Alami v Minister for Immigration & Anor
[2011] FMCA 623
•26 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALAMI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 623 |
| MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – time limits apply under Migration Act – time extended for 28 days – claims of Hazara Shia Afghani – reviewer did not fail to consider ethnic and religious background when assessing individual circumstances – no legal or procedural error established – application dismissed. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, 6 Constitution, s.75(v) Migration Act 1958 (Cth), ss.5, 5E, 36(2), 46A, 195A, 198, 198(2), 417, 474(2), 474(3), 474(3)(g), 474(3)(h), 474(4), 474(6), 474(7), 476, 476(1), 477, 477(1), 477(2), 477(2)(b), 477(3)(d) |
| Ajaj v Minister for Immigration & Anor [2010] FMCA 873 Applicants S1527 of 2003 v Minister for Immigration & Anor [2005] FMCA 1846 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651 Darabi v Minister for Immigration & Anor [2011] FMCA 371 Griffith University v Tang (2005) 221 CLR 99 Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802 Khanam v Minister for Immigration & Citizenship (2009) 111 ALD 421, [2009] FCA 966 Margarula v Minister For Environment (1999) 92 FCR 35, [1999] FCA 730 Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260, [2007] FCAFC 39 SZICV v Minister for Immigration & Anor (2006) 202 FLR 200, [2006] FMCA 1063 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQEC v Minister for Immigration & Anor [2011] FMCA 543 SZQEL v Minister for Immigration & Anor (No.2) [2011] FMCA 582 WAFK v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 209, [2003] FCA 1293 |
| Applicant: | MOHAMMAD ZIA ALAMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 825 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 28 July 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 29 April 2011.
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 825 of 2011
| MOHAMMAD ZIA ALAMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Mr Alami attempted to reach Australia on a boat which was taken to Christmas Island in February 2010. He thereby became an ‘offshore entry person’ for the purposes of the Migration Act 1958 (Cth). On 2 May 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to Mr Alami on 23 June 2010, and he then applied for ‘independent merits review’ under those procedures.
On 17 February 2011, Mr Blount reported to the Minister that Mr Alami did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommended that Mr Alami should not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. A letter was then prepared by an officer in the Department of Immigration in Canberra, which attached a copy of the report and informed Mr Alami of his right to seek judicial review. The letter informed him that “it is the Department’s practice to accept such recommendations”, and told him:
If you decide to seek judicial review of the independent reviewer’s assessment, you have 35 days from the date of this letter to lodge your request, and you will remain in detention while your case is considered.
If you decide not to seek judicial review of this assessment, the Department will:
·make arrangements for your return to Afghanistan. This will include obtaining travel documents on your behalf. Your case manager will contact you to discuss this process.
·give you 35 days from the date of this letter to provide any new or additional information which you would like to have taken into consideration. Such information may relate to humanitarian concerns or to circumstances raising international human rights obligations that may affect your return to Afghanistan. Any information you wish to be taken into consideration must be emailed to the International Obligations mailbox [email address].
The letter is dated 25 February 2011, and Mr Alami claims that he received it on 3 March 2011. There is no sworn evidence about when he received it, but it is reasonable to assume that there was a delay before it was delivered to him, since at all relevant times he has been held at Curtin Immigration Detention Centre in outback Western Australia. He gained assistance there from the convenor of Balmain for Refugees, and she arranged for him to be seen by a Sydney barrister who visited Curtin over Easter. The present application was filed in the Sydney Registry of the Court on 29 April 2011, and the matter was placed in my docket.
On Mr Alami’s request at the first court date, a pseudonym which had been applied to the title of the proceedings by the Registry was removed. Mr Alami was represented at the hearing by his counsel, and no application was made for the Court to order his attendance at the hearing in Sydney.
The application identified the ‘migration decision’ in relation to which review was sought as: “a future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person, following the making of a recommendation by an Independent Merits Reviewer”. It did so by choosing the third option offered in the approved form. It sought a declaration that Mr Blount’s report “was not made in accordance with law, by reason of the grounds of this application”, and an injunction restraining the Minister “by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer”.
An amended application filed on 30 June 2011 states that “this application is in respect of a recommendation made by the second respondent to the first respondent that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention”. It continues to seek relief by way of injunction against the Minister from relying on the recommendation, and a declaration that Mr Blount “made an error of law in that he failed to observe the requirements of procedural fairness”.
It is clear that the original application and the amended application seek to attract this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”) at [51].
I shall below consider whether that jurisdiction is dependent upon the Court ordering an extension of time under s.477(2). This question turns upon whether Mr Blount’s report and recommendation is itself to be characterised as a past ‘migration decision’ as defined in the Migration Act. If it is not, then Mr Alami’s application is probably competent without the need for any extension of time, in so far as it seeks a quia timet injunction in relation to an anticipated future ‘migration decision’ which would rely upon assumptions as to the lawfulness of Mr Blount’s report. Future decisions or action can be anticipated from the Minister under s.46A, i.e. to give no further consideration to the applicant’s refugee status and whether to allow him to apply for a protection visa, and from his officers under s.198(2) to remove the applicant from Australia upon completion of the Department’s refugee assessment inquiries.
