FEDERAL COURT OF AUSTRALIA MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 Appeal from: MZZFQ v Minister for Immigration & Citizenship & Anor [2013] FCCA 1995 File number: VID 1 of 2016 Judge: MOSHINSKY J Date of judgment: 16 September 2016 Catchwords: MIGRATION – application for extension of time to appeal from the Federal Circuit Court of Australia – proposed ground of appeal that the Tribunal failed to deal with an integer of the applicant's claim – whether merit in proposed ground of appeal – whether extension of time should be granted Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 MZZFQ v Minister for Immigration & Citizenship & Anor [2013] FCCA 1995 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Date of hearing: 24 May 2016 Date of last submissions: 10 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr MLL Albert Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr GA Hill Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS VID 1 of 2016 BETWEEN: MZZFQ Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MOSHINSKY J DATE OF ORDER: 16 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time be dismissed. 2. The applicant pay the first respondent's costs of the application. 3. The name of the second respondent be changed to Administrative Appeals Tribunal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MOSHINSKY J: 1 The applicant, who is from Afghanistan, is of the Hazara ethnicity and the Shia Muslim faith. He seeks an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia. Procedural history of the matter 2 On 20 May 2012, the applicant arrived on Christmas Island as an unaccompanied minor. The applicant applied for a protection visa on 25 July 2013. The applicant claimed to be a refugee on various grounds: being of Hazara ethnicity and Shia religion; being a student; being a young male and a young Hazara male in Afghanistan without family support or a male protector; and being someone to whom pro-Western views would be imputed because he has resided in a Western country. Alternatively, the applicant claimed a visa under the complementary protection provisions. 3 A delegate of the first respondent (the Minister) refused the application for a protection visa. 4 On 21 December 2012, the Refugee Review Tribunal (the Tribunal) decided to affirm the decision to refuse the application for a protection visa. 5 On 25 January 2013, the applicant applied to the then Federal Magistrates Court for review of the Tribunal's decision. 6 On 21 May 2013, a hearing before the Federal Circuit Court took place. The applicant was represented at the hearing. 7 On 10 December 2013, the Federal Circuit Court delivered its decision in the matter, dismissing the application. As set out in the reasons of the Federal Circuit Court, the applicant relied on four grounds. Only the third of those grounds is proposed to be pursued in the draft notice of appeal, referred to below. 8 The time in which to lodge an appeal to this Court lapsed on or about 23 January 2014. 9 On 23 December 2015, approximately 23 months later, the applicant lodged electronically an application for an extension of time in which to appeal to this Court. An affidavit of the applicant in support of the application was also filed. Applicable principles 10 The principles applicable to an application to extend time are well established. The factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. The grounds of the application 11 The grounds of the application for an extension of time are set out in the applicant's affidavit. The applicant relies on the following matters: (a) On 3 January 2014, Victoria Legal Aid advised the applicant that legal aid would not be granted to assist him to prepare an appeal. He did not have lawyers assisting him from that time until June 2015. He could not afford to engage private lawyers. (b) Over the past two years, he has suffered from mental health issues including depression and an anxiety disorder, which affect his judgment and decision-making. He also has a mild intellectual disability. (c) In February 2014, with the assistance of the Refugee and Immigration Legal Centre (RILC), he applied for Ministerial intervention. On 19 August 2015, he received a negative decision in relation to this request. (d) On 13 January 2015, he was notified by the Department of Immigration that it had commenced an International Treaties Obligation Assessment (ITOA) in order to assess whether the circumstances of his case engaged Australia's non-refoulement obligations. On 15 April 2015, he received a negative decision in relation to the ITOA. On 29 April 2015, RILC on behalf of the applicant contacted Victoria Legal Aid for advice on appealing the ITOA to this Court. In July 2015, the applicant was given legal advice that he should await the outcome of the Full Federal Court decision in SZSSJ v Minister for Immigration and Border Protection because the outcome would affect his case. That decision was handed down on 2 September 2015: SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1. Special leave to appeal to the High Court was subsequently granted. The applicant contends that the progress of that litigation, and its potential impact on his prospects in seeking judicial review of the ITOA, explains, at least in part, his failure to apply earlier for an extension of time. (After the hearing of the applicant's application for an extension of time, the High Court handed down judgment in the SZSSJ matter: Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901.) 