FEDERAL COURT OF AUSTRALIA MZABO v Minister for Immigration and Border Protection [2016] FCA 980 Appeal from: Application for an Extension of Time: MZABO v Minister for Immigration & Anor [2015] FCCA 695 File number: VID 368 of 2016 Judge: JESSUP J Date of judgment: 10 August 2016 Catchwords: MIGRATION – Application for extension of time – Whether satisfactory explanation for delay where s 417 application to Minister – Application for leave to pursue new grounds and adduce fresh evidence – Whether procedural fairness denied by failure to give applicant opportunity to be heard on alleged determinative issue of army's future presence – Application denied Legislation: Migration Act 1958 (Cth) ss 417, 425 Federal Court Rules 2011 (Cth) rr 1.39, 36.03 Cases cited: Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 BZAGX v Minister for Immigration and Border Protection [2016] FCA 86 Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 MZYLJ v Minister for Immigration and Citizenship [2012] FCA 335 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Date of hearing: 10 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Lawyers Counsel for the First Respondent: Mr T Goodwin Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS VID 368 of 2016 BETWEEN: MZABO Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 10 AUGUST 2016 THE COURT ORDERS THAT: 1. The application for an extension of time be rejected. 2. The Applicant pay the costs of the Respondent Minister. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 By application filed on 28 April 2016, the applicant, MZABO, sought the extension of the time fixed by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) ("the Rules") for the filing of a notice of appeal from the judgment of the Federal Circuit Court of Australia, given on 30 March 2015, by which his application for judicial review of the decision of the Refugee Review Tribunal, made on 5 February 2014, to affirm an earlier decision of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Protection (Class XA) visa was dismissed. On 10 August 2016, I rejected that application. These are my reasons for having done so. 2 It will be evident from what I have said above that there was a period of slightly more than 12 months between the expiration of the 21-day period within which an appeal from the judgment of the Federal Circuit Court might have been regularly lodged and the filing of the application which is now before the court. An explanation, of sorts, for the fact and the length of that delay is provided by the decision of the applicant to request the respondent Minister to substitute a decision in place of that made by the Tribunal, pursuant to s 417 of the Migration Act 1958 (Cth) ("the Act"). It was not until 8 April 2016 that the applicant received a negative response to this request. 3 The applicant's task of securing an extension of time under r 1.39 faces an additional complication, in that he does not seek to establish error on the part of the Federal Circuit Court, save in the formal sense of challenging the correctness of the disposition of his application for judicial review. Rather, the applicant's draft notice of appeal seeks to rely only upon grounds which were not taken before that court, and he accepts that he requires leave to follow that course. 4 In my view, there are generally three broad classes of consideration that should govern the determination of an application for an extension of time to appeal: first, whether there is a satisfactory explanation for the intending appellant's delay; secondly, whether the proposed respondent, or any other person with a sufficient interest, would be prejudiced by the extension; and thirdly, whether, having regard to the apparent merits of the case intended to be prosecuted on appeal, the applicant's prospects of success are, on the one hand, so self-evidently insubstantial as to make the extension of time, in effect, a futile exercise, or, on the other hand, so self-evidently worthy of consideration as to justify the conclusion that it would work an obvious injustice for the extension not to be granted. 5 Taking the second of these considerations first, it was not put on behalf of the Minister that he, or the government which he represents, would be prejudiced by an extension of time. On the other hand, there is a clear public interest in the prompt disposition of allegations that officers of the Commonwealth have acted in excess of, or have failed to exercise, their jurisdiction under statute. 6 With respect to the matter of a satisfactory explanation, counsel for the applicant very fairly accepted that there was no such explanation in the facts of the present case. He submitted that his client had provided an explanation, which placed the court in a good position to assess the sufficiency thereof. But he did not contend that the making of a request under s 417 of the Act amounted to a satisfactory explanation for not having appealed within the time limited by the Rules. 7 Counsel resisted the proposition, which may be discerned in the judgments to which I shall refer presently, that the making of a request under s 417 should be regarded as inconsistent with the filing of an appeal from the relevant decision of the Federal Circuit Court. He submitted that a s 417 request might be made notwithstanding that the applicant in question sought to challenge the jurisdictional validity of the decision of the Tribunal to which the request related. At the technical level, I am prepared to accept that submission. When the applicant lost his case in the Federal Circuit Court, he had to assume that, as matters then stood, the decision of the Tribunal was valid and effective according to its terms. That provided him with the premise upon which his s 417 request could be based. He was, however, also entitled to challenge the correctness of the Federal Circuit Court judgment and, in my view, could not then have been met with an objection to the competency of his appeal on the ground that his s 417 request amounted, in effect, to an election. 