AGX16 v Minister For Immigration and Anor (No.2)
[2016] FCCA 3070
•16 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGX16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 3070 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection (Class XA) visa – application for extension of time – two and a half year delay – previous proceeding discontinued – application for Ministerial intervention – whether reasonable prospects of success in substantive application – alleged error in relation to complementary protection – risk of significant harm faced by population of country generally. |
| Legislation: Migration Act 1958, ss.36(2B), 91R |
| Cases cited: AGX16 v Minister for Immigration & Anor [2016] FCCA 2445 |
| Applicant: | AGX16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 263 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 16 November 2016 |
| Date of last submission: | 16 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2016 |
REPRESENTATION
| Counsel for the applicant: | Angel Aleksov |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the first respondent: | Andrew Yuile |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The extension of time application filed on 12 February 2016 be dismissed.
There be no order as to the costs of the interlocutory proceeding determined on 12 September 2016 and no order as to the costs of the extension of time application determined today.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 263 of 2016
| AGX16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application for an extension of time in which to seek judicial review of a decision of the Refugee Review Tribunal. The Tribunal’s decision was made on 18 July 2013.
The applicant filed an application in this court about two or three weeks out of time on 27 September 2013. He said that the reason for his delay in filing that application was that it took him some time to get assistance from the Asylum Seeker Resource Centre and others. In any event, the applicant filed a notice of discontinuance on 17 April 2014, he says, on legal advice. He then sought ministerial intervention. That application was rejected by the Minister on 31 October 2014.
About 16 months later, on 12 February 2016, the applicant filed the present application. It is that application for which the extension of time is sought. It is about two and a half years out of time.
The court considered the question of whether the application should be summarily dismissed on the basis that there had previously been an application that was discontinued. That question was determined in the matter of AGX16 v Minister for Immigration & Anor [2016] FCCA 2445. The application for summary dismissal was itself dismissed on 12 September 2016. Separate reasons were provided orally for that decision at the time. The upshot was that the extension of time application could be heard today.
The applicant said that the two and a half year delay in filing the present proceeding can be broken up into separate periods. The applicant said that:
a)the delay from 35 days after the Tribunal’s decision on 18 July 2013 to the filing of the first application on 27 September 2013 is explained by the applicant’s need to get legal assistance;
b)the period from 23 September 2013 until 17 April 2014, when the notice of discontinuance was filed, is explained by the fact that there was a proceeding on foot in this court; and
c)the delay between 17 April 2014 and 31 October 2014 is explained by the applicant seeking ministerial intervention.
The solicitor for the applicant filed an affidavit sworn on 9 August 2016 in which she said that she was not able to explain the sixteen month delay between the rejection of the applicant’s application for ministerial intervention on 31 October 2014 and the filing of the present application on 12 February 2016.
The applicant said that he was not sitting on his hands during the time that he sought ministerial intervention, because he was challenging the result of the Tribunal’s decision, and, therefore, it should be treated as a neutral factor. The applicant’s submission on that point is not correct. The applicant abandoned the judicial review procedure and instead sought a completely different procedure. Numerous decisions of this court and the Federal Court have said that an application for ministerial intervention is not an adequate explanation for the delay in bringing proceedings.
Regardless of that, there has been a very significant period of delay between the decision on the ministerial intervention on 31 October 2014 and the filing of the present application on 12 April 2016. That was a period of about 16 months. That was a very long period on any view, and there is no explanation for it.
The applicant then addressed the question of the public interest in the finality of litigation. The applicant said that, because the applicant filed a notice of discontinuance, there was not a significant use of court resources in connection with his first application to this court. The applicant acknowledged that there was some minor waste of court resources in the use of the registrar’s time, and so on. The public interest in the finality of litigation and the public interest in court resources not being wasted is, in general, a significant matter. However, in the particular circumstances of this case, it does not seem to me to be a particularly weighty consideration.
The applicant also emphasised the prejudice to him as a refugee. Clearly, there is a significant prejudice to an asylum seeker whose extension of time application is refused. The applicant noted that, if the extension of time is refused, there will be no appeal available to the Federal Court, and said that was a matter of significant prejudice to him. I accept that point.
It is not suggested that the Minister would suffer any prejudice, other than the prejudice arising from the lack of finality in this litigation.
In relation the prospects of success of the substantive application, the applicant has legal advice and he has filed an amended application. Specifically, the grounds set out in the application filed on 12 February 2016 are as follows:
Grounds of application
1.The Tribunal failed to apply the correct test in evaluating the applicant’s “complementary protection” claim or failed to consider an integer of that claim.
Particulars
a)Complementary protection criteria differ from Convention criteria, perhaps most significantly because there is no requirement that the exposure to harm be for any reason.
b)The Tribunal accepted that there was “sporadic violence” in the country that would continue to cause difficulty after the withdrawal of foreign forces in 2014 ([53]).
c)The Tribunal’s response to the applicant’s claims to fear harm by reason of the planned withdrawal was that the withdrawal would not lead to any “targeting” ([37]-[40]) nor any “persecut[ion]” ([53]).
d)Targeting and persecution form no part of the test for complementary protection. In circumstances where the Tribunal accepted that violence would occur after the withdrawal, but did not give any separate consideration to the distinct issues that arise in relation to the complementary protection claim, error is manifest.
e)This inference is confirmed by the observation that under the heading “Complementary protection obligations”, in [62], the Tribunal mentions that the applicant is a Hazara Shia and will not be exposed to a risk of harm “merely because of his background”; in [63], the Tribunal mentions that the applicant lacks an actual or imputed political opinion connected with his return from a foreign country. These matters are irrelevant to complementary protection and would not be expected if the Tribunal were applying the correct test; it might be asked, rhetorically, why mention these matters if the correct test was being applied?
