FEDERAL COURT OF AUSTRALIA SZRSB v Minister for Immigration and Border Protection [2016] FCA 34 Appeal from: Application for an extension of time to appeal: SZRSB v Minister for Immigration & Anor [2013] FCCA 129 File number(s): NSD 1191 of 2015 Judge(s): SIOPIS J Date of judgment: 3 February 2016 Catchwords: MIGRATION – application to extend time to appeal – delay of 28 months – whether the delay was so excessive that the application should be dismissed without having regard to the merits of proposed grounds of appeal – whether the applicant's statement was a reason or part of the reason for affirming the decision under review. Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 424A Cases cited: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 Date of hearing: 17 December 2015 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr J Raftos Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Australian Government Solicitor ORDERS NSD 1191 of 2015 BETWEEN: SZRSB Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEAL TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 3 february 2016 THE COURT ORDERS THAT: 1. The applicant's application for an extension of time to appeal filed on 29 September 2015 is dismissed. 2. The applicant is to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 This is an application for an extension of time by 28 months to appeal from a decision of the Federal Circuit Court of Australia delivered on 24 April 2013, dismissing the applicant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). 2 The applicant is a Hazara born in Afghanistan. The applicant claims to have been born in 1994. 3 On 7 October 2011, he arrived unaccompanied in Sydney by air. The applicant was interviewed by officers of the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department), at Sydney airport on his arrival. 4 On 10 October 2011, the applicant lodged an application with the department for a protection visa. 5 In his protection visa application, the applicant claimed that he feared suffering significant harm if he was to return to Afghanistan because he is a Hazara and a Shia Muslim. The applicant also claimed that he feared a risk of harm from an influential family that was feuding with his family. He said that his grandfather had promised his sister's hand in marriage to the grandson of a friend but that his sister and father opposed the marriage. As a result, the influential family became his family's enemy. The applicant said that he was attacked by men from the other family and stabbed with a knife. He said that he was taken unconscious to the hospital and given blood transfusions. 6 On 30 December 2011, a delegate of the first respondent rejected the applicant's protection visa application. The Tribunal affirmed the decision of the delegate. As mentioned, the Federal Circuit Court dismissed the applicant's application for judicial review of the Tribunal's decision. 7 The applicant now applies for an extension of time within which to appeal against the decision of the Federal Circuit Court. 8 In order to determine whether to grant an extension of time within which to appeal, the Court will have regard to the period of delay, the explanation for the delay and the merits of the proposed appeal, and any other factors that may be relevant in a particular case. the delay 9 The applicant relied on his affidavit affirmed 23 October 2015, and the affidavit of Ms Felicity Cain affirmed 22 August 2015, to explain the lengthy delay. 10 The applicant sought to explain the delay by reference to a number of circumstances. In short, these circumstances included that the applicant did not understand the operation of the appeals process, had a poor command of English, whilst in detention had been transferred from New South Wales to Western Australia and had, during his period in detention, suffered depression. Also, it was said that after the decision of the Federal Circuit Court was handed down, the applicant sought the intervention of the first respondent which turned out to be unsuccessful. In addition, the applicant had become involved in a proceeding resulting from a data security breach which had resulted in data held by the department about the applicant, being circulated in an unauthorised manner. This proceeding had, it was said, distracted the applicant from concentrating only on his complaint about the decision of the Federal Circuit Court. Further, it was said that the applicant had tried unsuccessfully, with the assistance of Ms Cain from late October 2014, to obtain legal advice. The applicant was ultimately successful in procuring a lawyer who agreed to provide advice to him on a pro bono basis, and that advice was given relatively recently. It only was after the lawyer had advised that the applicant had reasonable prospects of success, that this application was brought. 