Because this is the first offshore entry person case in my docket where the Minister has raised s.477, I directed counsel to file supplementary submissions as to its application. I have concluded that the characterisation of Mr Blount’s report as a ‘migration decision’ should be decided in favour of the Minister by an application of the High Court’s reasoning in Plaintiff M61. I have also concluded in the circumstances of the present case that it is appropriate to exercise the discretion under s.477(2). I shall explain my reasoning on these issues after examining the substantive merits of the matter.
Mr Alami’s refugee claims
Mr Alami’s claims were explained at his ‘entry interview’ on 30 March 2010, and were maintained at his subsequent interviews. He said he was an ethnic Hazara and Shia Muslim, who lived and worked as a shopkeeper in the Jaghori district of Ghazni province in Afghanistan, before travelling to Australia. Although he had encountered no harm in his home area, he was at risk when travelling out of that area, in particular, at road blocks set up by the Taliban or al‑Qaeda insurgents. He referred to three incidents in which he had encountered them. The first was three years ago, when they stopped his minibus returning from Ghazni city and searched for government IDs. He said “we were all beaten” but were released because three women “begged us a lot”. The second incident was eight months later, when he avoided a checkpoint by delaying his return home. The last incident occurred one year before he came to Australia. On this occasion, the Taliban found in his pocket a voting card for the 2004 presidential election and detained him. However, he escaped while they were distracted by other travellers. His card included his photo identification, and he subsequently feared that they would kill him as a government supporter. He did not again travel outside Jaghori until he arranged for a smuggler to assist him to flee Afghanistan.
In his statement in support of his RSA application, he said:
Why I believe they will harm or mistreat me if I go back:
They would harm me because they have in their possession my voting card and photo ID.
They will accuse me of working with the Government.
They will also want me dead as I am a Shi’a and an infidel in their eyes.
I remember when I was young and only 14 and went to the shops to get bread for my parents, the Taliban stopped me and whipped me as they accused me of running away from my prayers.
Mr Alami was assisted during the RSA and IMR processes by a registered migration agent. The agent attended interviews with him, and prepared a lengthy written submission to Mr Blount. It consisted almost entirely of extracts from general country information and submissions directed at the risks facing Hazara Shia Muslims in Afghanistan generally. The applicant’s own circumstances were briefly addressed at the start of the submission:
Background
By way of brief background, the applicant is a 25 year old male, born in [place], Jaghori in the Province of Ghazni, Afghanistan.
His ethnicity is Hazara, and he is a Shia Muslim.
Our client instructs that Afghanistan continues to be unsafe. He instructs that there are many groups that continue to target Hazaras in Afghanistan.
Our client instructs that he fled Afghanistan as he feared for his life from the Taliban. Our client relies on his statement which qualifies the systematic persecution that Hazaras are subjected to by the Taliban in Afghanistan.
Our client was stopped by the Taliban on numerous occasions and on each occasion was beaten.
Our client instructs that the last incident involved him fearing for his life as he was in possession of a voting card.
Our client instructs that he took the opportunity to escape from the Taliban when they became distracted at the checkpoint by the arrival of two other cars.
Persecution arising from race and religion
Our client detailed his fear of return to Afghanistan owing to his ethnicity and religion.
The applicant’s ethnicity is Hazara.
As a Hazara and Muslim Shi’a he fears the hatred of the Taliban will result in his death, as it has done to other Hazaras in Afghanistan.
Our client instructs that he has had paternal relatives be killed by the Taliban.
The applicant’s claim for protection was then expressed very broadly in a ‘conclusion’ 55 pages later:
Conclusion
Collectively, all the preceding extracts illustrate that the situation for Hazaras living without protection in Afghanistan involves a well founded fear of persecution within the framework of the Convention.
Based on the facts before us and the applicant’s submission of the events surrounding his case there is little doubt that he does hold a well founded fear of persecution in Afghanistan and is therefore outside it.
On the very day that Ms Gillard took office, the Taliban attacked Hazaras in an Ambush for the simple reason they were Hazaras.
We emphatically deny on behalf of our client that Afghanistan is safe or even certain areas are safe for Hazaras to relocate or return.
We strongly submit that the above country information and news articles qualify that Hazaras have a well founded fear and will face a real chance of persecution.
We submit that the applicant cannot be refouled to Afghanistan.
A further written submission was made after Mr Alami was interviewed by Mr Blount. It extracted and addressed further general information, in support of a concluding submission:
Conclusion
We submit Relocation to Kabul or returning to any other area within Afghanistan is not a viable option for the Applicant.
Collectively, all the preceding extracts illustrate that the situation for Hazaras living without protection in Afghanistan involves a well founded fear of persecution within the framework of the Convention.
Based on the facts before us and the applicant’s submission of the events surrounding his case there is little doubt that he does hold a well founded fear of persecution in Afghanistan and is therefore outside it. We submit that the applicant cannot be refouled to Afghanistan as it will be likely he faces real danger and severe persecution on the hands of the Taliban.
