CWB16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-06-01|Before: Gleeson J

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

GLEESON J: 1 This is an application for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011 from a judgment of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal"): CWB16 v Minister for Immigration [2017] FCCA 3060. The Tribunal's decision affirmed a decision of a delegate of the first respondent ("Minister") not to grant the applicant a protection visa. 2 The applicant did not file written submissions. Although a solicitor filed his application, the applicant appeared before the Court without legal representation. The applicant said that he did not require the assistance of an Urdu interpreter.

BACKGROUND TO EXTENSION OF TIME APPLICATION 3 The applicant is a citizen of Pakistan who arrived in Australia on 15 January 2014 on a Subclass FA 600 Tourist visa. On 18 November 2014, he applied for a protection (Class XA) visa. In his decision dated 2 June 2015, the Minister's delegate summarised the applicant's claim for protection as follows: He fears that he would be killed or physically harmed by criminal elements in Pakistan on account of his access to lots of cash. 4 The FCCA judge described the applicant's claim for protection as follows, at [3] to [6] of his Honour's reasons: [3] The claims are set out in a statement that forms part of the application for a Protection visa. In that statement, the applicant claimed he was employed as an accounts manager by a travel agency in Karachi. During the course of carrying out his duties, the applicant handled large amounts of cash and high-value cheques. On his way "up and down" to the bank on 5 November 2013, while on a routine visit to the bank, the applicant was approached by an unknown person inquiring about an "unknown address". The person grabbed the applicant and "physically and forcibly" pushed him into a car with a driver already in position which drove away. The applicant's face was covered with a cloth. The car stopped at an unknown place and the applicant was taken into a room and his face was uncovered. [4] Two people began asking the applicant questions about how much cash he usually handled. They took the applicant's mobile phone, called the applicant's brother and demanded "rupees, 5 million, ransom amount in lieu of [the applicant's] life". The applicant's brother did not have this amount of money. The applicant was kept in the room for four days and was subjected to threats, "bashing" and rough and abusive language. The applicant claimed that during that time, his brother and the kidnappers had a few telephone conversations, as a result of which the kidnappers agreed to release the applicant in exchange for "rupees, 1 million". The applicant was released after the money was given to the kidnappers. [5] The applicant further claimed that he and his family moved to a remote location because they were "constantly suffering from fear that they would be again victimised". The kidnappers located the applicant and his family and demanded more money and threatened that if their demand was not met the applicant and his family "would be all dead". The applicant later found that the gang are professional criminals with gangs all over Pakistan and have a "very close network with terrorists". The applicant claimed that once the gang target someone, they chase them for their whole life and can locate a person very easily because of their close networks all over Pakistan, making it impossible to hide from them. The applicant further claimed that the same criminal gang shot his father dead. The applicant and his family went into "deep depression" after the applicant's kidnapping and the applicant arranged, with the help of his friends, a visitor visa to come to Australia. [6] The applicant claimed he fears the gang will kidnap him again and kill him if he returns to Pakistan, even if he moved to another part of Pakistan. The applicant claimed the authorities are unable to help because they too are scared of the gang. Before the Tribunal the applicant also claimed that the criminal gang had cut his throat previously, and that the applicant's brother had received papers from the kidnappers asking about the applicant's whereabouts… 5 The applicant supported his claims for protection by reference to two documents ("supporting documents"). One is an Urdu language document, with an accompanying English language translation. The translation shows that the document is headed "Station Diary Entry II Time about 14:00 Date 5/11/2013. The second document is an English language form entitled "Warrant of Arrest", which is uncompleted. The FCCA judge identified these documents at [6] of his Honour's reasons.

Tribunal decision 6 At para 28 of the decision record, the Tribunal stated: I found the applicant's evidence regarding his claims to lack credibility. For reasons set out below, I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated much of his claim in order to be granted a protection visa. 7 At [7] to [13] of his Honour's reasons, the FCCA judge set out his findings concerning the Tribunal decision. The FCCA judge noted that the Tribunal did not accept that the applicant was ever kidnapped in Pakistan, that the applicant was tortured by any criminal gang, that any criminal gang sought to find the applicant after he had been released, or that ransom demands had continued to be sent to the applicant's family's address. 8 Concerning the supporting documents, at para 37 of its decision record, the Tribunal stated: I have taken into account the documents that the applicant has submitted in support of his claim but lend them little weight. Country information indicates that document fraud is endemic in Pakistan and that the existence of a FIR (police report) does not constitute evidence that the described events actually occurred. The documents are a handwritten FIR and a blank arrest warrant written in English that the applicant claimed was given to him by the police. Given the country information and the applicant's lack of credibility I lend more weight to the implausibility of, and inconsistency in the applicant's evidence.

