DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-04-01|Before: Collier J

The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".
The applicant be granted an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth), until 14 days from the date of these Orders, to file a notice of appeal in the form annexed to the affidavit of DHJ16 filed on 22 October 2019.
The appeal be heard at a date to be fixed in consultation with the parties.
The parties liaise and provide agreed draft case management orders to the Chambers of Justice Collier in respect of filing and service of material relevant to the appeal within 28 days of the date of these Orders.
The first respondent pay the costs of the applicant of the application for extension of time filed on 22 October 2019, to be taxed if not otherwise agreed.
There be liberty to apply on 3 days written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before the Court is an application for an extension of time to file and serve a notice of appeal from a decision of the Federal Circuit Court of Australia in DHJ16 v Minister for Immigration and Border Protection [2019] FCCA 109 of 21 January 2019. In that case, the primary Judge affirmed the decision of the Immigration Assessment Authority (the Authority) made on 7 October 2016. The Authority had itself affirmed a prior decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (then the Minister for Immigration and Border Protection) made on 15 August 2016, by which the delegate refused to grant the applicant a temporary protection visa (TPV). The applicant had made an earlier, but invalid application for a protection visa (PV) in August 2013.

background 2 The background to this appeal is summarised in the decision of the primary Judge. The applicant is a Pashtun Shia Muslim and a citizen of Pakistan. 3 Before the delegate, the applicant claimed as follows: The applicant's grandfather and uncle had served in the Frontier Corps (FC) Army of Pakistan. Another uncle also spent a great deal of time with the FC. Those relatives were also Pashtun Shia Muslims. All three were killed by the extremist group Lashkar-e-Jhangvi (LEJ) due to their ethnicity, religion and their support of the Pakistani government. During 2011, whilst the applicant was employed at a hospital, he received a telephone call. The speaker threatened his life if he did not cease working at the hospital. He received a similar threatening call a week later. As a result of those calls, the applicant reduced his hours at the hospital. In a third threatening phone call, the applicant told the caller the name of his home town, daring the caller to come after him. He then resigned from the hospital, changed his SIM card and began working in a different hospital. He also informed his family of the threats he had received. In June 2013, the first hospital the applicant worked at was attacked by religious extremists targeting Shia Muslims. There were daily reports of Shia Muslims being killed by religious extremist groups and bomb blasts occurred in his home town regularly. He attempted relocation in Pakistan three times. However, his family was always targeted. As a result of these circumstances, the applicant left Pakistan sometime between June and August 2012 and travelled to Australia. The Pakistani government has been infiltrated by Sunni extremists groups and the applicant therefore felt that the authorities would be unable or unwilling to help. Relocation was not possible as he was identifiable as a Shia by his name, the practice of his faith and his ID card.

THE decision of the authority 4 The applicant provided two separate submissions, respectively dated 18 September 2016 (the First Submission) and 4 October 2016 (the Second Submission), to the Authority in support of the review of the delegate's decision. The First Submission was 97 pages long. 5 By letter dated 21 September 2016, emailed to the applicant's then lawyer, the Authority stated that it was returning the First Submission, and wrote further: You acknowledge your 97 page submission fails to comply with Practice Direction 1 issued by the President of the AAT. It exceeds the 5 page limit. We are returning the submission to you to allow you to provide a concise submission which identifies the issues and that complies with the Practice Direction. Although you identify your Code of Conduct obligation to act in the best interest of your client as justification for providing a non-compliant submission, the President has issued this Practice Direction in recognition of the fast-track nature of the limited review conducted by the IAA. Any written submission you provide to the IAA for your client should comply with the Practice Direction. Much of your submission is country information not before the Department of Immigration. It therefore is new information. The further statement of your client and the attachments thereto may also be new information. Your submission also does not comply with the Practice Direction requirement that you provide an explanation as to why any new information your client may give to the IAA is information that could not have been given to the Department of Immigration before the decision was made, or is credible information which was not previously known and may have affected consideration of your client's claims had it been known. We will allow you until 03 October 2016 to provide a revised submission which complies with the Practice Direction. If you do not comply with that deadline, the Practice Direction sets out the IAA will make a decision without the benefit of your submission. 