At the interview, Mr Alami gave Mr Blount some additional documents and general articles. These included a Taliban warning letter which he claimed had been distributed at the bazaar at the end of 2010, and which threatened to punish the applicant as a person who had cooperated in the election process and had been working with the government.
He was questioned about these documents, and about his claimed encounters with the Taliban. Relevant country information was discussed with him. Mr Blount also clarified a new claim to fear harm as a person returning from overseas:
MR BLOUNT: … Now, I just want to come to an issue. You have given me copies of two articles about particular asylum seekers who encountered harm on returning to Afghanistan and I’d like you to explain to me what your concern is in this regard, what significance you attach to this, what claim you’re actually making in relation to that?
CLAIMANT: Do you want me to explain particularly about this article?
MR BLOUNT: I know what they say. I’m just wanting to know exactly what, I’d like you to tell me exactly what it is that you think this means for you and what concern it gives rise to for you?
CLAIMANT: You know, first of all what I said because of those photos and my ID has already been got into hand of Taliban and the situation that I have because of the voting card and those things. And the other thing, if I return back to Afghanistan even when I arrive at the airport and even from the airport they will follow me. At the airport when you arrive because I have been outside the country for a long time, we are going to be arriving in different section of the airport and the normal passengers they will be in different part and they are going to follow us soon after. You know, they don’t think like this, that maybe these people they have been outside the country or refugee or something, they think that look these people have been outside the country for a while and they have been trained, educated in order that they do some activity against us.
MR BLOUNT: Okay. I understand. Well there’s a few things I’d like to say about that. As I understand it what you are saying is that if you return from Australia as a failed asylum seeker having been overseas in Australia, that the Taliban may accuse you of spying or something and for that reason will target and harm you?
CLAIMANT: Yes.
Mr Blount’s reasoning
Mr Blount’s report accurately and fully recounted the claims and submissions made by Mr Alami and his agent. He noted that he had regard to all the country information which was extensively extracted in the RSA assessment and in the agent’s submissions. He also listed other material of particular relevance which he said he consulted.
He then explained his findings and recommendation under a heading “Findings and Reasons”. This commenced with a summary of Mr Alami’s claims:
Claims
75.The claims were characterised in the submission of 12 August 2010 only as follows:
·fear of return to Afghanistan owing to his ethnicity (Hazara) and religion (Shia)
·“the applicant is also in the group of asylum seekers regarded as prima facie”
76.However, the claimant’s statement of 2 May 2010 had stated that, because the Taliban have his voting card and ID, they will accuse him of working with the Government, which amounts to a claim of imputed political opinion.
77.Further, at the review interview on 22 January 2011 the claimant claimed that the Taliban would think that because he has been overseas he has been trained to do some activity against them, so he would also be targeted for returning from a Western country. This is appropriately dealt with either as imputed political opinion or as a member of a particular social group, being persons returning from a Western country.
78.The post‑interview submission of 8 February 2011 also appeared to imply a further claim as a member of a particular social group comprising “Hazaras living without protection in Afghanistan”.
Hazara ethnicity and Shia religion
79.The essential claim is that the claimant would face persecution as an Hazara and a Shia because Hazaras and Shias are generally persecuted by the Taliban. The claim that the claimant would face persecution as an Hazara without protection in Afghanistan is logically subsumed within the following discussion of this claim.
Mr Blount then briefly explained his conclusions on the effect of the general information in relation to Mr Alami’s claim that he was “prima facie” within a group of persons who should be recognised as having a well‑founded fear of persecution in Afghanistan by reason of attributes of Hazara ethnicity and Shia religion.
He said that “although UNHCR in Afghanistan noted that case‑by‑case analysis was needed, it said that there was no evidence of a campaign by the insurgency to target Hazaras”. He noted that “a report that one or more Hazaras has been killed does not of itself, without more, lead to an automatic inference that those individuals have been killed for a Convention reason, let alone that Hazaras generally are persecuted. Nor does insecurity and risk of harm in an insurgency situation either establish or preclude refugee status”.
He concluded in relation to the general situation of Hazara Shias:
86.The reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and the Taliban’s attacks on communications and facilities. It is clear that non‑Hazaras and non‑Shias in Afghanistan are also the victims of the insurgency and of Taliban attacks on communications and facilities. For example, the DFAT report of February 2010 quotes local UNHCR officials as stating that “in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control.” (Department of Foreign Affairs and Trade, Afghanistan: Situation of the Hazara Minority, 21 February 2010).
He concluded in relation to Mr Alami’s principal claims:
90.The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan nor as an Hazara “without protection” in Afghanistan. The reviewer does not accept that a person’s identity as an Hazara Shia of itself causes him or her to fall within the Refugee Convention definition. Nor do the UNHCR Guidelines suggest that it should.
91.The adviser’s submission of 12 August 2010 had stated, without further elaboration or argument, that “the applicant is also in the group of asylum seekers regarded as prima face. (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, 1992 [44].”
92.The UNHCR handbook states (at paragraph 44):
While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees. In such situations the need to provide assistance is often extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to so‑called “group determination” of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee.
