AWX16 v Minister for Immigration & Anor
[2016] FCCA 928
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWX16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 928 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – refusal to grant Protection (Class XA) visa – citizen of Sri Lanka of Tamil ethnicity – whether jurisdictional error. PRACTICE AND PROCEDURE – Application for extension of time in which to file substantive application – consideration of factors on an extension of time application – consideration of extension of time application in context of whether a serious issue to be tried. INJUNCTION – Usual principles for interlocutory injunction – whether serious issue to be tried – balance of convenience. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05 Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa), 91R, 198, 256, 424A, 424AA, 474, 475, 476, 477, 499(2A) Migration Regulations 1994 (Cth) |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263, (1990) 93 ALR 1 BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 Castlemaine Tooheys Ltd & Ors v The State of South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553 Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 MZZFW v Minister for Immigration [2015] FCCA 1902; (2015) 299 FLR 22 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZRUG v Minister for Immigration & Anor [2013] FCCA 142 |
| Applicant: | AWX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 171 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| For the Applicant: | In person (with interpreter) |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS (as made on 19 April 2016, and amended on 29 April 2016)
The application filed 18 April 2016 be dismissed.
Reasons for Judgment be published electronically at a later date.
The applicant pay the first respondent’s costs in the sum of $3416 by 19 May 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 171 of 2016
| AWX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant’s application lodged with the Registry seeks judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Judicial Review Application was not filed within time under s.477(1) of the Migration Act 1958 (Cth) (“Migration Act”), and the applicant seeks an extension of time for filing under s.477(2) of the Migration Act (“Extension of Time Application”).
The applicant also seeks an interlocutory injunction restraining the Minister from removing him from Australia on 19 April 2016.
On 19 April 2016 the Court made the following orders:
a)dismissing the application filed 18 April 2016;
b)providing for Reasons for Judgment to be published electronically at a later date; and
c)for the applicant to pay the first respondent’s costs in the sum of $3416 by 19 May 2016.
The following are the Reasons for Judgment referred to in (b) above.
Affidavits
On 18 April 2016 Sally Ann Thompson affirmed an affidavit (“Ms Thompson’s Affidavit”) in support of, and which was filed with, the Judicial Review Application, and which annexed:
a)a copy of the Tribunal Decision: Ms Thompson’s Affidavit at [1] and Annexure A; and
b)a copy of a “Notice of Intention to Remove from Australia” (“Removal Notice”) in relation to the applicant, giving the anticipated date of removal as 19 April 2016: Ms Thompson’s Affidavit at [2] and Annexure B.
Ms Thompson’s Affidavit indicates that:
a)on 16 March 2016 she received an email from a Ms Hill at Centre Care Migrant Services attaching a copy of the Tribunal Decision; and
b)on 14 April 2016 during a visit to the Yongah Hill Immigration Detention Centre (“Yongah Hill IDC”) the applicant gave her a copy of the Removal Notice.
Procedural Background to the Judicial Review Application
The procedural background to the Judicial Review Application (as it appears in the Tribunal Decision) is as follows:
a)the applicant applied for the Protection Visa on 21 December 2012: Tribunal Decision at [2];
b)on 28 March 2014 the Delegate refused the application for a Protection Visa: Tribunal Decision at [2];
c)the applicant lodged an application with the Tribunal for merits review of the Delegate’s Decision and the Tribunal conducted a hearing of that application on 28 May 2015 (“Tribunal Hearing”);
d)on 5 November 2015 the Tribunal affirmed the Delegate’s Decision for the reasons in the Tribunal Decision which are set out in greater detail below; and
e)the Judicial Review Application was lodged on 18 April 2016.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out details of the applicant’s background in Sri Lanka, and the events giving rise to his alleged fear of return to Sri Lanka as a Tamil suspected of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”);
b)considered details of the applicant’s travel to Saudi Arabia from 2007 to 2011, and his departure from Sri Lanka to Malaysia (on a work permit) in November 2011, his move to Indonesia in February 2012, and his departure to Australia from Indonesia in July 2012;
c)considered the applicant’s attendance for an interview before the Delegate, and the Delegate’s conclusion that based on inconsistencies in the applicant’s evidence, the applicant had fabricated his claims in order to enhance his application for protection, and that he did not have a profile that was of interest to the Sri Lankan authorities;
d)set out details of the Tribunal hearing, including details of the applicant’s family history, employment, alleged detention and harassment by the CID on the basis that he was either a member or associate of the LTTE during the period 2006 to 2007;
e)noted that the applicant lived in Saudi Arabia for three years, and that after his return his house was raided and he thought he was going to be shot;
f)noted the allegation that the CID put a gun to the applicant’s wife’s head on two occasions;
g)noted that the applicant lost his original passport in Malaysia, which was issued in his own name by the Sri Lankan authorities after he had lost an earlier original passport, also in his own name, when returning from Saudi Arabia;
h)raised with the applicant various inconsistencies in his evidence, including inconsistencies in relation to his contact with his mother, inconsistencies in the details of his detention, and discrepancies in the dates relating to various incidents and detentions, and the untranslated evidence provided as evidence of his detention which was dated and stamped 1 August 2008 which was at a time which, according to his own evidence, he was not in Sri Lanka, to which the applicant did not respond; and
i)noted inconsistencies in relation to the details of the applicant’s residence indicating that he lived in Jaffna from 2006 to 2012, when it appeared that he lived elsewhere, and did not live in Jaffna, or Sri Lanka, for the period that he was in Saudi Arabia.