12 The applicant has filed a draft notice of appeal. This identifies one ground of appeal as follows: The Federal Circuit Court erred in finding that the [Tribunal] did not commit jurisdictional error because of a failure to deal with an integer of the Appellant's claim, namely that children and/or women without a male protector were at real risk of serious or significant harm when travelling on the roads of Afghanistan. Particulars A. The Appellant claimed that children and unaccompanied women are at greater risk of harm while travelling the roads in Afghanistan without a male protector. B. The Appellant claimed that his mother and younger siblings had never travelled the roads to visit him because of their fear of persecution. C. The [Tribunal] did not consider the claim that the Appellant's mother and siblings were at risk on the roads and more vulnerable because they were without a male protector; see [192 – 196] of its reasons. D. The learned Federal Circuit Court Judge held at [31] that the concerns about family travelling are not a relevant risk to the applicant in the assessment of his protection claims. 13 At the hearing of the application, both parties were content to proceed on the basis that the hearing was also the hearing of the appeal, if an extension of time were granted. 14 It will be convenient to deal first with the merits of the proposed appeal, before considering the other matters relevant to the application for an extension of time. The merits of the proposed appeal 15 As set out above, the proposed ground of appeal is that the Tribunal failed to deal with an integer of the applicant's claim, namely that "children and/or women without a male protector were at real risk of serious or significant harm when travelling on the roads of Afghanistan". 16 There was no real dispute between the parties as to the principles applicable to such a contention. It is established that where the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying on established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) at [55] per Black CJ, French and Selway JJ. In NABE (No 2), the Full Court said at [58]: The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 17 The Full Court in NABE (No 2) also said at [63]: It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 18 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, French J (as his Honour then was) and Sackville and Hely JJ said at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 19 The applicant's submissions in relation to his proposed ground of appeal can be summarised as follows. The applicant grew up with his grandparents in Kabul but his immediate family (not including his father, who disappeared two years before the Tribunal hearing) reside in Ghazni, several hours' drive away. In this context, the applicant submits that, in order for him to maintain contact with his family, either they had to travel the roads to see him in Kabul, or he had to travel the roads to see them in Ghazni. The applicant submits that he "expressly claimed that children and unaccompanied women are at greater risk of harm while travelling the roads in Afghanistan without a male protector, and that this was a cause of his fear of return to Afghanistan because his family would travel to see him from Ghazni to Kabul" (paragraph 12 of the applicant's submissions). 20 In support of the proposition that this claim or argument was raised before the Tribunal, the applicant relies on the following passage from RILC's submission on behalf of the applicant dated 7 November 2012, p 38: We note that the applicant has 5 dependent family members without adult male protection. In our submission, the applicant's family have been prevented from travelling to be with the applicant for fear of serious harm or death. The risk to the applicant's dependents would persist if he were forced to relocate to Kabul. In this regard we refer once again to the information provided herein in relation to the conditions of the roads in Afghanistan. We submit that women and children travelling without the accompaniment of a male adult are not only more vulnerable because of lack of protection on the roads, but that their ability to travel safely is also prevented by cultural considerations relating to the restrictions placed on a woman's freedom of movement. The UNHCR Guidelines [2010, p 24] note that women have been detained and punished for morality crimes including improper accompaniment. 21 The applicant submits that the Tribunal failed to respond to this claim. 22 In my view, for the reasons that follow, the applicant's submissions (summarised above) do not reflect the way in which he presented his claims to the Tribunal. 23 The applicant's claims to the Tribunal, insofar as they concerned the dangers of travelling on the roads in Afghanistan, focused on the danger that the applicant would face in travelling on the roads from Kabul to Ghazni to see his family. His claim in this regard was put forward on the basis that his family would not travel on the roads (from Ghazni to Kabul) to see him because it was too dangerous for them to do so. That this is the way in which the applicant presented his claims can be seen from the following: (a) the applicant's statutory declaration dated 18 July 2012 at paragraphs 4-6 and 12; and (b) the applicant's statutory declaration dated 29 October 2012 at paragraphs 20-21. 