CZO18 v Minister for Home Affairs
[2019] FCA 1320
•19 August 2019
FEDERAL COURT OF AUSTRALIA
CZO18 v Minister for Home Affairs [2019] FCA 1320
Appeal from: Application for an extension of time: CZO18 v Minister for Home Affairs [2019] FCCA 243 File number(s): QUD 136 of 2019 Judge(s): GREENWOOD J Date of judgment: 19 August 2019 Catchwords: MIGRATION – consideration of an application for an extension of time within which to file a notice of appeal – consideration of questions of the materiality of the contended failure on the part of the Immigration Assessment Authority Legislation: Federal Court Rules 2011 (Cth), rr 36.03, 36.05 Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227
CZO18 v Minister for Home Affairs [2019] FCCA 243
Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228
Date of hearing: 6 August 2019 Date of last submissions: 6 August 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 55 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr S Lee Solicitor for the First Respondent: Clayton Utz ORDERS
QUD 136 of 2019 BETWEEN: CZO18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
19 AUGUST 2019
THE COURT ORDERS THAT:
1.An extension of time be granted to and until 26 February 2019 to the applicant pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) for the filing of a notice of appeal from the orders made and judgment given by the Federal Circuit Court of Australia on 30 January 2019 reciting, as the grounds of appeal, those grounds set out by the applicant in the proposed notice of appeal attached to the application for an extension of time filed on 26 February 2019.
2.The proposed notice of appeal attached to the application for an extension of time filed on 26 February 2019 is to be treated as the filed notice of appeal which will be given an appeal number by the Federal Court.
3.The first respondent is to file an affidavit of a relevant deponent exhibiting documents described as the applicant’s driver’s licence, a Family Registration Certificate relating to the applicant and “Facebook screenshots” being the documents provided by the migration representative for the applicant to the Department after the interview of the applicant relating to his application for a Safe Haven Enterprise (subclass 790) visa, for the purposes of the hearing of the appeal.
4.The appeal is to be listed for hearing at 10.15am on Friday, 23 August 2019.
5.The costs of and incidental to the application for an extension of time are reserved for later determination.
6.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with an application for an extension of time within which to appeal from a judgment of the Federal Circuit Court (CZO18 v Minister for Home Affairs [2019] FCCA 243), filed by the applicant on 26 February 2019. In the Federal Circuit Court (the “FCC”), Judge Vasta (the “primary judge”) dismissed the applicant’s application and ordered the applicant to pay the costs of the Minister.
The primary judge’s reasons were delivered ex tempore on 30 January 2019. Orders were made that day. The applicant, accordingly, had until 21 February 2019 to file a notice of appeal: see r 36.03 of the Federal Court Rules 2011 (Cth) (the “Rules”). However, on 2 May 2019, the Rules were changed such that the Rules, from that date, stipulated a 28 day period within which an appeal is to be filed.
Mr Lee of Counsel, who appeared for the Minister, submitted that the change to r 36.03 to provide for a 28 day period rather than a 21 day period, was not intended to have retrospective effect. As to the relevant principles to be applied, see the observations of Gibbs J in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, at 241‑242. The short point is this. As at 30 January 2019, the present applicant was required by r 36.03 to file an appeal “within 21 days after” 30 January 2019. That rule was, at that point, engaged. It regulated the applied timeframe for filing an appeal. Subsequently, the rule was amended such that, as a matter of construction and principle, the amended rule applied to a judgment appealed from “pronounced”, or an order “made”, after the date of commencement of the amendment. That is, judgments pronounced or orders made on or after 2 May 2019. In this case, the relevant time for appeal was a period within 21 days after 30 January 2019. The amendment to r 36.03 did not have the effect of resetting the clock such that the present applicant was entitled to appeal from the orders made by the primary judge, and the judgment pronounced, on 30 January 2019, at any time up to and including 28 February 2019.
The applicant filed an application for an extension of time within which to file an appeal, on 26 February 2019 on the footing, correctly, that an extension of time would be required. The applicant must necessarily do so in conformity with r 36.05 of the Rules.
The factors to be considered in an application to extend the time within which an appeal is to be filed, are not controversial. They include an explanation for the delay; any prejudice a party might suffer because of the delay; and the question of whether the proposed appeal raises a sufficiently arguable question to be determined having regard to the proposed grounds of appeal: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]‑[47].
