Aca17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1213
•7 October 2021
FEDERAL COURT OF AUSTRALIA
ACA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1213
Appeal from: Application for an extension of time to appeal ACA17 v Minister for Immigration & Anor [2019] FCCA 3133 File number: NSD 2186 of 2019 Judgment of: HALLEY J Date of judgment: 7 October 2021 Catchwords: MIGRATION – application for extension of time in which to file a notice of appeal from a decision of the Federal Circuit Court of Australia pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) – where primary judge dismissed application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – jurisdictional error – power to issue practice directions pursuant to s 473FB of the Migration Act 1958 (Cth) – whether refusal to increase five page limit on written submissions amounted to a denial of procedural fairness – where sufficient explanation for applicant’s immaterial delay in filing notice of appeal – where no specific prejudice to the Minister – whether proposed appeal has sufficient prospects of success – application dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.03
Migration Act 1958 (Cth) ss 5H, 36, 473CA, 473FB
Cases cited: DGZ16 v Minister for Immigration and Border Protectionand Another (2018) 258 FCR 551; [2018] FCAFC 12
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186
MZABP v Minister for Immigration and Border Protectionand Others (2015) 242 FCR 585; [2015] FCA 1391
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 5 October 2021 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Appellant: HWL Ebsworth Lawyers Counsel for the Second Appellant: The Second Respondent submitted to any order of the Court, save as to costs
Table of Corrections 8 October 2021 Year corrected in Order 1 ORDERS
NSD 2186 of 2019 BETWEEN: ACA17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application filed on 31 December 2019 be dismissed.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J:
INTRODUCTION
This is an application for an extension of time to file a notice of appeal from orders of the Federal Circuit Court pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (FCR). On 31 October 2019, the primary judge dismissed the applicant's application for judicial review of a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Temporary Protection (Class XD) visa.
BACKGROUND
The applicant is a citizen of Pakistan. He arrived in Australia on 9 April 2013 as an unauthorised maritime arrival.
On 24 May 2016, the applicant made an application for a protection visa. The applicant claimed to fear harm if he was returned to Pakistan on the basis of his Shia religion and Pashtun ethnicity. He claimed that Shia in Pakistan are being killed everywhere. He claimed that people from Parachinar, his home town, were being targeted, especially Shia. He feared harm from the Taliban.
On 11 October 2016, a delegate of the Minister (Delegate) refused to grant the applicant a visa (Decision).
The Delegate’s Decision was referred to the Authority pursuant to s 473CA of the MigrationAct1958 (Cth) (Act). A copy of the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients issued by the President of the Authority on 21 April 2016 pursuant to s 473FB of the Act (Practice Direction) was attached to a letter sent to the applicant notifying him of the referral. Paragraph 21 of the Practice Direction gave the following directions regarding the provision of written submissions and new information:
Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission 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.
On 23 November 2016, the applicant’s representative sent a five page letter to the Authority advancing submissions and providing a number of internet links to country information (Submissions). The Submissions advanced the following contentions in relation to the five page limit imposed by the Practice Direction:
We submit that it is an obligation of the Agent to provide sufficient corroborative country information in support of the applicant’s claim addressing the issues including why internal relocation in not a reasonable option in the applicant’s case. Due to restriction on submission, we only provide relevant links of country information and request the IAA to check those relevant information when assessing the applicant’s claim for a protection visa. We aslo request the IAA to allow us to do full submission providing sufficient country information with our legal submission.
…
Accordingly, we submit that our submission should be accepted though it is longer than five pages.
The Authority did not respond to the request in the Submissions that the applicant be permitted to make a “full submission providing sufficient country information with our legal submission” and no further submissions or additional information was provided by the applicant to the Authority.
On 16 December 2016, the Authority affirmed the Decision.
The Authority noted that the Submissions included a new claim that the applicant was a member of the Pashtun Shia Turi tribe and also provided internet links to approximately 46 items of country information that it concluded were not before the Delegate.
