CTY15 v Minister for Immigration and Border Protection

1. The application for an extension of time under rule 36.05 of the Federal Court Rules 2011 to file a notice of appeal from the judgment of the Federal Circuit Court of Australia is allowed.
2. On or before 4pm on 22 November 2017, the applicant is to file and serve a notice of appeal in terms of annexure "CTY15-5" to the affidavit of Behrooz Ehsani sworn on 18 July 2017.
3. In the event that the costs of the application are not agreed: (a) on or before 4pm on Monday 27 November 2017, the applicant is to file and serve a written submission of no more than two pages in support of its position as to costs; (b) on or before 4pm on Monday 4 December 2017, the first respondent is to file and serve a written submission of no more than two pages in response; (c) the question of costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 The first and second applicants are a husband and wife respectively. The third applicant is their young son. The applicants are citizens of Iran who applied for protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). 2 The applicants seek an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Circuit Court dismissing their application for judicial review of a decision of the Administrative Appeals Tribunals (the Tribunal) given on 6 November 2015. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant protection visas to the applicants. 3 Judgment was delivered by the Federal Circuit Court on 23 February 2017. An extension of time is required because the application was filed on 26 July 2017 and therefore over three months after the 21 day period within which to appeal: see r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (FCR). 4 The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and may be summarised as follows. (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.) 5 As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38])). 6 The delay in filing the application is not insignificant. As to the reasons for delay, the appellant relied upon the affidavit of Mr Esani, solicitor, sworn on 22 June 2017 who deposed that "[t]he reason why the notice of appeal was not filed on time is because the applicants could not afford the legal fees for the appeal and had to borrow money from family and friends." While not determinative, the explanation given for the delay is unsatisfactory in a number of respects, including the lack of detail as to any steps taken by the applicants such as applying to the Registry for a fee waiver, and the lack of any supporting documents. Nor, in any event, are financial constraints necessarily an acceptable explanation for delay in filing a notice of appeal, as the Minister submitted: see by analogy QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] (the Court) where the only explanation was that the appellant had failed to pay his solicitor's fees. 7 On the other hand, while also not determinative, the Minister does not submit that he would suffer any prejudice by reason of the delay. However the Minister argues that any appeal would lack any reasonable prospects of success. 8 The notice of notice of appeal identifies one ground of appeal namely: 1. The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the claims of the second appellant, ADM15, who is an Iranian female and does not wish to abide by the laws of Islam extremism, including the dress code and fears harm as a consequence, including being sprayed in the face with acid. 9 In this regard, in dismissing the application for judicial review the primary judge held relevantly at [39] that "…contrary to the submission made on her behalf… ADM15 never advanced a case in support of her protection visa application on the basis that she would defy and not comply with the dress code, either for political or religious reasons or for any reason." 10 Mr Williams for the applicants appeared to accept that there was no claim by the second applicant expressly to the effect pleaded in ground 1. He was in any event unable to point to any passage in the material annexed to Mr Esani's affidavit or in the Court Book below expressly to that effect. However Mr Williams contended that the clear implication from her claims was that she feared persecution as a member of a particular social group, namely, women in Iran who do not wish to abide by Islamic extremism including the dress code. In support of that submission, Mr Williams pointed in particular to the following. (1) The submission dated 5 October 2015 from the applicants' representatives to the Tribunal cited country information in support of claims expressed as the second applicant's "membership of a particular social group, 'women in Iran' and/or 'women who don't abide by strict Islamic dress codes.'" (Court book at pp. 245 and 266). (2) In her statutory declaration, the second applicant said among other things that when she went out with her husband and son to celebrate her son's birthday, they were approached by strangers who "made a very rude comment about the way I dressed because I didn't wear my veil properly and because I wore make up." She alleged that the strangers then started to beat up her husband but run away when other people tried to calm them down. She also said that these people are connected to the government and that "[s]ince this incident I was always worried. I always feared that we would get into trouble again. I did not dare to go out without being covered up properly and I was always scared something bad could happen to us" (Tribunal's reasons at [24]). (3) In her statement, the second applicant also said that "[b]eing a woman, I am fearful of my treatment on return to Iran. I have heard that some women in Iran have had acid thrown on them recently because they didn't cover themselves properly. I am fearful that this will happen to me" (Tribunal's reasons at [25]). 11 With respect to the matter referred to at (1) above, counsel for the Minister submitted that the submission to the Tribunal referred only to a social group being women who do not abide by the dress code, as opposed to women who do not wish to abide by the dress code. I do not, however, consider that the distinction is necessarily a valid one and that it cannot reasonably be argued that the first social group as defined in the submission to the Tribunal ought not to be read as women who do not wish to abide by the dress code. That issue would seem to turn upon the proper construction of the applicant's claims in which contextual matters may well play a part such as the second applicant's claim that she wore make-up, bearing in mind, for example, country information referred to earlier by the Tribunal at [70] that wearing make-up may itself contravene the Islamic moral law or code of behaviour. In this regard, I note that while counsel for the Minister pointed to the Tribunal's rejection of the applicant's claims relating to the fight between the strangers and her husband and of the second applicant's failure to comply with the dress code leading to the fight, the Tribunal did not appear to rule out the possibility that the applicant may have been wearing too much make-up and not entirely covering her hair (Tribunal reasons at [88]). 12 In all of the circumstances therefore and considering the proposed appeal at a reasonably impressionistic level, I do not accept the Minister's submission that an appeal would lack any reasonable prospect of success. Given this finding, the seriousness of the consequences for the applicants if this application is refused, and the lack of any prejudice to the Minister, on balance I consider that it is fair and equitable to grant an extension of time within which to appeal. I will also afford the parties the opportunity to make submissions as to costs of the application, in the event that they are not agreed. However, I would indicate that I am tentatively of the view that costs should be reserved pending the outcome of the appeal given among other things the length of the delay in instituting this application and the lack of any adequate explanation for the delay. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.