DPQ16 v Minister for Home Affairs

1. The application for an extension of time to file a notice of appeal is dismissed.
2. 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.

RANGIAH J: 1 This is an application for an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court of Australia delivered on 9 April 2018. The Federal Circuit Court dismissed the applicant's application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision of a delegate of the first respondent to refuse the applicant the grant of a Protection Visa. 2 The application for an extension of time was filed only four days outside the appeal period. The explanation for the delay is that the applicant was not aware of the time limit until he received legal advice. In these circumstances, I would allow the application if the applicant is able to demonstrate that the proposed appeal has sufficient prospects of success. It is that issue which I will now consider. 3 The applicant is a citizen of Pakistan from the Swat district in the province of Khyber Pakhtunkhwa. He arrived in Australia in 2014. On 5 August 2015 a delegate of the first respondent made a decision refusing the applicant the grant of a Protection Visa. The applicant then applied to the Tribunal for review of the delegate's decision. 4 Before the Tribunal, the applicant claimed to seek protection in Australia because he feared harm from the Taliban and elements of the Pakistan army. He claimed that his family was well-known as being politically and socially active in Swat. He claimed to have been beaten by Taliban supporters in 2008 and that he was part of a Lashkar which aimed to eradicate the Taliban from their area and, later, a member of a village defence committee which assisted the army. He claimed that he was taken into army custody and tortured when he refused the request of a corrupt army officer to sign a document that would assist in the release of a member of the Taliban from custody. He also claimed to have received threats from the Taliban. 5 On 31 October 2016, the Tribunal decided to affirm the delegate's decision. The Tribunal found that the applicant had not been truthful about his experiences in Pakistan and his reasons for seeking protection in Australia. The Tribunal accepted that he had been a member of a village defence committee, but did not accept that he had any leadership or organisational role, as he had claimed. It did not accept that his family had a high profile and was targeted. It did not accept that the applicant was targeted, threatened and assaulted by members of the Taliban or that he had been imprisoned and tortured by the army. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for the reasons he advanced. Accordingly, it rejected his claim for protection. It also rejected his claim for complementary protection. 6 The applicant then applied to the Federal Circuit Court for review of the Tribunal's decision. The primary judge gave the following reasons for rejecting the applicant's grounds of review: 10. …The first ground of review of the decision of the AAT is as set out in the application, filed by the applicant, on 28 February 2017. The first ground is that the decision of the AAT: a) was affected by an error of law and, b) denied the applicant procedural fairness. As submitted by Mr James, on behalf of the first respondent, the application in respect of ground 1 is without particularity and is, thereby, defective. 11. Nevertheless, it would appear that the applicant is alleging an error of law. If one treats that as a complaint that the AAT arrived at an incorrect decision, then that is not a basis upon which I have jurisdiction to review. I am not in the position of conducting a merits review of what decision the AAT arrived at. It is trite that the AAT does not deny an applicant procedural fairness simply because it did not accept particular claims or evidence put forward by an applicant, to it. The AAT, in this case, has thoroughly dealt with the claims made by the applicant, and it did not accept those claims, after a critical examination of them. 12. The AAT closely examined the evidence before it, and decided that the applicant was not a person of credit. As to procedural fairness, there is no indication that the AAT failed to properly consider all of the matters which were put before it, by the applicant. Indeed, at no time did the applicant make any complaint, before the AAT, that he had not been given an appropriate opportunity to put forward his case or to say or submit before the AAT those matters which he wanted to raise. 13. It is of note that, at the hearing before the AAT, the applicant was represented by a migration agent. The AAT took into consideration documents and evidence provided by the applicant, including relevant country information. It invited the applicant to be heard, and the applicant was heard, and it notified the applicant of its decision and written statement of reasons. Each of those actions were taken in accordance with the provisions of the Act. The applicant does not submit that the decision of the AAT was affected by actual or constructive bias. Accordingly, I find that the AAT acted in accordance with its obligations under the Act, and that it made a decision that was open to it, which was free from legal or procedural error. Accordingly, I find that ground 1 of the application has not been made out. 14. I do not consider that there has been any jurisdictional error on the part of the AAT when considering the application before it. The second ground of the application is, really, no ground at all. It simply records that the applicant had made an application for assistance, through Legal Aid, and that as at the date of the filing of his application in 2017, he was waiting for a decision in that regard. The second ground, accordingly, has not been made out. I dismiss the application and affirm the decision of the AAT. 7 In the appeal, the applicant's grounds are: 1. The Federal Circuit Court (FCC) did not give me a reasonable opportunity to appear and present my case and as such I was denied procedural fairness; 2. The FCC erred and should have granted leave to allow me to particularise my grounds by seeking legal advice. That is, I was not given the opportunity to particularise my case. 3. The FCC asked itself whether the AAT critically examined my claims as opposed to whether the AAT applied the law correctly. 4. The FCC asked itself whether the AAT in general provided me with the right to be heard etcetera as opposed to whether the AAT put to me the issues particularly so when these draw on 'credibility'. 8 The applicant has filed an affidavit in which he deposes as follows: 5. I believe that given the complexity of my case the FCC should have provided me with the opportunity to 'particularise' my grounds. 6. The FCC stated that the AAT is not in jurisdictional error simply because it does not accept particular claims or evidence put forward by the applicant and that the AAT went through a critical examination of my claims. However, given that I was unrepresented I believe that the court should have granted leave for me to seek legal advice as my argument was not that the AAT failed to critically examine my claims but that it failed to weigh my claims appropriately. Hence, my review was for the FCC to determine whether the AAT did give appropriate consideration to relevant factors and whether the AAT considered irrelevant factors. However, the FCC has erred in asking itself whether the AAT undertook critical examination of my claims. Instead, it should have asked itself whether my claims had been appropriately evaluated, weighted and tested and whether the considerations were in fact relevant. 