BML17 v Minister for Immigration and Border Protection

1. The name of the first respondent be changed to Minister for Home Affairs.
2. The application for an extension of time be refused.
3. The applicant pay the costs of the first respondent, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 This is an application for an extension of time to appeal from the judgment and orders of the Federal Circuit Court of Australia given and made on 23 November 2018. The orders of the primary judge dismissed, with costs, the applicant's application for judicial review of the decision of the Immigration Assessment Authority (IAA). 2 The applicant was six days out of time in filing his appeal. There is no evidence before me as to the circumstances which make an extension of time necessary so as to constitute an explanation for the delay. 3 The applicant filed no written submissions. At the commencement of the hearing, the applicant applied for an adjournment which I refused for reasons which I then gave. The applicant made no oral submissions going to the substance of his application for an extension of time. 4 The Minister opposed the application for an extension of time on the following bases, in summary: a. the delay of six days was not significant; and b. there was no prejudice to the Minister if time were to be extended; however, c. there was no explanation for the delay; and d. the proposed grounds of appeal were sufficiently without merit as to not warrant leave being granted. 5 As found by the primary judge, the background is as follows. 6 The applicant is a citizen of Pakistan. He arrived in Australia on 17 April 2013. On 30 June 2016, he was invited to apply for a protection visa. On 1 August 2016, the applicant applied for that visa. 7 On 21 November 2016, a delegate of the Minister refused the applicant's visa application. 8 On 23 November 2016, the Minister's Department referred the delegate's decision to the IAA for review. 9 On 10 March 2017, the IAA affirmed the delegate's decision. 10 The proposed grounds of appeal are as follows: 1. The Authority required the applicant's compliance with a Practice Direction issued on 21 April 2016 which required submissions to be limited to five (5) pages and that limitation was unlawful. Particulars (a) The Authority refused to consider written submissions made on the Applicant's behalf because they were more than five pages in length. The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions. (b) Alternatively to Particular 1(a), limiting submissions to five pages was an unreasonable exercise of the power to issue practice directions. 2. The Authority conducted the review in a manner that was legally unreasonable. Particulars (a) In that the Authority decided that the applicant did not come within s. 5H(1)(a) of the Migration Act for reasons that were not disclosed to him and of which he would not have been aware, its failure to; (i) Utilise its power under s. 473DC(3) of the Migration Act to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review, or, alternatively, (ii) Consider utilising its power under s. 473OC to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review. was legally unreasonable. 3. The Authority breached the requirements of natural justice in a manner not curtailed by s. 473DA of the Migration Act. Particulars (a) In that the Authority decided that the applicant did not come within s. 5H(1)(a) of the Migration Act for reasons that were not disclosed to him and of which he could not have been aware, its failure to; (i) Utilise its power under s. 473DC(3) of the Migration Act to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review, or, alternatively, (ii) Consider utilising its power under s. 473DC(3) to invite the applicant to an interview, or invite a written response to the issues that it saw as being relevant to the review. resulted in a breach of the requirements of natural justice or procedural fairness that was curtailed by s. 473DA of the Migration Act. 11 These grounds are not in terms directed to any error on the part of the primary judge. 12 As submitted by the Minister, the applicant was represented by a solicitor throughout the proceedings in the Court below. In that Court, ultimately the applicant relied on an amended application filed in Court at the hearing on 12 July 2018. 13 By that amended application and as ultimately argued before the primary judge: (1) Ground 1 was abandoned. (2) Ground 2 alleged that the IAA conducted the review in a manner that was legally unreasonable by failing to utilise its power under s 473DC(3) of the Migration Act to invite the applicant to an interview or invite a written response to issues the IAA saw as being relevant to the review. (3) Ground 3 was not pressed in light of the decision in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526, as noted by the primary judge at [30]. (4) A Ground 4, not reproduced in the proposed grounds of appeal in this Court, was added and alleged that the IAA failed to consider the entirety of the applicant's claims that he feared harm in all parts of the country because of his religion and ethnic identity. The IAA unreasonably assumed, it was contended, that the applicant would be able to return safely to his home region and work on his family's farm and failed to consider whether he would be at risk of harm if he was unable to return to that region. 14 I would not grant an extension of time to argue grounds which were either abandoned or not pressed before the primary judge in circumstances where the applicant was then legally represented and where there is no basis for thinking that the decision to abandon or not press those grounds was not well-founded: see DZU16. 15 This leaves, as the draft grounds of appeal are written, only proposed ground 2. This ground was raised and determined by the primary judge as follows. 16 At [24], after reviewing the facts as found by the IAA, the primary judge said those facts revealed the following: … first, the question of safety throughout Pakistan was always an issue; secondly, given the remoteness of the applicant's home territory, there was always an issue as to whether the applicant could safely return there; thirdly, at the interview with the delegate (referred to by the Authority as the TPV interview) the applicant himself raised the question of safety on the roads in Pakistan; fourthly, the delegate implicitly found that it would be safe for the applicant to return to his home territory; fifthly, the delegate's decision relied on a report from DFAT about the circumstances that might affect the applicant in Pakistan; sixthly, the applicant himself had, and relied on, that report in his submissions to the Authority; seventhly, the issues concerning the safety of travel in Pakistan were addressed by the Authority by reference to the information in the DFAT report as well as by reference to the applicant's own evidence. 17 In those circumstances, the primary judge concluded, it was not legally unreasonable for the IAA to proceed, as it did, on the basis of the information before it and without either exercising or considering whether to exercise its power to obtain further information under s 473DC(3). The issue of travel did not turn on anything personal to the applicant that only he could supply and without which the IAA could not properly fulfil its function of review. All of the material was already there, the primary judge concluded, including the material already put forward by the applicant. 18 The primary judge, at [26]-[27], also dealt with two other contentions put on behalf of the applicant. They are not raised in the proposed ground 2. 19 For completeness, those contentions were: first, that the IAA inferred that it would be safe for the applicant to travel from Parachinar to his village; and, second, so it was contended, that the IAA found, without evidence, that the applicant could afford to charter a plane to fly from Lahore. The primary judge characterised these contentions as alleging error in making a finding of fact without evidence. The primary judge rejected these contentions at [34]-[39]. 20 The applicant has not identified any basis for concluding that there was appellable error on the part of the primary judge. 21 In these circumstances, I would refuse the application for an extension of time on the basis that there is no explanation for the delay and, more importantly, the proposed grounds are not of any merit. 22 The applicant is to pay the first respondent's costs, as agreed or assessed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.