The Authority considered that the new claim that the applicant was a member of the Pashtun Shia Turi tribe was credible personal information which was not previously known and may have affected consideration of the applicant's claims. The Authority also considered that there were exceptional circumstances justifying consideration of this new claim.
In relation to the internet links to country information, the Authority noted that none post-dated the Delegate’s decision. It took into account relevantly that the applicant had not had assistance in preparing his protection visa application, but also took into account the range of recent and credible information that was before the Delegate in relation to the risks faced by Shias in Pakistan (including Turi Shias from Parachinar) and sectarian violence in Pakistan. The Authority was not satisfied that exceptional circumstances existed justifying consideration of this new information.
The Authority found the applicant to have been a generally credible witness in his interview with the Delegate. It accepted that he was a Pashtun Shia from the Turi tribe. The applicant claimed to have experienced two incidents in Pakistan where the vehicle he was travelling in was stopped and turned around by Pakistani authorities because vehicles ahead had been attacked (in the applicant’s belief by the Taliban). Due to discrepancies in the applicant’s presentation of these events, the Authority had concerns about this claim. Nevertheless, the Authority was prepared to accept that the applicant had experienced such an incident on one or two occasions, but it was not satisfied that one of the incidents occurred during the brief period in which the applicant resided in Kurram Agency before he left Pakistan in early 2013.
The Authority referred to considerable information regarding the security situation in Pakistan, in particular in the Federally Administered Tribal Areas (FATA). It noted that the applicant had not claimed that he or any member of his family had a profile as a Shia professional, tribal elder or leader, or religious leader. It also referred to the overall improvement in the security situation in the FATA and the Kurram Agency.
The Authority concluded:
Having regard to the range of information before me, I place particular weight on DFAT’s assessment that there is a low level of sectarian violence overall in the FATA and a low level of generalised violence in Kurram Agency in view of the recent and credible nature of the report and its specific consideration of the situation in Kurram Agency. While I accept that incidents of violence may occur in Parachinar from time to time, I am not satisfied that there is a real chance that the applicant would suffer serious harm in or near Parachinar on the basis of his identity as a Shia from Parachinar who is a member of the Turi tribe, or as a result of the security situation in Parachinar.
The Authority further considered whether the applicant would face harm as an unsuccessful Turi asylum seeker returning from Australia. It noted that the applicant had claimed he had departed Pakistan legally on his Pakistani passport and DFAT was not aware of any information to suggest that citizens returning on Pakistani passports were punished. It also noted that DFAT had assessed that Pakistani citizens who had spent time living in western countries were not subject to discrimination or violence on that basis and that there was no evidence before the Authority “to suggest that unsuccessful Turi asylum seekers are targeted in attacks by the Taliban, any other armed Sunni group, or any other group or person”.
The Authority was not satisfied:
[T]hat there is a real chance of harm to the applicant now or in the foreseeable future, as an unsuccessful Turi applicant for protection who would be returning to a village near Parachinar after living in Australia, a western country, for approximately four years.
In all the circumstances, the Authority was not satisfied the applicant met the requirements of the definition of a refugee in s 5H(1) of the Act, nor was it satisfied that he had met any of the criteria for a protection visa under either ss 36(2)(a) or 36(2)(aa) of the Act.
FEDERAL CIRCUIT COURT DECISION
In his application before the Federal Circuit Court, the applicant advanced one ground of judicial review, being that the Authority had denied the applicant procedural fairness. The applicant identified two ways in which the Authority had failed to afford him procedural fairness.
First, the applicant submitted that the Authority had denied him procedural fairness in that it refused to consider his request to make submissions that were more than five pages in length.
Second, the applicant submitted that the issuance of the Practice Direction by the President of the Authority was beyond the power in s 473FB of the Act.
