CLJ15 v MIBP

Case [2018] FCA 1638

FEDERAL COURT OF AUSTRALIA

CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638

Appeal from: Application for an extension of time: CLJ15 v Minister for Immigration & Anor [2017] FCCA 467
File number: VID 551 of 2017
Judge: KENNY J
Date of judgment: 31 October 2018
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to file an appeal under r 36.05 of the Federal Court Rules 2011 (Cth) – where proposed notice of appeal raises new grounds of appeal not raised before the primary judge – adequate explanation for delay – no particular prejudice to the respondent – merits of the appeal – whether Tribunal applied the wrong principles as to whether s 36(2B)(c) of the Migration Act 1958 (Cth) applied to widespread harm – whether Tribunal relied on s 36(2B)(c) by reference to findings about the nature of harm faced by a population of a city, rather than the population of a country – whether Tribunal constructively failed to exercise its jurisdiction by failing to consider corroborative evidence – extension of time granted – appeal dismissed
Legislation:

Federal Court Rules 2011 (Cth)

Migration Act 1958 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

BBK15 v Minister for Immigrationand Border Protection [2016] FCA 680; 241 FCR 150

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; 159 FCR 181

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 186 CLR 259

Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69; 251 FCR 143

Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 359 ALR 22

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884

SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Date of hearing: 15 December 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 81
Counsel for the Applicant: Mr A Aleksov
Solicitor for the Applicant: Carina Ford Immigration Lawyers
Counsel for the First Respondent: Ms C L Symons
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to…

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AGLC
CLJ15 v MIBP [2018] FCA 1638
Case
[2018] FCA 1638
Decision Date

CaseChat Overview and Summary

CLJ15 v MIBP involved an application by the applicant, a citizen of Afghanistan, for an extension of time to file a notice of appeal against the decision of the Tribunal to dismiss his application for review of a delegate's decision to refuse to grant him a protection visa. The applicant's statutory declaration claimed that he and his brother were threatened by the Taliban because they were suspected of being American spies and that they left Afghanistan on the same day they received the threatening letter. The Tribunal accepted the applicant's claims but dismissed his application for review, finding that the applicant did not face a real risk of significant harm in Afghanistan. The applicant sought an extension of time to file a notice of appeal and to raise new grounds of appeal not raised before the primary judge.

The central legal issues were whether the application for an extension of time should be granted and, if so, whether the appeal should be dismissed on the merits. The court needed to determine whether the delay in filing the notice of appeal was adequately explained, whether there was any particular prejudice to the Minister, and whether the merits of the appeal were sufficiently arguable. Additionally, the court had to decide whether the Tribunal applied the wrong principles in determining whether section 36(2B)(c) of the Migration Act 1958 (Cth) applied to widespread harm, and whether the Tribunal constructively failed to exercise its jurisdiction by not considering corroborative evidence.

The court granted the application for an extension of time, finding that the delay was adequately explained and there was no particular prejudice to the Minister. The merits of the appeal were sufficiently arguable. However, the court dismissed the appeal on the merits, holding that the Tribunal did not apply the wrong principles in determining whether section 36(2B)(c) applied to widespread harm. The Tribunal correctly considered the individual risk faced by the applicant, rather than the general harm faced by the population of a country. The court also found that the Tribunal did not constructively fail to exercise its jurisdiction by not considering corroborative evidence. The Tribunal had considered the applicant’s claims in light of the country information and found them to be not credible.

The final orders were that the applicant be granted an extension of time to file a notice of appeal, be allowed to amend the amended draft notice of appeal, have leave to raise all proposed grounds on the hearing of the appeal, and that the appeal be dismissed. The applicant was to pay the Minister's costs of the application unless a party notified the Court in writing by a specified time indicating opposition to this order as to costs.

Orders

Orders of the court

1. The applicant be granted an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal.

2. The applicant have leave to amend the amended draft notice of appeal filed 19 July 2017 in accordance with his written submissions dated 1 December 2017 and have leave to raise all proposed grounds on the hearing of the appeal.

3. The amended draft notice of appeal as further amended in conformity with order 2 above stand as the notice of appeal filed in these proceedings.

4. The appeal be dismissed.

5. Unless a party notifies the Court in writing by 4.00 pm on 2 November 2018, indicating opposition to this order as to costs, the applicant pay the first respondent’s costs of the application, as agreed or assessed