6 The Authority at [6] of its reasons referred to two arguments made in the First Submission, namely: (1) The delegate failed to consider the applicant's claim that he had a well-founded fear of persecution arising from his membership of the Turi tribe. (2) The principles of natural justice required the Authority to invite the applicant to a hearing to present his claim. 7 I understand that, in the First Submission, the applicant also advanced arguments relating to the unreasonableness of the prospect of his being relocated to Lahore in Pakistan. 8 It is not controversial that the Second Submission did not repeat argument (2) in the First Submission. Nevertheless, it is apparent that the Authority did consider argument (2), and in particular whether it should grant the applicant a hearing as he requested. The Authority noted at [10] that it was conducting a fast-track review, and to invite the applicant to provide new information at a hearing would ignore the requirements of Division 3 and s 473DA of the Migration Act 1958 (Cth) (the Migration Act). The Authority concluded that it would not be a proper use of its discretion under s 473DC of the Migration Act to invite the applicant to attend an interview as requested. 9 The Authority noted that the applicant had not made the claim set out in argument (1) before the delegate as he asserted. Rather, before the delegate the applicant claimed that he had a well-founded fear of persecution because of his family connections and history, his religion, and the threats he had received whilst working at the hospital. Comparatively, in the Second Submission the applicant claimed to having a well-founded fear of persecution because: "he is a young male Turi from a named agency in [Federally Administered Tribal Agencies (FATA)]", and therefore had an imputed anti-Taliban political opinion; and he was a returnee from a Western country. 10 The Authority did not consider these additional claims to a well-founded fear of persecution, set out in the Second Submission, to be "new" information as they were based on evidence before the delegate. 11 The Authority noted that the Second Submission included country information by way of links, and submissions concerning that country information. The Authority did not accept the applicant's contention that, because that country information was in the public domain, it could not be considered to be new information. Nor did the Authority accept the explanation that the applicant had not been represented in his TPV application. In his TPV application, the applicant had relied on the same statutory declaration setting out his claim as in his prior PV application, in which he was represented. As the country information included in the Second Submission pre-dated the delegate's decision, but was not before the delegate, and was not personal information, the Authority stated that it was not satisfied that there were exceptional circumstances justifying the Authority having regard to that country information. 12 The Authority examined whether the applicant met the criteria for a protection visa under s 36(2)(aa) of the Migration Act, which requires it to be foreseeable that, if an applicant is removed from Australia, there is a real risk that they would suffer "significant harm" as that term is defined in s 36(2A) of the Migration Act. 13 The Authority noted at [18] of its reasons that the applicant claimed to fear harm from a number of groups, namely religious extremist groups, extremist Sunni groups, the LEJ, the Taliban, the BRA, the Kaladam Group and Islamic State (Daesh). The Authority accepted that country information supported that Sunni militant groups, the LEJ and the Taliban targeted Shias. However, according to DFAT reports, there was no credible evidence of Daesh operating in Pakistan. 14 DFAT reports, and the country information before the delegate, were also silent as to the existence of the Kaladam Group. However, the Authority accepted, in order to give every benefit of the doubt to the applicant, that the Kaladam Group existed, operated in Balochistan, and was anti-Shia or pro-Balochi independence. The Authority further accepted that the BRA was a militant group seeking independence for Balochistan, but noted reports from DFAT stated that levels of violence had reduced after Operation "Zarb-e-Azb" conducted by the Pakistan Armed Forces. 15 DFAT had also assessed there to be a low level of generalised violence in the tribal agency to which the applicant belonged. 