It is clear from the material filed by the applicant that there is no satisfactory explanation for the delay. In the applicant’s affidavit sworn on 26 February 2019 the only explanation he offers is this: “I don’t understand how many days for [the application] so I am one day late coming”. However, Mr Lee accepts that there is little prejudice to the Minister and the delay is minor. Accordingly, the real question is whether the proposed grounds of appeal raise a question or matter which is sufficiently arguable to justify an extension of time.
The applicant, in his proposed notice of appeal, recites the following grounds:
Grounds of appeal
1.The IAA failed to exercise its jurisdiction by failing to consider all aspects of my claims.
2.The IAA failed to assess the harm that I may face based on my political opinion.
Background
The applicant is a Sunni Muslim Pashtun national from Pakistan. He left Pakistan in 2013 and arrived in Australia on 25 April 2013.
In August 2016, the applicant lodged an application for a Safe Haven Enterprise (subclass 790) Visa (“SHEV”). He participated in a SHEV interview and subsequent to that interview provided to the delegate of the Minister a Khyber Pakhtunkhwa driver’s licence and a copy of a Family Registration Certificate.
On 3 August 2017, a delegate of the Minister refused the applicant’s application.
On 14 May 2018, the Immigration Assessment Authority (the “IAA”) affirmed that decision. In so deciding, the IAA declined to consider new information provided by the applicant’s migration agent.
On 8 June 2018, the applicant filed an application in the FCC pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) to review the decision of the delegate and the IAA. The applicant asserted before the FCC that the IAA and the delegate had “erred in law”.
Before the FCC on 30 January 2019, the applicant did not make any submissions save to “throw himself on the mercy of the Court”. He did not file an outline of argument.
On 30 January 2019, the primary judge gave ex tempore reasons dismissing the application.
By his draft notice of appeal filed in this Court, the applicant says that the IAA “failed to exercise its jurisdiction by failing to consider all aspects of my claims” and “failed to assess the harm that I may face based on my political opinion”.
IAA decision
The IAA summarised the applicant’s claims at [13]:
13. The applicant’s claims can be summarised as follows:
•He is from a small village in Tangi Tehsil, Charsadda District, Khyber Pakhtunkhwa Province. He is a Sunni Muslim of Pashtun ethnicity.
•In approximately 2009 or 2010, militant group Tehreek‑e‑Taliban Pakistan (the “TTP”, also known as the “Taliban” in Pakistan) were recruiting young men in his area. Some men from his area joined the Taliban because they were given wages or promised rewards of a religious nature. Those who refused to join were taken away and beaten. He saw the Taliban kill people who refused to join them.
•In this period, the Taliban called his older brother numerous times over the course of several months, demanding that the applicant and his brother join the Taliban. A group of Taliban members kidnapped him from outside his home and detained him in a location about six hours’ drive from his home for approximately one month. During this time, members of the Taliban beat him often and spoke to him three or four times each day, trying to persuade him to join them. He escaped when someone forgot to lock the door or left the key in the room.
•Following his escape, he returned to live in his family home with his brother for some time. At some point, he moved to his aunt’s home, also in the Tangi area, to avoid the Taliban. During the years following his escape, the Taliban frequently telephoned his brother looking for him. They threatened to kill him if he did not join them.
•He left Pakistan in 2013, when he had enough money to do so.
•Members of the Taliban have visited his family home since his departure. They told his brother that if he returns to Pakistan, they will take him again.
•About a year ago, his sister married a man from Mohmand Agency, an area controlled by the Taliban. The Taliban threatened his brother‑in‑law because he married his sister. They knew about the applicant’s refusal to join the Taliban and his escape from them. They also threatened his brother‑in‑law because people from Mohmand Agency are not permitted to marry persons from outside of Mohmand Agency. His sister and brother‑in‑law law [sic] moved to Peshawar to avoid the Taliban.
•He fears that if he returns to Pakistan the Taliban will kill him because he refused to join them and escaped from them.
•The Taliban or other groups may harm him if he returns to Pakistan after living in Australia because he has lived in a western country for an extended period.
The IAA was satisfied that the applicant is a Sunni Muslim Pashtun citizen of Pakistan from Tangi in Charsadda District in Khyber Pakhtunkhwa Province. However, the IAA had “some concerns” about the evidence provided by the applicant regarding his identity and life in Pakistan.
As noted at [9] of these reasons, the applicant provided some identity documents after his SHEV interview. However, the IAA expressed the view that it was “implausible” that a man in his early thirties (which the applicant was upon leaving Pakistan) “professed ignorance of a range of Pakistani identity documents”. The applicant had said his passport had been procured by a people smuggler and then said that he had obtained it himself. The IAA also put this inconsistency to the applicant concerning the provenance of his passport and found his explanation “difficult to accept”.
