Azafj v Minister for Immigration
[2015] FCCA 1355
•19 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1355 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an extension of time – application dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 477, 486E, 499 |
| Applicant: | AZAFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 338 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 19 May 2015 |
| Date of Last Submission: | 19 May 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 19 May 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms M. Symonds Mary Philippa Symonds |
| Counsel for the First Respondent: | Mr K. Tredrea |
ORDERS
The application for extension of time is dismissed pursuant to s.477 of the Migration Act 1958.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of THREE THOUSAND, FOUR HUNDRED AND SIXTEEN DOLLARS ($3,416.00).
| FEDERAL CIRCUIT COURT AT ADELAIDE |
ADG 338 of 2014
| AZAFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 10 July 2013 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The application identifies the following two grounds:
1. Judicial Review of decision of RRT on the ground that the Tribunal relied on information on the situation in Afghanistan in [D] Province was not up to date. The Tribunal used information from 2013.
2. Injunction against deportation at the end of September.
The grounds fail to identify or articulate any jurisdictional error. There were lengthy submissions provided by the solicitor for the applicant. Those submissions entirely fail to grapple with any argument of jurisdictional error. Those submissions were put to the Court as developing an argument of jurisdictional error. The submissions erroneously asserted that the Tribunal only took into account information of 2012 and before.
It is clear, on a reading of the Tribunal’s decision in para.38, that there was information in 2013 taken into account. But, more materially, when read in relation to para.20, which picks up an attachment to the reasons quoted as “other country information” and in particular, para.154, it is patent that information in 2013 was taken into account. The factual assertion in the submissions was patently incorrect.
It is important for practitioners assisting applicants in developing submissions to focus on the issue of jurisdictional error, which is the foundation for the jurisdiction of this Court under s.75(v) of The Constitution. This Court is not in a position to hear matters on their merits, and it is not sitting as a Court of Appeal on questions of fact. Matters of fact are ones for the Tribunal to determine.
This application is also one in respect of which an extension of time was required under s.477. The decision of the Tribunal was made on 10 July 2013, and the application in this Court was filed on 3 September 2014. In relation to an application for extension of time, this Court requires satisfaction of two requirements, first an adequate explanation for the delay and secondly a sufficiently arguable case to warrant in the interests of the administration of justice an extension of time. The affidavit explanation for the delay in this case was completely inadequate. On that ground alone, the application for an extension would be dismissed.
On the second criteria of an arguable jurisdictional error, it is patent that the application failed to disclose any arguable jurisdictional error, and none has been developed. In this case, the applicant applied for a protection visa on 29 August 2012, which was refused on 18 October 2012.
The applicant appeared before the Tribunal on 16 January 2013 to give evidence and present arguments, and was assisted by an interpreter, as well as his registered migration agent. The Tribunal carefully identified the relevant law and, in accordance with the Ministerial Direction under s.499 of the Migration Act 1958, took into account the relevant PAM. The Tribunal identified the relevant country information, to which I’ve already made reference, and carefully set out the claims in evidence of the applicant.
The applicant was found to be a national of Afghanistan and his claims were assessed against that country. Relevantly, the Tribunal found:
47. … The Tribunal is not satisfied in light of this that this amounts to any adverse political opinion which can be imputed to the applicant.
48. … In the Tribunal’s view the probative value of such evidence in light of the applicant’s submissions of physical harm meted out by the Taliban outweighs the inconvenience of obtaining same. In the absence of medical information, the Tribunal considers that there is insufficient evidence to substantiate the injury to the applicant’s skull, as alleged.
51. The Tribunal has also taken into consideration the fact that [H] did, in fact, return for a period to his home village in [D] without incident, although he indicated that he remained inside for much of the time for fear of being harmed.
52. [H] said at the hearing that he returned to his home village for two to two-and-a-half months in 2003. He said that he paid a people smuggler to arrange the travel by road from [Q] to his village in [D] province. He said he paid the people smuggler the equivalent of US$70-$80. He said that there was conflict with the Pashtuns over his family’s land and he therefore had to leave as it was not safe for him there.
69. …I do not accept on the evidence available to me that there is a real chance that the applicant will be persecuted for one or more of the five Convention reasons travelling on the roads between [K] and [D] province if he returns to his home village in Afghanistan now or in the reasonably foreseeable future
70. … The Tribunal considers also that the passage of time of over ten years since serves to moderate the risk of any harm to the applicant given the reported levels of democracy, governance, infrastructure, stability and economic growth experienced in [D]. In all the circumstances I do not consider that there is, in this case, a detailed personal history and such circumstances which create a real chance that the applicant will be discriminated against or otherwise persecuted for reasons of a localised dispute over his father’s land now or in the reasonably foreseeable future.
73. I accept that [H] will be able to be identified by those he fears as someone who has lived in Pakistan for a substantial part of his adult life. However, the country information shows that many thousands of Afghans have returned from Pakistan to Afghanistan with the help of UNHCR. I do not accept on the evidence before me that there is a real chance that [H] will be persecuted because he will be able to be identified from his accent, or use of language, or the way he behaves, as someone who has lived for a substantial part of his life in Pakistan if he returns to Afghanistan now or in the reasonably foreseeable future. I do not accept on the evidence before me that there is a real chance that he will be persecuted because he will be able to be identified as a failed asylum-seeker if he returns to Afghanistan now or in the reasonably foreseeable future.
