AJB15 v Minister for Immigration and Border Protection
[2016] FCA 1102
•9 September 2016
FEDERAL COURT OF AUSTRALIA
AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102
Review of: AJB15 v Minister for Immigration & Anor [2016] FCCA 1005 File number: NSD 767 of 2016 Judge: COLLIER J Date of judgment: 9 September 2016 Catchwords: MIGRATION – application for relief under s 39B Judiciary Act 1903 (Cth) – primary Judge dismissed application for extension of time required pursuant to s 477(2) Migration Act 1958 (Cth) – whether primary Judge erred by misinterpreting, misunderstanding or misapplying applicable law – whether primary Judge failed to ask correct questions in relation to prospects of success of proposed appeal – applicant claimed to fear persecution if returned to Egypt due to homosexuality – whether Tribunal should have considered applicant’s claim of harm in Egypt as a result of being a failed asylum seeker on the basis of a rejected claim of homosexuality – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 476, 477, 477(1), 477(2)
Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
Date of hearing: 10 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: Mr J Williams Solicitor for the First Respondent: Mr A Markus of the Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs Solicitor for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs ORDERS
NSD 767 of 2016 BETWEEN: AJB15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
9 SEPTEMBER 2016
THE COURT ORDERS THAT:
The amended application for relief under s 39B of the Judiciary Act 1903 (Cth) filed 18 July 2016 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an amended application pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of a Federal Circuit Court Judge delivered in AJB15 v Minister for Immigration & Anor [2016] FCCA 1005 where the primary Judge dismissed an application for an extension of time in which to review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). In its decision the Tribunal had affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). In the Tribunal the applicant claimed to be homosexual, which claim was rejected by the Tribunal.
Both the applicant and the Minister were legally represented at the hearing before me. Before turning to the respective cases of the parties it is useful to summarise the background to this application.
Background
The applicant claims to be a citizen of Egypt. He applied to the Department of Immigration for a protection visa on 6 June 2013. The basis of his claim was that he was homosexual, and that for that reason he would be persecuted and possibly killed if he were to return to Egypt. He said that he had had two relationships with women and a number of casual relationships with men whilst in Egypt.
The applicant alleged that he had had a brief relationship with an older man in 2006 but the relationship ended, and the older man then began to spread rumours that the applicant was homosexual. As a result there was pressure on him to marry, which he did, however his marriage effectively ended six months after his son was born.
The applicant claimed that he began a relationship with a bisexual entertainer in Egypt in 2008, which relationship continued on and off until 2013 when the entertainer arranged for the applicant to travel to Australia. After arriving in Sydney the applicant visited certain areas of the city trying to find gay nightclubs but had difficulty because of language barriers.
The applicant failed to attend the interview with the delegate of the Minister in respect of his application for a visa, and he claimed in the Tribunal that this was due to medical issues.
Tribunal hearing
In the Tribunal the applicant gave evidence of his homosexuality, his sexual activity since his early teens, and the concerns of his mother as to rumours of his homosexuality. The Tribunal asked if the applicant had expressed his homosexuality in Australia, and the applicant gave evidence of his visits to prominent nightclubs in Sydney (including the 357 Club) and his relationship of several months with a Jordanian man. The Tribunal asked the applicant if he had participated in the homosexual community in Australia, and the applicant replied that he was aware of an Arab group engaged with the Sydney Mardi Gras. The Tribunal observed:
28.Asked if he knew of any other Arab-friendly gay groups, he claimed there were others but he hadn’t tried to contact them. He had 357 to satisfy his desires; he had no time to find things. It was put to him that being gay was more than just sex, it included relationships and being part of a broader community. Particularly given he had felt so constrained in Egypt. He claimed he was still learning about what everything was all about and knew that there was this organisation for them.
A witness appeared for the applicant, claiming that they had been friends for several weeks.
The applicant agreed that his wife had conceived a child just before he had left Egypt, but he said that in Egyptian culture people were expected to procreate.
The Tribunal put it to the applicant that he was sharing a house with heterosexual people in Bankstown and had not made an effort to move into accommodation with other homosexual people.