16 The Authority concluded that the applicant was a member of the Turi tribe by descent, despite noting that the evidence before it was not entirely consistent with that claim. The Authority further accepted that, by reason of his membership of the Turi tribe, the applicant would have an imputed anti-Taliban political opinion. 17 The Authority continued: 23. …The country information before me indicates the conflict between Turi and the Taliban is in the FATA and that the level of violence there has reduced in recent times. Given the applicant does not reside in the FATA, I consider there to be only a remote chance and therefore not a real chance the applicant will face serious harm from the Taliban, LEJ, Daesh, BRA, Kaladam group and/or any other extremist religious/Sunni group, because of his age, because he is a Turi and/or because he has an imputed anti-Taliban political opinion, now or in the reasonably foreseeable future if he returns to Pakistan… 18 In relation to the applicant's claims to fear of serious harm based on his religion, the Authority accepted that the applicant's relatives were connected to the FC Army. Whilst accepting the LEJ killed both uncles of the applicant, the Authority stated: 25. … I am not satisfied however that the applicant's relationship to those relatives and their respective roles with the FC is well-known in the community. I reach that conclusion in part because the applicant has not claimed he or any other member of his immediate family has faced any threat of or actual harm in the past because of his relatives' connection to the FC. Additionally, his evidence was inconsistent as to whether his uncles' reputation with the FC was well-known in town A or his home town and was inconsistent about his living in town A at the time of his uncles' deaths (in 2010 and 2013 respectively), but elsewhere his evidence is the applicant was already living in his home town in those years. I consider there to be only a remote chance and therefore not a real chance the applicant would face serious harm from the Taliban, LEJ, Daesh, BRA, the Kaladam group and/or any other extremist religious/Sunni group because his grandfather and uncles were connected to the FC, now or in the reasonably foreseeable future, if the applicant returns to Pakistan. 19 In relation to the applicant's claims of being threatened while working at the first hospital, and the chance of harm from this should he return to Pakistan, the Authority stated: 29. I do put weight though on the applicant declaring past work at hospital A and hospital B in the named occupation at the entry interview and for that reason. I place that weight because he gave that information prior to the June 2013 attack on hospital A. I am willing to accept the applicant did study to become qualified in the named occupation but I consider he could not commence doing that named occupation until he completed his studies in October 2011. I consider the nature of the named occupation is one which he could only genuinely perform after he had completed his studies. I place considerable weight on the non-genuine experience and character certificate to reject that the applicant ever worked in the named occupation at hospital A. I am willing to accept as part of his studies towards becoming qualified in the named occupation, the applicant did volunteer at hospital A and hospital B and that he eventually commenced paid employment at hospital B in the named occupation after completing his studies. I do not accept as credible though that a student volunteer at hospital A would genuinely be threatened with death to cease his employment there. 30. For the reasons set out above, I reject the applicant worked in the named occupation or as a nurse at hospital A in summer 2011. I reject the applicant received any telephone calls threatening to kill him if he did not cease working at hospital A in summer 2011 or in 2012. I do accept the applicant was a volunteer at hospital A as part of his studies and that he worked at hospital B in the named occupation, but I find he commenced that work only after he completed his course of study and find that he worked at hospital B until he left Pakistan in June 2012. I consider the applicant has sought to rely on his past volunteering while a student and the notoriety of the June 2013 attack on Shias that he heard about at hospital A after he came to Australia to manufacture the claims regarding he too was targeted for harm as a claimed former Shia employee of hospital A. 31. I therefore consider what is the chance of harm to the applicant because he worked in the past at hospital B. I consider it plausible if the applicant returns to Pakistan, he would again work in the named occupation, given he has already studied to achieve qualifications in that occupation. I am willing to accept there was an attack on hospital A in June 2013. I am mindful too of the information in the DFAT reports regarding high profile Shias in positions such as doctors, lawyers, teachers and political/religious leaders have been targeted for harm throughout Pakistan. I consider however the applicant's named occupation is not so high profile. I consider there to be only a remote or speculative chance and therefore not a real chance the applicant will face serious harm from the Taliban, LEJ, Daesh, BRA, the Kaladam group or any other extremist religious/Sunni group because he has worked in the past or may work in the future in a hospital, now or in the reasonably foreseeable future if he returns to Pakistan. 