CWW16 v Minister for Immigration, Citizenship and Multicultural Affairs

The Tribunal's Decision 11 The Tribunal considered whether the applicant had a well-founded fear of persecution for a reason under the 1951 Refugee Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees or whether there was a real risk that he would suffer significant harm in Pakistan. 12 The Tribunal set out the applicant's claims for protection before proceeding to make its findings. In doing so it: (1) accepted the applicant is a Shia Muslim and a Pakistani national and had genuine concerns about returning to Pakistan. However, it considered the applicant had "to some extent" embellished his level of fear and it was not satisfied that the applicant's family was targeted or threatened in Pakistan because of their Shia religion. The Tribunal considered that these claims were made in an attempt to establish grounds for protection in Australia: Tribunal's reasons at [15]; (2) considered the applicant's evidence about his experiences in Pakistan and noted that the applicant did not lodge his application for the visa until some five years after his arrival in Australia in January 2009. The Tribunal considered that the lengthy delay in the lodgement of the application raised concerns that the applicant had applied for the visa as an alternative means of remaining in Australia: reasons at [23]; (3) considered the applicant's evidence at the hearing in relation to his fears he would be killed, his family being the target of violence and the reasons they had to move from place to place was vague and/or unpersuasive: reasons at [24]-[25]; (4) considered the applicant's claims regarding an attack on him personally, which was raised for the first time at the hearing, to be similarly vague and unpersuasive: reasons at [26]; (5) was not satisfied that the applicant had given a truthful account of his reasons for seeking Australia's protection, several years after his initial arrival on a temporary visa and that, as the applicant returned to Pakistan for several months in 2008 to lodge an application for a student visa in Australia, did not accept that the applicant then came to Australia due to any fear of harm in Pakistan: reasons at [27]; (6) accepted that a high level of sectarian violence in Pakistan was of concern to the applicant. The Tribunal noted that the applicant agreed at the hearing that there had been an improvement in the situation for minority groups and a reduction in sectarian violence and terrorist incidents: reasons at [28]; (7) cited extensive country information concerning the situation for Shias and the levels of sectarian violence and terrorist attacks in Pakistan: reasons at [29]-[32]; (8) accepted that there remained some risks for all Shias throughout Pakistan but it was not satisfied that the applicant's personal circumstances were such that he would attract the adverse attention of extremist groups or individuals upon his return: reasons at [33]; and (9) was not satisfied that there was a real chance that the applicant would suffer serious harm for a Convention reason nor that the applicant would suffer significant harm if he were removed from Australia to Pakistan: reasons at [33]-[34]. 13 The Tribunal concluded that the applicant did not satisfy the criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Act.

The Federal Circuit Court decision 14 The applicant sought review of the Tribunal's decision in the Federal Circuit Court. 15 At the final hearing before the Federal Circuit Court on 11 June 2019 the applicant was granted leave to rely on an amended application attached to his written submissions. 16 As noted above, on 1 May 2020 the primary judge made orders dismissing the applicant's amended application with costs in a fixed sum. 17 The primary judge considered the sole ground of the amended application which was: The Tribunal committed jurisdictional error by misapplying the real chance test to independent evidence, making inaccurate inferences, failing to genuinely consider the accepted residual risk of serious harm and arriving at a conclusion that was not supported by evidence before the [Tribunal]. 18 The applicant initially contended in written submissions that the question for the Tribunal was whether the applicant had a well-founded fear of persecution within s 5J(1) of the Act. The primary judge noted that the applicant subsequently conceded that: amendments in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) which introduced s 5J into the Act were not applicable to the applicant's amended application, which was lodged prior to the introduction of that provision; and the critical question for the Tribunal was whether the applicant had a well-founded fear of persecution for a Convention reason: CWW16 at [37], [62]. 19 The primary judge noted that the applicant's contention appeared to be that having accepted that there was a "residual risk" of generalised, as opposed to targeted, violence against Shias, the Tribunal failed to address the risk of such generalised violence against Shias in considering whether the applicant had a well-founded fear of persecution for a Convention reason: CWW16 at [66]. 20 The primary judge was satisfied that the Tribunal: had given consideration to the applicant's individual circumstances; made findings about the applicant's claims of past harm and about his profile; was not satisfied that he had any particular profile which would attract the adverse attention of extremist groups or individuals; and understood that this left his residual claim to fear harm as a Shia from Pakistan generally and Karachi more specifically: CWW16 at [69]. 21 The primary judge also found that the Tribunal engaged in an active intellectual process having regard to the country information it cited. The primary judge found that the Tribunal not only considered evidence in relation to targeted attacks but it also made it clear that it understood the applicant was concerned about random and unpredictable violence involving attacks on Shias: CWW16 at [70]. 22 The primary judge found that it was reasonably open to the Tribunal to have regard to the size of the Shia community and the reduction in attacks and violence against Shias throughout Pakistan in its consideration of whether the applicant had a well-founded fear of persecution "for a Convention reason": CWW16 at [73]. 23 In relation to the applicant's contention that there was no evidence or basis in the independent evidence considered by the Tribunal for its conclusion, the primary judge found that it was open to the Tribunal to have regard to recent information about the reduction in violence against Shias. The primary judge also found that the Tribunal explicitly turned its mind to whether, given its earlier findings, the applicant faced a real chance of harm for reason of his Shia religion, that it was open to the Tribunal to have regard to the size of the Shia population in Pakistan in assessing whether the applicant's fear of harm was well-founded and that its reasoning was not illogical: CWW16 at [74]-[75]. 24 The primary judge concluded that the applicant did not establish that the Tribunal misapplied the applicable test in considering independent evidence or otherwise erred in the manner contended by the applicant. Accordingly, the application was dismissed: CWW16 at [76].