The Tribunal reached a decision on 6 August 2014. After setting out the applicant’s claims and evidence, the Tribunal concluded, in summary, as follows:
·The applicant’s evidence regarding his homosexuality lacked credibility. The Tribunal considered that he had fabricated his claim in order to be granted a protection visa.
·It was not satisfied that the applicant had any homosexual experiences in Egypt. His account of a homosexual encounter with a classmate at school appeared to be so coincidental and implausible as to be fabricated.
·The applicant’s claims regarding his other relationships in Egypt. He was unable to produce, for example, any record or correspondence such as emails. He was not active on websites which could indicate homosexual activism.
·It was not satisfied that any rumour had been spread by a previous homosexual partner of the applicant in Egypt in relation to the applicant’s homosexuality.
·While there is no specific test that allows one to determine whether a person is homosexual or not, there is nothing in the applicant’s behaviour to suggest that he has led or tried to lead a homosexual lifestyle. So, for example, the applicant never attempted to give expression to his alleged homosexuality by interacting with any clubs or support groups for the homosexual community. The Tribunal observed:
In addition, despite claiming he wanted to give expression to his homosexuality so much that he left Egypt, he lived in a share house in Bankstown with heterosexual Egyptians.
I do not accept that he did this because he could not afford to live anywhere else; he made no attempt to explore other accommodation alternatives more in sympathy with the lifestyle he claimed to have come to Australia to pursue. I also do not believe that he could not move because he only socialised with a friend called Bilal – he made no attempt to research any gay or Arab gay support groups that may have been able to assist him with accommodation alternatives. Indeed, he claimed that he found his accommodation through someone at Lakemba mosque – an unusual choice for someone claiming to want to give expression to his homosexuality.
·It was not satisfied that the applicant had had a relationship in Australia with a Jordanian man as he had claimed.
·It lent no weight to the evidence of the witness who supported the applicant. No evidence of their relationship was provided other than verbal testimony, and indeed the witness said that he could shed no light on the applicant’s homosexual identity because it wasn’t part of his business.
·It lent little weight to the photos presented post-hearing which showed the applicant kissing the cheek of a bare-chested man in the Mardi Gras with his arms around two other bare-chested men. The Tribunal observed that the photos were not indicative of anything other than the applicant attended Mardi Gras as a spectator and had had his photo taken with random participants.
·Although not determinative, the applicant’s second child was born after his arrival in Australia, and was clearly conceived while he claimed to be in a homosexual relationship. The Tribunal did not accept that the applicant only tried to produce another child because of social pressure.
Finally, the Tribunal was not satisfied that the applicant was or would be perceived to be homosexual in Egypt, or that he would suffer significant harm for that reason.
Decision of the Federal Circuit Court
On 2 April 2015 pursuant to s 476 of the Act the applicant filed an application for judicial review of the decision of the Tribunal in the Federal Circuit Court. An application for judicial review of a decision of the Tribunal must be filed within 35 days of the date of its decision: s 477(1) of the Act. It followed that the application was out of time and to progress the matter the applicant required an order from the Federal Circuit Court granting him an extension of time pursuant to s 477(2) of the Act.
Orders had been made in the Federal Circuit Court for the applicant to file amended pleadings and evidence. The applicant did not comply with those orders, however in light of the absence of opposition by the Minister the Court granted the applicant leave to file an amended application for consideration. At the hearing his Honour informed the parties that he would reserve his decision on the amended application and hear argument on the application for extension of time.
The primary Judge found that it was not necessary in the interests of the administration of justice to make an order extending the time for lodging the application for judicial review, for reasons which can be summarised as follows:
·the application was filed more than six months out of time;
·the primary Judge did not accept the applicant’s claim that he was unaware of the availability of judicial review;
·no reasonable excuse for the applicant having failed to file an application within time had been advanced;
·contrary to the submission of the applicant that the case involved the interests of the international community in respect of the interaction between homosexuality and religious fundamentalism, the essence of the Tribunal’s decision was that the applicant claimed to be homosexual and the Tribunal did not accept this claim;
·there were insufficient prospects of success to warrant either leave to amend the application being granted, or satisfy his Honour that the interests of justice supported an extension of time.