20 In relation to the applicant's claim to fear harm on the basis of having lived in the West, the Authority stated: 35. The information in the DFAT report is that unlawful emigration is an offence in Pakistan, punishable usually by a small fine. The applicant claims however he departed Pakistan lawfully on a genuine Pakistani passport issued in his own name. On the evidence before me, I am not satisfied the Pakistani authorities would suspect the applicant has committed any offence of unlawful emigration. The DFAT report further states there is no information that returnees are punished on return to Pakistan, but there is information returnees may be questioned by Federal Investigating Agency ("FIA") or other authorities as to whether the returnee is wanted for committing any crimes in Pakistan. The evidence before me does not suggest the applicant has such a profile. The DFAT report states too [sic] people who have spent time living in western countries are not subject to societal discrimination on return to Pakistan. 36. I am willing to accept if he returns to Pakistan the applicant may be questioned by the FIA, but am not satisfied being subject to a short period of detention for questioning alone would amount to serious harm when having regard to the non-exhaustive instances of serious harm set out in s.SJ(S). I am not satisfied there is a real chance the applicant will suffer serious harm from the Pakistan authorities, the Taliban, LEJ, Daesh, BRA, the Kaladam group, any other extremist religious/Sunni group, and/or Pakistan society because he has lived in Australia, now or in the reasonably foreseeable future, if he returns to Pakistan. 21 The Authority also assessed whether the applicant met the criteria for a protection visa under s 36(2)(a) of the Migration Act, which requires an applicant to meet the definition of "refugee" in s 5H(1) of the Migration Act. A "refugee" is a non-citizen with a "well-founded fear of persecution" and is to be considered by reference to the considerations set out in s 5J of the Migration Act. 22 The Authority was satisfied that the applicant had a well-founded fear of persecution from the Taliban, LEJ, Daesh, BRA, the Kaladam group, and any other extremist religious/Sunni group, by reason of his religion if he returned to his hometown in Balochistan province, but was not satisfied that the well-founded fear of persecution existed throughout all areas of Pakistan, and in particular Lahore. By reason of s 36(2B) of the Migration Act, the applicant failed to meet the criteria for a protection visa under s 36(2)(a) of the Migration Act.

decision of the federal circuit court 23 The applicant sought review of the decision of the Authority in the Federal Circuit Court of Australia, relying on the following ground: "1. The Authority constructively failed to exercise its jurisdiction by rejecting or failing to take into account the contents of a letter dated 18 September 2016 sent to the Authority by the applicant's migration agent. Particulars A) On 18 August 2016 the applicant's matter was referred to the Authority: CB 311. Attached to the Acknowledgment of the Referral letter was a copy of the Practice Direction for Applicants, Representatives and Authorised Recipients: CB 319. B) On 18 September 2016 the applicant's migration agent sent to the Authority a 97 page letter contained [sic] submissions and additional information addressing 'why internal relocation is not possible in our applicant's case'. C) On 21 September 2016 the Authority sent the applicant's migration agent a letter by which it informed the agent that the Authority was returning the agent's 'submission' dated 18 September 2016 on the basis that it failed to comply with the Practice Direction: CB 438. The Authority in its letter acknowledged that much of the agent's submission is country information that was not before the Department. D) On 4 October 2016 the applicant's migration agent sent to the Authority a considerably shorter submission in the place of the earlier submission dated 18 September 2016. E) In its decision, the Authority found that the submission dated 18 September 2016 did not comply with the Practice Direction, on the basis that it 'exceeded the 5 page length limit': [4]; CB 454. With the exception of minor matters referred to at [5] and [6] of its decision record, the Authority did not have regard to the submission dated 18 September 2016: [7]; CB 455. F) The Authority