FCCA proceeding 9 Before the FCCA, the applicant relied upon the following two grounds of review: 1. The Tribunal failed to put sufficient weight on the evidence given by the applicant at the hearing, therefore the tribunal made an error. Particulars Paragraph 7 to 24 of the subject decision. 2. The Tribunal made an error by not giving sufficient weight to the documentary evidence provided by the applicant with his Protection Visa Application. Particulars Paragraph 37 of the subject decision. 10 The FCCA judge dismissed the application. 11 At [15] and [16], the FCCA judge addressed the first ground of review as follows: [15] The applicant, who is not legally represented, did not make any submission in relation to this ground. As framed, the ground appears to contend the Tribunal ought to have given the applicant's evidence greater weight than it did. [16] That contention does not raise any jurisdictional error. The weight that should have been given to the evidence the applicant gave before the Tribunal was one for the Tribunal, not this court, to asses. From the summary of the Tribunal's reasons which I gave, it should be apparent, and I find, that the Tribunal correctly identified the claims the applicant made before it and the evidence the applicant put forward in support of those claims, it considered the claims and the evidence, and, for reasons that were reasonably open to it, found that the applicant's evidence not to be worthy of credit. I can well understand the applicant - and he expressed as much to me - disagreeing with that finding, but, as I informed the applicant, the role of this Court is not to determine whether the Tribunal was correct in its findings. The role of this Court is to determine on grounds advanced by the applicant whether the Tribunal reviewed the applicant's case according to law. That is the general way of putting it. The technical expression or criterion is jurisdictional error. The question the court must consider is whether, on the grounds on which an applicant relies, the Tribunal engaged in any jurisdictional error. And a Tribunal does not engage in jurisdictional error if it makes findings of fact which are reasonably open to it, given the material that is before it and given the reasoning it has in fact adopted. 12 The FCCA judge addressed the second ground of review, which concerns the two documents described at [5] above, at [18] to [23] of Honour's reasons. At [23], his Honour concluded that the Tribunal's mode of reasoning in relation to the weight of the documents was open to it, being in conformity with the decision of the Full Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [33].

PROPOSED APPEAL TO THE FEDERAL COURT 13 By r 36.03 of the Federal Court Rules 2011, the period within which the applicant was entitled to file a notice of appeal from the judgment of the FCCA expired on 21 December 2017. The applicant filed the application fifteen days later, on 5 January 2018. In his affidavit affirmed on 4 January 2018, the applicant explained the delay as follows: The reason for the delay is that I was not sure what to do next. I did not get proper guidance to proceed further. I did not know that I should [sic] can appeal the decision of the Federal Circuit Court. Finally, I went to a migration agent that arranged for me to see a solicitor to advise me. 14 The applicant's proposed notice of appeal contains the following three grounds of appeal: 1. The [FCCA] did not consider that the criminal network that targeted me was linked to a terrorist organisation. Particulars I was targeted by a group of professional criminals that had links to a terrorist group. Their main aim was to extort money from people like myself and then forward the money to these terrorist organisations to assist with their evil activities. 2. The [FCCA] did not take all relevant facts into consideration. Particulars The [FCCA] did not consider that once these criminal organisations distort [sic] money from a person they will continuously try to do it in future. If you refuse to hand them money, then your life is in danger and you also become a target to the terrorist group. Once you become known to the terrorist group your life is never safe. 3. I was deprived of natural justice because of the negative inferences made by the [FCCA]. Particulars I did not get a fair hearing because of the negative inferences held against me, the fact that I was accused of just wanting to come to Australia for economic reasons did not help my case.

CONSIDERATION 15 The decision to grant an extension of time to appeal is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] ("DZAAD"). The relevant considerations are: (1) the reasons for the length of the delay - the Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored; (2) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and (3) the merits of the appeal: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 at [19]; WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9]; and DZAAD at [28]. 16 The substantive application should have such prospects of success as not to render the granting of an extension of time an exercise in futility: SZUOV v Minister for Immigration and Border Protection [2017] FCA 1420 at [5], [8]; see also BAG15 v Minister for Immigration and Border Protection [2018] FCA 307 at [18].