11 The first respondent accepted that he had not been prejudiced by the delay. However, the first respondent observed that the applicant was in no worse position than other persons in immigration detention who have English language difficulties, lack of knowledge and difficulty in obtaining legal advice but the vast majority manage to file their applications within time. The first respondent went on to submit that some meaningful effect must be given to the limitation periods prescribed in the Federal Court Rules 2011 and that this was one of those rare cases where the delay was so extreme that the Court should dismiss the application for an extension of time to appeal without having regard to the merits of the proposed appeal. 12 In my view, it would indeed be a rare case when in the absence of a respondent being prejudiced by the extent of the delay, that a Court will dismiss an application for an extension of time to appeal without having regard to the merits of the proposed appeal. This is not such a case. Here, the issue at hand, namely, the grant of a protection visa is a matter of great personal significance to the applicant. Further, the applicant was disadvantaged in the manner referred to above. merits of the proposed appeal 13 I will, therefore, have regard to the merits of the proposed appeal. This requires that some consideration be given to the decision of each of the Tribunal and the Federal Circuit Court. The Tribunal 14 The Tribunal considered the applicant's claims by reference to a number of Convention grounds. These claims included his claim to fear persecution on the basis of his Hazara ethnicity, and his Shia Muslim religion and being a member of a particular social group. However, I will refer specifically to the way the Tribunal dealt with his claim to fear persecution on the basis of being a member of a particular social group, because this is the claim relevant to the major issue in this case. 15 The Tribunal rejected the applicant's claim that he had a well-founded fear of persecution on the grounds that he was a member of a particular social group. The social group which the applicant identified was being a member of a family unit the subject of a blood feud or, alternatively, a male member of a family targeted under a traditional blood feud. 16 In support of his claim, the applicant said that he was targeted by members of the family of Mr Hamid Rasool, a prominent Hazara family, because a member of the applicant's family had promised the Rasool family that the applicant's sister would marry Mr Hamid Rasool, but his family had broken that promise. 17 The Tribunal rejected the factual basis for that claim on credibility grounds. 18 In rejecting the applicant's account of the events relied on in support of the claim, the Tribunal referred to a number of inconsistencies and unsatisfactory elements in relation to the applicant's evidence. The Tribunal referred specifically to inconsistencies in the applicant's account of who had made the promise to the Rasool family that the applicant's sister would marry Mr Hamid Rasool. On some occasions, the applicant had said that it was his grandfather who had made the promise to the Rasool family and on another occasion, it was said that it was his father who had made the promise to the Rasool family. 19 The Tribunal also pointed to inconsistencies in relation to the reason why the family had refused to permit the applicant's sister to marry Mr Hamid Rasool. On various occasions, the applicant had given different accounts. On one occasion, it was said, that it was because Mr Hamid Rasool was of bad character. On another occasion, it was said, that it was because Mr Hamid Rasool was too old. Another explanation the applicant gave was the traditional culture or nature of the marriage arrangement was unacceptable to the applicant's father. 20 The Tribunal also pointed to inconsistencies in the accounts given by the applicant as to the circumstances of the applicant's father's death. The Tribunal said that at the Sydney airport arrival interview, the applicant had said that his father had been shot outside the mosque by al-Qaeda people. Later he said that his father was shot by Wahabis and that these persons "concerned with his sister's marriage" were responsible; and at the Tribunal hearing he claimed that his father was shot by an unnamed Hazara from his tribe and that no one knew if this person was acting on the orders of the Rasool family or not. The Tribunal observed that the applicant had before the Tribunal denied that he had said at his arrival interview, that the shooting of his father had been carried out by al-Qaeda people. 21 The Tribunal also noted that the applicant had in his arrival interview also claimed that as a result of the family feud, two or three members of the Rasool family attacked him in the street in Pakistan about a year previously. However, when confronted with the evidence that the applicant had been living in Austria since 2006, the applicant then changed his evidence to say that the attack had not taken place in Pakistan but in Austria. 