was in error in rejecting or failing to take into account the content of the submission dated 18 September 2016 on the basis that it was non-compliant with the Practice Direction. Under the Practice Direction, a referred applicant may give the Authority three kinds of information: i) A submission as to why the referred applicant disagrees with the decision of the Department, and as to any claim or matter presented to the Department by the referred applicant that was overlooked: para 20. There is a 5 page limit on submissions of this kind: para 21. ii) New information: para 22. There is no stipulated page limit for the provision of new information to the Authority. iii) An explanation, to accompany any new information given, as to why the information could not have been given to the Department before the decision was made, or as to why the information is credible personal information which was not previously known and may have affected of the referred applicant's claims, had it been known: para 23. There is a 5 page limit on the explanation accompanying new information: para 24. G) As the Authority acknowledged in its letter dated 21 September 2016, much of the submission dated 18 September 2016 was country information not before the Department. The Authority was in error in rejecting or not taking into account the 18 September 2016 [sic] (in particular the extracted country information that made up a significant portion of the document) by misunderstanding or misapplying the effect of the Practice Direction. " 24 The applicant's claim before the primary Judge can be summarised as follows: (1) The Practice Direction does not impose a page limit on the provision of new information by a visa applicant, and should not be construed as imposing such a page limit. (2) Although the Authority recognised that much of the First Submission set out new information, it nonetheless rejected the First Submission for the stated reason that it exceeded the 5 page limit set out in the Practice Direction. In so doing, the Authority misinterpreted and misapplied the Practice Direction. (3) The Authority, having misinterpreted and misapplied the Practice Direction, fell into jurisdictional error because it failed to consider whether it could take into account the new information pursuant to s 473DD of the Migration Act. 25 The Minister argued that the applicant had failed to point to a practical injustice as a result of any claimed denial of procedural fairness, which was necessary in order to demonstrate jurisdictional error on that basis. The Minister also asserted that the applicant had failed to specify which information in the First Submission, which was not in the Second Submission, was either not new information or satisfied s 473DD of the Migration Act. 26 In relation to the first and second aspects of the applicant's claim before the Federal Circuit Court, the primary Judge at [42] noted that if the Authority's letter was to be read as imposing a generic 5 page limit, then that could reveal a misunderstanding of the Practice Direction, which does not place any page limit on the provision of new information. The limitation on new information imposed by the Practice Direction related to the provision of an explanation as to why the Authority should consider the new information. 27 The primary Judge at [91]-[94] found that the correspondence from the Authority in relation to the First Submission did not evidence any misinterpretation of the Practice Direction by the Authority. The correspondence, in effect, mirrored the relevant paragraphs of the Practice Direction. When the Authority's letter was read in context, the 5 page limit plainly related to the submission identifying the issues, not to any new information provided. The Authority's statement in the correspondence regarding the provision of new information correctly requested that such information be explained as required by the Practice Direction. 28 In relation to the third aspect of the applicant's claim before the Federal Circuit Court, the primary Judge noted that, under s 473DC(2) of the Migration Act, the Authority is under no duty to accept new information. 29 His Honour observed at [73] that the First Submission could be characterised as an "incredibly long list of unexplained references to country information sources, other than for some general and short, restatement of the applicant's claims to fear harm". The applicant gave no explanation as to why any new information - which was not identified - could not have been given to the delegate, or was credible personal information not previously known. The primary Judge found that the Authority was not obliged to turn its mind to s 473DD of the Migration Act in circumstances where the applicant had failed to specify which information in the First Submission was before the delegate, and that which was new information. 30 For those reasons, his Honour found that the applicant's ground of appeal was not substantiated. The application was accordingly dismissed.