8 But the applicant did not follow that course. He made his request under s 417 instead of filing an appeal. Although the applicant was not legally obliged to treat his s 417 request as an alternative to filing an appeal, in point of fact, he did so treat it. It was by his own decision that nothing was done until after the Minister had rejected his request. In my view, the applicant's request under s 417 left him in no better position that he would have occupied had he sat on his hands and done nothing for 12 months after receiving the adverse outcome from the Federal Circuit Court. 9 As I mentioned above, the relationship between a s 417 request and an appeal from an adverse judgment in the Federal Circuit Court has been the subject of comment by the court on previous occasions. In Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9], von Doussa J said: The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequences of the delay that occurred. In Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at [9], Gray J said: So far as the delay between the decision of the Tribunal and the commencement of proceedings is concerned, the only explanation given in the affidavit of the applicant involves her attempt to procure a favourable decision from the Minister, pursuant to s 351 of the Migration Act. I note that the pursuit of that course by the applicant would have tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal, and that she did not intend to avail herself of the machinery that then existed under the Migration Act to seek judicial review, or to seek remedies from the High Court, in relation to it. It seems to me that, to await the decision of the Minister under s 351 and then to attempt to seek relief in the High Court in relation to the decision of the Tribunal, was to take inconsistent courses. As pointed out by counsel for the applicant in the present case, this passage from the reasons of Gray J may have been obiter, but, as a matter of principle, it is an observation which warrants respect. 10 In addition, there are two judgments of my own to substantially the same effect as those referred to above. In MZYLJ v Minister for Immigration and Citizenship [2012] FCA 335 at [8], I said: An application to the Minister under s 417 relates not to the decision of the Federal Magistrate in a case such as the present, but to the original decision of the Tribunal. In applying to the Minister under that section, the applicant availed himself of an alternative to pursuing his legal challenge to the jurisdictional correctness of the Tribunal's decision. That was a choice which he then made, and he tells me that he ultimately received the Minister's decision, adversely to himself, in December 2011. It was only after he received that decision that he filed the application which is the subject of these reasons. In the view I take, far from the applicant being able to offer a satisfactory explanation for his omission to lodge an appeal within the period specified from the rules of the court, his case demonstrates that he consciously decided not to do so, or at least not to lodge an appeal within a period that would even approximate that specified under the Rules. He chose what was truly, in my view, an alternative course to maintaining his challenge to the validity of the original decision of the Tribunal. In BZAGX v Minister for Immigration and Border Protection [2016] FCA 86 at [4], I referred to MZYLJ and continued: As I have said, the choice which the applicant in the present case made to seek an alternative decision to that made by the Tribunal under s 417 counts quite strongly against the proposition that he should now be granted an extension of time to file an appeal from the order of the Federal Circuit Court. 11 As I have said above, I do not regard the making of a request under s 417 of the Act and the lodging of an appeal from an adverse decision by the Federal Circuit Court as mutually inconsistent courses. However, to make a request under s 417, and to allow time to pass (well beyond the 21st day after the Federal Circuit judgment) until the result of that request is known is, in my view, to be regarded as having plotted a course in the alternative to the filing of such an appeal. Put another way, I would regard it as a discretionary consideration of some force, acting against an extension of time, that the applicant has positioned these different remedies in line astern, as it were. By his own conduct, he has treated them as alternatives. As I have said, the applicant's position should not be regarded as more favourable than that occupied by a person who had chosen to do nothing for the period which elapsed while the Minister was giving consideration to his or her request under s 417 of the Act. 12 For the reasons I have given, timing considerations count against the applicant in his application for an extension of time. 13 With respect to the prospects of the appeal which the applicant seeks to prosecute, it was frankly accepted on his behalf that he starts, in effect, somewhat behind scratch in that he would need the leave of the appellate court to run a case different from that which was unsuccessful before the Federal Circuit Court. At a high level, the determination of that issue will be informed by the words of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598-599 [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 14 Counsel for the applicant accepted that there was no satisfactory explanation for his client's failure to raise before the Federal Circuit – where he was legally represented – the points now sought to be raised on appeal. Indeed, counsel made it clear that even the introduction of the new grounds sought to be relied on would not be sufficient: additionally, his client would need the leave of the appellate court to introduce evidence additional to that which had been placed before the Federal Circuit Court. 