93.It follows from the preceding discussion that the reviewer is satisfied that this is not a situation where recourse has been had, or should be, to “group determination” where each member of a group (presumably, in this instance, Hazaras) is regarded prima facie as a refugee. (The December 2010 UNHCR Eligibility Guidelines for Afghanistan also stress the need for case‑by‑case consideration “depending on the individual circumstances of the case”, for example at p.32 in relation to minority ethnic groups.)
94.That does not mean that an Hazara Shia cannot be found to be a refugee on the basis of the person’s own individual circumstances and experiences (to which his ethnicity or religion may be relevant) and the Convention test must still be applied to the individual circumstances of a claimant.
95.In particular, taking into account the established historical background and the undoubted animosity of many Pashtuns towards Hazaras for ethnic and religious reasons, the reviewer accepts that when individual Hazaras come to the adverse attention of the Taliban for some other substantive reason (for example, and most commonly, imputed political opinion of support for the government or foreign forces and/or antipathy towards the Taliban) their situation may be exacerbated by reason of their Hazara ethnicity and Shia religion. Factors in a particular area may also be of significance.
96.In taking these factors into account, the reviewer is bound by the Migration Act and, in particular, by s91R which effectively requires a Convention reason or reasons to be the essential and significant reason or reasons for the persecution.
97.It is therefore necessary to turn [to] any more particular circumstances and claims advanced by the claimant.
Mr Blount’s report then examined Mr Alami’s claim that his individual history established a real chance of persecution by the Taliban for an ‘imputed political opinion’, based on the incident in early 2009 when he was found to be in possession of a voting card. He said:
100.The reviewer accepts that when the Taliban stop travellers (not necessarily only Hazaras) and find documents linking them with the Government (for example, an ID demonstrating Government employment) those persons face a real chance of harm amounting to persecution by reason of an imputed political opinion of support for the Government. When the claimant was stopped on an earlier occasion by Taliban looking for Government IDs, he was released because none were found.
However, he did not accept Mr Alami’s account of that incident, and identified “several matters of concern which lead the reviewer to reject the claimant’s account and the document said to support it”. It is unnecessary for me to examine this reasoning, since it is not challenged as revealing any error of law.
Mr Blount also concluded:
107.In light of the above, the reviewer does not accept that a written threat in relation to this matter would emerge now, eighteen months after the original incident and following an adverse RSA assessment.
108.Taking all these matters together, the reviewer is unable to accept the claimant’s account or that he is now at risk because he was apprehended by the Taliban with a 2004 election voting card.
109.Having regard to other incidents along the roads referred to by the claimant, the reviewer is satisfied that the claimant is not at the risk on the basis of being found carrying Government documents such as a Government employment ID card, as he does not claim to possess such documents or to be in any Government associated employment. There is ongoing evidence of interception and robbery on the road, both by Taliban and criminals (not always readily distinguishable) and affecting all ethnic groups (see for example the DFAT reports of February 2010 and September 2010). The reviewer does not accept this of itself amounts to persecution for a Convention reason (see also para 86 above).
Mr Blount then addressed the claim made by Mr Alami at the interview, that he would be persecuted because he was returning from a Western country. He said that this was not supported by authoritative independent evidence, and concluded:
113.There was no credible evidence before the reviewer to satisfy him that persons returning or returned from Western countries are for that reason targeted and persecuted by the Taliban or others (although it is conceivable that a person who comes to the Taliban’s adverse attention for other Convention reasons, including imputed political opinion, may find any suspicions for those reasons exacerbated by return after a long absence overseas). (emphasis in original)
114.The reviewer finds that the claimant would not face a real chance of persecution in relation to his absence overseas or return to Afghanistan from the West or having sought asylum in Australia.
The grounds of review
The amended application has one ground of review with an argument presented as three ‘particulars’:
1.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that in he failed to give proper, genuine and realistic consideration to the applicant’s individual claims of fear of persecution as an Hazara Shia.
Particulars
a.The reviewer considered the aspect of the applicant’s claims as a Shia Hazara Shia generically, ie prior to his consideration of the applicant’s individual circumstances.
b.In concluding from this generic consideration that he did not accept that a person’s identity as an Hazara Shia of itself causes him to fall within the Refugee Convention Definition (IMR para 90), while also finding that Hazaras generally may face persecution from the Taliban for other reasons of which their ethnicity or religion may only be a relevant or exacerbating factor (IMR paras 86, 94 and 95), the reviewer has effectively, before considering the applicant’s individual circumstances, ruled out the applicant’s ethnicity and religion as being the “essential and significant reason” for the applicant’s fear of persecution pursuant to s 91R(1)(a) Migration Act (IMR para 96).
c.As a result of this a priori ruling out of the applicant’s ethnicity and religion as the “essential and significant reason” for the applicant’s claimed fear of persecution, the reviewer’s consideration of the plausibility of the applicant’s individual claims was distorted.