The primary judge rejected both grounds of review. At J[29], the primary judge referred to a decision of the Full Court of the Federal Court in which the validity of the Practice Direction was upheld: DGZ16 v Minister for Immigration and Border Protectionand Another (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16) at [107] (Reeves, Robertson and Rangiah JJ). The primary judge otherwise concluded that there had been no denial of procedural fairness (at J[29]-[30]) and no practical injustice (at J[31]).
APPLICATION FOR EXTENSION OF TIME
On 31 December 2019, the applicant filed an application for an extension of time to file a notice of appeal relating to the orders of the primary judge (Application). The Application was filed approximately one month out of time: r 36.03 of the FCR.
As the respondent submits, to be granted an extension of time pursuant to r 36.05 of the FCR, the Court will be guided by the following factors: the length and explanation of the delay; any prejudice the respondent might suffer due to the delay (albeit that the mere absence of prejudice is not sufficient to justify the grant of an extension); and the merits of the substantial application if an extension was granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at 348-9 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have sufficient prospects of success to make it just that the prospective appellant be permitted to proceed with it: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospects of success, an extension of time, even for a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J), citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] (Jessup J, with whom Gyles and Besanko JJ agreed); SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] (Flick J).
The applicant contends in the Application that he is “totally illiterate” and that he was “waiting for judgment email” from the Court. On 31 October 2019, the primary judge made orders dismissing the application for judicial review and delivered ex tempore reasons for judgment. There was no evidence before me, or any suggestion from the applicant himself, that he had any assistance from any legal representative in relation to his proposed appeal from the primary judge’s orders. The primary judge’s written reasons for judgment were ultimately not published until 20 January 2020, after the applicant filed his application for an extension of time.
In the circumstances, it might reasonably be inferred that the applicant had at least initially been awaiting the Federal Circuit Court’s written reasons before deciding to commence an appeal in this Court.
The Minister accepts that the applicant has provided “some explanation” for his delay in commencing the appeal. I do not consider that the delay itself was material and the Minister accepts that he will not be prejudiced by the grant of an extension of time.
The Minister submits, however, that the extension of time sought in the Application should be refused, in that even on an impressionistic assessment, the appeal does not enjoy sufficient prospects of success to warrant an extension: MZABP v Minister for Immigration and Border Protectionand Others (2015) 242 FCR 585; [2015] FCA 1391 at [62] (Mortimer J) citing Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] (Mortimer J); Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [7]-[9] (Brennan CJ and McHugh J).
CONSIDERATION
I am satisfied that the explanation provided by the applicant for the delay in taking steps to institute the appeal from the orders of the primary judge, the comparatively short length of that delay and the absence of any specific prejudice to the Minister arising from that delay all weigh in favour of granting the extension of time to file the notice of appeal as sought in the Application.
It is also necessary, however, to consider the prospects of the proposed appeal succeeding if an extension of time is granted.
The draft notice of appeal does not articulate any error in the primary judge's reasons. Rather, it appears to extract a part of the Minister's written submissions filed in the proceedings before the Federal Circuit Court. The proposed grounds of appeal are stated to be:
1. The applicant advances one ground in his application for judicial review filed on 6 January 2017. He contends that the Authority denied him procedural fairness in that it refused to consider his request to make submissions that were more than five pages in length. He also appears to contend that the making of the Practice Direction by the President of the Authority was beyond the power given in s.473FB of the Act.
2. For the reasons set out below the ground advanced by the applicant fails to identify error in the Authority’s decision
FORMTEXT
The hearing of the Application before me proceeded on the basis that the applicant maintains the grounds he advanced in the Federal Circuit Court in seeking to establish jurisdictional error in the Authority’s reasons and that the primary judge had erred in failing to find jurisdictional error and in dismissing the applicant’s application for judicial review.