Legislative framework and legal principles 25 Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) requires a notice of appeal to be filed within 28 days after the date on which the judgment appealed from was pronounced or the order was made. In the present case, the applicant's application for an extension of time was filed 90 days after the time fixed by r 36.03 of the Rules. 26 Rule 36.05 of the Rules sets out the requirements for an application for an extension of time to file a notice of appeal as follows: (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 omitted.) 27 Rule 1.39 of the Rules provides that the Court may extend time fixed by the Rules after the time expires and whether or not an application for extension is made before the time expires. 28 The principles that apply to the grant of an extension of time to file a notice of appeal are well established. They were recently summarised by a Full Court of this Court (Katzmann, Charlesworth and Burley JJ) in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 at [14]-[18], citing BQQ15 v Minister for Home Affairs [2019] FCAFC 218: 14 First, an application for extension of time will only be granted if it is proper to do so; the legislated time limits are not to be ignored. 15 Second, there must be an acceptable explanation for the delay. 16 Third, any prejudice to the respondent caused by the delay militates against the grant of an extension. On the other hand, the mere absence of prejudice to the respondent is not enough to justify the making of an order. 17 Fourth, the merits of the substantive application are to be taken into account. Leave will not be granted where the appeal has no reasonable prospect of success. 18 Fifth, the purpose of the discretion is to enable the Court to do justice between the parties. Where the delay is short and no injustice will be occasioned to the respondent, justice will normally be done by extending the time. That is especially so if the applicant is in immigration detention, requires the assistance of an interpreter, and has limited knowledge of law and practice including the time for any appeal. Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly. But the merits of the appeal are still relevant. 29 In relation to the question of delay, in Martin v Norton Rose Fulbright Australia [2019] FCAFC 234 a Full Court of this Court (Besanko, Flick and Abraham JJ) observed at [25] that, as a general principle, an absence of explanation for delay is not of itself a conclusive reason for refusing leave, though in the circumstances before their Honours they found that it was conclusive. 30 In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573; [2022] HCA 28, a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) in considering the power to extend time conferred by s 477A(2) of the Act stated at [18] that while the Court will often conduct an impressionistic assessment of the merits of proposed grounds of review, there are circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment, including where a delay is "lengthy and unexplained".

The application for an extension of time 31 The application for an extension of time filed on 27 August 2020 states that the grounds of the application are set out in the accompanying affidavit and annexes a draft notice of appeal which includes three proposed grounds which are (as written): 1. The decision of the second Respondent is infected by jurisdictional error. They will further explore this in the affidavit. 2. The Tribunal committed jurisdictional error by misapplying the real chance test to independent evidence, making inaccurate references, failing to genuinely consider the accepted residual risk of serious harm and arriving at a conclusion that was not supported by the evidence before the tribunal. 3. Surfacing of new evidence which further stresses the life and death matter it really is. 32 The affidavit which accompanied the application for an extension of time was signed by the applicant (but not witnessed). It does not set out the grounds of the application for an extension of time but addresses the applicant's proposed grounds of appeal. The applicant does not provide any explanation for the delay in his affidavit. Nor did the applicant file any written submissions in support of his application for an extension of time in accordance with orders made by the Court on 8 September 2020. 33 However, on the eve of the hearing of his application, the applicant emailed a 17 page document to the Court titled "Court Submission" (6 November 2023 Submissions). The 6 November 2023 Submissions repeat the Minister's submissions and respond to aspects of them including an explanation for the delay in filing the application. Other than that, for the most part, the applicant takes issue with the Tribunal's findings, as summarised by the Minister, and seeks to raise factual matters going to the current circumstances in Pakistan and the experiences of various of his family members as well as his own circumstances. 34 To the extent the 6 November 2023 Submissions and the applicant's affidavit address the proposed grounds of appeal in the applicant's draft notice of appeal, I will treat them as the applicant's submissions on the merit of those grounds.

