FEDERAL COURT OF AUSTRALIA AEA16 v Minister for Immigration and Border Protection [2016] FCA 1500 Appeal from: Application for extension of time and leave to appeal: AEA16 v Minister for Immigration & Anor [2016] FCCA 1125 File number: NSD 1056 of 2016 Judge: RARES J Date of judgment: 9 November 2016 Legislation: Federal Court Rules 2011 r 36.03 Migration Act 1958 (Cth) s 430 Cases cited: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Craig v South Australia (1995) 184 CLR 163 Jackamarra v Krakouer (1998) 195 CLR 516 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Reg v Secretary of State for the Home Department; Ex parte Metha [1975] 1 WLR 1087 Date of hearing: 9 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 26 Counsel for the Applicant: Mr J Williams Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 1056 of 2016 BETWEEN: AEA16 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 9 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal filed on 1 July 2016 be dismissed. 2. The applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for an extension of time in which to file an appeal from the decision of the Federal Circuit Court dismissing the applicant's application for Constitutional writ relief from a decision of the Administrative Appeals Tribunal given on 22 December 2015 to affirm the Minister's delegate's decision not to grant him a protection visa: AEA16 v Minister for Immigration [2016] FCCA 1125. This application 2 The applicant filed this application on 1 July 2016, being 30 days after the expiration of the 21 day period, under r 36.03(a) of the Federal Court Rules 2011. However, the applicant swore an affidavit on 16 June 2016, explaining why he was, at that time 12 days late, albeit, that calculation itself was three days too short. He said that he was not allowed to work, could not afford the filing fee and had tried to borrow money from friends, they could not afford to assist him, so that he applied for relief from paying the filing fee on the ground of his financial hardship. Yet, the applicant, who was represented in this Court and the Court below by counsel, gave no explanation as to the delay between 16 June 2016 and 1 July 2015, even after the Minister raised this deficiency in his written submissions filed on 2 November 2016. 3 The draft notice of appeal asserted that the trial judge erred in concluding that the applicant was not entitled to judicial review on the sole ground argued below, namely, that the Tribunal had failed to take into account relevant considerations with regard to the country information before it. The draft notice of appeal asserted that the applicant's contention before his Honour "embedded" three complementary subgrounds into one ground, namely that the Tribunal had failed to take into account relevant considerations, that, first, the Tribunal failed "to give proper genuine and realistic consideration to the merits of the case" in accordance with what Gummow J had said in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, secondly, it had failed to consider corroborative evidence in a way that constituted jurisdictional error, relying on what Robertson J had said in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, and thirdly, the Tribunal's decision was affected by jurisdictional error because there was a sufficient lack of probative evidence or logical connection between its findings and the material on which the Tribunal relied to make those findings, relying on what Crennan and Bell JJ had said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]–[131] and 648-649 [133]. Background 4 The applicant is an ethnic Pashtun and a Shia Muslim from the Bangash tribe, from an area in the Kurram Agency in Pakistan. The applicant was represented throughout the course of the proceedings in the tribunal by a migration agent who provided the Tribunal with detailed submissions and country information seeking to make good the applicant's case that he would face substantial or significant risk of harm were he to return to Pakistan and, in particular, the area within the Kurram Agency where his family lived. 5 He claimed that, relevantly, he was entitled to a protection visa for the purposes of the Refugees Convention by reason of his ethnicity, religion and his membership of a particular social group of persons in or connected to his situation as being the son of a Pakistan Government official of some prominence within his local area. He also claimed that Australia owed him complementary protection obligations. 6 It suffices to say that the Tribunal accepted that the applicant's father had been a senior government official and, after his retirement from office, was involved in a peace movement. However, the Tribunal did not accept that there was a real risk that the applicant or his family faced persecution because of those factors or that the family had ever been the subject of any targeted attacks or had a profile that would attract such attacks from the Taliban. The Tribunal also did not accept that there was a real chance that the applicant would be captured or killed on return to Pakistan because he had spent time in a western country, as he claimed, or that he would be persecuted as a returned asylum seeker. 7 Critically, in arriving at its conclusion that the applicant had not satisfied it that he was entitled to a protection visa, the Tribunal made a series of factual assessments as to the situation in the Kurram Agency and the area around the applicant's home were he to be returned to Pakistan. It did so after giving consideration to a variety of evidentiary sources, including a recent report by the Department of Foreign Affairs and Trade, "DFAT Thematic Report – Shias in Pakistan, 14 April 2015". The trial judge's decision 8 The trial judge noted that, before him, the applicant had relied on a further amended application containing grounds for judicial review of the Tribunal's decision that ran to nearly four pages. His Honour considered the substance of the further amended ground and its various subgrounds and determined that they, and the submissions in support of them, had no substance and failed to identify any jurisdictional error on the part of the Tribunal. He dismissed the application with costs. The applicant's submissions 9 Counsel for the applicant filed detailed written submissions substantively going to the merits of the draft notice of appeal and made extensive oral argument in relation to those. 10 At the heart of the applicant's argument is a complaint that the Tribunal failed properly or adequately to understand and make accurate findings of fact based on materials set out in the Thematic Report, particularly in respect of what appeared at [4.30]-[4.37] in which the Department reported on the position within the Federally Administered Tribal Areas in Pakistan, known as FATA, that included the Kurram Agency. 11 The Thematic Report noted that a 2013 truce was in place between certain communities, as at November 2014, within the Kurram Agency and that the main road between Thal and Parachinar, the main town in the Kurram Agency, in the area which the applicant and his family lived, was open and was frequently used by civilian cars ([4.35]). The Department reported that federal Pakistani security forces maintained armed checkpoints on that road and that this had resulted in an improved situation in Kurram Agency. 