The IAA was also concerned about discrepancies in the applicant’s description of his life in Pakistan. These concerns are set out from paras 20 to 22 of the IAA’s reasons and include the applicant’s ability to recall his movements (concerning a discrepancy in ages as to when the applicant moved to Tangi from Peshawar or Charsadda); and the applicant’s ability to access school due to instability. These matters seemed inconsistent with his evidence to the IAA that he was able to work as a labourer from eight or nine years of age.
The IAA at para 23 accepted that these are “relatively minor” discrepancies but nevertheless caused the IAA to question whether the applicant has been entirely forthcoming in his evidence.
The IAA referred to a discrepancy between the applicant’s evidence in his SHEV interview that he was kidnapped by the Taliban in 2009 or 2010, whereas in his arrival interview, conducted on 7 May 2013, and in an entry interview on 29 May 2013, he stated that it was in 2000 that the event occurred. Moreover, the applicant reaffirmed this date of 2000 when prompted twice. The IAA considered that it was likely that the applicant “amended his claims in this regard to add to their plausibility or to otherwise strengthen his claim”.
The IAA also commented on the applicant’s claims that he had been targeted by the Taliban. Those claims were described as “varied”. In his SHEV application, the applicant said that, commencing in 2009 or 2010, the Taliban used to telephone his older brother and demand that the applicant and his brother join them. However, during his SHEV interview the applicant said that the Taliban were interested only in him, and that his older brothers were “too skinny or not in sufficiently good physical condition”.
The IAA also referred to inconsistencies in the way in which the applicant explained his escape from the Taliban. The IAA noted that in his SHEV application the applicant said that he escaped at night when someone forgot to lock his cell door. He then said that he ran for three hours and then started to recognise where he was and began to make his way back to Tangi. He said he walked for about six hours then used a local bus. In contrast, in his SHEV interview, he said he escaped when someone left the key to the door in his room. He then ran into the jungle and after running and walking for three hours, came to a road. He saw a car and flagged it down. The applicant said that the driver agreed to drive him if his brother paid him. It was a six hour drive and he cannot recall if it was a private car or a bus.
The IAA at para 29 considered whether the change in the applicant’s versions could be attributed to “understandable difficulties recalling events that are claimed to have occurred many years ago”. However, the IAA considered that the applicant’s recollections of the Taliban incidents are quite different and not adequately explained.
The IAA, from paras 30 to 34, then considered other aspects of the applicant’s claims that the IAA said were “difficult to accept”. Put simply, the claims are that the applicant was targeted for several months, captured and then escaped from the Taliban. The IAA had difficulties with these claims because the information before it suggested that there is little independent evidence to suggest that the Taliban have forcibly recruited adult males in areas not under their control; or that they have threatened to kill men who refused to join the Taliban; or that they have individually targeted and pursued men for recruitment in the manner described. Aside from his brothers’ inferior physical condition, the IAA noted that the applicant could not point to any reason why the Taliban may have had a particular interest in recruiting him.
The IAA at para 33 considered that it was not persuaded that the Taliban’s “respect for Pashtun or Muslim” custom would have prevented them from coming to the applicant’s home (instead of telephoning, as the applicant said).
In deciding that it was unusual to forcibly recruit a person of the applicant’s profile, the IAA had regard to independent country information and also its concern about the applicant’s inconsistent statements. The IAA at para 34 did not accept that the applicant was the subject of any attempt by the Taliban or any other militant group to forcibly recruit him. The IAA did not accept that the applicant was kidnapped by the Taliban or any other militant group; that the Taliban or any other group contacted any member of the applicant’s family looking for him or demanding that he join them; or that the Taliban threatened to kill him. The IAA was not satisfied that the applicant was of any adverse interest for any reason to the Taliban or any other militant group at the time he left Pakistan.
The IAA did not accept that since his departure from Pakistan, the Taliban or members of any other militant group have contacted any member of the applicant’s family looking for him or making threats about him. The IAA was satisfied that on his return to Pakistan (and his former home in Tangi) that there is no credible evidence to suggest that on return, or in the foreseeable future, the applicant will be targeted by the Taliban or any other militant group.