24 For example, in the applicant's statutory declaration dated 18 July 2012, at paragraph 6, he stated: "My family never travelled from Ghazni to visit me in Kabul because of the dangers involved." At paragraph 12 of that declaration he stated, in reference to his family: "They are too afraid to travel to Kabul." Likewise, in the statutory declaration of 29 October 2012, the applicant stated in paragraph 21: "My mother and my siblings cannot come to Kabul because it would be even more dangerous for them to travel, especially without any adult male protecting them." The applicant made these statements in the course of explaining why, if he returned to Afghanistan, he would feel compelled to travel from Kabul to Ghazni to see his family (thus exposing himself to danger on the roads). 25 The passage from RILC's submission dated 7 November 2012, quoted in [20] above, needs to be read in context. It formed part of a section of the submission dealing with relocation (pp 33-39). This section of the submission addressed relocation to other parts of Afghanistan, but also relocation to Kabul. The submission set out general principles regarding the relocation issue at pp 33-35. It was submitted at p 35 that the applicant had a well-founded fear of persecution in the whole of the country, and also that relocation was neither reasonable nor practical in the circumstances. Country information was set out at pp 36-37. At p 38, it was submitted that the applicant's young age also placed him in a vulnerable situation. The passage set out in [20] above appeared under the heading "The applicant's family members". The second sentence of the above passage ("In our submission, the applicant's family have been prevented from travelling to be with the applicant for fear of serious harm or death") was consistent with the passages from the applicant's statutory declarations set out above; it reiterated that the applicant's family have not travelled (and thus would not travel) from Ghazni to Kabul due to the danger on the roads. This was put forward as a reason why relocation to Kabul would not be reasonable (because his family would not visit him there). 26 The passages set out above demonstrate that a key element of the applicant's submissions on the application for extension of time is not correct. It is true that the applicant referred to the danger faced by children and women in travelling on the roads in Afghanistan. But he did not argue, as submitted in paragraph 12 of the applicant's submissions on the application for extension of time, that this was a cause of his fear of return to Afghanistan because his family would travel to see him from Ghazni to Kabul. To the contrary, the applicant's consistent position, as set out above, was that his family would not travel from Ghazni to Kabul. 27 In light of this, I do not think the applicant's contention that the Tribunal failed to deal with an integer of his claim has merit. 28 For completeness, I note the following in relation to the way the Tribunal dealt with the matter, insofar as it is relevant to the proposed appeal ground. The Tribunal set out, at [20], a lengthy extract from the applicant's statutory declaration dated 18 July 2012. This included paragraphs 4-6 and 12 of that declaration, referred to above. The Tribunal, at [23], set out a lengthy extract from the applicant's statutory declaration dated 29 October 2012, including paragraphs 20-21 of that declaration. The Tribunal referred, at [30], to the applicant's evidence regarding the dangers he had experienced travelling on the roads in Afghanistan. The Tribunal, at [95]-[106], set out country information regarding road access from Kabul to Ghazni. The Tribunal's findings and reasons were set out in [144]-[209] of its decision. The issue concerning travel on the roads was considered at [192]-[198]. Unsurprisingly, given the way the applicant's claims were expressed in his statutory declarations, the Tribunal focused on the applicant's fear of travelling on the roads between Kabul and Ghazni. At [193], the Tribunal said that it did "not accept that the applicant will be specifically targeted if he travels on the road from Kabul to [Ghazni], or alternatively, his family would not be specifically targeted if they travelled from [Ghazni] to Kabul". Although perhaps unnecessary in view of the way the applicant had presented his claims, the Tribunal here addressed the matter of danger if the family were to travel from Ghazni to Kabul. Similarly, at [195], the Tribunal referred both to the risk to the applicant and to the applicant's family in travelling on the roads. 29 As noted above, the proposed ground of appeal substantially replicates ground three before the primary judge. However, it appears that the applicant's argument was not presented with the same emphasis before the primary judge; the reasoning of the primary judge reflects the way the argument was presented. In view of the reasoning set out above, it does not appear that there is error in the primary judge's conclusion in relation to ground three: cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [122]-[123] per Robertson J. 30 For the above reasons, the applicant has not demonstrated that there is merit in his proposed ground of appeal. Disposition of application for extension of time 31 In light of the above, the application for an extension of time should be refused. It is unnecessary to consider whether, had the proposed appeal ground had merit, the grounds relied on by the applicant as set out in [11] above would be sufficient to support the extension of time sought (which is a lengthy period). 32 I will therefore order that the application for an extension of time be dismissed. There is no apparent reason why costs should not follow the event (both parties' written submissions proceeded on this basis). I will therefore order that the applicant pay the Minister's costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate: Dated: 16 September 2016