A legal or jurisdictional error of failing to “give proper, genuine and realistic consideration” to claims requiring assessment has a long and chequered history. The current jurisprudence was considered in Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122, [2010] HCA 48 at [23]‑[36], in the judgment of a full bench of the High Court which included Gummow J, who was an early proponent of the error while he was a member of the Federal Court. Their Honours at [30] noted with approval a warning of Basten JA that “taken out of context and without understanding their original provenance [in judgments under the Administrative Decisions (Judicial Review) Act 1977] these epithets are apt to encourage a slide into impermissible merit review”. They accepted at [33]‑[34] the submission of the Minister that the judgment of Rares J which was under appeal “was registering emphatic disagreement with the tribunal’s assessment of the factual matters” concerning the weighing of evidence before the Tribunal, but did not identify jurisdictional error of the kind discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.
The submissions of counsel for Mr Alami in the present case attempted to avoid this pitfall, and to identify legal or procedural, rather than factual, error in the process of reasoning provided by Mr Blount in his report. However, I do not consider that he was able to identify any such error.
Counsel’s written submissions foreshadowed an argument of error of an unclear species arising from an allegation that the language used by IMR reviewers in some paragraphs of four later reports concerning other Afghani Hazara Shias revealed similarities or even ‘cutting and pasting’ from Mr Blount’s report or from some unidentified common source. Such a submission has been made to me before, in the context of the practice of some members of migration tribunals who adopt a ‘template’ approach to the preparation of their statements of reasons. However, the challenge has, so far as I am aware, always failed due to the difficulty of drawing the serious inferences of bias or breach of duty or other jurisdictional error on the part of a decision‑maker, merely because he or she has adopted the language of others as part of his or her own reasoning (cf. my judgment in Applicants S1527 of 2003 v Minister for Immigration & Anor [2005] FMCA 1846 at [17]‑[20] citing WAFK v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 209, [2003] FCA 1293 at [52], and the recent judgment of Raphael FM in SZQEL v Minister for Immigration & Anor (No.2) [2011] FMCA 582 at [17]‑[19]). These difficulties were discussed in exchanges between counsel and the bench in the course of his tender of the four later IMR reports, and counsel withdrew his tender and the submissions which invited comparisons.
I therefore am left with no evidence, whether extrinsic or in the contents of Mr Blount’s report, which causes me the slightest doubt that his report might not genuinely record his own careful and thorough consideration of Mr Alami’s claims in the light of relevant country information, nor that it might not provide his own carefully considered reasons for the recommendation he made to the Minister and his Department.
Mr Alami’s counsel was left with a submission that the structure of Mr Blount’s reasoning showed a failure to consider Mr Alami’s claims on a proper application of the definition of ‘refugee’ under the Refugees Convention. As I understood his submissions, he argued that Mr Blount considered Mr Alami’s ethnic and racial attributes only when considering a ‘generic’ claim that all Hazara Shias have a well‑founded fear of persecution by the Taliban by reason of those attributes, and failed to take these attributes into account when examining his individual circumstances. In particular, Mr Blount failed to take into account that these attributes might be relevant to the assessment of Mr Alami’s claims to be at risk of persecution by reason of the 2009 checkpoint incident, or by reason of being recognised as a returning failed asylum seeker.
In effect, in my opinion, he contended that Mr Blount failed to address accurately the ‘integers’ of the ‘specific’ refugee claims upon which he reported (c.f. Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, [2001] FCA 1802 at [42] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63]), and argued that this occurred because of “a priori ruling out of the applicant’s ethnicity and religion” when not accepting the ‘generic’ claim.
However, in my opinion, a fair reading of Mr Blount’s report does not disclose any error, nor any failure to address the refugee claims made by Mr Alami and presented by his migration agent, both ‘generic’ and ‘specific’ or individual to his personal history.
Mr Alami’s agent had undoubtedly put at the forefront, if not as almost the entirety, of Mr Alami’s refugee claims the proposition that Mr Alami fell within a broad group of Afghani claimants who have Hazara ethnicity and Shia religious attributes. The agent submitted that these claimants by reason of membership of that group alone are shown by the country information to have a well‑founded fear of Convention‑related persecution in Afghanistan.
In this context, Mr Blount made no error by characterising the agent’s submissions as, in effect, seeking to bring Mr Alami within a ‘group’ or ‘prima facie’ determination, and then by rejecting it for the reasons he gave. Nor, clearly, did he make the sub‑classification error which I considered recently in SZQEC v Minister for Immigration & Anor [2011] FMCA 543 at [12]‑[23], of inferring that membership of a group or a subgroup, not all of whose members are persecuted, established the absence of a real chance of Convention‑related persecution faced by the individual applicant. His reasoning in paragraphs [94]‑[95] clearly shows otherwise, and impeccably shows an appreciation of the need to consider the claimant’s individual circumstances.
Mr Alami’s counsel did not submit that the part of Mr Blount’s reasoning which rejected the proposition that all Hazara Shias are generally at risk of Convention‑related persecution revealed error in itself. Rather, he labelled it as “a priori” reasoning, which was later treated by Mr Blount as precluding any further consideration of Mr Alami’s ethnic and religious attributes when considering his individual circumstances in the subsequent parts of the report.
However, in my opinion, the latin tag does not do more than point out that Mr Blount addressed the ‘group’ or – adopting counsel’s label – ‘generic’ claim first, before turning to considering Mr Alami’s claims based on his personal history and circumstances. This sequence in his reasoning was both understandable in the context of the agent’s submissions, and, in my opinion, does not provide any evidence of legal error affecting the subsequent reasoning (cf. Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [14]). It provides no evidence of ‘distorted’ reasoning, if this is meant to imply ‘legally impermissible’ reasoning.