Minister's submissions 17 The Minister's principal submission was that the application should be refused because the appeal lacked merit, although the Minister also contended that the applicant's explanation for his delay in seeking to appeal from the FCCA judgment was not satisfactory.

First proposed ground of appeal 18 In relation to the first proposed ground, the Minister submitted that even if some issue relating to the tangential reference to terrorist links had been agitated before the FCCA, it was not within that Court's jurisdiction to consider the merits of that claim. Therefore, it cannot be a jurisdictional error for the Court to have failed to do so.

Second proposed ground of appeal 19 The Minister submitted that the second ground asserts that the Court fell into error in failing to undertake impermissible merits review.

Third proposed ground of appeal 20 The Minister submitted that, while cast as a natural justice ground, the final proposed ground of appeal in essence also seeks merits review (to the extent the applicant seeks to express dissatisfaction with the findings/outcome). 21 The Minister argued that the applicant was given a fair hearing by both the Tribunal and the FCCA. 22 The Minister suggested that the "negative inferences" which the applicant claims were "held against" him may be a reference to para 20 of the Tribunal's decision record, which reveals that the Tribunal put to the applicant that it had "a concern he may have been attracted to Australia for economic reasons as he had delayed his claim and his account of his kidnapping appeared to be implausible". The Minister noted that, although the Tribunal raised this matter, it did not identify it as a factor in its findings and reasons. Further, it was not an issue raised for consideration as an error, or at all, before the FCCA. 23 The Minister argued that there is no basis identified for a finding that there was any denial of natural justice by the FCCA judge.

Applicant's oral submissions 24 At the hearing, the applicant did not make any submissions in support of the three proposed grounds of appeal. Rather, the applicant argued that there was a relevant error demonstrated by the fact that he was issued a Pakistani passport. This is a matter that was raised before the FCCA judge and is referred to at [24] of his Honour's reasons, where his Honour said: The applicant before me made another submission. He referred to his visa having expired and his applying in Australia for a new visa from the Pakistan consulate. He said that the process took 11 months. It resulted in him being granted a passport. On the basis of that, the applicant submitted that the investigations that would have been necessary to undertake in order for him to be granted the passport would have involved a review of police records, including the first information report that was put before the Tribunal. 25 I interpolate that the "first information report" is the document that I have referred to as the "Station Diary Entry II". 26 The applicant made it clear to the Court that his application for a new passport was made after the date of the Tribunal hearing and, therefore, was not a matter that he brought to the attention of the Tribunal. Whatever merit such a submission may have had if it been made to the Tribunal, the fact is that it was not put to the Tribunal because it could not have been. The Tribunal's failure to consider the applicant's passport application thus cannot support a finding that the Tribunal fell into jurisdictional error in the manner in which it considered the applicant's case. In turn, there is no reason to doubt that the FCCA judge correctly disregarded such a submission at [24] of his Honour's reasons.

CONCLUSIONS 27 In reading the FCCA judge's reasons, I do not detect any possible error on the part of the FCCA judge of the kinds identified in the proposed notice of appeal. In particular: (1) I see no basis for a conclusion that the FCCA judge was required to consider that the criminal network that targeted the applicant was linked to a terrorist organisation as part of his Honour's consideration of the application before the FCCA; (2) I see no basis for a conclusion that the FCCA judge was required to take into consideration the matters identified by the applicant concerning the propensities of the criminal organisations and the terrorist group referred to by the applicant in the particulars to the second proposed ground of appeal; and (1) I see no basis for an argument that the applicant did not get a fair hearing by the FCCA judge or that the applicant was deprived of natural justice because of any negative inference made by the FCCA judge. 28 Additionally, as noted above, the applicant's oral submissions regarding the Tribunal's failure to consider his passport application provide no reason to doubt the conclusions of the Tribunal and in turn the FCCA judge. 29 Accordingly, I accept the Minister's submission that the proposed appeal has no merit. In the circumstances, it would be futile to grant the extension of time sought by the applicant regardless of the adequacy or otherwise of his explanation for his delay. The application should be dismissed. Costs should follow the event. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

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