APPLICATION for EXTENSION OF TIME 31 The decision of the primary Judge was delivered on 21 January 2019. It is not controversial that, on 11 February 2019, the period of 21 days by when the applicant was required by rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) to file a notice of appeal expired. The applicant filed an application for extension of time, and supporting affidavit containing a draft notice of appeal, on 22 October 2019. 32 The ground of appeal (and particulars thereof) on which the applicant proposes to rely are as follows: Grounds of appeal 1. The Federal Circuit Court erred in not finding that the Second Respondent (Authority) constructively failed to exercise its jurisdiction by rejecting or failing to take into account the contents of a letter dated 18 September 2016 sent to the Authority by the applicant's migration agent. Particulars a. On 18 August 2016 the applicant's matter was referred to the Authority. Attached to the Acknowledgment of Referral letter was a copy of the Practice Direction for Applicants. Representatives and Authorised Recipients. b. On 18 September 2016 the applicant's migration agent sent to the Authority a 97 page letter containing submissions and additional information addressing 'why internal relocation is not possible in our applicant's case'. c. On 21 September 2016 the Authority sent the applicant's migration agent a letter by which it informed the agent that the Authority was returning the agent's 'submission' dated 18 September 2016 on the basis that it failed to comply with the Practice Direction. The Authority in its letter acknowledged that much of the agent's submission was country information that was not before the Department and which was therefore 'new information'. d. On 4 October 2016 the applicant's migration agent sent to the Authority a considerably shorter submission in the place of the earlier submission dated 18 September 2016. e. In its decision, the Authority found that the submission dated 18 September 2016 did not comply with the Practice Direction. on [sic] the basis that it 'exceeded the 5 page length limit'. With the exception of minor matters referred to at [5] and [6] of its decision record, the Authority did not have regard to the submission dated 18 September 2016 (or to the new information contained within that document). f. The Authority was in error in rejecting or failing to take into account the content of the submission dated 18 September 2016 on the basis that it exceeded the 5-page length limit. Under the Practice Direction, a referred applicant may give the Authority three kinds of information: i. A submission as to why the referred applicant disagrees with the decision of the Department. and [sic] as to any claim or matter presented to the Department by the referred applicant that was overlooked: para 20. There is a 5 page limit on submissions of this kind: para 21. ii. New information: para 22. There is no stipulated page limit for the provision of new information to the Authority. iii. An explanation, to accompany any new information given, as to why the information could not have been given to the Department before the decision was made, or as to why the information is credible personal information which was not previously known and may have affected of the referred applicant's claims, had it been known: para 23. There is a 5 page limit on the explanation accompanying new information: para 24. g. The Authority regarded the entirety of the 18 September 2016 submission as subject to a 5-page limit and considered the submission to consist of 97 pages in violation of that limit. This was a misunderstanding of the Practice Direction, because those parts of the 18 September 2016 submission which consisted of 'new information' were not subject to a page limit. The Authority returned the 18 September 2016 submission to the Applicant, and did not proceed to consider whether the 'new information' in that document satisfied s 473DD of the Migration Act, because of that misunderstanding. h. As the Authority acknowledged in its letter dated 21 September 2016, much of the submission dated 18 September 2016 was country information not before the Department. The Authority was in error in returning or not taking into account the 18 September 2016 submission (in particular, the extracted country information that made up a significant portion of the document) because of its misunderstanding or misapplication of the Practice Direction. i. In the premises, the Federal Circuit Court erred in not finding that the Authority's decision was affected by jurisdictional error for the reasons set out above. 33 This ground and particulars effectively replicate the ground of review and particulars before the Federal Circuit Court, with the exception of particulars (g) and (i).

Consideration 34 The Court has power under r 36.05 of the Federal Court Rules 2011 (Cth) to grant an extension of time to file a notice of appeal. As Wilcox J explained in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 176, relevant factors for the Court to take into account in determining whether to grant such an extension include: (1) whether there is an acceptable explanation for the delay; (2) the length of the delay; (3) the merits of the appeal; and (4) any prejudice to the respondent.

