AJS16 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The applicant is an Iraqi national from Basra in southern Iraq. He arrived in Australia with other members of his family in November 2006, sponsored by his father, who had arrived seven years earlier. He was then 16 years old. 2 In August 2015 he applied for a protection visa, claiming that his life was in danger in Iraq and he had no family or friends there who could support him. 3 Neither the Minister's delegate, who interviewed him and first considered his application, nor the Administrative Appeals Tribunal, who heard his application for review of the delegate's decision, was satisfied that he met the principal criteria for the grant of a protection visa. Those criteria are to be found in s 36(2) of the Migration Act 1958 (Cth), which relevantly required that to qualify for a protection visa an applicant be: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm … 4 Section 5H(1) of the Act provided that a person is a "refugee" if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country … 5 Section 5H(2) provided that s 5H(1) does not apply in certain circumstances, none of which obtains here. 6 Paragraph (a) of s 36(2) is commonly known as "the refugee criterion" and (aa) as the "complementary protection criterion". The circumstances in which a non-citizen will suffer "significant harm" within para (aa) are exhaustively listed in s 36(2A). 7 The applicant's claims, as they were presented to the Tribunal, were that he would be killed by Shi'a gangs if he were to return to Iraq because, notwithstanding that he, himself, is Shi'a, his father, who had come to Australia before him, had converted from Shi'a to Sunni Islam; that he would be considered an Australian spy as he has no family left in Iraq; that he would be kidnapped and ransomed; and that he would be forced to join the Iraqi army or serve in a Shi'a gang and fight ISIS. In his application for a protection visa, he had also claimed that his parents were supporters of Saddam Hussein, but he resiled from this claim at the Tribunal hearing. 8 The Tribunal did not believe the applicant's account. In particular, it did not believe that his father had "genuinely" converted from Shi'a Islam to Sunni Islam, that this was known in Iraq, and that he had received death threats as a result. The Tribunal noted that the applicant had made no mention of these matters in his application for a protection visa and concluded that this was "inconsistent with the degree of fear [the applicant] expressed [later]". It also considered that the claim that he would be harmed because his father had been threatened or because his family had been supporters of Saddam Hussein was inconsistent with the fact that his father had returned willingly to Iraq since his alleged conversion. Further, it considered that the applicant's account was internally inconsistent and also inconsistent with evidence given by his brother, both in relation to their father's alleged conversion and also in relation to the whereabouts of family members. Other aspects of the applicant's account the Tribunal found to be implausible, and/or unsupported by, or inconsistent with, independent country information. 9 After the Tribunal affirmed the delegate's decision, the applicant applied to the Federal Circuit Court for judicial review, seeking orders quashing the Tribunal's decision and requiring it to reconsider his application. The primary judge dismissed his application on the basis that he was unable to identify a jurisdictional error. 10 At the time the applicant arrived in Australia the applicant held a BC100 (partner - migrant) visa as a dependent of his father but I was informed by the Minister's solicitor that he currently holds no Australian visa and is vulnerable to deportation. 11 The applicant wishes to appeal from the judgment and orders of the Circuit Court but he did not file a notice of appeal within the prescribed time and he seeks an extension of time to do so. The application is opposed, largely on the basis that the proposed appeal is without merit. 12 Rule 36.03(1)(a)(i) of the Federal Court Rules 2011 (Cth) allows a period, within which to appeal, of 21 days from the date of judgment or the making of orders. Here, judgment was delivered and orders made on 20 May 2016. Consequently, the time to appeal lapsed on 10 June 2016: r 36.03(1)(a)(i) read with r 1.61. The applicant filed an application for an extension of time, albeit in the wrong form, some 11 days later, on 21 June 2016. The application was supported by an affidavit to which the applicant annexed a draft notice of appeal. 13 There is no entitlement to an extension of time. The Court is given a power which it may choose to exercise in its discretion. The discretion must be exercised judicially but, subject to the obligations in s 37M of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"), to which I shall come shortly, it is unlimited. Ultimately, the question will always be whether it is just to exercise the discretion in the applicant's favour or, as the Full Court put it in Parker v The Queen [2002] FCAFC 133 at [6], whether it is fair and equitable in all the circumstances to do so. The Court will have regard to all relevant considerations. Generally speaking, however, and in the present case, the following considerations are material: the extent of, and explanation for, the delay, any prejudice to the respondent, and the merits of the appeal. 14 Like any of its powers under the Rules, the Court must exercise the discretion in the way that best promotes their overarching purpose: the just resolution of disputes as quickly, inexpensively and efficiently as possible (FCA Act, s 37M). To that end the Court is bound to take into account the efficient use of the Court's available judicial and administrative resources, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost proportionate to the importance and complexity of the issues in dispute. 