CUF15 v Minister for Immigration and Border Protection

Principles 7 The Court may, in its discretion, allow an extension of time to commence an appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), which provides: 36.05 Extension of time to file notice of appeal (1) A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67. (2) The application may be made during or after the period mentioned in rule 36.03. (3) The application must be accompanied by the following: (a) the judgment or orders from which the appeal is to be brought; (b) the reasons for the judgment or orders, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the notice of appeal was not filed within time; (d) a draft notice of appeal that complies with rules 36.01(1) and (2). Note: An application under this rule will be heard by a single Judge unless: (a) the Judge directs that the application be heard by the Full Court; or (b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the matter - see section 25(2) of the Act. 8 The considerations which guide the exercise of that discretion are well settled. They include the length of the delay, the adequacy of any explanation given for the delay, the prejudice that might be suffered by the respondent if an extension of time were granted, the prejudice that may be suffered by the applicant if the extension were to be refused and, relatedly, the merits of the proposed appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 at 348 - 349. 9 None of the principles set out in Hunter Valley Developments, however, is a precondition to the grant of an extension of time. Rule r 36.05 requires "an exercise of discretion having regard to all relevant factors" (emphasis in original): AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 at [19] (per Edelman J). 10 The mere absence of prejudice to the respondent is not enough to justify the grant of an extension of time: Hunter Valley Developments at 349.

Explanation for the delay 11 The applicant filed his proposed appeal on 21 July 2017, that is, 45 days late. 12 In his affidavit filed in support of the application for an extension of time, the applicant deposed: The reason why my appeal was not filed on time is because I could not afford the legal fees and I had to borrow money from my friends. This took some time to arrange. 13 The applicant has not stated that he was ignorant of the time frame in which to commence the appeal, nor has he stated why he did not commence the appeal in his capacity as a self-represented litigant, notwithstanding that he was attempting to arrange legal representation. It is unclear whether the applicant was aware that he could commence an appeal as a self-represented litigant (and obtain a waiver of any applicable filing fee in the event of financial hardship), notwithstanding that he could not afford legal representation. He does not state when he first engaged the legal practitioner who ultimately appeared on his behalf on the appeal and who apparently assisted in the preparation of his affidavit. It may be inferred from the affidavit, and from the lengthy content of the proposed notice of appeal, that preparations for the commencement of the appeal were underway for some time prior to its filing, and that the legal practitioner concerned declined to commence the appeal on the applicant's behalf until such time as funds were paid in trust. However, there is no affidavit provided by the legal practitioner concerned that would illuminate the situation. 14 The applicant did not otherwise appear in person at the hearing of the application such that the deficiencies in his evidence could not be rectified by permitting him to elaborate or clarify his claims in oral testimony. 15 Counsel for the applicant submitted that the application for an extension should be allowed because the proposed appeal concerns an application for a protection visa, and the prospect that the applicant faces real risk of death, torture or inhuman or degrading treatment should he be returned to Pakistan without there having been a full hearing on the merits of his appeal. It was submitted that this circumstance was "overriding". 16 I would not accept that submission uncritically. To do so would to establish a regime whereby all applications for an extension of time would be granted, irrespective of the adequacy of any explanation for the delay, provided that the appeal sought to be commenced had as its subject matter an application under the Act for a protection visa. I am not satisfied on the evidence provided that the applicant himself has acted with a degree of diligence commensurate with the asserted importance of the subject matter to him. Whilst the underlying protection claim is a relevant consideration, the circumstance that the proposed appeal concerns a protection visa is but one circumstance to be taken into account in the exercise of the discretion to extend time. The relative weight to be afforded that circumstance will vary in each case. On the assessment of weight, much may depend upon the merits of the proposed grounds of appeal, to which I now turn.

Merits of the proposed appeal 17 The grounds of appeal broadly allege that the Tribunal's decision is affected by legal unreasonableness. More specifically, it is said that the primary judge erred in failing to find that the country information upon which the Tribunal relied did not provide a logical evidentiary foundation for its ultimate conclusion that peace had been restored to the district in Pakistan where the applicant resided, and that the security situation there would remain stable in the foreseeable future. 18 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] - [131], Crennan and Bell JJ observed: 130 In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless and allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 19 See also Minister for Immigration & Border Protection v SZVFW (2017) 248 FCR 1.