Length of the delay and explanation for the delay 35 In affidavits filed on 22 October 2019 and 18 January 2020, the applicant set out an explanation for the delay in filing his notice of appeal, in summary as follows: During December 2018 and January 2019 the applicant suffered from acute pain due to kidney stones. He was treated in early December, but still experienced pain during his recovery. The applicant was still in recovery at the time of receiving notification of the primary judgment. The applicant could not afford to get further advice from his legal representative in the Federal Circuit Court proceedings. A friend of the applicant, who is both a solicitor and a migration agent, sent a letter to the Minister on the applicant's instructions on 25 February 2019, requesting intervention. That request was refused in May 2019. In March 2019 the applicant's daughter was born. Leading up to the birth, the applicant worked long hours and was under a great deal of physical and mental stress. The applicant's daughter became sick following her birth and required treatment in an incubator for four days. The hospital bill for the birth and medical treatment was over $9,000. The applicant could not afford to pay that bill, and sought assistance from the NSW Refugee Health Service. The focus of the applicant during this period was on his daughter. In July 2019 the applicant sought assistance from NSW Legal Aid. He was directed to the grants department of Legal Aid on 29 August 2019. The grants department subsequently informed the applicant that Legal Aid would be unable to assist him with his case. The applicant then sought assistance from Saba Razaghi's Youth Association, who reached out to different community centres on the applicant's behalf. Those community centres were unable to assist. In September 2019 representatives of the Refugee Advice and Casework Service recommended that the applicant contact an immigration specialist, suggesting Kah Lawyers. On or about 23 September 2019, Mr Kah of Kah Lawyers informed the applicant that he had reasonable prospects of success in an application for an extension of time. Further delays were caused by the difficulty the applicant had in raising the money to start the appeal and pay for legal representation. 36 The applicant submitted that the delay in filing his notice of appeal was referable to these factors, in addition to his limited understanding of the Australian legal system. The applicant contended further that he had not rested on his rights, but rather had continually attempted to contest the decision of the Authority. 37 The Minister submitted that the applicant's explanation was inadequate in circumstances where: The applicant was aware of the deadline for filing an appeal. The applicant was legally represented during the period of time when he could have filed a notice of appeal. The applicant's assertion of impecuniosity was unsupported by any documentary evidence. There was no evidence of any steps the applicant took to try and file a notice of appeal within time. Of itself, impecuniosity is not an acceptable explanation for a delay in filing a notice of appeal: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]. With the benefit of advice from a different solicitor and migration agent, the applicant chose to pursue the path of ministerial intervention instead of lodging an appeal. Making an application for ministerial intervention is not, of itself, an acceptable explanation for failing to lodge an appeal within time: Vu v Minister for Immigration & Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [29]. 38 In this case, the applicant's delay in filing the notice of appeal exceeded eight months. The applicant conceded that this was a lengthy delay. Although the Minister opposed an order extending time, the Minister nonetheless conceded that the applicant's explanation was "understandable". I too consider that the explanation is understandable. Further, while I note the merits of the Minister's reasons for opposing an extension of time, I consider that the combination of substantial health and life issues, associated stresses to the applicant and financial constraints satisfactorily explain the delay in this case. I am not satisfied that the fact of the applicant having legal representation, at an earlier stage of the proceedings, sufficiently addresses the difficulties faced by the applicant following the decision of the primary Judge. 39 Although borderline, I am satisfied that the applicant has satisfactorily explained his delay in filing his notice of appeal.