12 The Thematic Report then concluded at [4.37]: Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However, the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services. (emphasis added) 13 The applicant argued before his Honour and before me that the Tribunal failed to take into account [4.37] of the Thematic Report. His counsel purported to quote in oral submissions the Thematic Report as saying that it had made an unqualified finding in terms that there was a "moderate risk of sectarian violence". 14 As is apparent from what I have quoted, that is not what [4.37] said at all and represented an inexplicable distortion by counsel of the clear, but omitted, qualification of the words "in some areas" in the paragraph. Indeed, as the Tribunal said in its reasons at [62], with reference to specifically [4.37]: However, as I indicated in the course of the hearing before me, I considered that this assessment must be read in context as relating to the FATA as a whole, not specifically to the Kurram Agency. As I noted, the FATA includes places like North Waziristan, where, as referred to in paragraph 4.34 of the report, the Pakistani security services are conducting counterinsurgency operations against the TTP and other militants. (emphasis added) 15 Counsel had also asserted that the Tribunal had failed to refer to [4.37] anywhere in its reasons. I had to correct counsel in the course of argument from making those incorrect and unfounded submissions. Consideration 16 An application for an extension of time in which to file an appeal challenges a respondent's vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4], see also per Kirby J at 539-543 [66]. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in Reg v Secretary of State for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091E-F namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. (emphasis added) 17 I am of opinion that the applicant's contentions are unarguably bad. What the Tribunal was doing in its consideration of the security situation relevant to assessing the risk, to which the applicant might be exposed were he to return to Pakistan, was giving weight to the factual material that was before it, as that material concerned the merits of the application. That does not amount to a jurisdictional error of the kind discussed in SZMDS 240 CLR 611 for the reasons that French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ gave in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176 [32]-[33]. 18 In essence, what the applicant is seeking to argue, as a ground of judicial review, is that the Tribunal was bound to give determinative weight to his counsel's construction of [4.37] and other material on which he relied in support of his arguments. However, that is not the function of a Court on judicial review of administrative proceedings. The applicant also sought to call in aid in support of his contentions the way in which Brennan, Deane, Toohey, Gaudron and McHugh JJ explained what constituted jurisdictional error by an inferior court, amenable to the supervisory jurisdiction of a superior court, as opposed to that of an administrative tribunal in Craig v South Australia (1995) 184 CLR 163 at 174-177. 19 Their Honours made clear there is an important distinction between what constitutes jurisdictional error on the part of an inferior court as opposed to such an error on the part of an administrative tribunal (see 184 CLR at 176 and 179). In essence, the applicant contended that he had a sufficiently arguable appeal, on the merits, that the trial judge erred characterising his grounds of judicial review as an attack on the merits, and not the legality, of the Tribunal's administrative decision-making. 20 In my opinion, that was a fundamentally misconceived argument, as the High Court has said many times, including in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (see also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41 per Mason J). There Brennan CJ, Toohey, McHugh and Gummow JJ said: … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. 21 The applicant's arguments essentially rehearsed, with greater or varying degrees of emphasis, the contentions that he put to the trial judge and which the trial judge comprehensively rejected for reasons which were, in my opinion, correct. The applicant sought to challenge findings made by the Tribunal as being ones for which there was no evidence. 22 However, those findings were plainly findings made on the basis of identified material before the Tribunal to which it applied its mind, having regard to the evidence before it. It was not necessary for the Tribunal to refer to every item of evidence before it or which it rejected. Its obligation was to set out, in its reasons, what its findings of fact were on any material questions and to refer to the evidence or other material on which those findings were based, as s 430(1) (c) and (d) of the Migration Act 1958 (Cth) required. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68] McHugh, Gummow and Hayne JJ said of the requirement in s 430(1)(c): … it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (emphasis in original) 23 Critically, in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [43], Gleeson CJ, Gummow, Kirby and Hayne JJ said: When stating the position in [Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36], Brennan J also stressed: "The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." However, in Australia this situation is the product not of any doctrine of "deference", but of basic principles of administrative law respecting the exercise of discretionary powers. Mason J spoke to similar effect in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576-578, 597-598.] when he observed: "The limited role of a court [in] reviewing the exercise of an administrative discretion must constantly be borne in mind." Nor, as Brennan J pointed out in Waterford v The Commonwealth [(1987) 163 CLR 54 at 77], is there an "error of law simply in making a wrong finding of fact". (emphasis added; footnotes included) 24 Here, the applicant's explanation for his delay up to the time that he swore his affidavit of 16 June 2016 appeared to be understandable, but he gave no explanation for the subsequent delay of two weeks. Of course, that is not determinative. In my opinion, what is determinative is the entire absence of any arguable basis evincing any prospect of success for the proposed appeal were I to grant an extension of time for the applicant to file the draft notice of appeal. 25 The applicant is merely seeking to cavil with the merits of the Tribunal's decision. He has not identified any error of law. The Tribunal was entitled, and had, to weigh the evidence before it. Part of that evaluation included explaining why it made its findings of fact, as s 430(1) required. There was evidence to support the Tribunal's findings of fact. Those findings do not appear to me to be even arguably illogical or without an evidentiary foundation. Indeed, as is evident in the short references to its reasons that I have given, the Tribunal had a sufficient evidentiary basis for its findings. It made no jurisdictional error in arriving at its decision to affirm the delegate's decision not to grant the applicant a protection visa. The proposed appeal is without any substance. Conclusion 26 The application must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 12 December 2016