Indeed, in my opinion, Mr Blount’s subsequent reasoning must be considered in the light of Mr Blount’s assessment of the country information, that it did not show that “the Taliban now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted either individually for other reasons or as part of the general insurgency and the Taliban’s attacks on communications and facilities” (see [86] of his report). On a fair reading of his report, that assessment must necessarily, and properly, have informed his assessment of Mr Alami’s personal circumstances and claimed history.
The subsequent reasoning is also properly to be considered in the light of Mr Blount expressly reminding himself at [94] that an Hazara Shia might “be found to be a refugee on the basis of the person’s own individual circumstances and experiences (to which his ethnicity or religion may be relevant) …”.
In the context of the reasoning preceding Mr Blount’s examination of Mr Alami’s two ‘specific’ refugee claims, I find nothing in the subsequent reasoning to show that Mr Blount overlooked the relevance to all of his refugee claims of Mr Alami’s ethnicity and religion, when assessing his individual risk of Convention‑related persecution.
Taking into account the reasoning preceding Mr Blount’s discussion of Mr Alami’s personal circumstances, I do not accept the submission that Mr Blount made an error of the kind found by Collier J in Khanam v Minister for Immigration & Citizenship (2009) 111 ALD 421, [2009] FCA 966 at [30.5], and by me in Ajaj v Minister for Immigration & Anor [2010] FMCA 873 at [26].
In my opinion, an inference of overlooking relevant facts cannot be drawn from the absence of express discussion of the relevance of Mr Alami’s ethnic and religious attributes, when assessing Mr Alami’s claims relating to the 2009 checkpoint incident. This is because all of his claimed fears based on that history were rejected as a result of Mr Blount disbelieving the history of a persecutory incident with later repercussions. This reflected permissible reasoning (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576). The Convention nexus to the claimed fear of persecution therefore did not need further examination. Nothing turns upon Mr Blount’s use of the heading “imputed political opinion” when considering the claims founded upon the 2009 incident.
I also do not accept counsel’s oblique challenge to this reasoning, which suggested that Mr Blount failed to consider the likelihood that the applicant’s account of the 2009 incident was credible by reason of Mr Alami’s being an Hazara Shia. In my opinion, this submission only argued with the merits of the adverse finding. The effect of Mr Blount’s earlier assessment of the country information at [86] was that the Taliban were not discriminating against Hazara people in the course of their present insurgency. He also found at [109] that the risk of Taliban persecution of travellers affected “all ethnic groups”. The weight which he could be expected to give to Mr Alami’s ethnicity when weighing the credibility of his account of the 2009 incident was, therefore, minimal. Mr Blount gave several cogent reasons for rejecting the history, and his adverse finding was clearly open to him on the evidence before him.
I therefore would not draw any inference from Mr Blount’s report that he overlooked Mr Alami’s attributes as an Hazara Shia when assessing the credibility of the claimed 2009 incident. I reach this conclusion, accepting that the Minister’s instructions as to the contents of an IMR report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]‑[13]).
Nor would I draw an inference of oversight from the absence of any discussion of these attributes in Mr Blount’s assessment of Mr Alami’s risk of persecution as a returning failed asylum seeker. Mr Alami did not give these attributes any emphasis, nor even mention, when making this claim at the interview with Mr Blount (see above). In my opinion, it is most unlikely that Mr Blount overlooked that Mr Alami would be a returning failed Hazara Shia asylum seeker. But there was nothing in how the claim was presented to him which, in my opinion, called for a special discussion of these attributes in the context of the claim which was made.
For all the above reasons, I am not persuaded that any legal error or ‘procedural unfairness’ referable to the ground of review in the amended application has been established.
Does Mr Alami’s application need an extension of time?
Under s.476(1) of the Migration Act:
476Jurisdiction of the Federal Magistrates Court
(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Under s.477(1):
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
The Court is given power under s.477(2) to extend this time, before or after it expires, if it is “satisfied that it is necessary in the interests of the administration of justice to make the order”.
The definition of a ‘migration decision’ in s.5 is:
5Interpretation
(1)In this Act, unless the contrary intention appears:
…
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
The definition of “privative clause decision” refers to s.474(2) and (3):
474Decisions under Act are final
…
(2)In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
The definition of “purported privative clause decision” refers to s.5E:
5EMeaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
Subsection 474(7) contains a list of powers conferred on the Minister which are specifically excluded as ‘privative clause decisions’ and necessarily also as ‘purported privative clause decisions’. They include some notable non‑compellable discretions, including s.417 and s.195A. It is significant to this Court’s gaining jurisdiction in matters of the present type, but not in relation to other non‑compellable discretions, that s.474(7) does not specifically exclude any ‘migration decision’ which may be constituted by action of the Minister or his advisors taken under s.46A.
The definition of “non‑privative clause decision” refers to s.474(6):
474Decisions under Act are final
…
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
Subsection 474(4) contains a list of specific sections of the Migration Act, which is not presently relevant.