22 Based on the credibility findings that it made, the Tribunal found that it was not satisfied that the applicant's sister was ever promised in marriage to a member of a family named Rasool when she was young and that any blood feud existed between the Rasool family and the applicant's family. The Tribunal said that it was not satisfied that the applicant was at risk of harm for such a reason. The Federal Circuit Court 23 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The applicant's grounds of review were: 1. The Tribunal acted in breach of section 424A(1) of the Migration Act. Particulars (a) Failure to give to the applicant, in the manner required by either ss 424AA(b) or 424A(2) of the Migration Act, clear particulars of information he gave at an airport interview to the effect that his father was shot outside a mosque by "Al Qaeda people". (b) Failure to ensure, as far as was reasonably practicable, that the applicant understood why information that he gave at the airport interview, to the effect that his father was shot outside a mosque by "Al Qaeda people", was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. (c) Failure to give to the applicant, in the manner required by either ss 424AA(b) or 424A(2) of the Migration Act, clear particulars of information he gave at an airport interview to the effect that his grandfather had promised his sister to the grandson of a friend. (d) Failure to ensure, as far as was reasonably practicable, that the applicant understood why information that he gave at an airport interview, to the effect that his grandfather had promised his sister to the grandson of a friend, was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. 24 During the course of the hearing, the applicant withdrew grounds 1(c) and 1(d). 25 The primary judge determined that the statement made by the applicant at the arrival interview that his father had been shot by al-Qaeda people, was not "information" to which s 424A of the Migration Act 1958 (Cth) applied because it was not information which would be the reason or a part of the reason for affirming the decision that was under review. 26 The primary judge referred to the observations of the High Court in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (SZLFX) and held that the circumstances in which the applicant's arrival interview information was referred to by the Tribunal was in the context of pointing out inconsistencies in the accounts given by the applicant in making a credibility finding. The primary judge observed at [14]: If one looks at the reasons in the instant case one can see that the reasoning in SZLFX applies. It was not the fact that the applicant's father was shot by Al Queda [sic] that caused, at least in part, the Tribunal to come to the conclusion it did that he was not a person to whom this country owed protection obligations, it was the fact that his evidence was inconsistent and the existence of inconsistencies are not matters which needed to be put. 27 On this basis, the primary judge dismissed the applicant's application for judicial review. proposed amended notice of appeal 28 The applicant seeks to rely on two proposed grounds of appeal: 1. The learned judge erred in finding that the Tribunal did not breach section 424A(1) of the Migration Act 1958. Particulars a. The learned judge erred in finding that there was not a failure to give to the applicant, in the manner required by either ss 424AA(b) or 424A(2) of the Migration Act 1958, clear particulars of information he gave at an airport interview to the effect that his father was shot outside a mosque by "Al Qaeda people". b. The learned judge erred in finding that there was not a failure to ensure, as far as was reasonably practicable, that the applicant understood why information that he gave at an airport interview, to the effect that his father was shot outside a mosque by "Al Qaeda people", was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. 2. The Tribunal applied the wrong test for the application of the complementary protection provisions in section 36(2)(aa) of the Migration Act 1958. Particulars The Tribunal made a finding that the Appellant faced some degree of discrimination in re-establishing himself in Kabul, but that this did not meet the "serious harm" threshold for the purposes of s 91R of the Migration Act 1958 (Cth). The Tribunal imported the s 91R threshold of "serious ham" [sic] into its assessment of s 36(2)(aa) without considering whether such discrimination could amount to "significant harm" for the purposes of s 36(2A) of the Act. By doing so, the tribunal fell into jurisdictional error. Proposed ground of appeal 1 29 As mentioned, in determining that the arrival interview statement did not, in the circumstances, attract the operation of s 424A of the Migration Act, the primary judge held that the reasoning in SZLFX applied. In SZLFX, the High Court observed at [21]-[23]: In SZBYR, it was stated that: Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a "rejection, denial or undermining" of the review applicant's claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT's failure to mention the file note. This approach was, with respect, flawed given the following observations in SZBYR: [I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1)…However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. (Footnotes omitted.) 