FEDERAL COURT OF AUSTRALIA MZZLY v Minister for Immigration and Border Protection [2017] FCA 1326 Appeal from: MZZLY v Minister for Immigration & Anor [2015] FCCA 133 File number: VID 649 of 2017 Judge: MOSHINSKY J Date of judgment: 10 November 2017 Catchwords: MIGRATION – application for extension of time to appeal from judgment of the Federal Circuit Court of Australia – application more than two years out of time – application refused Legislation: Migration Act 1958 (Cth), s 36 Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Date of hearing: 10 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr R Sorensen Solicitor for the Applicant: Jean Ely & Associates Counsel for the Respondents: Mr R Knowles Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS VID 649 of 2017 BETWEEN: MZZLY Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MOSHINSKY J DATE OF ORDER: 10 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The applicant's application for an extension of time to file a notice of appeal be dismissed. 2. The applicant pay the first respondent's costs of the application, to be taxed if not agreed. 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 an Iranian citizen, seeks an extension of time in which to appeal from a judgment of the Federal Circuit Court of Australia given on 23 January 2015. The application for an extension of time was filed on 19 June 2017, more than two years out of time. Procedural background 2 The applicant applied for a Protection (Class XA) visa (a protection visa) in April 2012. He relevantly claimed that, if he returned to Iran in the reasonably foreseeable future, he would face a real chance of serious or significant harm at the hands of the Iranian authorities on account of his conversion to Christianity. He claimed that, as a result of his past involvement with the Christian church in Iran, he had been detained, threatened and mistreated by the Basij. 3 On 25 May 2012, a delegate of the first respondent (the Minister) refused to grant the applicant a protection visa. 4 On 1 June 2012, the applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) for review of the delegate's decision. 5 On 6 July 2012, the applicant's representative lodged with the Tribunal written submissions and other documents, including a baptism certificate for the applicant dated 13 June 2012. 6 On 5 September 2012, the Tribunal conducted a hearing, at which the applicant was represented and gave evidence. 7 On 18 September 2012, the applicant's representative lodged with the Tribunal further written submissions and other documents. 8 On 1 May 2013, the Tribunal handed down its decision, in which it affirmed the delegate's decision to refuse to grant the applicant a protection visa. 9 On 5 June 2013, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The applicant subsequently filed and served an amended application and written submissions. 10 On 23 January 2015, the Federal Circuit Court dismissed the proceeding. 11 On 19 June 2017, the applicant applied to this Court for an extension of time in which to appeal from the judgment of the Federal Circuit Court. Applicable principles 12 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 13 The grounds of the application are set out in an affidavit of the applicant sworn 19 June 2017. In brief terms, the grounds are that: he was unrepresented for most of the period between the date when the Federal Circuit Court handed down its judgment and the date when he filed the application for an extension of time; he did not have the financial resources to obtain legal assistance; and he did not understand the processes relating to bringing an appeal. 14 I note that, in his affidavit, the applicant stated that: "Legal Aid funded legal representation to allow [him] to make the Application to the Federal Circuit Court which resulted in the [judgment] … However, Legal Aid told [him] that they would not fund an appeal from that judgment of the Federal Circuit Court, even though they also said there might be some grounds on which [he] could appeal from it." The applicant stated that he did not understand what this meant, but did not have the financial resources to engage a lawyer to explain it or assist him in appealing. He also stated that he understood, from things said to him at meetings with officers of the Department of Immigration and Border Protection, "that there was something which [he] should be doing if [he wished] to remain in Australia" but they could not explain what this was. He stated that he made "some inquiries of a migration agent" earlier this year, and then spoke to certain lawyers. As a result of this process, he realised that if he wanted to "further challenge the decision about [his] visa application", he would need to seek an extension of time from this Court. 15 A draft notice of appeal is attached to the affidavit of the applicant. This raises a single ground of appeal, which is substantially the same as a ground argued before the Federal Circuit Court, as follows: That the Federal Circuit Court erred in not upholding the Appellant's contention that the Refugee Review Tribunal failed, for the purposes of the complementary protection criteria, to take into account the prospect of the Appellant practising Christianity as a convert upon any return by him to Iran. Consideration 16 The period of time for which an extension of time is sought, over two years, is very long. This is a factor that tends against the grant of an extension of time in the circumstances of the present case. Further, I do not consider that the applicant has provided a satisfactory explanation for the delay. His affidavit indicates that, at the very least, he was given some indication, at or about the time when the Federal Circuit Court handed down its judgment, of the availability of a right of appeal. The affidavit does not indicate one way or the other whether he was specifically told the period of time in which he had to file a notice of appeal. Further, the applicant provides little detail about the period between when judgment was handed down and a time earlier this year when he made some enquiries of a migration agent. Indeed, there is little detail about the steps taken by the applicant since making those enquiries, by way of explanation for the time taken to file the application. 