15 The delay in this case is not trivial but neither is it extensive, and the Minister does not claim to be prejudiced by it. In the affidavit filed in support of his application the applicant attributed the delay to his ignorance of the time limit and his need for assistance with the application due to his ignorance of "legal terms". He said that he "made enquiries with the federal [Circuit?] Court in relation to [the judgment]" and was advised that it was being sent to him by post, but by the time the judgment arrived in the mail the time to appeal had lapsed. What he does not say, however, is that he was present when the judgment was handed down. If the applicant did not know the procedure for appealing, he should have made inquiries, but there is nothing in his affidavit to suggest that he did. While he said he required assistance, he said nothing about what steps he took to secure it or when he took them. At the hearing the applicant said that he had been in detention for the previous 16 months, that he thought he had 28 days to appeal because he had 28 days to "appeal" from the decision of the Tribunal, that he had tried to get help without success, that when he did receive some help the fax machine at the detention centre was not working, and that he had to wait for his family to come so that his documents could be emailed to the Court. None of this appears in the affidavit. In any event, once again he offered no detail about the steps he had taken to obtain help. Furthermore, he had 35, not 28, days to apply for judicial review of the Tribunal's decision (Migration Act, s 477(1)) and, according to the Minister, he lodged his application on the 35th day. 16 Thus, while the applicant has provided an explanation for the delay, the explanation is not entirely satisfactory. Be that as it may, if the application were meritorious, I would not allow the deficiencies in the explanation to stand in the applicant's way. 17 So what of the merits? 18 At the outset it is important to note that it is well established that on an application of this kind it is inappropriate to conduct a full investigation of the merits as one would do on an appeal itself, although an obvious strength or weakness in the applicant's case is a factor for or against the exercise of the discretion: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]; SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [49] (Wigney J). Furthermore, as French J said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98: The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the discretion to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. 19 There are, in the present case, no obvious strengths. Furthermore, this is a case which is not merely weak, but appears to me to be hopeless. 20 The draft notice of appeal contains two grounds which challenge the decision of the primary judge and the Tribunal, concerning the complementary protection claim only. They read as follows (without alteration): 1. His Honour Judge Street erred in law at para [3-4] by finding and ruling that the Second Respondent found the applicant to be not reliable, credible or a truthful witness and for that reason the Second Respondent believed that it was not satisfied that the applicant met the criteria under s.36(2) of the complementary protection visa provision. This is a denial of natural justice and procedural fairness given the fact that the applicant had raised the issue of his safety should he be returned to Iraq. His Honour Judge Street erred in law for failing to find and rule that the Second Respondent failed to give proper and genuine weight to the issues the applicant had raised before the Second Respondent, relevantly, whether Iraq was so dangerous that the applicant would not be returned there and whether Australia had owed complementary protection visa obligations to the applicant. His Honour Judge Street erred in law when he failed to find that the Second Respondent denied the applicant procedural fairness and by doing so fell into jurisdictional error in that once the applicant had raised the issue of his safety and his well founded fear for his life in Iraq, Australia's Complementary protection visa obligations are invoked and engaged in accordance with s. 36(2) of the complementary protection visa convention. 2. His Honour Judge Street erred in law by failing to rule on the fact that there was a task put to the Second Respondent which was to consider by law whether Australia owed the applicant complementary protection from Iraq by examining all the evidence before the Second Respondent. These considerations included whether (a) there was a real risk of the applicant suffering significant harm , and (b) if so , whether it was harm of the kind faced by the population in Iraq generally and not faced by the applicant personally (s.36(2b)(c)). His Honour Judge Street erred in law when he failed to find that the Second Respondent denied the applicant procedural fairness as the Second Respondent failed to genuinely complete the task put to the Second Respondent as this was a mandatory consideration and failure to consider this mandatory consideration amounts to a jurisdictional error. 21 At the hearing the applicant was invited to present his arguments in support of both these grounds. He offered none. Instead, he made an impassioned plea about the perils of life in Iraq, repeating a number of the matters raised in and rejected by the Tribunal. 22 At [3]-[4] of his reasons, the primary judge summarised the applicant's claims and the Tribunal's findings: 3. The applicant claimed to fear harm because he would be hurt and killed by religious gangs operating in Iraq that targeted Shi'a Muslims or kidnapped by religious gangs and forced to fight for the Islamic State. The applicant identified that he had no friends or family in Iraq who could support him and the applicant also feared harm by reason of his family and parents having been outspoken supporters of Saddam Hussein. The Tribunal found the applicant's claims to be lacking in credibility. The Tribunal found the applicant was not a reliable or credible or truthful witness and found that the applicant had fabricated his claim in order to be granted a protection visa. 4. It was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear of persecution for any convention reason, either now or in the reasonably foreseeable future. It was in those circumstances that the Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant will suffer significant harm on the basis of the applicant's claims. The Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 23 This was a brief but not inaccurate summary and certainly discloses no error of law. 24 The application before the primary judge also contained two grounds. Those grounds are set out in full in the primary judge's reasons at [6]. Both raise issues which are not picked up in the draft notice of appeal (illogicality and taking into account irrelevant considerations). Both also complain that the Tribunal denied the applicant procedural fairness and therefore fell into jurisdictional error. A complaint about the refugee criterion made to the primary judge is not pursued in the appeal. 