30 In this case, the reason why the Tribunal found that the delegate's decision should be affirmed was that it was not satisfied that the applicant's evidence in relation to his claim as to the existence of a blood feud with the Rasool family, was credible. The basis for the Tribunal's finding was that there were inconsistencies and unsatisfactory elements of the applicant's evidence. The High Court's observations in SZLFX, referred to in the preceding paragraph, therefore, apply. In the circumstances, s 424A of the Migration Act had no application to the applicant's statement that the applicant's father had been shot by al-Qaeda people. 31 It follows that, in my view, the primary judge did not err in finding that SZLFX applied to the circumstances of this case. The applicant's statement that his father was shot by al-Qaeda people does not "in its terms contain a 'rejection, denial or undermining' of the review applicant's claim to be a refugee" (emphasis added). The only relevance of that statement, was that it was inconsistent with the other evidence given by the applicant, and that inconsistency along with other inconsistencies, doubts and unsatisfactory elements in the applicant's evidence led to the making of an adverse credibility finding in respect of the applicant's evidence. 32 Accordingly, I find that there is not sufficient merit in this ground 1 of the proposed grounds of appeal to extend time to appeal. Proposed ground of appeal 2 33 Proposed ground of appeal 2 raises an issue that was not the subject of the applicant's application before the primary judge and was, therefore, not dealt with by the primary judge. Even if the appeal had been brought within time, the leave of the Court would have been required for the applicant to rely upon this second proposed ground of appeal. 34 The applicant claims that the Tribunal failed to properly consider the grounds for complementary protection under s 36(2)(aa) of the Migration Act. 35 The Tribunal dealt with complementary protection at [173]-[175] of its decision record as follows: I have also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm. I note that the Applicant has not claimed that if he returns to Afghanistan there is a real risk that the death penalty will be carried out on him and I do not accept that such a risk exists. Nor, given my findings above, do I accept that the Applicant faces a risk of being arbitrarily deprived of his life, being subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment if he were to return to his home area of Kabul. I accept that he might well encounter difficulties in settling in when returning to Kabul but I am not satisfied, having regard to his particular circumstances including his claimed mental difficulties, that this could be said to amount to significant harm in the sense of s 36(2A). In light of the above, again considering all of the Applicant's circumstances individually and cumulatively, I am is [sic] not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm. 36 Counsel for the applicant referred to [174] of the Tribunal's decision and, in particular, to the Tribunal's use of the phrase "given my findings above" in support of his contention that the Tribunal fell into jurisdictional error by failing to properly engage with the language of s 36(2)(aa) of the Migration Act and that the Tribunal merely imported its earlier findings which applied the "serious harm" test, when considering whether the "significant harm" test in s 36(2A) of the Migration Act for complementary protection had been met. 37 It is apparent from a perusal of the Tribunal's reasons for decision that the Tribunal, in referring to its reasons already given, was referring to the factual findings it made in considering the applicant's claims for protection under the various Convention based grounds he relied upon. It is also apparent that in reaching its decision, on complementary protection, that the Tribunal weighed these findings without repeating them, by reference to the integers of the "significant harm" test "in the sense of s 36(2A)" of the Migration Act. 38 Accordingly, in my view, the Tribunal's reasons at [174]-[176] do not disclose that it applied the wrong test. The Tribunal at [174] referred expressly to the integers of the test of "significant harm" in s 36(2A), and applied that test to the matters which it referred to, namely, the factual findings previously made, and to its finding that the applicant may well encounter difficulties in settling in when returning to Kabul. 39 Proposed ground of appeal 2 does not have sufficient merit to warrant granting the applicant either, leave to rely upon this ground in the first place, or an extension of time to argue that proposed ground on appeal. 40 It follows, that neither of the two proposed grounds of appeal have sufficient merit to warrant the grant of an extension of time within which to bring an appeal. 41 The applicant's application for an extension of time to appeal is, therefore, dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate Dated: 3 February 2016