Visa criteria 20 An application for a visa must be granted if the Minister is satisfied that the prescribed criteria for the grant of the visa are met. Conversely, if not satisfied that the visa criteria are met, the Minister must refuse to grant the visa: s 65 of the Act. 21 The criteria for the grant of a protection visa include the alternative criteria in s 36(2)(a) and s 36(2)(aa) of the Act. Briefly stated, it is necessary that the Minister be satisfied that the applicant for the visa is either: (1) a person to whom Australia owes obligations under the Refugee Convention as amended by the Refugees Protocol (Refugee Criterion), being a person who: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. or (2) a person to whom Australia owes obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (Complementary Protection Criterion). 22 For the purposes of the Refugee Criterion, the assessment of a claimed fear of persecution involves "a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past": Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33]. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, Gummow and Hayne JJ described the predictive task of the Minister (and therefore the Tribunal) as follows: 74. Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution. 75. Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared. 23 Similarly, in MZYTS, the Full Court explained that the Tribunal's statutory task involved: 34. … first, a correct understanding of the basis (or bases) on which the visa applicant says he or she has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded. 35. The determination of whether there is an objective basis for the person's fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person's country of nationality at the time the person is likely to be returned there. … 24 The application of the Complementary Protection Criterion involves similar considerations. In order for the applicant to fulfil that criterion, it was necessary that the Minister (or Tribunal on review) have 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 …

Claims 25 Whilst in Pakistan, the applicant lived in Parachinar, a city situated in a district known as the Kurram Agency. The Kurram Agency is situated in the region known as the Federal Administered Tribal Area (FATA). In support of his application for the protection visa, the applicant claimed that he had been threatened by the Taliban and that he had been involved in two separate bombing incidents in 2012, one on a bus on the road between Parachinar and Peshawar and another in a bazaar in Parachinar. It was the applicant's claim before the Tribunal that it remained unsafe to return to his home in the Kurram Agency. He specifically claimed that he was at risk of being attacked, as a Shia, when traveling the roads between Parachinar and other centres. It was, he claimed, necessary to travel the roads to maintain his livelihood. In support of these claims, the applicant relied upon country information which concerned the security situation in Pakistan, including in the FATA.

The Tribunal's findings 26 The Tribunal referred to country information concerning the security situation in Pakistan over time. The reports included those prepared by the Department of Foreign Affairs and Trade (DFAT) and the United Nations High Commissioner for Refugees (UNHCR). It accepted the applicant's claim that the Taliban and associated groups had waged a campaign of violence against Shias throughout the country, including in the Kurram Agency. The Tribunal accepted that between 2012 and 2014 there had been a series of brutal attacks targeting Shias on the roads on which the appellant travelled. The Tribunal continued (at [37]): The Tribunal accepts, therefore, that at the time the applicant left Pakistan in 2012 that his area in Parachinar and the surrounding district was the subject of considerable violence. The Tribunal accepts at that time and, until relatively recently, that as a Shia, Turi Pashtun from Parachinar that there would have been a real chance of serious harm for this reason. Indeed, the RRT decisions cited by representative [sic] confirm that this was the approach taken by this Tribunal. However, as discussed extensively during the hearing, the independent evidence before the Tribunal indicates that there has been considerable stabilisation in the region in 2014 and 2015. … 27 The Tribunal went on to refer to country information reports concerning the decline in sectarian related violence. In critical passages forming the subject of most of the submissions on this appeal, the Tribunal said (at [38] - [39]): 38. As also discussed with the applicant during the hearing, the UNHCR report on a mission to Kurram has said, consistent with the DFAT advice, that general peace had been restored in Upper Kurram and Lower Kurram. Furthermore, in its Annual Security Report of 2014, the FATA Research Centre has stated that the Kurram Agency remained comparatively quiet in 2014 and there were a total of two incidents, one roadside bomb and the killing of a tribal ender on his way to the Sadda Bazaar. The quarterly report for the second quarter (April to June of 2015) also stated that the Kurram Agency continued to remain relatively stable and only three security incidents had been reported. These incidents were a clash between militants and the security forces in the Toor Toor area resulting in the death of two militants, another was in relation to a land mine blast in the Pewar area in which one member of the security forces was injured and the third was an attempted suicide bomb in Alizai in which the suicide bombers had been killed and two or three others were injured. Although not referred to in the reports, the Tribunal also accepts that there was a major attack in Peshawar in February 2015, which was referred to by the applicant and a report provided in relation to this incident, when approximately 20 people were killed when militants 'fitted with suicide vests and armed with hand grenades and AK-47 rifles' attacked an Imambargah in Peshawar. The TTP claimed responsibility stating that the attack was revenge for the execution of Islamist Militant Dr Usman. 39. The FATA Research Centre's Security Report for the third quarter (July to September 2015) refers to six security incidents in the quarter. Although this is double the level of the security incidents in the previous quarter, the report by the FATA Research Centre and a similar report from the South Asia Terrorism Portal indicates that although there was a rise in fatalities, the majority of the casualties were terrorists who were killed by the military forces. Additionally, as noted by the representative, although the DFAT report refers to a high degree of generalised violence in the FATA and a moderate risk of some sectarian violence, the paragraph cited by the representative refers to the FATA as a whole, which includes places like North Waziristan where the Pakistani security services are conducting counter insurgency operations against the TTP and other militants, which has resulted in a high level of generalised violence. The Tribunal is not satisfied that it undermines the advice of DFAT that there is an improved security level in the Kurram Agency. (Footnotes omitted) 28 The Tribunal noted that the applicant's agent had questioned the durability of the security of the Kurram Agency, but nonetheless concluded that both DFAT and UNHCR, when making their assessments that it was safe for people to return to parts of the Kurram Agency, "would have taken this into account" (at [40]).

