DVI17 v Minister for Immigration and Border Protection

Introduction 1 The applicant, a national of Afghanistan of Hazara ethnicity, seeks an extension of time to file a notice of appeal from orders of the Federal Circuit Court of Australia. The orders of the Federal Circuit Court were made on 30 January 2018. The due date to file a notice of appeal was 20 February 2018. The application for an extension of time was filed on 27 February 2018, only a few days after the due date. 2 The hearing proceeded on the basis that it was both the hearing of the application for an extension of time and the hearing of the appeal, should an extension of time be granted. The applicant relies on a single proposed ground of appeal, as set out in his draft notice of appeal filed on 30 August 2018. The ground is as follows: The learned Circuit Court Judge erred in law by misdirecting himself as to the proper test and application of the test as to when an issue or claim is raised before a decision-maker, in that the Judge failed to direct himself that a claim not expressly advanced will attract the review obligation of a decision-maker when it is apparent on the face of the material before the decision-maker. 3 For the reasons that follow, in my view the application for an extension of time should be dismissed.

Background facts 4 On 2 April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. 5 On 25 July 2016, the applicant lodged an application for a Safe Haven Enterprise visa (protection visa). 6 On 18 October 2016, a delegate of the Minister for Immigration and Border Protection refused the application for a protection visa. The Department of Immigration and Border Protection (the Department) referred the matter to the Immigration Assessment Authority (the IAA) on 28 October 2016. 7 On 28 July 2017, the IAA affirmed the decision not to grant the applicant a protection visa. The IAA summarised the applicant's claims in [6] of its decision. As there noted, the applicant claimed to be a national of Afghanistan, an ethnic Hazara and a Shia Muslim. The applicant claimed to fear harm from his uncle and another man. He also claimed to fear harm for reason of being a Shia Muslim and a Hazara "as he is at risk from a variety of Afghan, Pakistan and foreign anti-Shia groups". He claimed to fear harm as a returnee from Australia, a western country. The applicant also claimed to fear harm on the basis of imputed political opinions (anti-Taliban, pro-Government, pro-Australian). 8 As indicated at [2]-[5] of the IAA's decision, the IAA had regard to the material referred by the Secretary to the Department and certain new information, specifically information about the security situation for Hazaras in the applicant's home area. The IAA was satisfied that there were exceptional circumstances that justified considering this information. The IAA also had regard to the UN Assistance Mission in Afghanistan's most recent reporting in relation to the security situation for Shia Muslims and Hazaras in Afghanistan. The IAA was also satisfied that there were exceptional circumstances that justified considering this information. 9 For reasons set out in detail in its decision, the IAA concluded at [30] that it was not satisfied that the applicant would, in returning to and residing in his home area, face a real chance of harm of any kind from any actor for any reason. The IAA therefore concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth). The applicant therefore did not satisfy the criterion in s 36(2)(a). For the same reasons, the IAA concluded that the applicant did not meet the complementary protection criterion in s 36(2)(aa).

The proceeding in the Federal Circuit Court 10 The applicant applied to the Federal Circuit Court for judicial review of the IAA's decision. The applicant was represented by a solicitor at the hearing before the primary judge. The hearing took place on 30 January 2018. The primary judge gave ex tempore reasons for judgment (the Reasons) and made orders on the date of the hearing, namely 30 January 2018. 11 As set out in [2] of the Reasons, the applicant originally relied on two grounds of review, but subsequently abandoned the second ground. The first ground of review was that the IAA had made a jurisdictional error in that it unreasonably concluded or addressed the wrong question. The applicant relied on six discrete propositions in support of that ground. These were referred to in the course of the primary judge's consideration of the ground at [21]-[38] of the Reasons. 12 The primary judge rejected each of the applicant's contentions, and concluded that the ground of review was not made out. Accordingly, his Honour dismissed the application.

