Mangal v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under O 52 r 15(2) of the Federal Court Rules for an extension of time within which the applicant may appeal from the decision of Justice O'Loughlin given ex tempore on 6 November 2001. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal given on 7 September 2001. The Tribunal in turn affirmed a decision of a delegate of the respondent of 28 June 2001 to refuse to grant to the applicant a protection visa for which he had applied following his arrival in Australia on 23 April 2001. 2 Under O 52 r 15(1)(a) of the Federal Court Rules (the Rules) the applicant had 21 days within which to appeal from the decision of Justice O'Loughlin. That time expired on 27 November 2001. The applicant lodged a purported notice of appeal on 10 December 2001, that is 13 days out of time. Under O 52 r 15(2), the Court may extend the time for special reasons even though the time has expired. 3 In considering the application I adopt the principles explained by the Full Court in Jess v Scott (1986) 12 FCR 187 at 188. In particular in this matter, I have considered the applicant's explanation for his delay in filing a notice of appeal and whether he has any prospect of success of an appeal if leave to appeal out of time is granted. 4 The explanation for the delay is contained in his statement or 'affidavit' of 12 December 2001. 5 The applicant is in the Woomera Immigration Detention Centre. He says that when he received the written record of Justice O'Loughlin's decision, he was unable to read or understand it. He wished to appeal but was unable himself to fill out the necessary forms in English. He sought the assistance of an interpreter who provided such services within that centre. But the first occasion on which he got that assistance was on 10 December 2001, the day on which he purported to lodge a notice of appeal. 6 The respondent has not sought to challenge those matters and I accept them. 7 In the circumstances, if the applicant could show any real prospect of succeeding on the appeal which he seeks to institute, I would regard the explanation for the delay as significant and I would extend the time in which to appeal. 8 I therefore turn to consider whether there is any real prospect of the appeal succeeding if the applicant is granted leave to bring an appeal out of time. It is necessary to look carefully at the reasons for decision of Justice O'Loughlin to consider that question. His Honour took the view that, even if the applicant's case was accepted at its highest, that is, even if the Tribunal accepted all that the applicant had told it, the history of his treatment by the Taliban would not be sufficient to constitute persecution for a Convention reason. To consider whether there is any arguable ground for that conclusion being wrong, it is necessary to look briefly at the applicant's complaints as he made them to the Tribunal and how the Tribunal dealt with them. 9 The applicant is from Afghanistan and is of Pashtun ethnicity. He is a Sunni Muslim by religion. He is apparently largely uneducated and illiterate and has worked for many years as a truck driver. 10 His migration agent claimed on his behalf in a submission to the Tribunal that he had a well-founded fear of being persecuted if he were to return to Afghanistan because of a political opinion that would be imputed to him by the Taliban and because he was a member of a particular social group, namely, "an illegal ex-patriot and able-bodied Afghan man". 11 The Tribunal noted his claims in considerable detail and addressed each of them. It is not clear that the applicant in his evidence to the Tribunal complained of being attributed with a particular political opinion by the Taliban. The Tribunal identified three particular bases upon which the applicant said he feared persecution if he returned to Afghanistan. Firstly, he claimed that he left Afghanistan because he feared the Taliban following his experiences of being required by the Taliban to work for them as a truck driver. He has in general repeated that claim today. He said that on one occasion he had been reluctant to drive his truck for the Taliban without being paid for fuel and was beaten up and injured his back. He also said on another occasion he had been reluctant to drive to an area in the vicinity of the front line and again had been beaten and subsequently threatened with serious mistreatment by the Taliban. Finally, he claimed as a detail of this aspect of this claim that a little over a month before he fled from Afghanistan he was notified that he was required to go to the Panshar Valley to fight for the Taliban. It was the notification of that requirement which, he said, forced him to hide and then to flee from Afghanistan. 12 The Tribunal had serious doubts about the validity of some of those claims because of inconsistencies which it saw in the applicant's description of the events referred to concerning the period and frequency and nature of the Taliban's conduct. It was not satisfied that he had suffered a back injury by being beaten by the Taliban on one or two occasions. Nor was it satisfied that he had been forced to work for the Taliban, or that he had been required by the Taliban to go to the front line to fight, or that he had then hidden from the Taliban through fear of what it might do to him. 13 The second aspect of the applicant's claims was that he had been detained on four occasions and beaten by the Taliban for having a beard that was too short. He said that on one occasion the beating had caused him hearing loss. To avoid further beatings he had grown his beard. The Tribunal accepted that he had been disciplined by the Taliban for having a short beard, but thought that he had exaggerated the degree of mistreatment. It did not consider that imposing upon him the obligation of growing his beard amounted to conduct sufficiently serious to be persecution, as that term is used in the Refugees Convention as amended by the Refugees Protocol (the Convention). Nor did it consider that the Taliban's conduct was directed towards him because of a particular Convention reason. 14 The third claim the applicant made was that he feared mistreatment by the Taliban if he were to return to Afghanistan because he had unlawfully fled from Afghanistan and had done so in circumstances where he was avoiding being called to the front line to fight. Bearing in mind his age and work experience and that he had lived for some six years under Taliban rule, the Tribunal did not think there was any real chance that he might be recruited by the Taliban or that there was more than a remote chance that he would be persecuted upon his return to Afghanistan by reason of his having left that country. 15 Thus the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Afghanistan. It noted that the applicant had made no claims to have a well-founded fear of persecution by reason of his Pashtun ethnicity or his Sunni Muslim religion. That is consistent with the bases of the claims presented to the Tribunal as expressed by his migration agent. It also noted that if the applicant and others were required to engage in more vigorous religious practices than was their wish, that conduct would not amount to persecution by reason of religion in any event. 