BGN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
2. The application for an extension of time be dismissed.
3. The applicant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia made on 28 June 2019: BGN19 v Minister for Home Affairs [2019] FCCA 1757. 2 The first respondent (the Minister) submits that the application and draft notice of appeal raise one proposed ground, which lacks sufficient particularity to make it meaningful and, at its highest, re-agitates the issues raised below. He submits that because the appeal has no reasonable prospect of success the application for an extension of time should be refused. 3 For the reasons set out below, the application must be dismissed. 4 The applicant is a citizen of Pakistan. He arrived in Australia in July 2018 as the holder of a student visa. 5 The applicant's student visa was cancelled because he provided fraudulent documents in support of his visa application. 6 The applicant is now being held in immigration detention. 7 On 25 July 2018, the applicant applied for a Temporary Protection (Class XD) visa. 8 On 23 November 2018, a delegate of the Minister refused to grant the applicant a protection visa. 9 The applicant then sought review of the delegate's decision before the Administrative Appeals Tribunal (the Tribunal). 10 On 1 February 2019, the applicant appeared at a hearing before the Tribunal with the assistance of his representative and an interpreter. 11 On 18 February 2019, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. 12 Before the Tribunal, the applicant claimed to fear harm in Pakistan on account of his and his family's support for the Awami National Party and his father's membership of the Village Defence Committee (VDC). In particular, the applicant claimed that his family had been targeted by the Taliban and other militants, including in May 2017, when he was allegedly kidnapped and held for ransom. The applicant also claimed he was on a Taliban hit list and that the authorities in Pakistan could not protect him. 13 The Tribunal set out the evidence before it in detail and made numerous findings, including the following: (1) The Tribunal found that the applicant's activities prior to his departure from Pakistan and his reliance on fraudulent documents in support of his student visa application "raise some questions about his need for protection, and credibility". (2) The Tribunal found that the applicant's evidence about his relatives' successful protection visa applications was of little assistance in assessing his protection claims. (3) The Tribunal did not accept that the applicant was politically active in Pakistan or that he had "any kind of profile, even locally". (4) The Tribunal accepted it was plausible that the applicant's father was a member of the VDC. However, the Tribunal did not accept that the applicant's father had a pronounced anti-Taliban profile as a result of his involvement with the VDC or with a group known as the Social Welfare Society, or that the applicant had acquired such a profile by association with his father. (5) The Tribunal found that the applicant had tended to exaggerate when describing the continuing adverse effects on him and his family of events in Swat between 2007 and 2012. (6) The Tribunal did not accept that the applicant was kidnapped for ransom. (7) The Tribunal found that there was no real chance of militants targeting the applicant and inflicting serious harm to him for any reason. (8) The Tribunal was not satisfied that general conditions in Pakistan gave rise to a real chance of serious harm to the applicant. (9) The Tribunal found that there was no real chance of the authorities in Pakistan, or anyone else, subjecting the applicant to serious harm, including if he returns to Pakistan as a failed asylum seeker. 14 For these reasons, the Tribunal was not satisfied that the applicant met the criteria for a protection visa in s 36(2) of the Migration Act 1958 (Cth) (the Act). 15 In March 2019, the applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. 16 The applicant subsequently filed an amended application on 29 May 2019, which raised three grounds. 17 On 20 June 2019, the primary judge heard the application. The applicant was represented by a lawyer at the hearing. 18 Ground one of the applicant's notice of appeal below contended that the Tribunal committed a jurisdictional error by breaching s 426(3) of the Act or, in the alternative, the Tribunal was unreasonable, in declining to call the father of the applicant to give oral evidence. The particulars of this ground referred to the reasons given by the Tribunal for its decision not to call the applicant's father (at [66] of the Tribunal's decision record). 19 Having considered the parties' submissions, the primary judge held that this ground was not made out and that he was not satisfied the Tribunal's decision not to obtain evidence from the applicant's father was legally unreasonable. The primary judge found that the Tribunal gave an evident and intelligible justification for not taking oral evidence from the applicant's father by phone, namely that the applicant's father was not an independent, reliable witness. Further, the primary judge found that the Tribunal's reasons were rational and its findings about the reliability of the applicant's father were reasonably open to it for the reasons given. 20 Ground two below was that, having accepted that the applicant's claim his father was a member of the VDC was plausible, the Tribunal committed a jurisdictional error in finding that the applicant's father had a low level of engagement with the VDC. 21 The primary judge held that this ground relied on a misstatement of the Tribunal's findings: rather than a positive finding that the applicant's father was a low-level member of the VDC, the Tribunal's findings indicated merely a preparedness to accept part of the applicant's claims, having regard to the applicant's oral and documentary evidence. The primary judge found that the Tribunal's findings in this regard were reasonably open to it for the reasons given. 22 Ground three below was that the Tribunal committed a jurisdictional error in not accepting the applicant's claim that he had been kidnapped on 6 May 2017. This ground impugned one of the Tribunal's reasons for doing so in particular: the Tribunal found it to be "problematic" that the applicant was able to give a detailed account of his kidnapping, and of the motives of his captors, while also claiming to have been blindfolded throughout and to have heard little. The applicant submitted that the Tribunal ignored his explanation for this apparent incongruity, which was that he had subsequently discussed the kidnapping with his family. The primary judge held that this ground had no substance, as the Tribunal had explicitly considered and rejected this explanation. 