His Honour then had regard to the grounds in the proposed amended application before him, which I have taken from his Honour’s judgment to be as follows (with particulars omitted):
1.The adverse credibility findings by the second respondent was affected by jurisdictional error as it revealed a sufficient lack of rational logical connection between the tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
2.(a) The Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
(b)Alternatively, the second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.
3.The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.
4.The second respondent failed to take into account a relevant consideration in the exercise of power or failed to give proper, genuine or realistic consideration of the applicant’s claims or integers of those claims.
5.The second respondent exercised power in a manner that was unreasonable, or lack evident or intelligible justification.
His Honour examined each proposed ground of review and, in finding that they had no reasonable prospects of success, observed (in summary):
1.The extensive particulars to the first ground constituted an attempt to re-agitate the merits of the applicant’s claim to be a homosexual. Further, and contrary to the submissions of the applicant, there was a basis in the evidence for each of the Tribunal’s findings.
2.The second ground of review appeared to be nothing more than a different way of stating the same arguments raised in support of the first ground.
3.The third ground of review relied on particulars to the first ground. Further, in particulars to this ground the applicant claimed that the Tribunal failed to examine the integer of the applicant’s claim that he would face a real risk of serious or significant harm at the hands of his family, community or Islamic extremists for being a failed asylum seeker on the basis of his failed claims of homosexuality. The primary Judge found that the applicant never claimed that he might be harmed upon return to Egypt because he had failed in a claim based on homosexuality. Further, the applicant did not, and could not, point to any evidence before the Tribunal which, if accepted, might have established that the applicant had a well-founded fear of persecution in Egypt for reasons of a failed claim based on homosexuality. As a result, there was no obligation on the Tribunal to consider the existence of such a fear.
4.Materially one of the particulars of the fourth ground of review was that the Tribunal failed to take into account the applicant’s claims referable to, inter alia, his photographs and the testimony of the witness. This was clearly not the case.
5.The fifth ground of review had no prospects of success for the same reason as the first ground.
Accordingly his Honour made the following orders:
1.The applicant have leave to rely on the amended application annexed and attached as “A” to the affidavit of the applicant sworn 24 February 2016.
2.The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) be dismissed.
3. The applicant pay the first respondent’s costs fixed in the amount of $6,825.
4.The name of the second respondent be amended to Administrative Appeals Tribunal.
Application to the Federal Court
The applicant initially filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) on 20 May 2016. In that originating application the applicant claimed as follows:
Grounds of the Application
The applicant seeks judicial review of the judgement by Judge Smith (primary judge) of the Federal Circuit Court of Australia in AJB15 v Minister for Immigration & Anor 2016 FCCA 1005 (29 April 2016).
The applicant relies on his affidavit sworn 20 May 2015 in support of the application for judicial review.
Ground 1: Jurisdictional Error of Law
1.The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question by finding that none of the arguments had prospects of success.
Particulars
a)At [48], the primary judge erred by finding ‘For those reasons, I conclude that none of the arguments raised by the applicant in the proposed amended application has any prospects of success. In those circumstances, any amendment to include them would be futile and so I would refuse leave to rely on those grounds.’
Relief
The Applicant applies for the following relief under section 39B of the Judiciary Act 1903:
1.A writ of certiorari, bringing the decision of the second and third respondent into this Court to be quashed.
2.A writ of mandamus, directing the second respondent to re-determine the applicant’s application according to law.
3.A writ of prohibition, restraining the first respondent, his employees, officers, delegates or agents from acting upon or giving effect to the decision.
4. Any other orders or relief the Court considers appropriate.
5. Costs in this and the primary proceedings.
On 18 July 2016 however the applicant filed an amended application for relief, upon which he relied at the hearing before me. In his amended application the applicant claimed as follows:
Grounds of the Application
The applicant seeks judicial review of the judgement by Judge Smith (primary judge) of the Federal Circuit Court of Australia in AJB15 v Minister for Immigration & Anor 2016 FCCA 1005 (29 April 2016).
The applicant relies on his affidavit sworn 20 May 2015 in support of the application for judicial review.