It is clear, in my opinion, that this definitional structure allows the invocation of the Court’s jurisdiction to review the legality of a future or threatened ‘migration decision’, without the need for any extension of time. If the present application is to be characterised only as an application for a quia timet injunction to restrain threatened action by the Minister or his officers under s.46A or under the removal powers in s.198, based on errors of law affecting Mr Blount’s report which would be relied upon in that future decision or action, then no occasion arises for an extension of time.
However, if the present application is to be characterised as seeking relief in relation to a past ‘migration decision’ constituted by Mr Blount’s report or by its notification to Mr Alami in the Department’s letter referred to above, then an extension of time would be required so as to render the application competent under s.477(1).
The Minister contends that the latter characterisation is required, and that Mr Alami’s application must therefore satisfy a time limit which has arisen under s.477(1). He submits that Mr Blount’s report or recommendation is a “migration decision” because it was “a decision of an administrative character made … under this Act”, being the “doing or refusing to do any other act or thing” within s.474(3)(g). He submits that s.477(1) excludes the jurisdiction of the Court to review the legality of the report, unless the application was made within 35 days measured under s.477(3)(d) from the date of the Department’s written notification of the report, or – as would be required in relation to the present application – unless the Court orders an extension of that time under s.477(2).
The definition of a ‘privative clause decision’ which is a ‘migration decision’ adopts similar language from the Administrative Decisions (Judicial Review) Act 1977 (Cth), but has significant differences. The extended definition of a ‘decision’ in s.474(3) does not replicate ss.3, 5 and 6 of the AD(JR) Act. Importantly, it does not appear to segregate the range of actions constituting a ‘decision’ from those constituting “conduct for the purpose of making a decision”, in the manner which was examined by Mason J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 333‑339. Its unqualified inclusion as ‘decisions’ of the actions described in s.474(3)(g) and (h) appears to remove uncertainty as to the reviewability of all administrative actions antecedent to an exercise of a power to make a decision or take an action authorised by the Migration Act. These paragraphs might also avoid some of the debate arising from s.6 of the AD(JR) Act, whether reviewable antecedent ‘conduct’ must be actions of a person vested with a decision‑making power (cf. cases considered by Sundberg J in Margarula v Minister For Environment (1999) 92 FCR 35 at [15]‑[19], cited in Plaintiff M61 at [68]).
However, as with the AD(JR) Act judicial review jurisdiction, the language of s.474(2) requires any challenged administrative action to be taken “under this Act” before it can itself be characterised as a ‘migration decision’. This phrase, when found in judicial review legislation, was explained by the High Court in Griffith University v Tang (2005) 221 CLR 99:
89The determination of whether a decision is ‘‘made … under an enactment’’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘‘made … under an enactment’’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. (emphasis in original)
The Minister’s power in s.46A is conferred in terms which give no apparent recognition to any function performed by an IMR reviewer such as Mr Blount in the present case. It provides:
46AVisa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
(4)If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5)A statement under subsection (4) must not include:
(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6)A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
Absent authority directly on point, it would be debatable whether Mr Blount’s report was “expressly or impliedly required or authorised by” the Migration Act, and whether it had any effect to “confer, alter or otherwise affect legal rights or obligations”. Even seen as part of administrative action which might assist and inform the Minister when deciding whether to embark upon his non‑compellable personal discretion conferred by s.46A, it is not apparent that Mr Blount’s report is itself a manifestation of an exercise of a statutory power or function.
However, I accept the submissions of the Minister that both of the tests under Tang were implicitly addressed in Plaintiff M61 by the High Court. Their Honours repeatedly posed for themselves the question whether “the RSA and IMR processes taken in respect of each plaintiff were steps taken under and for the purposes of the Migration Act” rather than “no more than a non‑statutory executive power to inquire” (see [9](a), [22], [36], and [52]). It is clear that they answered this question ‘yes’, in their discussion at [62]‑[71]. They found the nexus between the IMR report and the Minister’s powers under s.46A, by holding that the Minister’s directive which required the preparation of an IMR report involved a partial exercise of that statutory power. They said:
[66]… the decision to establish and implement the RSA and IMR procedures, announced by the minister, is understood not just as a direction to provide the minister with advice about whether power under ss 46A or 195A can or should be exercised, but as a decision by the minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations.