76. Having regard to the advice of the Australian Department of Foreign Affairs and Trade and the evidence provided by [H] at the hearing, I do not consider that there is a real chance that he will be persecuted for reasons of his membership of any particular social group such as failed asylum-seekers returning from a Western country or any political opinion imputed to him (such as a supporter of the Karzai government) on the basis of his having sought asylum in a Western country.
77. It is acknowledged that there are risks which [H] may have taken in coming to Australia. However, I am not satisfied on the evidence before me that there is a real chance that he will be persecuted for one or more of the five Convention reasons if he returns to his village of [Z] in the [D] province (which I have found to be his 'home area') now or in the reasonably foreseeable future. In particular, I do not accept that there is a real chance that he will be persecuted for reasons of his race (Hazara), his religion (Shia Islam), his imputed political opinion (because of adverse political associations by other members of his family, or because he will be recognised as having lived outside Afghanistan for a substantial part of his life, or because he will be perceived to be associated with a Western country, having been to Australia, and will be accused of being a spy for fleeing to a Western country and seeking protection) or his membership of any particular social groups such as perceived outsiders, asylum-seekers, failed asylum-seekers, failed asylum-seekers returning from a Western country, physically identifiable Hazaras, Hazara Shias or, Hazaras in a land conflicts with Pashtuns or the Taliban.
78. I have considered the totality of [H]'s circumstances as a Hazara and a Shia Muslim and as someone able to be identified as having lived a substantial part of his life in Pakistan and as a failed asylum-seeker returning to Afghanistan from a Western country and imputed with an adverse political opinion. However, even taking into account the cumulative effect of all these circumstances, for the reasons given above I do not accept that there is a real chance that [H] will be persecuted for one or more of the five Convention reasons if he returns to his village of Zayjook in [D] which I have found to be his 'home area'. I do not accept, therefore, that [H] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.
It was in those circumstances that the Tribunal turned to the issue of complementary protection and, relevantly, found:
83. I do not accept on the available evidence before me that there is more than a remote risk that [H] will suffer significant harm on the road routes between [K] and [D] province to his home village there, nor do I accept on the evidence before me that there is a real risk that the security situation will deteriorate to such an extent as to elevate the risk to ordinary travellers, like [H], above a remote risk in the reasonably foreseeable future. I am not satisfied therefore, that there is a real risk that [H] will suffer significant harm travelling on such roads between [K] and his village in [D] province now or in the reasonably foreseeable future.
84. Having regard to the country information available to me referred to above and the evidence from [H] at the hearing regarding the security situation in [D] and the threat posed by the Taliban and Pashtuns in that province in particular, I do not accept that there is a real risk that he will suffer significant harm at the hands of the Taliban or other insurgent groups, Pashtuns, or indeed the authorities, if he returns to his village of Zayjook in [D] province which I have found to be his home area.
85. The Tribunal notes the explanation of the ‘risk threshold’ in the Complementary Protection Guidelines, however, in considering s.36(2)(aa) it has proceeded on the basis that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33. It is with this in mind, that I consider that there is only a remote risk that [H] will suffer any harm in his home village of [Z] in [D]. I have accepted that he has some family or tribal support there from his maternal uncle who has been managing the land for the applicant’s family. I consider this will not place the applicant at further risk of suffering significant harm at the hands of the Pashtuns or the Taliban if he now returns to his home village in [D] province.
86. Having regard to my findings of fact above in respect of all the claims by the applicant for complementary protection, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [H] being removed from Australia to Afghanistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment, for the purposes of complementary protection. Accordingly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [H] being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act 1958.
It was in those circumstances the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations, and that the applicant did not satisfy the criteria under ss.36(2)(a) and 36(2)(aa) of the Migration Act for a protection visa.
These proceedings are ones in which there was no prospect of success, there was no proper basis to seek an extension of time, and so hopeless as to engage the issue of breach of s.486E of the Migration Act 1958 in relation to the bringing of these proceedings. The application for an extension of time under s.477 is dismissed. The application is dismissed. (The Court then heard argument on s.486F).
This is a case in which the Court found there was a contravention of s.486E of the Migration Act. However, the legal practitioner appearing for the applicant was acting under the belief of a noble humanitarian cause and subjectively seeking to advance the applicant's cause in which she believed. The personal beliefs of a practitioner are irrelevant in the development of submissions and argument which should be succinct, clear and provide a cogent rational basis for the exercise of judicial power within the court’s jurisdiction.
The first respondent acknowledged that there was a breach of s.486E, but drew attention to the Court’s discretion in relation to the applicant appearing pro bono, which is clearly the fact in this case.
Many legal practitioners appear in this jurisdiction pro bono, and that does not relieve them of the obligation to comply with s.486E of the Migration Act. It is clear, however, in this case, from the length and passion expressed in the applicant's solicitor’s submissions, that the legal practitioner believed that she was relevantly addressing an issue capable of engaging this Court’s jurisdiction.
It is incredibly important that legal practitioners representing clients recognise their higher duty as officers of the Court and as servants of the rule of law to assist the Courts in the efficient administration of justice. That is a role that requires objectivity by legal practitioners, both for the benefit of the client as well as to properly assist the Court. I am satisfied in all the circumstances that this is not a case in which an order should be made under s.486F.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 26 May 2015
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