Consideration 35 The Minister opposes the application for an extension of time. Accordingly, I consider below whether an extension should be granted in the circumstances of the applicant's case.

Delay 36 The first question to consider is delay. As set out above, the applicant filed his application for an extension of time 90 days after the time prescribed by the Rules. In his affidavit he provides no explanation for doing so. However, in the 6 November 2023 Submissions the applicant states (as written): Someone going through mental illness some tried to do many suicides attempt's someone going through all these trauma depression anxiety fear of losing life its all time consuming already provided the court my physiatrist report about y mental illness since 2020 im under treatment from Dr. Tracy Durrant , Her letter already provided to the court in advance I acknowledge the significant delay of 90 days, which exceeds the prescribed period, and I understand the importance of adhering to time limits imposed by statutes. I apologize for not initially providing a satisfactory explanation for this delay, as required by the court's procedures. I would like to emphasize that during this period, I was undergoing a profound state of trauma, depression, and anxiety, which severely impacted my ability to engage effectively with legal matters. At one point, I even attempted suicide as a result of the immense psychological distress I was experiencing. My mental health struggles were documented and can be verified by my treating psychiatrist, Dr. Tracy Durrant, with whom I have been under care since 2020. I humbly request the court's understanding and compassion in considering the broader context of my situation, which includes not only the complexities of my case but also the severe mental health challenges I faced. In light of these circumstances, I respectfully request that the court grant an extension of time for filing the notice of appeal, allowing me the opportunity to present my case effectively. Thank you for your consideration, Your Honor. 37 By the 6 November 2023 Submissions the applicant suggests that at the time he was required to file his notice of appeal, he was suffering from depression and anxiety. In oral submissions the applicant emphasised that he had been suffering from depression after the Tribunal handed down its decision and that this was the cause of his delay in filing. Both in the 6 November 2023 Submissions and in his oral submissions the applicant said that he was being treated by Dr Durrant but he provided no evidence to substantiate that assertion or the assertion that he was suffering from any mental disability at the relevant time. No letter from Dr Durrant, as referred to in the 6 November 2023 Submissions and again in oral submissions, was provided to the Court either in advance of or at the hearing. 38 In oral submissions the applicant said that he also needed extra time for filing as he could no longer afford legal representation following the orders made by the Federal Circuit Court. 39 The delay is not insubstantial, being more than three times the prescribed period for filing a notice of appeal. As the Minister submits once the time period for lodging an appeal has passed the parties are entitled to assume that the litigation is at an end and that they can move on with their affairs. The applicant's assertion that he suffered from depression and anxiety at the relevant time provides some explanation for the delay, but, as I have already observed, that assertion remains unsubstantiated. As the Minister submits there is no evidence which explains the steps taken by the applicant after the orders were made in May 2020 or how the applicant eventually managed to file his application for an extension of time, having regard to any mental health conditions that he may have been suffering.

Prejudice 40 The next question concerns any prejudice to the Minister. Relevantly, the Minister accepts that there will be no prejudice to him if an extension of time is granted other than the costs of defending an appeal which the Minister submits lacks merit. However, as set out above the absence of prejudice is not of itself enough to justify an order to extend time.

Merit of the proposed grounds of appeal 41 As set out at [32] above, the applicant's draft notice of appeal included three proposed grounds, two of which (grounds 1 and 3) were not raised before the primary judge. In addition, in oral submissions the applicant raised a further proposed ground of appeal, which again had not been raised before the primary judge. 42 As is apparent the applicant seeks to raise new grounds on appeal. The principles concerning when a Court will grant leave to do so are settled. In summary, leave to argue a ground of appeal not raised before the primary judge will be granted if it is expedient in the interests of justice to do so and where: the new point sought to be advanced has merit; there is an explanation for the failure to take the point below; and there is no real prejudice to the respondent in permitting it to be agitated: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. 43 Thus the question of merit of the proposed grounds is common both to the question of whether an extension of time should be granted and the question of whether an appellant should be entitled to raise a new ground on appeal. 44 I turn to consider each of the proposed grounds of appeal.