23 On 28 June 2019, the application was accordingly dismissed with costs. 24 On 6 August 2019, the applicant filed an application in this court for an extension of time to appeal from the primary judge's decision. 25 As the applicant did not file a notice of appeal within 28 days of the primary judge's decision as required by r 36.03 of the Federal Court Rules 2011 (Cth), the applicant requires an extension of time: r 36.05. 26 The application was filed 11 days out of time. 27 The applicant's affidavit explains that he was in immigration detention and had difficulties obtaining advice in relation to filing an appeal. 28 The Minister submits the draft notice of appeal has no reasonable prospect of success and that the court should refuse to grant the applicant an extension of time on that basis, whether or not the proffered explanation for delay is sufficient. 29 The draft notice of appeal contains a single proposed ground, viz the primary judge "incorrectly applied the law". 30 In the absence of any particularisation, the Minister submits, correctly, that the proposed ground is meaningless and has no reasonable prospect of success. 31 The Minister was content to read the proposed ground of appeal as seeking to re-agitate the three grounds raised by the applicant below, but submitted that the primary judge was correct to dismiss the application for the reasons he gave. I agree. 32 As to ground one below (that the Tribunal erred in declining to call the father of the applicant to give oral evidence), the relevant effect of s 426 of the Act is that within 7 days of being notified of the hearing invitation, an applicant may give the Tribunal written notice that he or she wants the Tribunal to take oral evidence from a witness. The Tribunal must have regard to the applicant's wishes as expressed in the notice, but is not required to obtain that evidence: see ss 426(2) and (3) of the Act. 33 The Tribunal does not commit jurisdictional error if it decides not to obtain oral evidence from an applicant's witnesses, despite being notified in accordance with the Act of a request for it to do so. Provided that the Tribunal has regard to the notice the applicant has given, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant: see, by way of example only, Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [37] (Kenny and Lander JJ). 34 By letter dated 18 January 2019, the applicant was invited to a hearing before the Tribunal. In response, the applicant completed a "Response to Hearing Invitation" form in which he indicated he wanted the Tribunal to obtain oral evidence from his cousin and father. 35 As noted previously, the applicant attended the hearing with the assistance of his representative and an interpreter on 1 February 2019. The Tribunal obtained oral evidence from the applicant's cousin, but decided not to obtain oral evidence from the applicant's father. 36 As the Tribunal explained (at [66] of its decision record): The applicant nominated his father to give oral evidence. The Tribunal decided not to call him, particularly in light of the applicant's claims that his father was in danger in their home area. The Tribunal acknowledges the father's readiness to give evidence. However, in light of the applicant's comment that his father arranged his student visa for Australia, including the provision of false documents, the Tribunal places little weight on the father's evidence as independent, reliable corroboration of the applicant's claims. 37 The Tribunal must genuinely apply its mind to whether it should take evidence from a nominated individual and cannot decline to comply with an applicant's wishes capriciously: see, by way of example only, Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] (Kenny and Lander JJ). In this case, the Tribunal expressly applied its mind to the "Response to Hearing Invitation" and gave cogent reasons for deciding not to obtain oral evidence from the applicant's father. In particular, the Tribunal considered the father of the applicant's circumstances and his role in the applicant's student visa application. Further, the Tribunal considered that the applicant's father, and others, appeared "motivated to help the applicant succeed in this application". In other words, the Tribunal found that nothing the applicant's father could have said would have changed its view of the evidence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [49] (McHugh and Gummow JJ). The Tribunal's approach to its fact-finding task was open to it and cannot be said to be illogical, irrational or unreasonable. 38 As to ground two below (that the Tribunal committed a jurisdictional error in finding that the applicant's father had a low level of engagement with the VDC), the Tribunal's relevant factual findings were consistent and were open to it for the reasons it gave. While having reservations about the applicant's corroborative evidence, the Tribunal accepted that "it is plausible though far from certain, that the applicant's father is a member of the [VDC]". However, based on the evidence before it, the Tribunal was not satisfied that the applicant's father "acquired any pronounced anti-Taliban profile as a result of participating in these activities, or holding a VDC identity card". These findings were obviously consistent with the Tribunal's summary of its findings where it referred to the applicant's "father's low level engagement with the VDC". In any event, this ground seeks impermissible merits review. 39 Ground three (that the Tribunal committed a jurisdictional error in not accepting the applicant's claim that he had been kidnapped) also seeks impermissible merits review. The Tribunal identified deficiencies in the applicant's account of the kidnapping and various other concerns with the applicant's evidence. For these reasons, the Tribunal ultimately did not accept the applicant was kidnapped for ransom. As the Minister submitted, the Tribunal's reasons reveal careful and detailed consideration of the applicant's claims and its findings were open to it. In any event, the particular finding impugned by this ground was but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion regarding the kidnapping. 40 Finally, I note that at the commencement of the hearing of this application the applicant sought an adjournment to enable him to seek legal advice. I refused that application because: (i) it was made too late; (ii) the applicant has had since August 2019 to prepare his case and had known since December 2019 that Victoria Legal Aid had refused him assistance; (iii) there was no evidence provided about the applicant's likelihood of obtaining legal assistance; and (iv) in light of the ground of appeal sought to be raised, an adjournment would in any event have been inutile. 41 The application for an extension of time must therefore be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.