16 It was those claims which Justice O'Loughlin was asked to address when considering whether the decision of the Tribunal should be set aside. 17 The applicant in his purported notice of appeal and supporting affidavit described the decisions of the Tribunal and of Justice O'Loughlin as unfair. That does not indicate any ground upon which a Full Court might find error on the part of Justice O'Loughlin in his decision. Secondly, he complained of a mistake on the part of the Tribunal in rejecting his claims of persecution at the hands of the Taliban. He said that he was vulnerable to persecution for his religious beliefs and his political opinions and complained of the Taliban's "extremely narrow and barbaric interpretation of Islam". As I have indicated, Justice O'Loughlin took the view that even if his complaints of mistreatment by the Taliban were made out, that would not establish persecution for a Convention reason. The applicant, in the material before the Court, now points out that the Taliban did subject large numbers of Sunni Muslims and Pashtuns to forms of atrocity. That may well be correct. But there is nothing to indicate that such behaviour on the part of the Taliban was directed to those persons by reason of their particular Pashtun ethnicity or by reason of their Sunni Muslim religion. Neither the Tribunal nor Justice O'Loughlin are shown to have fallen into error in that respect nor is there is any real prospect that such an error might be demonstrated on appeal. In a recent submission dated 21 January 2002, the applicant asserted that the Taliban were of a particular Sunni Muslim group known as Wahabi whereas he was of the Sunni Hanati group. He claimed that it was by reason of that different subdivision of Sunni Muslims that the Taliban's behaviour was directed to him and others. That matter was simply not put to the Tribunal or to Justice O'Loughlin, so failure to address it then could not now demonstrate error on his Honour's part. 18 Accordingly, in respect of that aspect of the applicant's claim, I do not think there is any real prospect of him showing error on the part of Justice O'Loughlin. In addition, nothing has been put today to indicate that the approach of the Tribunal to this aspect of the applicant's claims, that is his mistreatment by the Taliban and his fear of being sent to the war zone by the Taliban, was erroneous in a way which might be reviewable by the Court. Consequently, I am not satisfied that in respect of that group of the applicant's claims he has any prospect of demonstrating error on the part of Justice O'Loughlin. 19 In his document of 21 January 2002 the applicant also claimed that he now fears that the Tajik and Uzbak groups in control of Afghanistan would persecute him due to his perceived association with the Taliban and as a Pashtun. That is a new claim and one not presented to the Tribunal or to Justice O'Loughlin. It is not the function of the Court on this application to address new claims, but to consider whether the judgment from which leave to appeal is sought is erroneous. The making of that new claim cannot demonstrate error on the part of Justice O'Loughlin because his Honour was not called upon to address it. Nor could it demonstrate reviewable error on the part of the Tribunal for the same reason. 20 The third matter raised in the notice of appeal was the complaint that the Tribunal had not accepted the applicant's evidence about the four occasions upon which he had been detained and beaten by the Taliban because his beard was not long enough. In fact, although the applicant had not made such a complaint when he was first interviewed on his arrival to Australia, the Tribunal did not reject those claims despite their belated nature. It accepted that the events had occurred, albeit not to the extent that the applicant claimed, for reasons to which I have referred above. Justice O'Loughlin, in my view, correctly or at least in a way which does not give rise to arguable error, concluded that that sort of conduct on the part of the Taliban could not amount to persecution for a Convention reason. That was firstly because being obliged to grow a longer beard was not sufficiently serious conduct to amount to persecution. Nothing has been suggested to me to indicate that his Honour's decision in that regard was erroneous. His Honour also did not think that that conduct was based upon the applicant's religion. In my view no error has been demonstrated in his Honour's consideration of that question which might lead to the decision being reversed on appeal. 21 In relation to the applicant's fear of being forced to work for the Taliban, again his Honour was of the view that that could not be identified as attributable to a Convention reason. Whilst his Honour understood the applicant's reluctance to undertake those tasks, he thought that the applicant was not being asked to do so by reason of his race or religion or any other Convention reason. His Honour, in my view, is not shown possibly to have erred in that respect in any way which might attract the attention of a Full Court if the applicant were given leave to appeal from the decision. 22 His Honour then considered generally whether there was any other basis upon which the applicant might be able to succeed in setting aside the Tribunal's reasons. In particular, his Honour did not discern that the applicant claimed to have any political beliefs which might expose him to a real chance of being persecuted if he were to return to Afghanistan. Nothing has been put to me today to indicate error on his Honour's part. I do not see there is any chance of the Full Court finding such error in respect of that part of his Honour's reasons. 23 Finally the notice of appeal raises the applicant's concern that many of his friends who are also Pashtuns of Sunni Muslim religion have been given protection visas in Australia. He raised that matter in oral submissions today. He also pointed out that there is no reason why he would have come to Australia except for having a well-founded fear of persecution in Afghanistan. Those matters, whilst entirely understandable as contentions made on behalf of the applicant, do not demonstrate any arguable ground upon which the decision of Justice O'Loughlin might be reversed on appeal. 24 For those reasons I am not persuaded that there is any real prospect of the applicant succeeding if he were granted leave to appeal. As I have said, if I thought there was any such prospect I would give him an extension of time within which to appeal from the decision of Justice O'Loughlin. However as he has failed to demonstrate any real chance of succeeding on the appeal, I must refuse the application. 25 The order of the Court is that the application be refused. I see no reason why the ordinary rule as to costs should not follow and I order that the applicant pay the respondent costs of the application. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.