Ground 1 45 By proposed ground 1 the applicant contends, in a general way, that the Tribunal's decision is "infected by jurisdictional error" and that this will be further explained in his affidavit. 46 In paragraph 3 of the applicant's affidavit he refers to proposed ground 1 of his notice of appeal and includes the following under the heading "Particulars": (a) The Second Respondent in considering the 'independent evidence, including the Department of Foreign Affairs and Trade's most recent Country Report on Pakistan and its Thematic report on the Shias in Pakistan, dated 15 January 2016' denied the Applicant procedural fairness either before, during or after the hearing but, in any event prior to the making of the decision of 2 September 2016 (paragraph 16 of the decision record) by not raising those matters with the Applicant at the relevant time. (b) The Second Respondent in its finding at paragraph 15 of the decision record to the effect that the Applicant has 'embellished his level of fear' and that in respect of his family that 'these claims were fabricated" is without a proper basis in fact and that it was wholly unreasonable (Wednesbury unreasonable) for the Second Respondent to so find. (c) The adverse inference said to arise by reason of the Applicant's delay in lodging his application for review is not a proper basis for a finding to the effect that the Applicant had applied "not because he fears harm in Pakistan but because he is seeking an alternative means of remaining in Australia.' An inference is not a proper basis for making a finding adverse to the Applicant's credibility (paragraph 23 of the decision record). (d) The finding of the Second Respondent to the effect that the Applicant had made up an attack on him personally (paragraph 26 of the decision record) 'prompted by the Tribunal's suggestions to the Applicant is an example of persistent importuning by the Second Respondent rather than a novel claim made by the Applicant on the day of the hearing. The persistent importuning of an unrepresented litigant was calculated to excite in the Applicant an impulse to embellish his claim in circumstances adverse to him so that the Second Respondent could make an adverse finding of credibility. In so doing, the second respondent cast itself as the Applicant's adversary rather than conducting proceedings having regard to the statutory enjoinders explicit in s420 (1) & (2) of the Migration Act 1958. 47 The Minister points out that these particularised complaints were pleaded in the applicant's judicial review application filed in the Federal Circuit Court but abandoned upon the filing of his amended application on 29 May 2019, which the primary judge considered. The applicant was legally represented in the court below and has advanced no reason as to why this ground was not pressed below. Putting that to one side and returning to the merit of the proposed ground, at a general level, particulars (a) to (d) concern the Tribunal's decision. I consider each below. 48 By particular (a) the applicant contends that he was denied procedural fairness prior to the Tribunal making its decision because the Tribunal did not raise certain independent evidence, including a country report on Pakistan, with him. 49 As the Minister submits s 422B of the Act provides that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with and the applicant was not owed common law procedural fairness. Further, it is apparent from the Tribunal's decision record that the Tribunal, at [28] to [31] of its reasons, discussed country information with the applicant at the hearing, including the specific report raised by the applicant, namely the report titled "Thematic Report: Shias in Pakistan" dated 15 January 2016. To the extent that the applicant's claimed fear of harm was not supported by country information and was a dispositive issue on the review, the applicant was put on notice of the issue and was given an opportunity to give evidence and present arguments in relation to it. 50 In particular (b) the applicant contends that the Tribunal's finding at [15] of its reasons that he "has to some extent embellished his level of fear" and that his claims about his family being targeted and as a result needing to move both within and eventually out of Pakistan were "fabricated" are without proper basis and wholly unreasonable. The applicant does not say why these findings are unreasonable but seems to disagree with them. However, as French CJ said in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 (at [30]), "[t]he requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker". 51 The findings of the Tribunal are not to be read in isolation. After stating its view at [15], the Tribunal set out the applicant's claims and his account of his "experiences in Pakistan". Then at [23]-[27] of its reasons the Tribunal explained why it had come to a negative view about the applicant's claims in relation to the need for his family to move and why it found other aspects of his evidence to be unpersuasive or of such a nature that it could not be believed. 52 Particular (c) criticises the Tribunal's adverse finding at [23] based on the fact that it had taken the applicant five years following his arrival in Australia on a student visa to apply for a protection visa, without articulating a basis for doing so. The Tribunal can, in an appropriate case, take into account an applicant's delay in applying for a protection visa in assessing an applicant's fear of persecution and/or his or her credibility and it was open to the Tribunal in this case to do so. 53 Particular (d) suggests that the Tribunal acted improperly, stepped into the role of the applicant's adversary and "excited" the applicant into embellishing his claim so that it could make an adverse credibility finding. Particular (d) concerns [26] of the reasons where the Tribunal considers the applicant's claim of a personal attack on him, a claim which was raised for the first time at the hearing. There is no basis on which to characterise the Tribunal's approach in the way described by the applicant, nor is there any basis on which there might be a finding that the Tribunal failed to observe the procedures in s 420 of the Act. In any event s 420 of the Act is not expressed either in terms or in a context which would support a claim of jurisdictional error based on its non-observance: Li at [12] (French CJ). 54 At [26] of its reasons the Tribunal noted that the new claim was raised in response to its suggestion that it did not appear that the applicant had been harmed despite his claims of threats for some years because of his Shia faith. The Tribunal's rejection of the applicant's reasons for why he raised this claim for the first time during the hearing were open to it and, again, are to be read in the context of earlier adverse credit findings about the applicant. 55 It follows from the above that ground 1 has no merit.