Ground 1: Jurisdictional Error of Law
1.The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question that there were insufficient prospects of success to grant leave to amend the application or to overcome the lack of a reasonable excuse for failing to file the original application within time.
Particulars
a)At [21], the primary judge erred by finding that ‘[thirdly], there are insufficient prospects of success to warrant either leave to amend the application or to outweigh the lack of reasonable excuse for delay such as to satisfy me that it is necessary in the interests of the administration of justice for an extension of time be granted.’
Ground 3(a) of the Amended Application
b)With regard to ground three, of the amended application, there are two particulars to this ground. The first is a reference back to the particulars to ground one.
Adverse credibility finding
c)The adverse credibility finding by the second respondent at [37] of the decision record was affected by jurisdictional error as it revealed a sufficient lack of rational or logical connection between the tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
The Relationship with Bilal
d)At [47], there was insufficient logical or evidentiary basis for the second respondent to refute that the applicant had a relationship in Australia with a Jordanian called Bilal.
The Testimony of the Witness
e)At [48], there was insufficient logical or evidentiary basis for the second respondent to lend ‘no weight to the witness who came to support to the applicant; although he claimed they were in a casual relationship…’
The Photographs of Mardi Gras
f)At [49], there was an insufficient logical or evidentiary basis for the second respondent to lend ‘little weight to the photos presented post-hearing. They showed the applicant kissing the cheek of a bare-chested man in the mardi gras and with his arms around two different barechested men in a different street setting.’
g)At [50] there was an insufficient logical or evidentiary basis for the second respondent to find that the ‘other photos are undated and show the applicant with someone who is allegedly Bilal. One or both of the people in the photos appears intoxicated ad there is nothing in them to indicate that they are in some kind of homosexual relationship.’
h)In light of this, when forming a view on the credibility of the applicant, the Tribunal failed to consider the overall consistency and coherence of an applicant’s account. Further, the alleged contradictions, inconsistencies and omissions by the applicant arose due his history of dislocation, hostilities towards his homosexuality from his family and community and the passage of time. In doing so the member failed to provide an objective or impartial assessment or provide an evidence based assessment, focusing on the material facts.
i)The primary judge therefore erred at [37] when finding that ‘[f]or the reasons that I have given in respect of that ground, there are no prospects of this reformulated argument.’
Ground 3(b) of the Amended Application
j)The second particular is that the Tribunal failed to examine the “integer of the applicant’s claim that he would face a real risk of serious or significant harm at the hands of his family, community or Islamic extremist for being a failed asylum seeker on the basis of his failed claims of homosexuality.
k)The primary judge erred at [39] by finding that there was ‘simply no obligation on the Tribunal to consider the existence of such a fear.’
l)It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
m)The primary judge therefore erred at [48], by finding ‘[f]or those reasons, I conclude that none of the arguments raised by the applicant in the proposed amended application has any prospects of success. In those circumstances, any amendment to include them would be futile and so I would refuse leave to rely on those grounds.’
Relief
The Applicant applies for the following relief under section 39B of the Judiciary Act 1903:
1.A writ of certiorari, bringing the decision of the second and third respondent into this Court to be quashed.
2.A writ of mandamus, directing the second respondent to re-determine the applicant’s application according to law.
3.A writ of prohibition, restraining the first respondent, his employees, officers, delegates or agents from acting upon or giving effect to the decision.
4. Any other orders or relief the Court considers appropriate.
5. Costs in this and the primary proceedings.
At the hearing Counsel for the applicant informed me that the applicant did not press particular (d).
Consideration
The notice of appeal appears to contain one ground with detailed particulars referable to specific paragraphs of the primary judgment. At the hearing Mr Williams for the applicant submitted that the ground of review relied on related to a misapplication or misunderstanding of relevant principles on the part of the primary Judge, in the exercise of his discretion to grant leave to amend the application before him or to grant an extension of time. Counsel submitted that this single ground of review could be explained by way of three primary contentions, which can be summarised as follows.
The first primary contention was that the primary Judge acted unreasonably in exercising his discretion not to award an extension of time in terms explained by the majority in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63]-[76]. In particular the primary Judge erred in failing to find that the applicant had an arguable case – a factor which should have outweighed the lateness of his application.
