Federal Court of Australia DIV16 v Minister for Home Affairs [2020] FCA 1451 Appeal from: Application for extension of time: DIV16 v Minister for Immigration & Anor [2018] FCCA 3349 File number: NSD 2359 of 2018 Judgment of: JAGOT J Date of judgment: 9 October 2020 Catchwords: MIGRATION – application for extension of time – applicable principles – application dismissed Legislation: Federal Court Rules 2011 (Cth) r 36.03 Cases cited: CEA16 v Minister for Immigration of Border Protection [2017] FCCA 2444 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 2 October 2020 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: B Kaplan Solicitor for the First Respondent: HWL Ebsworth Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 2359 of 2018 BETWEEN: DIV16 Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: JAGOT J DATE OF ORDER: 9 OCTOBER 2020 THE COURT ORDERS THAT: 1. The application for extension of time filed on 18 December 2018 be dismissed. 2. The applicant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 This is an application for an extension of time to file an appeal. The proposed appeal is against orders made by the Federal Circuit Court of Australia on 23 November 2018: DIV16 v Minister for Immigration & Anor [2018] FCCA 3349 (the primary decision). 2 In accordance with r 36.03 of the Federal Court Rules 2011 (Cth), as it was at the relevant time, the applicant was required to file a notice of appeal within 21 days of the primary decision, that is, by 14 December 2018. However, the applicant did not file his application until 18 December 2018. In his supporting affidavit the applicant stated that he attempted to commence proceedings on 13 December 2018 and applied for a fee waiver however that application was refused on 14 December 2018 as the applicant had not disclosed sufficient documentation evidencing financial hardship. For this reason an extension of time is required. 3 At the commencement of the hearing the applicant sought an adjournment of the proceedings in order to obtain legal assistance. In support of the application for adjournment, the applicant submitted that he was under financial hardship. The first respondent (the Minister) opposed the application on the basis that these proceedings were commenced in December 2018 and that no such application had been previously made. I accepted the Minister's submissions and did not allow the adjournment as sought by the applicant. The hearing of the application for the extension of time continued. 4 In his written submissions the Minister highlighted the relevant factors that should be taken into account when considering whether an extension of time should be granted. These include the extent of and explanation for the delay, any prejudice a respondent might suffer because of the delay and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–349. The Minister conceded that the extent of the delay was short and that the applicant's explanation for the delay weighed in the applicant's favour. The Minister further conceded that he will not be prejudiced by the grant of an extension of time. Accordingly, at issue is whether the proposed appeal is sufficiently meritorious to warrant an extension of time. 5 The applicant's draft notice of appeal to this Court contains the following ground: 1. The primary judge erred by dismissing ground 1 of the further amended application for review of the Tribunal's [sic] decision. 6 Ground 1 of the further amended application for review of the second respondent's (the IAA) decision reads as follows: 1. The Authority failed to lawfully consider whether the applicant faced a well founded fear of persecution, or a real risk that he would suffer significant harm, upon return to the Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. Particulars (a) Despite purporting to consider the foreseeable future, the Authority; (i) In reality only considered the situation in Kurram Agency at the time of its decision, and, (ii) Failed to take into account country information before it directly relevant to the chances of increased Sunni militant insurgency into the Kurram Agency. 7 The applicant neither filed written submission nor advanced any oral submissions in support of his application for an extension of time. I accept the Minister's submission that the applicant has not identified an arguable error in the primary decision. No error can be discerned from the primary decision. In my view it is clear that the IAA applied a forward-looking test to the assessment of the chance of the applicant facing serious harm in Pakistan (the forward-looking test) and considered the country information that suggested that the security situation was declining (the declining security situation). 8 In relation to the forward-looking test the IAA stated at [19]: ...On the balance of the evidence before me, I consider there to be only a remote or speculative chance and therefore not a real chance the applicant will face serious harm from the LEJ, SSP, the Taliban, daesh, other anti-Shia militants and/or the Pakistan authorities singularly or cumulatively because of his age, he is a member of the Bangash tribe, he is a Pashtun Shia Muslim, he has an imputed anti-Taliban political opinion and/or he comes from the named agency, now or in the reasonably foreseeable future, if he returns to Pakistan. (Emphasis in original). 9 The IAA's finding, as extracted above, is clearly expressed as addressing the future. Use of the words "now or in the reasonably foreseeable future" are not always decisive in determining whether the correct test has been applied, but they do support the conclusion that the correct test was applied: CEA16 v Minister for Immigration of Border Protection [2017] FCCA 2444 at [34]. The primary judge also identified that "[n]ot only does a finding about 'risk' and 'chance' necessarily involve the future, but the future tense ('will') makes it pellucid that that was what the [IAA] was addressing": primary decision at [24]. It is clear that the IAA applied the forward-looking test. 10 In relation to the declining security situation, the IAA found at [15] that: (1) Pakistan "continues to face security threats"; (2) since June 2014 counter-terrorism efforts had "substantially reduced the level of generalised and sectarian violence"; and (3) this "trend" had "increased over the course of 2015". 11 The primary judge addressed the IAA's finding in relation to the declining security situation at [23] where his Honour noted: The Authority said that it had referred to the information before the delegate. That material showed that the circumstances were not necessarily stable in Pakistan. It included information that Pakistan "continues" to face security threats, but that there had been a substantial reduction of the level of violence throughout the country, a "trend" that had increased over the course of 2015. 12 After considering the IAA's decision and the applicant's contentions the primary judge concluded at [29]: I am not satisfied that the existence of that information overcomes the clear indications in the Authority's reasons that it did engage in the necessary forward-looking test. Ultimately, it arrived at its decision because it found that, "on the balance of the evidence" the situation did not admit of a real chance of serious or significant harm now, or in the reasonably foreseeable future. In other words, it took into account the evidence that suggested that the situation may change for the worse, but preferred the information that suggested otherwise. The weight given to the information before the Authority was a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], [13]. 13 The primary decision clearly identifies features of the IAA's decision that applied the forward-looking test and considered the declining security situation. The primary decision comprehensively considered the matter which the applicant raised in support of his application and dismissed the applicant's contentions. The draft notice of appeal does not identify any arguable case of jurisdictional error and therefore cannot be maintained. In these circumstances, there is no utility in the grant of the extension of time sought. The application must be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate: Dated: 9 October 2020