15 From what appears, the course proposed by the applicant would have this court proceeding as a court of first instance. Neither is it as though the point sought to be raised for the first time on appeal would complement, or sit alongside, other legitimate points of appeal related to the reasons actually given by the primary Judge. Rather, the points now sought to be raised for the first time would, it is proposed, constitute the entirety of the applicant's case on appeal. An applicant who seeks to proceed in this way, and to do so without any satisfactory explanation for why the points were not relied on at first instance would, in my view, need to have a case of very conspicuous apparent strength before the court would exercise its discretion favourably to him or her. In the present case, the applicant does not have such a case. 16 On the merits, the point which the applicant seeks to introduce is a procedural fairness one. He is a Pakistani national who hails from the Swat region of his native country. His case for the grant of a protection visa relied substantially upon his fears of suffering persecution at the hands of the Taliban in that region. That case achieved a measure of success before the delegate, but the applicant failed at that level because of what was considered to be the possibility that he might live elsewhere in Pakistan. In the Tribunal, the applicant's primary case – that his fears of persecution at the hands of the Taliban in the Swat region were well-founded – was rejected. To a significant extent, that rejection was based upon the Tribunal's finding that the applicant was not a person of sufficient interest to the Taliban to justify the fears which he claimed to hold. Another element of the Tribunal's reasoning, however, was that, since about 2009, the Pakistani army had moved into the Swat region and, by its presence and other security measures, either eliminated, or at least very substantially reduced, the influence and effectiveness of the Taliban and its supporters. It was with respect to this second element of the Tribunal's findings that the applicant now claims that he was denied natural justice. 17 In its reasons dated 5 February 2014, the Tribunal said: [23] The Army remains in control of the security, administration, reconstruction and rehabilitation of Swat. In 2011, it was reported that 30,000 troops had been deployed to Swat in 2009 and that 25,000 troops remained with plans to establish permanent bases. In January 2012, it was reported that the Army had established security checkpoints in different parts of Swat and announced the construction of a permanent military base. Another report states that the Army had about 12,500 soldiers in Swat in 2012 and would stay in the district because the "civilians don't feel confident enough to manage the area in the absence of the military". … [34] The Tribunal does not accept that the applicant will be harmed now because he holds anti-Taliban views. The country information above (put to the applicant) indicates that most militants fled Swat after the Army offensive in 2009 and, that, whilst there is still some militant activity in Swat primarily directed at security forces and active opponents, they have lost popular support and have not been able to re-establish their bases in Swat making the chance they will target the applicant now because of his views remote. … [55] The Tribunal accepts that the applicant may have been harassed by militants in Swat in 2007/08 but, for the reasons set out above, finds that neither he nor his wife are targets for militants in Swat now. The Tribunal notes that the applicant's family has continued to reside primarily in Swat without experiencing any harm. The applicant owns property and land in Barabandai which is leased to farmers and from which he derives an income. The applicant has been able to return to Barabandai and Dherai to visit his family and his land without suffering any harm. The Tribunal does not accept that he has travelled in secret because the Tribunal does not accept that he has received any threats since 2007/08. As set out above, the security situation in Swat is much improved since then. The Army is still in control of the security and administration of Swat and, although there has been some re-emergence of militant activity in Swat, local elders and officials have stated that the Taliban has not been able to re-establish its bases in Swat and no longer has the support of the local population. Taking account of this information, the Tribunal does not accept that the applicant will be harmed now in Swat because he is a supporter of the ANP or because he opposes the Taliban. … [57] The Tribunal finds that the applicant docs not face a real chance of suffering serious harm now or in the reasonably foreseeable future in Pakistan because of his political opinion or membership of a particular social group of his family, separately or cumulatively. Accordingly, the Tribunal finds that he does not have a well-founded fear of persecution. [58] For the reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk he will suffer significant