Ground 2 56 Ground 2 repeats the single ground of review raised before the primary judge. However, in doing so, the applicant does not contend that the primary judge erred in rejecting that ground and how any error arose. In support of the ground the applicant includes in his affidavit the same submissions he made before the primary judge. I do not intend to repeat them here. They are summarised by the primary judge commencing at [36] of CWW16. 57 The primary judge considered this ground in detail (at [62]-[75] of CWW16) referring to the reasons of the Tribunal and to the relevant authorities. A summary of her Honour's reasons is set out above. I am unable to discern any error in the primary judge's reasoning and, as I have already observed, the applicant does not identify an arguable error. 58 There is no merit to ground 2.

Ground 3 59 This ground appears to concern new evidence referred to by the applicant at [5] of his affidavit where the applicant describes two incidents which occurred after his "interview" in 2014. Accordingly, the applicant states that he was unable to refer to them but would now like to raise them. The two incidents concerned family members and took place in 2017 and 2019 respectively. It is not necessary to describe them. 60 As both incidents post-date the Tribunal decision, which is dated 2 September 2016, they cannot be relevant to that decision and could not be the basis for any arguable jurisdictional error on the part of the Tribunal. 61 Ground 3 has no merit.

A ground raised in oral submissions 62 In oral submissions the applicant appeared to contend that the Tribunal had failed to give him an opportunity to present all of his evidence to it. As explained below, this contention or new ground is misconceived and is without merit. 63 By letter dated 4 August 2016 the Tribunal invited the applicant to a hearing scheduled to take place on 29 August 2016 at 11.30 am. That letter included: Please read and complete the enclosed 'Response to hearing invitation - MR Division' form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator. 64 The enclosed "Response to hearing invitation - MR Division" form, which the applicant completed and returned, included: Part 3 - Witnesses You may request that we take oral evidence from a person or persons. If you make such a request we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate. Unless you advise us otherwise we will assume that you will make arrangements for any witness to be available to give evidence. I/we request that the Member takes oral evidence from another person. Below that statement there were: two check boxes, one for "no" and one for "yes" and space to provide the name, contact details and details of the relationship to the applicant for each witness. In completing this part of the form, the applicant marked "no" to the request for the member to take oral evidence from another person. 65 The applicant was given an opportunity to attend a hearing, which he did, to present oral evidence and to call witnesses. He did not take up the opportunity to do the latter. It was for the applicant to establish his claims before the Tribunal, not for the Tribunal to do so for him.

A final matter 66 Much of the applicant's oral submissions were focused on attempting to persuade me of the basis of his claims to fear harm. As I explained to the applicant at the time this Court has a very limited role and is not able to consider the merit of claims for protection. The essence of the applicant's submissions was that he would like another chance to present his evidence and arguments to the Tribunal. However, that is not a basis upon which an extension of time can be granted or indeed on which the applicant might have an arguable ground of appeal.

Conclusion 67 The applicant has explained the reason for his delay to some extent. However, not one of the grounds he has raised has any merit. Accordingly, there is no utility in granting the application for an extension of time. It is not in the interests of the administration of justice to do so. 68 The application for an extension of time should be dismissed. As the applicant has been unsuccessful, he should pay the Minister's costs as agreed or taxed. 69 I will make orders accordingly. I certify that the preceding sixty nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.