The IAA also did not accept that the applicant would be of any adverse interest in Mohmand Agency (where the Taliban are in control) for the same reasons that it was not satisfied that he was of adverse interest to the Taliban. The IAA did not accept that the applicant’s brother‑in‑law and sister were threatened by the Taliban for any reason related to the applicant. The IAA did not accept that their move to Peshawar was related to the applicant nor did it accept that there is a real chance of harm to the applicant, now or in the foreseeable future, for any reason elated to his sister’s marriage.
The IAA had regard to DFAT country information in refusing to accept the applicant’s claims that he may be targeted because he had lived in a western country.
The IAA also considered, although not raised by the applicant, the delegate’s treatment of any chance of harm to the applicant on the basis that he does not support the extremist ideology of the Taliban. The IAA accepted that the applicant is privately opposed to the views and activities of extremist groups but noted that the applicant does not claim to have engaged in any activities that may be perceived to be critical of the Taliban in Pakistan or in Australia. The IAA was accordingly not satisfied that there is a real chance of harm to the applicant now or in the foreseeable future from the Taliban or any other group because he will return from Australia.
The IAA, relying on a report by the Center for Research and Security Studies (“CRSS”) found that whilst there has been criticism of the Pakistani government’s response to terrorism, the government has been successful in significantly reducing the level of violence in Pakistan in recent years. The CRSS report also shows that fatalities as a result of violent incidents have fallen in 2016 by early 45% (compared to 2015). The IAA accordingly considered that the evidence before it did not suggest that the security situation in Pakistan (including in Khyber Pakhtunkhwa) is likely to deteriorate in the foreseeable future. Accordingly, the IAA said that it did not consider that it was satisfied that the applicant faces a real chance of harm, now or in the foreseeable future from the Taliban or like groups in the Tangi area or, as a result of the security situation in the Tangi area, having regard to the need for the applicant to travel from Peshawar or Karachi airport to his home in Tangi.
The IAA made a finding that there is not a real chance of any other harm to the applicant in the Tangi area now or in the foreseeable future because of his youth or due to his status as a Pashtun Sunni man or as a person who privately opposed extremist militant groups or as a person who will be returning from the west. Nor did the IAA accept that there is a real chance of harm to the applicant as a result of the security situation in the Tangi area. The IAA considered that on a cumulative assessment of these matters, the applicant would not be exposed to a real chance of serious harm in the Tangi area.
Accordingly, the IAA found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and therefore does not meet s 36(2)(a) of the Act.
The IAA then turned to the complementary protection assessment under s 36(2A) of the Act. The IAA accepted that the applicant may be briefly detained by Pakistani authorities on his return to Pakistan for questioning regarding his manner of departure or to check whether he is wanted for committing a crime. The IAA was not satisfied, however, that any harm experienced as a result of such treatment would constitute significant harm for the purposes of s 36(2A). The IAA was not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a result of his treatment, should it occur.
The IAA applied the same standard to a “real risk” for the purposes of the complementary protection provisions as it applied in finding that the applicant does not face a “real chance” of harm in the Tangi area as a result of his risk profile.
Accordingly, the IAA concluded that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The IAA was not satisfied that the elements of s 36(2)(aa) of the Act were met.
Application to the FCC
Although the applicant’s application to the FCC is not part of the record for the purposes of this application, it appears it was filed on 8 June 2018.
The primary judge summarised the applicant’s claims from [2]‑[7] as follows:
2.In short compass, the Applicant’s claims are that he was from a small village in Tangi Tehsil in the Charsadda district in the Khyber province. He is a Sunni Muslim of Pashtun ethnicity. He said in approximately 2009 or 2010, the militant group Tehrik‑e‑Taliban Pakistan (TTP) or Taliban, were recruiting young men in his area.
3.He said that some men from his area joined the Taliban because they were given wages or promised rewards of a religious nature, and those who refused to join were taken away and beaten. He said that he saw the Taliban kill people who refused to join them.
4.He said in this period the Taliban called his older brother numerous times over the course of several months demanding that the Applicant and his brother join the Taliban.
5.A group of Taliban members then kidnapped the Applicant from outside his home, and detained him in a location about six hours’ drive from his home for approximately one month. During this time he said that members of the Taliban beat him often, and spoke to him three or four times each day, trying to persuade him to join them. He escaped when someone forgot to lock the door, or they left the key in the room, and he escaped. He said he was able to return to live in his family home with his brother for some time.
6.At some point he moved to his aunt’s home, also in the Tangi area, to avoid the Taliban. During the years following his escape, the Taliban frequently telephoned his brother looking for him, and they threatened to kill him if he did not join them. He decided to leave Pakistan in 2013 when he had enough money to do so.