17 It is also relevant to have regard to the merits of the proposed appeal. The applicant's submissions, as set out in his written "contentions of fact and law" filed in this Court, are substantially the same as the submissions put to the Federal Circuit Court. In essence, he contends that the Tribunal erred in its consideration of the 'complementary protection' criteria under s 36(2)(aa) of the Migration Act 1958 (Cth), by failing to take into account the prospect of the applicant practising Christianity as a convert upon any return by him to Iran, in light of his previous practice of Christianity, including in Australia, since his arrival here in January 2012. 18 The applicant's submissions focus on the Tribunal's consideration of the 'complementary protection' criteria, in [107] of its statement of decision and reasons (the Tribunal's decision), which states as follows: For the reasons above, the Tribunal does not accept that the applicant has rejected Islam or converted to Christianity, that the Iranian authorities have caught him attending illegal religious gatherings or in possession of politically sensitive photographs, or has come to the adverse attention of the Iranian authorities for any reason at all. The Tribunal accepts that the applicant comes from a liberal family and does not practice Islam, but it does not accept that he is perceived by the Iranian authorities or anyone as being an apostate or as having 'rejected' Islam for this reason. Taking also into account the applicant's baptism in Australia, his church attendance and his Bible study (conduct that the Tribunal disregarded in assessing his refugee claims), the Tribunal does not accept on the available evidence that these activities put him at risk of coming to the adverse attention of the Iranian authorities or the community at large, if he returns to Iran. 19 At [15]-[24] of the Federal Circuit Court's reasons for judgment, the primary judge considered the applicant's submissions. After quoting [107] of the Tribunal's decision, the primary judge summarised the applicant's submissions on this paragraph as follows at [23]-[24] of the reasons: 23. The Applicant submits that the paragraph does not deal with the question of his likelihood of future Christian practice in Iran. Further, paragraph 107 of the Tribunal's decision begins with the words "[f]or the reasons above". The Applicant took the Court to paragraph 87 of the decision where the Tribunal found that the Applicant's claims with respect to his conversion were "not based on truth at all". The Tribunal states that the factors set out in paragraphs 88-91 of its decision lead to that conclusion. Those paragraphs of the Tribunal's decision do not deal with the Applicant's Christian activities in Australia but only what occurred in Iran. It is really only in paragraph 97 of its decision that the Tribunal deals with the Applicant's activity in Australia and then only in the context of s.91R(3) of the Act. 24. The Applicant submits that the Tribunal has not actively considered the real risk that the Applicant might suffer significant harm should he return to Iran by considering if his activity in Australia demonstrated a genuine conversion and that he would continue to worship as a Christian in Iran. (Footnotes omitted.) 20 The primary judge's conclusions were set out at [34]-[47] of the reasons. In particular, the primary judge stated, at [44]-[46], as follows: 44. The claim here appears to be that because the Tribunal did not expressly state under the heading Complementary protection: s.36(2)(aa) that it did not accept that after arriving in Australia the Applicant had had a genuine conversion and would not, therefore, be motivated to follow any religious practice that is or would be perceived to be Christian if he returned to Iran, that the Tribunal did not turn its mind to that issue. 45. Taking the decision as a whole, I do not accept that that inference can be drawn in the context of the Tribunal's express reference to the reasons it had already given including: • Its lack of satisfaction that the Applicant had engaged in such activity other than for the purpose of strengthening his refugee claim; • Its findings with respect to the lack of motivation to follow any Christian religious practice in Iran; and • Its clear view that it did not accept that the Applicant had any genuine religious conviction. 46. For these reasons I am not satisfied that the Tribunal fell into error by failing to consider a claim or integer of the Applicant's claim or failed to consider a relevant consideration when it addressed the [complementary] protections criteria. 21 Having regard, in particular, to [95]-[99] of the Tribunal's decision, the applicant's prospects of successfully challenging the primary judge's conclusions are, in my view, very weak. The Tribunal's reasons are to be read as a whole. The Tribunal, at the commencement of [107], indicated that it was relying on reasons that it had given above. These included the findings made at [95]-[99]. At [99], the Tribunal found that, in light of its view that the applicant was not a genuine Christian and had not 'rejected' Islam (even though it did not play an important part in his and his family's lives), "he will not be motivated to follow any religious practice that is, or would be perceived as Christian, or anti-Islamic". This indicates that a prospective assessment formed part of the Tribunal's reasoning. Further, in the second sentence of [107], the Tribunal stated that, for the reasons it had provided, it did not accept that the applicant was perceived by the Iranian authorities, or anyone else, as being an apostate or as having 'rejected' Islam. In the next sentence, the Tribunal referred expressly to the applicant's baptism in Australia, his church attendance and his Bible study. 22 Taking the matters discussed above into consideration, I consider that the application for an extension of time should be refused. The period of the delay is lengthy, the explanation for the delay has deficiencies and the prospects of success of any appeal are very weak. Although the Minister does not contend that an extension of time would cause prejudice to the Minister, the other considerations to which I have referred point clearly to refusal of the application for an extension of time. 23 I will therefore order that the application for an extension of time to file a notice of appeal be dismissed. There is no apparent reason why costs should not follow the event. I will therefore order that the applicant pay the Minister's costs of the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate: Dated: 15 November 2017