…
[70]Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and second, the decision whether to lift the bar or grant a visa. The minister is not obliged to take either step. Sections 46A(7) and 195A(4) expressly provide that the minister does not have a duty to consider whether to exercise the relevant power. And ss 46A(2) and (3) and 195A(2) and (5) make plain that it is for the minister personally to decide whether to exercise the relevant power. But here, the effect of the minister’s announcement was that, instead of removing offshore entry persons from Australia to a declared country under the powers given under s 198A, consideration would be given to exercising the powers given by ss 46A and 195A in every case in which an offshore entry person claimed that Australia owed that person protection obligations. The outcome of that consideration in any individual case would depend upon the result of the processes established by the department in response to the ministerial announcement. But in order that Australia not breach the international obligations it had undertaken in the Refugees Convention and Refugees Protocol, consideration would be given, in every case, to the exercise of the only statutory powers available when the Pacific Strategy was no longer to be pursued: the powers given by ss 46A and 195A. Having decided that he should consider the exercise of power under ss 46A or 195A with respect to every offshore entry person who thereafter claimed that Australia owed that person protection obligations, the minister required his department to undertake the inquiries necessary to make an assessment and, if needs be, review the conclusion reached. (emphasis in original)
[71]There having been a decision to consider exercise of the relevant powers in the present and other similar cases, the unchallenged assumption made in these matters, that detention during the conduct of the assessment and review processes was lawful, is seen to be soundly based. The obligation to remove as soon as reasonably practicable, imposed by s 198(2), is read in the light of other provisions of the Migration Act. The express reference in s 198(2)(c) to the possibility of making a valid application for a visa accommodates the consideration of whether to exercise the powers given by ss 46A and 195A. The accommodation is founded upon the taking of the first step towards the exercise of those statutory powers: the decision to consider their exercise. It is not founded upon necessarily uncertain prognostications about whether exercise of the available powers will ever be considered.
In effect, as I would understand the effect of Plaintiff M61, Mr Blount’s inquiry and report is itself an ‘act or thing’ for the purposes of s.474(3)((g) performed under the authority of the Migration Act, because it was undertaken to implement the Minister’s directive under his first ‘step’ decision under s.46A, i.e. his ‘in principle’ decision to consider the exercise of the s.46A power in cases including Mr Alami’s case, if a favourable IMR report were submitted to him.
Their Honours’ analysis also answered the second test in Tang, i.e. whether Mr Blount’s report carried legal consequences deriving from the Migration Act. They explained how rights or interests were affected by the report, when considering whether the principles of procedural fairness applied to an IMR inquiry:
[77]Because the minister was not bound to exercise power under either ss 46A or 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the minister decide to exercise the power or, if the assessment or review were favourable, to have the minister exercise one of the relevant powers in his or her favour. None the less, once it is decided that the assessment and review processes were undertaken for the purpose of the minister considering whether to exercise power under either ss 46A or 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the minister to be informed of matters that the minister has required to be examined as bearing upon whether the power will be exercised.
[78]The minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied. (emphasis in original) (citation omitted)
I therefore accept the submission of the Minister that Mr Blount’s report and recommendation concerning Mr Alami was itself a ‘migration decision’ which, by force of s.477(1), can only attract remedies from this Court under s.476 by way of declaration of legal error and consequential injunctive relief, if it was made within the time limit under s.477(1) or within such other time extended under s.477(2).
I also accept that this consequence of s.477 follows, regardless of whether the letter of notification of Mr Blount’s report might anticipate or threaten a future ‘migration decision’ by way of the exercise of a power to remove the applicant under s.198(2), and regardless of whether the application was framed so as to seek injunctive relief in relation to that threat. This is because the Court’s jurisdiction is positively excluded by s.477(1) if the remedies being sought are “in relation to” a past “migration decision”. As a result of the exclusion of jurisdiction in relation to out‑of‑time challenges, it is of no consequence that the same remedy might also be sought to restrain a future migration decision based on the past ‘migration decision’ (compare the similar reasoning in Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651 at [26]).
When considering the effect of s.477, in my opinion, it is irrelevant whether an original application was in its terms competent in relation to the migration decision it identified or the relief it sought, nor whether the applicant has subsequently filed an amending application to supplement or alter the terms of the relief sought. I respectfully disagree with the suggestion of Nicholls FM in Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [31]‑[33] in this respect. In my opinion, an amending application, even if the amendment were necessary to establish jurisdiction, must be treated as taking effect from the date of filing of the original application, under established principles which I noted in SZICV v Minister for Immigration & Anor (2006) 202 FLR 200 at [28]. My reasoning was not disturbed by the Full Court (see SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260). The difficulty which arose in that case in relation to the retrospectivity of an amendment to the application, was the result of specific language as to the timing of an application for extension of time which is no longer found in s.477.
Should time be extended?
It is therefore necessary to consider whether I should exercise my discretion to extend time in relation to Mr Alami’s present application. In this respect, he needs an extension of time for 28 days, until the date of the filing of his originating application.
I have balanced all the considerations which have been identified as relevant to a conclusion under s.477(2)(b) whether I am satisfied “that it is necessary in the interests of the administration of justice” to extend that time (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197).
In the circumstances shown in the evidence, I am so satisfied. Although I have above found against Mr Alami’s grounds of review, they were supported by arguable submissions. Moreover, the issue whether an extension of time is required is, itself, an important question.
The time sought for an extension is relatively short, and no prejudice to the Minister is pointed to, either generally nor in relation to Mr Alami’s circumstances. I consider that the affidavits which Mr Alami has filed, which I summarised above, sufficiently explain his difficulties and delay in taking legal advice and the filing of his application. In all the circumstances, I have decided to make an order under s.477(2).
However, for the reasons given above, I must dismiss Mr Alami’s principal application on its merits. It is agreed that scale costs should follow the event.
I certify that the preceding seventy‑two (72) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 26 August 2011
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