7.He ended up coming to this country by boat as an unlawful maritime arrival in April 2013, arriving here on ANZAC Day 2013. He was interviewed when he first arrived, and simply said that he claimed a fear of persecution by the Taliban, who abducted him in the year 2000.
The primary judge then correctly summarised the IAA’s reasoning and findings (including its decision not to consider further material), from [11]‑[28] of his Honour’s reasons.
The primary judge described the applicant’s ground of review before the FCC as “vague and un‑particularised”. The primary judge asked the applicant to make any submissions he would wish to make. The applicant seems to have not made any submissions in support of his application before the FCC.
Mr Lee of Counsel, who also appeared for the Minister before the FCC, raised with that Court a submission he considered was arguable for the applicant. Mr Lee raised with the primary judge that after the SHEV interview, the migration representative for the applicant gave to the Department, a driver’s licence and family registration certificate. The primary judge at [34] also refers to some Facebook screenshots which the delegate does the not seem to have had regard to.
Mr Lee, before the primary judge, accepted that these matters were not before the IAA but should have been taken into account because of the operation of s 473CB of the Act. Mr Lee submitted, having regard to the judgment of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 (“Hossain”) at [30] and [31] that these matters did not pass the “threshold of materiality”.
The primary judge considered that the driver’s licence and family registration certificate and the Facebook screenshots were items that “only go to ascertaining the identity of the applicant”. The primary judge considered that the IAA did not make any “positive or negative comments about the identitiy of the applicant” and that its decision rested upon whether or not the applicant’s claim to have been kidnapped by the Taliban was a claim that it could be satisifed was true.
The primary judge said this at [39]:
39.This means that it really does not matter whether the Applicant is who he said he was, or what his particular family situation is. The IAA had come to its decision as it had. So whilst I thank the Minister very much for bringing this matter to the attention of the Court, I do not find that the failure of the Secretary to give those documents to the IAA has, in any way, vitiated the decision, nor has it resulted in a jurisdictional error.
Accordingly, the primary judge dismissed the application because his Honour considered that no jurisdictional error had been demonstrated.
Consideration
The central question is whether the failure by the IAA to have regard to the material described at [42] of these reasons was a material breach of an express or implied condition of the valid exercise of the decision‑making power of the IAA under the Act. Their Honours, Kiefel CJ, Gageler and Keane JJ said this at [30] and [31] in Hossain:
[30]Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision‑maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
[31]Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision‑making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
The IAA, at paras 20 to 23 of its reasons, was concerned about inconsistencies in the applicant’s descriptions of his life in Pakistan. Although the IAA accepted that these were small inconsistencies, it ultimately reasoned that these matters went to the more general view taken by the IAA that the applicant was not forthcoming with his evidence.
At para 34 of its reasons, the IAA said that in assessing the applicant’s claims (and not accepting signifiant parts thereof), it had regard to both independent country infrmation and concerns it had with respect to the applicant’s inconistent statements.
Accordingly, the central matter informing the IAA’s deliberations was whether the IAA could accept the foundation facts of the applicant’s claims going to either s 36(2)(a) or s 36(2)(aa) of the Act. As to those matters, the IAA failed to have regard to particular documents consisting of a driver’s licence and a family registration certificate provided by the applicant’s agent to the Department after the SHEV interview. However, those documents do not go to any question on which the applicant’s evidence was rejected or on which the IAA failed to be satisfied of relevant matters having regard to the inconsistencies identified by the AAT, and the country information. In other words, neither of those documents were material to the actual decisional matters.
Therefore, neither the driver’s licence nor the family certificate had a material effect upon the IAA’s decision.
In circumstances where neither the Minister nor the applicant has put the Facebook posts, or the content of the Facebook posts, into evidence, it is not possible to say whether the Facebook posts are material or not in terms of the failure on the part of the IAA to have regard to that material before it in reaching the decision.
The applicant, who is self‑represented, should have the benefit of an extension of time so that the appeal can be decided upon a determination of whether the Facebook posts before the IAA were, or were not, material in terms of the IAA’s failure to have regard to that material in reaching its decision.
Accordingly, an extension of time will be granted to the applicant in order to determine, within the broad contention of ground 1 of the proposed notice of appeal, whether the failure to have regard to the Facebook posts was or was not a material failure in all the circumstances.
The costs of and incidental to the application for an extension of time are reserved for later determination.
I certify that the preceding fifty‑five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 19 August 2019
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