forced to return to Afghanistan, he would face harm /mistreatment for reasons of his religion (or lack thereof). In her decision, the Delegate made no mention or assessment of this aspect of the Applicant's claims for protection.

(2)    country information reports provided by the applicant which post-‍dated the delegate’s decision and addressed the evolved situation in Afghanistan; and

(3)    country information addressing the security situation in Afghanistan for Shia Hazaras which had been obtained by the Authority and also post-‍dated the delegate’s decision.

36    The Authority found that the country information from the applicant and obtained by the Authority could not have been provided to the delegate and that there were exceptional circumstances to justify considering this information: at [5]–‍[6].

37    The Authority also correctly found that the applicant’s claim to have abandoned Shia Islam was new information within the meaning of s 473DC of the Act and therefore the claim could not be considered on fast track review unless the Authority was satisfied that the criteria in s 473DD were met: at [4].

38    In relation to this new claim, I accept the Minister’s submission that the Authority impliedly considered the requirements for ss 473DD(b)(i) and (ii), and was not satisfied that the new claim met s 473DD(b), even though it did not expressly refer at this point to those statutory provisions: at [4]. In particular, the Authority observed that no reasons were given by the applicant as to why this new information could not have been provided before the delegate’s decision or why it should be considered credible information. There is no error apparent in this approach. It reflects the correct approach as explained by the High Court in AUS17.

39    It follows that the proposed appeal lacks sufficient prospects of success to warrant the grant of an extension of time. It would not, therefore, be in the interests of justice to grant the extension of time.

5.    CONCLUSION

40    For these reasons, the application for an extension of time must be dismissed with costs. However, in circumstances where it is notorious that the situation in Afghanistan has deteriorated since the Authority’s decision in 2017 and the applicant has an infant son and wife who is an Australian citizen, it would seem appropriate for consideration to be given by the Minister to any available avenue of Ministerial intervention.

Associate:

Dated:    1 December 2023