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application for an extension of time should be granted. The delay, though not insignificant, is adequately explained. There is no particular prejudice to the Minister, and the merits of the appeal are sufficiently arguable to justify the extension of time sought. For the reasons that follow, however, the appeal should be dismissed. BACKGROUND The applicant is a citizen of Afghanistan. He arrived in Australia by boat from Indonesia with his brother on 16 August 2012. On 18 December 2012, the applicant applied for a protection visa. The applicant set out his claims for protection in a statutory declaration accompanying his protection visa application. The applicant claimed that, if returned to Afghanistan, he would be harmed by the Taliban because he had been “explicitly accused of having links with the American forces through [his] father-in-law’s activities and was threatened to death by the Taliban”. In this statutory declaration the applicant further claimed that: (1) his father-in-law was killed, including beheaded, by the Taliban because he was working as a truck driver for American forces in Afghanistan; (2) the applicant and his brother received a threatening letter from the Taliban shortly after the father-in-law’s death, stating the Taliban had killed him because he was betraying the country, that the brothers were suspected of being American spies, and that they too would suffer the consequences of cooperation with foreign forces; and (3) that the applicant and his brother left Afghanistan and went to Pakistan on the same day that they received the letter “to protect [themselves] from the imminent risk of harm directed at [them] by the Taliban”. On 13 June 2014, a delegate of the Minister refused to grant the applicant a protection visa.THE TRIBUNAL’S DECISION On 21 July 2014, the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing before the Tribunal on 2 September 2015. He was assisted by a Pashto and English language interpreter and was represented by his registered migration agent. The Tribunal accepted that the applicant was a Sunni Muslim of Pashtun ethnicity and that he was “practically illiterate”. The Tribunal accepted that the evidence given by the applicant at the hearing was broadly consistent with the statutory declaration he had earlier made in support of his claims for protection, save for the date when he arrived in Australia and the timing of his father-in-law’s death. Regarding the date of his father-in-law’s death, the applicant said that he could not remember this because he was illiterate. At the hearing, among other things, the applicant gave evidence that, after he and his brother left for Australia, on two separate occasions, people went to the house where their wives and children were living and asked about the whereabouts of the applicant and his brother. The applicant said that he suspected the visitors were members of the Taliban and the same people who left the threatening letter that led the brothers to leave Afghanistan. When asked by the Tribunal why he and his brother did not take their families with them when they left Afghanistan, the applicant said they believed the women and children would not be harmed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 June 2014, a delegate of the Minister refused to grant the applicant a protection visa.THE TRIBUNAL’S DECISION On 21 July 2014, the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing before the Tribunal on 2 September 2015. He was assisted by a Pashto and English language interpreter and was represented by his registered migration agent. The Tribunal accepted that the applicant was a Sunni Muslim of Pashtun ethnicity and that he was “practically illiterate”. The Tribunal accepted that the evidence given by the applicant at the hearing was broadly consistent with the statutory declaration he had earlier made in support of his claims for protection, save for the date when he arrived in Australia and the timing of his father-in-law’s death. Regarding the date of his father-in-law’s death, the applicant said that he could not remember this because he was illiterate. At the hearing, among other things, the applicant gave evidence that, after he and his brother left for Australia, on two separate occasions, people went to the house where their wives and children were living and asked about the whereabouts of the applicant and his brother. The applicant said that he suspected the visitors were members of the Taliban and the same people who left the threatening letter that led the brothers to leave Afghanistan. When asked by the Tribunal why he and his brother did not take their families with them when they left Afghanistan, the applicant said they believed the women and children would not be harmed. In considering the applicant’s claims, the Tribunal had regard to a “verification” letter from a local authority stating that the applicant had a bakery in Afghanistan but since 2012 “he is lost and no one knows about him”, as well as an undated letter purportedly from the employer of the applicant’s father-in-law confirming his death. In light of credibility concerns regarding the applicant’s claims, the Tribunal gave little weight to these letters, finding that the former was unhelpful, and the latter was inconsistent with the applicant’s previous evidence regarding the date of his father-in-law’s death. The Tribunal was prepared to accept, based on country information, that the Taliban and insurgents may target a person simply because the person is related to another person who works for the American military. The Tribunal did not accept that the applicant’s father-in-law worked for the American forces and was targeted by the Taliban. This was because: (1) the Tribunal was “unable to find any reports from independent sources about the claimed beheading of the applicant’s father-in-law”, and it was implausible that such an incident would have remained unreported; (2) the date of the applicant’s father-in-law’s death as stated by the applicant in written and oral evidence was inconsistent with the date in the letter from the employer of the applicant’s father-in-law; (3) the Tribunal found it “implausible that the applicant and his brother would have been so afraid that the Taliban might kill them that they escaped within a day of receiving the threatening letter but they would have left their wives and young children behind for three-four months”; and (4) the Tribunal did not accept that the applicant fled Afghanistan within a day of receiving the threatening letter without keeping a copy of it. The Tribunal found that the applicant had “made up the claim that he and his brother had to flee Afghanistan because their lives were at risk” and “the applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements”.

Ratio Decidendi

Legal Principle Established

Further, and relevantly for the present application, under the heading “complementary protection” the Tribunal set out terms of s 36(2B)(c) of the Migration Act 1958 (Cth), which is in the following terms:(2B) However, 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. The Tribunal then referred, at [79] of its reasons, to the test set out in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, stating:In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s 36(2B)(c) to the complementary protection criterion. The Court stated:… s 36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s 36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstancesThe prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s 36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.(Footnote omitted; emphasis added) The Tribunal stated that it had considered the applicant’s circumstances “with respect to this point”, and it did not accept that the applicant would be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in the applicant’s home area in Afghanistan. The Tribunal proceeded to analyse the applicant’s evidence about the level of violence and country information about Taliban attacks in his home area, and the rise of ISIS in Afghanistan. While the Tribunal accepted that “there has been violence against the civilian population across Afghanistan”, including the applicant’s home area, and that “terrorist attacks do occur” in that area “from time to time”, it did not accept that “the level of generalised violence in Afghanistan and in [the applicant’s home area] in particular is so widespread that the applicant faces a real risk of significant harm”.