The Tribunal gave particulars pursuant to s.424AA of the Migration Act to the applicant, which the applicant sought time and was granted time to respond to.
Following the Tribunal hearing the Tribunal wrote to the applicant under the provisions of s.424A of the Migration Act setting out other particulars, and then sent a further letter under s.424A of the Migration Act, setting out particulars, including the following:
∙ In his application for protection your brother also claims that you fled Sri Lanka in November 2011 after being detained by the SLA in Colombo for five days. You made no mention of being detained for five days by the SLA in Colombo prior to your departure from Sri Lanka.
The applicant did not respond to the second letter setting out particulars.
The Tribunal made findings as to credibility and found that important aspects of the applicant’s evidence were not credible, and rejected other aspects as unreliable, exaggerated or fabricated for the purposes of strengthening his claims.
The Tribunal in assessing the applicant’s claims noted at Tribunal Decision [75]-[76] as follows:
75.The applicant's claims and those arising on the evidence are that he faces harm in Sri Lanka for the following reasons, including cumulatively:
·the applicant originates from Jaffna in the Northern province;
·is of Tamil ethnicity;
·the Sri Lankan authorities consider him to be a member or supporter or associated with the LTTE because he is a Tamil;
·he has been harmed in the past because he is a Tamil and the Sri Lankan authorities consider him to be a member or supporter or associated with the LTTE;
·the applicant has now applied for asylum in Australia.
76.The Tribunal is prepared to accept on the basis of the consistent evidence of the applicant that:
·He is of Tamil ethnicity;
·He originates from Jaffna in the Northern Province;
·He has never been a member or supporter or associated with the LTTE;
·His brothers have never been a member or supporter or associated with the LTTE;
·His mother, sister, wife and 2 children remain in Sri Lanka;
·His father was killed in 1995;
·He worked in Saudi Arabia from late 2008 to early 2010 before departing Sri Lanka in November 2011 for Malaysia;
·The applicant departed Sri Lanka for Malaysia on a valid Sri Lankan passport issued in his own name.
The Tribunal noted that inconsistent claims between the applicant and his brother caused the Tribunal to have serious concerns as to the applicant’s credibility, and that the applicant, although given the opportunity to do so, did not respond to those inconsistencies: Tribunal Decision at [89].
In relation to his Tamil ethnicity claims the Tribunal found at Tribunal Decision at [91]-[92] that:
91.However, the Tribunal finds the inconsistencies in the applicant's evidence to be significant. The Tribunal finds his failure to mention that he was detained for 3 months after being kidnapped by men in a white van and arrested while travelling on a bus and detained for one month at any time prior to the Tribunal hearing leads the Tribunal to conclude that he has fabricated these claims for the purposes of his protection visa. The Tribunal does not accept that his failure to recall these events was because of the trauma he has suffered in his life as the Tribunal considers that being grabbed by men, forced into a white van then detained for 3 months to be a significant event that would not be forgotten, especially if as claimed his mother went to a lawyer and politician seeking his release. The Tribunal also found the applicant's evidence as to his detention for 3 days inconsistent as well as his claim that the CID came to his home in 2010. The applicant was already on notice from the delegate's decision that there were concerns as to his credibility due to inconsistencies in his evidence. However his evidence to the Tribunal remained inconsistent with new claims also being raised at the time of hearing. The applicant's evidence as to what happened each time he was detained or when the CID visited his home was also inconsistent.
92. After considering the available evidence, the Tribunal does not accept that the applicant has ever been detained by the CID, police or Sri Lankan authorities. The Tribunal does not accept that he was kidnapped in a white van and held for 3 months, or detained for 3 days and beaten and tortured or arrested while on a bus and detained for 1 month. The Tribunal does not accept that the applicant was even questioned, beaten, tortured, had a gun held to his head or stabbed with scissors by the CID, police or Sri Lankan authorities for any reason. The Tribunal does not accept that the applicant's wife has ever had a gun held to her head and the trigger threatened to be pulled or questioned or tortured. The Tribunal does not accept that his mother was ever tortured by the authorities looking for him. The Tribunal does not accept that the CID or police or the Sri Lankan authorities had any interest in the applicant whatsoever such that they regularly visited his home looking for him. The Tribunal does not accept that the applicant has ever been presumed to be a member or a supporter or associated with the LTIE by the CID, the police or the Sri Lankan authorities. The Tribunal does not accept that the applicant is of any interest to the CID, police or the Sri Lankan authorities for any reason at all.