25 There is nothing in the Tribunal's decision record or the primary judge's reasons to support the assertion that either his Honour or the Tribunal denied the applicant procedural fairness, or natural justice (a synonym for the term). The concept of procedural fairness, or natural justice, is concerned with process not outcome. Procedural fairness has two aspects: the right to be heard before an adverse decision is made and the right to an impartial adjudicator. The first is limited, for present purposes, by the terms of s 422B of the Migration Act. The applicant was afforded the opportunity to be heard, both orally and in writing, in relation to his various claims. Furthermore, he makes no complaint that the requirements of the relevant provisions of the Act, with respect to the right to be heard, were not complied with. Nor does the applicant complain that the Tribunal's decision was affected by actual or imputed bias. 26 In substance, then, if not in form, like the grounds advanced in the application in the court below, the first ground of appeal takes issue with the Tribunal's findings of fact and its conclusion that the applicant's claims lacked credibility. Contrary to the applicant's assertion in his draft notice of appeal, Australia's protection obligations were not "invoked and engaged" merely upon him raising the issue of his safety in Iraq. The concept of a "well founded" fear of persecution has both a subjective and an objective element, that is to say the decision-maker must be satisfied that the putative refugee genuinely fears persecution for the stated reason or reasons and that there is a "well-founded" basis for that fear - a real chance he or she will be persecuted on that account: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. There is no obligation on a decision-maker to accept uncritically what an applicant says, as the Tribunal itself noted, and, "[w]hilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear": Chan at 396 (Dawson J). 27 Here, the Tribunal considered the account given by the applicant (that is to say, genuinely and properly considered it), found that in some respects it was internally inconsistent and in others inconsistent with the evidence of the applicant's brother who had been called to support it, and did not therefore believe that he held the fears he purported to have. It also considered the independent country information in its possession and determined that it did not support the applicant's account. It drew that information to the applicant's attention and invited him to submit evidence to indicate that it was wrong but the applicant did not take up the invitation. 28 Ground 1 discloses no arguable error on the part of the primary judge. 29 The same is true of ground 2. 30 Putting aside the matters not the subject of a challenge in the draft notice of appeal, the primary judge held that there was no denial of procedural fairness by reason of the Tribunal not accepting the applicant's evidence. His Honour also held that the adverse findings were open on the material before the Tribunal, that there was nothing to support the contention that the Tribunal had misconstrued the complementary protection provisions, and that the Tribunal's reasons were inconsistent with that contention. Those conclusions are borne out by a consideration of the Tribunal's reasons. 31 Ground 2 is based on two assumptions: that the Tribunal failed to consider whether it was satisfied that the applicant met the complementary protection criterion and that it failed to examine all the evidence. There is no foundation for either assumption. The Tribunal's findings on the complementary protection criterion are at [54]-[56] of its reasons: 54 Because I do not accept that the … applicant's father converted to Sunni Islam and was subsequently the focus of death threats in Iraq and that the applicant would also be harmed as a result, that the applicant has no family support in Iraq, that he would be conscripted into the Iraqi Army or forced to join a Shi'a militia, kidnapped and ransomed or considered a spy, that he would be targeted because of a tattoo on his back [apparently identifying him as a Shi'a Muslim] or imputed with being a supporter of Saddam Hussein, or that he would be unable to assimilate back into Iraqi society, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. 55 While I accept that the security situation is unstable in parts of Iraq, country information indicates that southern Iraq (including Basra) has remained significantly more secure than central Iraq in recent years, more than 100 failed asylum seekers from Australia had returned to southern Iraq without any reports of any significant problems, and that with financial support from foreign governments and Iraqi incentives the prospects for failed asylum seekers returning were generally higher than for others living in southern Iraq. 56 As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants (sic) being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s. 36(2)(aa). 32 The reference to country information in [55] was to a report of the Department of Foreign Affairs and Trade published on 13 February 2015. 33 It is plain that the Tribunal carried out its statutory task. Its findings were based on its consideration of the applicant's evidence and the independent country information. 34 The case that was advanced before the primary judge on the complementary protection criterion appears to have been wider than that which the applicant wishes to propound on appeal. To the extent that the same points are raised, however, I can discern no error in his Honour's conclusion. 35 The applicant is understandably upset by the Tribunal's decision. But his real complaint is not that the Tribunal made a jurisdictional error; it is that the Tribunal did not believe him. That decision may or may not have been the right one but, as the primary judge found, it was a decision the Tribunal was entitled to make on the material before it. Neither the Circuit Court nor this Court has the power to set the Tribunal's decision aside simply because it may disagree with it. The jurisdiction of the Circuit Court is limited to review for jurisdictional error (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476) and of this Court for error by the primary judge (SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]). As Brennan J explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 36 Thus, while the delay in challenging the judgment below is not long and the Minister is not prejudiced by it, an extension of time to appeal should not be granted because neither proposed ground of appeal has any reasonable prospect of success. It follows that the application should be dismissed. Costs should follow the event. There will be orders accordingly. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.