7. The FCC stated that the I did not make a complaint to the AAT that I had not been given an opportunity to put forward my case, and that the AAT invited me to be heard and I was heard. I believe that if the FCC provided leave for me to obtain legal advice I would have been able to better particularise this ground to show that procedural fairness was not breached in the sense that I was not given the opportunity to be heard, rather it was breached in that I did not have relevant matters put to me. For example, the AAT found that my claims lacked credibility as I had managed to hide for 2-3yrs in close proximity to my last known residence. Had I known that this would be such an issue for the member, that is, had the member asked for supporting evidence I would have produced supporting evidence such as a drawing of a map of the location. I therefore submit that the FCC should have asked itself whether procedural fairness was denied in terms of the issues specifically emphasised in the tribunal members judgement. … 10. I believe that given the complexity of my case the FCC should have adjourned my case until I had sought legal advice. I was not in a financial situation to seek legal advice at that time. 11. Once I file this appeal application, I want to seek legal advice so that I can better present my case before the Honourable Court. 12. I wish to apply for an extension of time so that I can obtain legal advice and amend my appeal application accordingly. 9 At the hearing of the application, the applicant sought an adjournment so that he could engage a lawyer. The first respondent opposed any adjournment. The applicant has been seeking legal assistance since at least 28 November 2016, as is demonstrated in the second ground of his application to the Federal Circuit Court, and has also had some four months to do so since the Federal Circuit Court delivered its judgment. He said nothing to suggest that he is likely to have any greater success now. To grant an adjournment in these circumstances would be contrary to the requirement of s 37M of the Federal Court of Australia Act 1976 (Cth) that the Court exercise the power to grant or refuse an adjournment to promote the purpose of facilitating the just resolution of the matter as quickly, inexpensively and efficiently as possible. Accordingly, I refused the application for an adjournment. 10 The applicant was self-represented in his application and made submissions with the assistance of an interpreter. It is evident that he had the benefit of assistance to prepare his notice of appeal and his affidavit, but he was unable to elaborate upon the matters set out in those documents. His oral submissions were largely confined to saying that his evidence before the Tribunal was true and that he was now in a position to present more evidence to the Tribunal that would assist his case. 11 The applicant's proposed first and second grounds of appeal appear to correlate to the statement in his affidavit that "the Court should have granted leave for me to seek legal advice". The applicant has not asserted that he specifically applied to the primary judge for an adjournment of the hearing so that he could seek legal advice. The argument may relate to the second ground set out in the applicant's application to the Federal Circuit Court, which was to the effect that he had applied for legal aid and was awaiting a decision. However, the application was filed in the Court on 28 November 2016 and the hearing took place on 9 April 2018. It is impossible to suppose that his application for legal aid had not been decided by that time. Certainly, the primary judge did not consider an application for an adjournment relying on the second ground to have been made. In the absence of any application for an adjournment, there was no obligation upon the primary judge to allow the applicant further time to seek legal advice. Nor was there any obligation on the primary judge to ensure that the applicant had legal advice see Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17]; The State of New South Wales v Canellis (1994) 181 CLR 309 at 330-331; BFB17 v Minister for Immigration and Border Protection [2018] FCA 724 at [14]. The first and second grounds cannot succeed. 12 The applicant's proposed third ground is that, "The FCC asked itself whether the AAT critically examined my claims as opposed to whether the AAT applied the law correctly". That ground takes up the primary judge's statement that the Tribunal had dealt with the claims made by the applicant and did not accept those claims "after a critical examination of them". The third ground and the applicant's affidavit suggests that the primary judge wrongly confined himself to asking whether the Tribunal had critically examined the applicant's claims without considering how the Tribunal had applied the law to those claims. However, the primary judge did not confine himself in such a way. His Honour went on to examine what the Tribunal had considered, how it had conducted the proceeding and what it decided. His Honour concluded that the Tribunal had acted in accordance with its obligations under the Act and made a decision that was free from legal or procedural error. Further, the applicant submits that the primary judge erred by failing to consider his submission that the Tribunal "failed to weigh my claims appropriately". However, it would not have been permissible for the primary judge to engage in an exercise involving review of the merits of the Tribunal's decision. Accordingly, the applicant's third ground cannot succeed. 13 The applicant's proposed fourth ground asserts that the Tribunal failed to put to the applicant particular issues relevant to his credibility. That argument does not appear to have been run before the primary judge. Further, the only relevant matter that the applicant specifies as not having been put to him was that his claim that he had managed to hide for two to three years in close proximity to his last known residence lacked credibility. The applicant asserts that if he had known that this would be such an issue, he would have produced supporting evidence. However, the Tribunal's reasons demonstrate that the Tribunal member asked him why the Taliban would not have been able to find him if he was living such a short distance away. The reasons show that the applicant provided a response and that the member also challenged that response. Therefore, the applicant was aware that this was an issue for the Tribunal and had the opportunity to address it, not only before the Tribunal, but in the written submissions his migration agent provided after the hearing. The fourth ground cannot succeed. 14 In my opinion, the applicant has not demonstrated that any of his proposed grounds of appeal have any prospect of success. For this reason, his application for an extension of time to file a notice of appeal must be refused. The application will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.