Reasons of the primary judge 29 The primary judge said (at [35]): … on the face of its Decision Record the Tribunal appears to have conducted a proper, detailed and extensive examination of relevant country information which was fairly put to the Applicant and his migration agent at the hearing. The Tribunal appears to have engaged in a logical and reasonable examination of relevant country information and I cannot discern or infer any legal unreasonableness in terms of that examination or its findings being illogical, arbitrary or capricious.

Consideration 30 The applicant has not established that the Tribunal's findings, said to have been based on the DFAT and UNHCR reports before it, were not open for it to make. It was on the basis of those two reports that the Tribunal concluded that the security situation had stabilised to such a degree that there was not a real chance that the applicant would be persecuted for a Convention reason or otherwise face serious harm should he be returned to the Kurram Agency. This Court was not taken to the particular material upon which the Tribunal relied and as such it has not been demonstrated that that material was incapable of supporting the findings made by reference to it. In particular, no effective challenge was made to the Tribunal's inference that DFAT and UNHCR took into account the durability of the restored peace when making their respective assessments that it was safe for those persons who had fled the region to return there. Nor has it been shown that it was not open to the Tribunal to prefer country information that was specific to the Kurram Agency and to place less weight on country information concerning the security situation in the wider FATA region, or in Pakistan as a whole. 31 The Tribunal did not reject the country information relied upon by the applicant: it simply declined to draw the inferences urged upon it by the applicant by reference to a recent and significant increase in the number of security incidents in the area. The Tribunal explained that the country information concerning the recent incidents confirmed that the majority of recent fatalities were terrorists who were killed by military forces. It is clear that the Tribunal gave evidence of the more recent attacks less weight because they were not attacks directed at persons in the applicant's position. It has not been shown that it was not open to the Tribunal to adopt that course of reasoning. 32 Counsel for the applicant submitted that the Tribunal illogically put a "gloss" on the country information. In argument, however, the submission was shown to rise no higher than an emphatic disagreement with the Tribunal's key finding that peace had been restored to the Kurram Agency. To establish jurisdictional error, it is not enough to show that a different conclusion could and should have been drawn on the factual merits. 33 The primary judge was correct to determine that the Tribunal appears to have engaged in a logical and reasonable examination of relevant country information and to reject the contention that the Tribunal's decision was affected by legal unreasonableness. More precisely, for the purposes of the extension of time application now before this Court, I do not consider any of the appealable errors asserted in the proposed grounds of appeal to have reasonable prospects of success. That circumstance, together with the insufficiency of the evidence advanced by the applicant to explain the delay in commencing the appeal are sufficient to justify the dismissal of the application.

Application to adduce new evidence on proposed appeal 34 Before concluding, it is noted that the applicant contended in the course of argument that this Court should receive in evidence two further country information reports, namely: (1) DFAT Thematic Report - Shias in Pakistan dated 15 January 2016; and (2) DFAT Country Information Report Pakistan dated 1 September 2017. 35 The reports, it was submitted, demonstrated that the security situation in the Kurram Agency was volatile and that the Tribunal's determination to the contrary was illogical or irrational. 36 The application to adduce new evidence was refused. The applicant cannot demonstrate jurisdictional error on the part of the Tribunal or, for that matter, appealable error on the part of the trial judge, by pointing to country information not available before the Tribunal at the time that its decision was made. The statutory task of the Tribunal was to make the correct or preferable decision on the basis of information available to it at the time of the decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140]-[142]. It is not an error going to jurisdiction if the Tribunal makes a finding of fact that may later be demonstrated to be wrong by reference to evidence that might later become available. 37 For certainty, the proposed additional grounds of appeal that depended for their success on the introduction of the new evidence are, for the same reasons given in relation to the application to adduce new evidence, without legal merit. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.