harm. 18 To the "country information" upon which the Tribunal relied for these findings as to the presence, and effectiveness, of the army in the Swat region, the applicant raises no objection. He accepts that what would otherwise be the operation of s 424A of the Act is excluded by subs (3)(a) of that section. His point, rather, is that there was an "issue", based in this information, as to the impact of which he was not fairly appraised. He does not suggest that he was not made aware of the potential for the presence, and effectiveness, of the army in the Swat region to count against his claims under the Refugees Convention. But he points to the Tribunal's conclusion that he did not face a real chance of suffering serious harm "now or in the reasonably foreseeable future" if he were obliged to return to Pakistan. He said that the Tribunal must necessarily have taken the view not only that the army was present in strength in the Swat region, but that it would remain there "in the reasonably foreseeable future". It is this latter factual issue which, according to the applicant, was critical in the Tribunal's assessment of his claim, and he was not told about it. 19 In this department of his case, the applicant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 165 [44], where it was held that the requirement of procedural fairness which was inherent in the terms of s 425(1) of the Act was not accorded where "the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review." The Tribunal had made a decision adverse to the then applicant by reference to three issues (see 228 CLR at 158-159 [19]) to the potential significance of which his attention had not been drawn. Each issue had been a specific integer in the Tribunal's rejection of the proposition that the applicant was considered by the Iranian authorities to be an apostate or actively involved in Christianity (see 228 CLR at 159 [20]). 20 By contrast in the present case, nowhere did the Tribunal conclude that the Pakistani army would maintain an effective presence in the Swat region for the reasonably foreseeable future. In terms, that was not part of the Tribunal's reasoning at all. To found an analogy with SZBEL, counsel for the applicant was obliged to join the dots between the finding that the army had, since 2007/2008, taken control of the security situation in the Swat region and the conclusion – required by the terms of the Refugees Convention – that the applicant did not face a real chance of suffering serious harm then (ie in February 2014) "or in the reasonably foreseeable future" if obliged to return to Pakistan. 21 In my view, the proposition that the principle for which SZBEL stands applies in a situation such as this would be difficult to sustain in any appeal which the applicant is given leave to prosecute. A more persuasive proposition would be that the overarching relevance of the likely course of events in the reasonably foreseeable future is a given in all applications for protection visas, and that, where, as was the situation here, the applicant's case is based on past and contemporary events, and where the Tribunal directly engages with him on that subject, it would not constitute a denial of procedural fairness for it to have omitted to make the prospect that it would use the status quo as a foundation for its conclusion as to the future course of those events explicitly clear to him. 22 On the present application, the applicant, without objection, placed extracts of the transcript of his hearing before the Tribunal into evidence. As submitted on his behalf, it appears from this transcript that the Tribunal did not, at least explicitly, question the applicant about what might be the future situation apropos the presence of the army in the Swat region. But it did tell him that it was "aware that during 2009 there was a very large army offensive and that by November 2009 the army had regained control of Swat." The Tribunal also put the following to the applicant for his comment: In 2007 when you say you started, first started to be threatened, what I understand is that Mullanah Faisalullah had set up, there was a big campaign being waged by him. A lot of pressure being put on the area, a lot of people were being threatened, shops were being forced to close and a lot of people were being killed, but after the army offensive in 2009 Swat became much more secure the army had regained control and the Taliban had been largely forced out of the area. In the light of these observations by the Tribunal in the course of the hearing, the applicant would, in my view, have some difficulty resisting the conclusion that the distinction between the new status quo in the Swat region to which the Tribunal drew his attention and the likely course of events there in the reasonably foreseeable future involved a highly theoretical difference only, and that, in point of substance, he experienced no denial of procedural fairness. 23 For the reasons I have given, I regarded the merits of the applicant's foreshadowed case on appeal as doubtful at best; and I took the view that the rejection of his application for an extension of time would not result in injustice. 24 In the result, there was very little that could, at least credibly, be said in favour of the applicant's application for an extension of time. The absence of any satisfactory explanation for his delay, his intention to run an entirely new case on appeal, the absence of any explanation for why such a case was not run before the Federal Circuit Court and the doubtful merits of that case readily led to the conclusion that the application should be rejected. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 18 August 2016