The application for an extension of time 13 On 27 February 2018, the applicant filed an application for an extension of time to file a notice of appeal from the orders of the Federal Circuit Court. The application was filed by the solicitors who had acted for the applicant in the proceeding in the Federal Circuit Court (and continue to act for him). The application was supported by an affidavit of Nathan Draper, a solicitor, dated 27 February 2018. 14 In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 15 The length of the delay in the present case is short - the application was filed seven days after the date for filing a notice of appeal. 16 An explanation for the delay has been provided in the affidavit of Mr Draper. The explanation is to the effect that the applicant was asked on 20 February 2018 to provide documents to support a fee waiver application by 21 February 2018 but did not do so. No explanation has been provided as to why the applicant did not provide the documents by the time requested by his lawyer. I note that in Mr Draper's affidavit he states that 21 February was the last day to file the notice of appeal, but it appears that the last date was 20 February, being 21 days after the date of the orders, 31 January 2018. In any event, the explanation for the delay is deficient as it does not explain why the applicant did not provide the documents in the time requested by his lawyer. 17 The first respondent does not submit that any prejudice would be occasioned by the grant of an extension of time. 18 I turn now to consider the merits of the proposed appeal. 19 The applicant relies on a single proposed ground of appeal, which has been set out at [2] above. This is supported by a series of particulars, as set out in the draft notice of appeal. The applicant's contentions are in essence as follows: (a) A claim to protection based on tribal affiliation was apparent on the face of the material before the IAA. (b) The IAA was therefore obliged to consider this claim. (c) The IAA failed to do so and so fell into jurisdictional error: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]. (d) The primary judge erred in not so concluding. 20 The applicant relies on the following country information in support of his proposed ground of appeal: (a) Department of Foreign Affairs and Trade, Country Information Report, Afghanistan, 18 September 2015; (b) Afghanistan Analysts Network (AAN), "You Must Have a Gun to Stay Alive": Ghor, a province with three governments, 4 August 2013; and (c) European Asylum Support Office, EASO Country of Origin Information Report: Afghanistan - Security Situation, 1 November 2016. 21 It is apparent that each of these documents was before the IAA as each document is referred to in the IAA's decision. Copies of these documents appear in the Appeal Book prepared for the purposes of the hearing before this Court. 22 A ground in the terms proposed in the draft notice of appeal was not raised before the primary judge, but contentions to similar effect were included in the applicant's written submissions below and considered by the primary judge at [33]-[35] of the Reasons. 23 In oral submissions, counsel for the applicant accepted that no express claim based on tribunal affiliation had been made by the applicant to the IAA, but submitted that such a claim was apparent on the material before the IAA. I was taken during oral submissions to the parts of the documents relied on by the applicant in support of the proposed ground: see AB 333-337, 341, 345-347, 350, 351. For example, the following passage appears at p 2 of the AAN document: Ghor is not only a tribal society, it is a multi-ethnic and multi-tribal society. The Taimani and Firuzkohi (tribes of the Chahar Aimaq) are considered the largest and most influential, but there are a great number of smaller groups, most of them of Tajik origin. Despite the common language and religion, conflicts among them are strong. Historically, the tribes have feuded, but in recent years, for reasons introduced later in this dispatch, the conflicts have grown more acute. This ethnic fragmentation is the main cause of the significant security risk in the province. With the many tribes come many strong men, all determined to protect territories and tribal honour. With enough weapons - and in Ghor everyone carries at least one - they turn into what people locally refer to as 'warlords'. "Citizens harassed by warlords - this is a daily occurrence," one provincial council member told AAN. "If you do not bow deep enough, they punish you." (Footnotes omitted.) 24 In my view, for the reasons that follow, the applicant's proposed ground of appeal is weak. 25 In the absence of an express claim, the IAA was only required to address a claim to fear harm based on tribal affiliation if it arose squarely or clearly emerged from the materials: see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. 26 In the present case, the applicant did not identify his tribunal affiliation, if any. In the absence of this, there is no established fact on which an implied claim to fear harm on the basis of tribunal affiliation can be based. The fact that the applicant originates from Lal Wa Sarjangal District, or even Ghor Province, is not of itself sufficient to give rise to a duty on the part of the IAA to consider whether the applicant may face harm as a result of tribunal affiliation. 27 Further, the documents relied on by the applicant to support the contention that the applicant's tribunal affiliation was raised as an issue refer to the situation in Ghor Province. Throughout its decision, the IAA distinguished the situation that the applicant would face in his home district of Lal Wa Sarjangal with the situation in Ghor Province more generally: see, in particular, [15], [16], [17], [26] and [27] of the IAA's decision. The IAA found in summary that, although Ghor Province as a whole was insecure, Lal Wa Sarjangal (within Ghor Province) was a relatively peaceful area. The applicant has not identified any country information before the IAA that clearly suggests that tribunal affiliation is a source of conflict in Lal Wa Sarjangal. 28 In light of the above, I consider the prospects of success of the proposed ground to be weak. 29 Having regard to the matters discussed above, I do not consider it appropriate to grant an extension of time to file a notice of appeal. Accordingly, the application for an extension of time is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the first respondent's costs of the application. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.