The second contention was that it is well-established that the Court enjoys a general power to amend an application and may do so at any time, that the applicant sought to raise the real risk of harm for being a failed asylum seeker on the basis of his homosexuality, and that in this case the primary Judge ought to have granted the applicant leave to amend his application to reflect this additional claim in the interests of justice.
The third contention was that the primary Judge erred in his consideration of ground 3 of the application before him, in:
·failing to find that the adverse credibility findings of the Tribunal in connection with the applicant were illogical, irrational and unreasonable; and
·failing to examine the integer of the applicant’s claim that he would face a real risk of serious or significant harm at the hands of his family, community or Islamic extremists for being a failed asylum seeker on the basis of his failed claims of homosexuality.
Mr Markus for the Minister submitted, in summary, that:
·the question whether the grounds the applicant sought to rely on in the proceedings below were of sufficient merit to warrant an extension of time, was clearly within the jurisdiction of the Federal Circuit Court;
·none of the alleged errors in the Tribunal’s decision were capable of being made out.
Extension of time
The proper approach of this Court and the Federal Circuit Court to an application for an extension of time in which to file a substantive application has been the subject of extensive comment in the Federal Court at appellate level. The position where an applicant seeks an extension of time to seek relief in exercise of the Federal Circuit Court’s original jurisdiction under s 476 of the Act in respect of a migration decision is complicated by the terms of s 477(2) of the Act which provides:
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The recent decision of the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 involved proceedings which, so far as are relevant to the case before me, were described by Tracey, Perry and Charlesworth JJ in the following terms:
1.… an appeal from a decision of a single judge of this Court dismissing the appellant’s application for judicial review of a decision of the Federal Circuit Court (the FCC). The FCC had dismissed the appellant’s application for an extension of time within which to seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the Minister’s decision not to grant him a protection visa. The substantive issue which the appellant seeks to agitate is whether the FCC fell into jurisdictional error in misconstruing the power to extend time under s 477(2) of the Migration Act 1958 (Cth) (the Act). Specifically, it is alleged that the FCC erred in taking the approach that it would be “in the interests of the administration of justice” to extend time only if the FCC were persuaded that the appellant “could succeed” in any of his grounds of review, instead of having regard only to whether the grounds of review were reasonably arguable or have reasonable prospects of success (the substantive issue).
The Full Court at [19] summarised the appellant’s argument in that case as being that the Federal Circuit Court failed to apply the test in s 477(2) but rather relied upon the principles articulated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Their Honours referred to comments of the primary Judge in that case at [2015] FCA 1391, in particular:
62.… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63.The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application , which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
At [38] the Full Court endorsed these comments of her Honour at first instance.
With these principles in mind it is appropriate to now turn to the decision of the primary Judge in the case before me in respect of his Honour’s approach to the application for extension of time before him. In doing so I make the following observations.
First, it is clear that his Honour was mindful of the terms of s 477 of the Act, and the question whether it would be necessary in the interests of the administration of justice to make an order extending time for the applicant to seek judicial review. This is clear from [17] and [18] of the primary judgment where his Honour not only refers to the section but picks up the language of s 477 in his reasoning.
Second, in his examination of whether it was necessary in the interests of the administration of justice to make the order sought by the applicant for extension of time, his Honour had regard to matters commonly considered in respect of such applications, including whether there had been a reasonable and adequate explanation for the delay, whether there was any prejudice to the Minister, and whether the applicant’s substantive case for judicial review was sufficiently arguable to justify the extension of time. There is no suggestion by the applicant that his explanation for the delay and the question of prejudice are not relevant considerations, and indeed his Honour resolved the issue of prejudice to the Minister in favour of the applicant.
Third, his Honour concluded at [21] that the applicant had not given an adequate explanation for the delay and that there were “insufficient prospects of success” to outweigh the lack of reasonable excuse for delay such as to satisfy him that it was necessary in the interests of the administration of justice for an extension of time to be granted. In so doing for the reasons I set out earlier in this judgment, his Honour carefully examined the grounds of review in the proposed amended application and gave detailed reasons for his decisions.
Overall, I am satisfied that his Honour adopted a correct approach to the question whether the applicant should be granted an extension of time to file his substantive application under the Act.