Obviously, as this is an extension of time application, the parties have simply outlined their arguments on this point. If the extension of time is granted, they will elaborate on their arguments later.
In any event, the argument of the applicant is with paragraph 53 of the Tribunal’s reasons for decision, where the Tribunal said:
… Sporadic violence that has caused difficulty in the country for some time will continue, as insurgent groups like the Taliban seek to impose conservative social ideals in the country. However the Tribunal does not accept that this will mean that ethnic groups like the Hazara will be targeted for attack due to their appearance or imputed allegiance to the present Afghan government and the foreign forces that are presently in Afghanistan.
The applicant had claimed that he was at risk of persecution for reasons connected with a particular commander. The Tribunal rejected that claim. The applicant also claimed that he was at risk of harm as a Hazara. The Tribunal at [40] rejected that claim on the grounds that the treatment of Hazara in Afghanistan by the Taliban and other groups did not involve systematic and discriminatory conduct amounting to persecution. That decision was apparently made under s.91R of the Migration Act 1958 (“the Act”), a provision of which has since been repealed.
The applicant argued that the Tribunal’s statements at paragraph 53 of its reasons for decision indicated that there was a risk to the applicant of sporadic violence. The applicant said that when the Tribunal dealt with the issue of complementary protection, it did not deal with that risk in the correct way.
The particular paragraphs in issue are 60, 61 and 62 of the Tribunal’s reasons, where the Tribunal said that:
60.The applicant has claimed that he will face a real risk of significant harm arising from the arbitrary loss of life, torture, cruel and inhuman treatment or punishment or degrading treatment or punishment because of his Hazara Shia background, his distinctive Hazara features, his dispute with the Sayyaf Commander and that he has had to deal with his difficulties with no family connection or support network in Afghanistan.
61.The Tribunal has found that the applicant does not face a real chance of serious harm from a Pashtun Commander in Kabul, arising out of the disputed ownership of a shop. The Tribunal does not accept, based on its findings above, that the applicant faces a real risk of significant harm from the same dispute.
62.The Tribunal also does not accept that the applicant will have a real risk of significant harm arising from being from a Hazara Shia background. The Tribunal has considered the information and evidence regarding the treatment of Hazara Shia and finds that Hazara Shia are not at risk of significant harm merely because of this background, in the general communities or on the roads of Afghanistan. The Tribunal considers that arguments can be made that individuals are at risk in Afghanistan due to attributes as described by the UNHCR, as discussed in the hearing, and the Tribunal considers that the applicant does not have such attributes. The Tribunal finds that the applicant does not have a real risk of significant harm due to his background as a Hazara Shia in Afghanistan.
The Tribunal, clearly, in its reasons, focused on whether the applicant faced a real risk of significant harm arising from his Hazara Shia background.
Subsection 36(2B) of the Act provides that:
… there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In this particular case, that provision was pointed out to counsel for the applicant when the matter was last before the court on 12 September 2016. The risk of sporadic violence identified by the Tribunal was said to apply “in the country”, meaning Afghanistan. That clearly means that sporadic violence was a risk faced by the population of the country generally.
The applicant argued in court today that he would face a particular risk personally if he were to return to Afghanistan, because he would be an inhabitant of Kabul. At CB167 there was an extract of a submission from the applicant to the Tribunal which referred to a number of articles in The Age newspaper about attacks on Hazaras in towns surrounding Kabul. One of those articles, which was relied on by the applicant, was summarised to the effect that:
Several of those whose claims were refused in Australia were found to be victims of “random and indiscriminate violence” and generally lawlessness by “criminals and bandits”, rather than persecution on the grounds of their race or religious beliefs.
There was nothing else put forward by the applicant that suggested that he faced a particular risk of sporadic violence in Kabul. In any event, the Tribunal made a finding that the risk of sporadic violence applied “in the country”, not just in Kabul. Consequently, the risk of sporadic violence would fall within s.36(2B)(c) of the Act.
Additionally, the applicant, in a formal, apparently exhaustive, written submission prepared by his lawyers set out the various bases upon which he sought complementary protection: CB198-201. In that submission, the applicant specifically relied upon his race, being Hazara. That clearly is why the Tribunal focused on that issue in paragraphs 60, 61 and 62 of its reasons for decision. In identifying that attribute, the Tribunal was dealing with the claim that was put to it.
Counsel for the applicant noted that the Tribunal did not refer specifically to s.36(2B)(c) of the Act and perhaps implied that the omission of any reference to that paragraph of the Act meant that the Tribunal did not rely on it. However, I do not accept that argument. It seems to me, in the circumstances of this case, that the Tribunal can be taken to know the relevant provisions and understand their application. The Tribunal’s references to the applicant’s Hazara background seem to be based on the fact that the applicant submitted to the Tribunal that he was in need of complementary protection because of his ethnicity.
The applicant apparently accepted that he had not specifically put to the Tribunal that he faced harm from sporadic violence particularly in Kabul. The applicant argued that whether or not he had put to the Tribunal that he faced significant harm personally because he would be in Kabul was irrelevant because the Tribunal made a finding that there was sporadic violence. This was an argument based on the allegation that the ground clearly arose from the materials. However, the fact is that the Tribunal’s finding was that the violence was “in the country”, rather than in Kabul.
I do not consider that the applicant has reasonable prospects of success in relation to the grounds set out in his application dated 12 February 2016. That, combined with the wholly inadequate explanation for the delay in bringing the proceedings between 31 October 2014 and 12 February 2016 and the inadequate explanation for the delay while the applicant was seeking ministerial intervention, lead me to conclude that it is not appropriate in this case to grant the extension of time. The application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 28 November 2016
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