Merits of the appeal 40 Turning now to the merits of the appeal, it is not appropriate for me to have regard to the applicant's proposed grounds of appeal as though this were a final hearing of his appeal on the merits: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [51]. At this point, the merits should be assessed at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38]. Unless the appeal grounds are plainly hopeless, it follows that it could reasonably be said that the threshold of merit has been passed such that the matter should proceed to appeal: MZABP at [21]. 41 In relation to the merits of this appeal, the applicant submits that the appeal is meritorious as: The 5 page limit in the Practice Direction relates only to submissions, not the provision of new information. Much of the First Submission was new information, and thus not subject to the 5 page limit. Consequently, the Authority erred in returning the First Submission. The Practice Direction does not require new information to be distinguished from submissions. It is the role of the Authority to determine which material constitutes submissions, and that which is new information. The primary Judge erred in finding that the Authority was not required to undertake what was in effect a "sorting" role. The Authority's error in rejecting and returning the First Submission affected the applicant's approach to the Second Submission, and limited the applicant's right to advance a submission in accordance with the Practice Direction. The primary Judge was wrong to take a contrary view. The applicant made submissions in the First Submission which the Authority failed to consider. This included, for example, the risk of harm to him in relocating to Lahore. The Authority failed to consider whether the new information provided in the First Submission could be considered pursuant to s 473DD of the Migration Act. Further, some information which was included post-dated the decision of the delegate. Any of the above errors could have affected the exercise of the Authority's power. They were therefore jurisdictional errors. 42 The Minister submitted that the proposed appeal was unmeritorious because: There was no error of reasoning in the primary judgment. The First Submission did not comply with the Practice Direction, and the Authority was correct to reject and return it. The applicant's arguments were put at a level of abstraction or generality. There was no argument or submission of substance contained in the First Submission that the Authority failed to consider. The arguments in the First Submission were effectively restated in the Second Submission. The two pieces of country information which post-dated the delegate's decision addressed the state of affairs in existence before the delegate's decision. The Authority considered the substance of the country information included in the First Submission in examining the applicant's prospects of relocation to Lahore. 43 The Practice Direction the subject of the applicant's complaints relevantly provided as follows: Practice Direction for Applicants, Representatives and Authorised Recipients This direction is given under section 473FB of the Migration Act 1958 (Migration Act). About this direction 1. The Immigration Assessment Authority (IAA), in carrying out its functions under the Migration Act, is required to provide a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the Migration Act. 2. The President of the Administrative Appeals Tribunal (AAT) may give directions as to the operations of the IAA and the conduct of reviews by the IAA. 3. This direction sets out the requirements to be followed by applicants (you) and their representatives and authorised recipients when dealing with the IAA (us). 4. In this Direction: Department means the Department of Immigration and Border Protection writing and correspondence include email. 5. This direction has effect from 2 May 2016. 6. The Practice Direction for Applicants, Representatives and Authorised Recipients executed on 16 September 2015 is revoked. … Submissions and new information 20. For the purposes of the review, you may provide a written submission on the following: • why you disagree with the decision of the Department • any claim or matter that you presented to the Department that was overlooked. 21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submissions should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions. 22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department. 23. If you want to give us new information, you must also provide an explanation as to why: • the information could not have been given to the Department before the decision was made, or • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. 24. Your explanation should be no longer than 5 pages and must accompany any new information you give to us. 25. All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided. 26. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral. … 44 Section 473 of the Migration Act provides: (1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to: (a) the operations of the Immigration Assessment Authority; and (b) the conduct of reviews by the Authority. (2) Without limiting subsection (1), the directions may: (a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or (b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview. (3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision. (4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review. (5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person. 45 In my view, there is sufficient substance in the applicant's contentions to warrant the matter proceeding to full argument on appeal. 46 Whether, as the applicant contends: the Authority is required to distinguish submissions from new information; there are discretionary issues referable to the Authority's power to reject submissions of excessive length; the Authority should have had regard to relevant information which was in the First Submission; and the Authority took into account the question whether new information could be considered by it under s 473DD, are issues for determination following proper argument. 47 The applicant has drawn my attention, for example, to potential ambiguity in the Authority's letter of 21 September 2016, and in particular whether the applicant or his lawyers could have been misled by the Authority's reference to the 5 page limit in that letter. 48 In my view, it cannot be said that the ground of appeal on which the applicant seeks to rely lacks merit.

Conclusion 49 I further note that the Minister has not asserted any prejudice should an extension of time be granted. 50 In my view, it is appropriate to grant an extension of time to the applicant in which to file his notice of appeal, and set down the appeal for hearing. 51 Costs should follow the event. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Federal Court Rules 2011(Cth)rr 36.03(a)(i), 36.05

Migration Act 1958(Cth)ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 473, 473DA, 473DC, 473DD

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Cited By (1)