Turning to the primary contentions made by the applicant, it is convenient to consider them in reverse order on the basis that the first contention is in the nature of a “catch-all” allegation, whereas the second and third contentions raise specific issues in the primary judgment.
Third primary contention
The applicant’s third contention addresses the Court’s view of the Tribunal’s credibility findings concerning the applicant, and the failure of the Tribunal to address whether the applicant would be the subject of harm should he return to Egypt as a failed asylum seeker on the basis of a rejected claim of homosexuality. In relation to the credibility findings his Honour considered that the applicant sought an impermissible review of the merits of the Tribunal’s decision (for example, at [25], [29] and [32]). In my view this approach of his Honour displays no error.
So far as concerns the question whether the Tribunal should have considered the prospect of harm being occasioned to the applicant in his capacity as a failed asylum seeker, his Honour observed at [39] in relation to the applicant’s submissions:
What they do not grapple with is the fact that the applicant never claimed that he might be harmed upon return to Egypt because he had failed in a claim based upon homosexuality. Further, the applicant did not, and could not, point to any evidence that was before the Tribunal which, if accepted, might have established that the applicant had a well-founded fear of persecution in Egypt for reasons of a failed claim based on homosexuality. In light of that, there was simply no obligation on the Tribunal to consider the existence of such a fear. The Tribunal dealt with and rejected the claims actually made by the applicant.
In my view this reasoning involves no error on the part of the primary Judge.
Second primary contention
In my view this contention, which appears to refer to particular (a), is misconceived. The applicant claims that the primary Judge refused leave to the applicant to amend his substantive application in the Federal Circuit Court however notwithstanding his Honour’s comment in [48] to which the applicant refers in particular (m), it is clear that the Court did grant the applicant leave to rely on the amended application in the case before him. That this is so is apparent from:
·[15] and [49] of the primary judgment;
·the fact that his Honour’s judgment specifically deals with the applicant’s proposed amended application (see for example [26], [34], [36]. [41], and [44]); and
·Order 1 of his Honour’s orders, which granted the applicant leave to rely on the amended application.
Further, there is nothing before the Court to suggest that the primary Judge did not have regard to the grounds of review upon which the applicant proposed to rely should his application for extension of time be successful. Indeed, it is clear that his Honour had specific regard to the ground proposed by the applicant whether the Tribunal had examined the integer of the applicant’s claim (that he would suffer harm as a failed asylum seeker should he return to Egypt), and considered that this ground had no prospects of success.
First primary contention
The first primary contention of the applicant involved the global question whether, in finding that the applicant had no arguable case, the primary Judge’s approach was irrational or illogical as explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ (namely one which no rational or logical decision-maker could arrive on the same evidence) or unreasonable as explained in Li [2013] HCA 18; (2013) 249 CLR 332 at [90]-[92] per Gageler J (namely a decision made in a manner so devoid of plausible justification that no reasonable person could have taken that course). I have already referred to a number of specific proposed grounds in respect of which the primary Judge considered the applicant had no prospect of success. Other particulars to the ground of review raise specific factual findings referable to evidence of the witness (particular (e)) and photographs of the Mardi Gras (particulars (f), (g), (h) and (i)). As his Honour observed at [42], the Tribunal clearly made factual findings in relation to these issues, and the true problem appeared to be that the applicant did not accept those findings.
There is nothing illogical, irrational, or unreasonable about his Honour’s findings.
Conclusion
In my view his Honour properly approached the application for extension of time before him. No jurisdictional error attends his Honour’s reasoning. In substance, the application before this Court appears to be an attack on the – proper – refusal of his Honour to conduct a merits review of the Tribunal’s decision.
There can be no dispute that the applicant was out of time in filing an application for judicial review of the Tribunal’s decision with the Federal Circuit Court. Albeit with clear reservations, his Honour ordered that the applicant be granted leave to rely on his proposed amended application in the context of the amended application before the Court, and had regard to the proposed grounds of review. I am unable to identify any basis on which the applicant should be entitled to any relief in this Court in respect of this issue.
The amended application before the Court should be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 9 September 2016
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