FEDERAL COURT OF AUSTRALIA AKH16 v Minister for Immigration and Border Protection [2018] FCA 372 Appeal from: Application for extension of time: AKH16 v Minister for Immigration and Anor [2016] FCCA 3492 File number: VID 1201 of 2017 Judge: BROMBERG J Date of judgment: 1 March 2018 Catchwords: MIGRATION – application to extend time to file notice of appeal – whether a reasonable prospect of establishing that Tribunal misunderstood or misapplied definition of "refugee" – application granted Legislation: Migration Act 1958 (Cth) s 65 Cases cited: AKH16 v Minister for Immigration and Anor [2016] FCCA 3492 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Date of hearing: 1 March 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr N Wood Solicitor for the Applicant: Esser Legal Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 1201 of 2017 BETWEEN: AKH17 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: BROMBERG J DATE OF ORDER: 1 MARCH 2018 THE COURT ORDERS THAT: 1. The applicant's application for an extension of time dated 27 October 2017 be granted. 2. The costs of that application be reserved. 3. Time be extended to 5 March 2018 for the filing of a Notice of Appeal in the form of the document headed 'Amended Notice of Appeal from the Federal Circuit Court of Australia'. 4. On or before 19 March 2018, the first respondent prepare, file and serve an appeal book. 5. On or before 27 April 2018, the applicant file and serve his outline of submissions. 6. On or before 11 May 2018, the first respondent file and serve his outline of submissions. 7. On or before the day seven days prior to the hearing of the appeal the parties file and serve their lists of authorities. 8. The appeal be listed for hearing on an estimate of half a day on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 The applicant seeks an extension of time to file an appeal in this Court from a decision of the Federal Circuit Court of Australia published as AKH16 v Minister for Immigration and Anor [2016] FCCA 3492. By that decision, the primary judge ordered that the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal") be dismissed. The Tribunal had earlier affirmed a decision of a delegate of the first respondent ("Minister") not to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a citizen of Pakistan. He is a Shia Muslim from the Bangash tribe who had resided close to Parachinar in the Kurram Agency province. Before the Tribunal, the applicant claimed that he would be harmed if returned to his home region in Pakistan because he is a Shia Muslim, a Bangash tribe member, a Pushtun Shia from Parachinar, and because of that background, and his membership of particular social groups, an imputed political opinion that he is anti-Taliban. 3 The Tribunal made its decision on 21 January 2016, the applicant having appeared before the Tribunal at a much earlier time on 21 July 2015. As will become apparent, after the hearing, further material was provided to the Tribunal by the applicant. 4 The Tribunal accepted that the applicant's home region in Pakistan is the Kurram Agency. The Tribunal accepted that the applicant's home region had seen considerable recurring episodes of violence in the years preceding its decision. The Tribunal noted, however, that in more recent years the level of general violence had reduced. It relied on various sources of country information. At [55] of its decision, the Tribunal referred to what it called a further act of violence that had taken place on 13 December 2015 when at least 25 people had been killed and over 70 injured in a bomb explosion in a clothes market in Parachinar, a province within the Kurram Agency. It went on to observe that a particular organisation associated with the Taliban, claimed responsibility for that attack in retaliation for Shia support of Iran and Bashar al-Assad. The Tribunal said that it had taken that attack into account in its assessment of the risk of harm to the applicant. 5 I have been taken to a number of passages in the Tribunal's reasons, but it seems that the most critical paragraph relevant to the applicant's proposed ground of appeal is [79]. That paragraph states that: The Tribunal accepts that on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar and whether this incident would lead to further sectarian violence. The Tribunal considers, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports of the FATA Research Centre. The Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous, the Tribunal considers that it would be premature to conclude that this attack – the first such attack in Parachinar for almost two and a half years – marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all the evidence before the Tribunal concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar. 6 The principles relevant to the determination of an application for an extension of time are well known. Consideration must be given to the length of the delay, the explanation for the delay, any prejudice to the respondent if time is extended, and the merits of the applicant's proposed appeal. None of those matters is, of itself, determinative and the discretion reposed in the Court must be exercised according to the individual facts of the case. 7 The Minister contended that an extension of time should be refused on the single ground that proposed ground of appeal has no prospects of success. The Minister's submission was that if the Court found that the proposed ground was meritorious, the Minister does not otherwise seek to be heard in opposition to the grant of an extension of time on which the applicant can institute an appeal. 8 I have two affidavits of the applicant which seek to explain the delay, a delay which, I might say, is not inconsiderable. Given that neither the adequacy of that explanation, nor the question of prejudice to the Minister is in contest, I will proceed on the basis that the Court need not be further troubled by those considerations. 9 The matter of significance is whether or not the Court can be satisfied that the ground of appeal that the applicant proposes to rely upon should leave be granted has any prospect of success. I accept the applicant's submission, by reference to the judgment of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, that the question of whether there are reasonable prospects of success should be approached on an impressionistic basis, and that all the Court need be satisfied of is that there is an arguable case, in the sense that on its face, the argument is not plainly hopeless. 10 The applicant's single proposed ground of appeal is that the Tribunal misunderstood or misapplied the definition of "refugee". Relevantly, a refugee within the meaning of the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) is a person who has a well-founded fear of persecution on particular grounds. The applicant contends that by its assessment of whether he held a well-founded fear of persecution the Tribunal applied a higher threshold, or a higher standard, than that which the relevant test, sometimes called the "real chance" test, demands. In that respect, the applicant pointed in particular to the approach taken by the Tribunal at [79], and contended, in essence, that that approach and in particular, the reference to "premature" and "definite change" bespoke of the application of the wrong test, a test imposing a higher threshold than that applicable. 11 To that contention, the Minister responded by identifying various observations made by the Tribunal at various paragraphs within its reasons where terminology more consistent with the appropriate test was utilised (such as "real chance" and the like). 12 It was submitted that the reference to "premature" and "definite change" should be considered as isolated and not indicative of the application of the wrong standard or test. 13 I consider it is arguable, in the sense that I have identified, that the observations relied upon by the applicant in the context of the decision as a whole do indicate a higher threshold being applied. 14 In that context, and taking into account the potentially severe impact upon the applicant of the loss of an opportunity to institute his appeal, it seems to me that the interests of justice require that the application for an extension of time be granted. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 19 March 2018