The applicant appeared in person at the hearing of the Application before this Court with the assistance of an interpreter. The applicant did not provide any written submissions. At the conclusion of the oral submissions by counsel for the Minister, I explained to the applicant the nature of the hearing before me and I invited the applicant to address me on the two jurisdictional error grounds that he had advanced before the primary judge. The applicant’s oral submissions were limited to statements that he was unable to go back to Pakistan because of Pakistani and Afghani Taliban, that he “has fear for my life – not – for my family members as well” and “What should I say? There is no more solution if unable to give me permanent visa. At least I am requesting you to give me a bridging visa”.
For the reasons that follow, I consider that the primary judge was correct to reject each of the two contentions alleged to give rise to jurisdictional error advanced before him. I first address the contention that the issuance of the Practice Direction was “beyond power” and then the denial of procedural fairness contention relating to the applicant’s alleged request to make submissions in excess of five pages.
Power of President to issue Practice Direction
The primary judge was correct in finding that the issuance of the Practice Direction was not beyond the power given to the President of the Authority pursuant to s 473FB of the Act.
Section 473FB relevantly 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.
As the Full Court of the Federal Court concluded in DGZ16 at [107] (Reeves, Robertson and Rangiah JJ), the issuance of the Practice Direction, in particular insofar as it purports to limit written submissions to no more than five pages, is not inconsistent with ss 473DC or 473DD of the Act, nor is it an unreasonable exercise of the President’s statutory power to issue directions pursuant to s 473FB.
The Full Court stated in DGZ16 at [106]:
In our opinion the evident or intelligible justification for the submission being no longer than five pages is to encourage, legitimately, submissions that are concise.
The Practice Direction also does not impact on the ability of the Authority to obtain further documents, or inhibit an applicant in addressing the issues in his or her case: DGZ16 at [103]-[104]. The five page limit applies to submissions, not any new information on which the applicant may seek to place before the Authority, and an applicant can seek permission to make a submission that was longer than five pages: DGZ16 at [99] and [102].
Denial of procedural fairness
The primary judge was also correct not to accept the applicant's contention that he was denied procedural fairness by reason of any failure to waive the five page submission limit.
First, any failure by the Authority to accede to or respond to any request made by the applicant to provide submissions in excess of five pages could not constitute a denial of procedural fairness. Section 473DA provides that Division 3 of Part 7AA of the Act that provides for a fast track review process in relation to certain protection visa applications, together with ss 473GA and 473GB of the Act, is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Review Authority”. Accordingly, the failure to comply with the Practice Direction in the manner alleged by the applicant does not give rise to a breach of procedural fairness.
Second, while it was open to the applicant to request that the Authority permit him to make a submission that was longer than five pages, the applicant did not appear to make any such request. The specific request made by the applicant’s representative in the Submissions was that the Authority “allow us to do full submission providing sufficient country information with our legal submission”. This request needs to be considered in the context of the earlier explanation in the Submissions that the applicant was only providing “relevant links of country information” because of the five page limit on submissions. The “full submission” would thus appear to be a request to supplement the “legal submission” by providing copies of the country information, rather than only providing a list of the links to that information in the Submissions.
Third, in any event, I am not satisfied that there was any practical injustice to the applicant attributable to the Authority’s decision not to respond to the request in the Submissions to “allow us to do full submission providing sufficient country information with our legal submission”. The Authority reviewed the internet links to the country information and identified the topics that were addressed. The Authority concluded that none of the information post-dated the Delegate’s decision on 11 October 2016 and that there was:
[A] range of recent and credible information before the delegate addressing the risks faced by Shias in Pakistan, including the Turi Shias from Parachinar, sectarian violence in Pakistan, agents of violence in Pakistan, and the security situation in Parachinar, Kurram Agency and Pakistan in general.
Accordingly, the primary judge was correct to find no denial of procedural fairness in this case.
In the circumstances, neither of the two proposed grounds of review inferred to be sought to be advanced in the draft notice of appeal have sufficient prospects of success to warrant an extension of time for the applicant to file a notice of appeal in relation to the orders made by the primary judge.
DISPOSITION
The application for an extension of time should be dismissed, with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. Associate:
Dated: 7 October 2021
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