The Tribunal also considered and set out extensive country information, and as a consequence of consideration of that country information and the available evidence found that neither the applicant nor his family had any past or current links with the LTTE, other than prior residency in northern Sri Lanka, and that the applicant would not be regarded by Sri Lankan authorities as having any connection with the LTTE, or of being under suspicion because of any imputed connection with the LTTE, and that he would not be perceived to be a member or supporter of the LTTE or actively opposed to the current Sri Lankan government because he was a Tamil or a Tamil man from northern Sri Lanka, or because he has sought asylum in Australia, or for any other reason: Tribunal Decision at [102]-[104]. The Tribunal accordingly concluded that the applicant did not face a real chance of serious harm because of an actual or imputed political opinion as a member of or supporting the LTTE or opposing the current Sri Lankan government if he returned to Sri Lanka now or in the reasonably foreseeable future: Tribunal Decision at [105].
In relation to the applicant’s status as a failed asylum seeker returning to Sri Lanka the Tribunal considered the country information and found that the weight of evidence indicates, that a key factor in determining whether an individual faces a real chance of mistreatment on return is real or suspected links to the LTTE, citing reports from Freedom from Torture, Amnesty International and the Immigration and Refugee Board of Canada: Tribunal Decision at [112]. The Tribunal found that as the applicant had no actual or suspected links with the LTTE, he was not in the category of returnees who would be monitored on their return because of suspected links to the LTTE and therefore did not accept that he faced a real chance of harm at any point after returning to Sri Lanka, either at the airport or when returning to his village: Tribunal Decision at [114].
In relation to the applicant’s return to Sri Lanka the Tribunal found that the applicant departed Sri Lanka at a port of lawful departure and with a Sri Lankan passport and therefore had not committed any offence under the Immigrants & Emigrants Act 1949 (Sri Lanka). He would however go through a process involving assessment by various Sri Lankan authorities as a result of returning from Australia on a charter flight, but the Tribunal found that this did not amount to persecution as contemplated by s.91R(1)(c) of the Migration Act as, in the applicant’s case it would amount to no more than processing at the airport and questioning, as the applicant would not be under suspicion of past or present association with the LTTE: Tribunal Decision at [115]-[124].
The Tribunal also considered whether the applicant had a well-founded fear of persecution for a Convention reason on cumulative grounds, and determined that the applicant did not: Tribunal Decision at [125]-[127].
The Tribunal also considered whether the applicant met the complimentary protection criteria, and whilst acknowledging that failed asylum seekers may be monitored after their return to Sri Lanka, found that the applicant was not in the category of returnees who face a real chance of harm at any point after returning to Sri Lanka, either at the airport or his village, and that given that information indicated that the situation in Sri Lanka had continued to improve since the period after the end of the civil war, the Tribunal was not satisfied that there were substantial grounds for believing that there is a real risk that the applicant would be subjected to any form of significant harm even if he were continued to be monitored on his return: Tribunal Decision at [128]-[136]. Again, the Tribunal considered whether there was a real risk of significant harm for complementary protection criteria purposes on cumulative grounds and found that the applicant was not at real risk of suffering significant harm on return to Sri Lanka, and that the applicant therefore failed to meet the requirements in s.36(2)(aa) of the Migration Act: Tribunal Decision at [137].
The Tribunal affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: Tribunal Decision at [141].
Application for an interlocutory injunction
Test for grant of an interlocutory injunction
The test to be applied with respect to the grant of an interlocutory injunction under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) is that outlined by the High Court in Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398, namely that there be a serious question to be tried and that the balance of convenience favours the issuance of the injunction: see MZZFW v Minister for Immigration [2015] FCCA 1902; (2015) 299 FLR 22 at [62] per Judge Lucev.
Serious issue to be tried
Whether there is a serious issue to be tried for present purposes will depend upon the grounds of review set out in the Judicial Review Application, and the extent to which those grounds might be arguable.
The Judicial Review Application sets out the following grounds of review:
1. A heavy reliance of the Tribunal Member on evidence from the brother’s protection application to dispute the applicant’s credibility. Recollections of two people who experienced trauma and torture are inevitably going to vary.
2. At Pt 66 of the RRT decision the Tribunal Member lists four points that she asks the Applicant to explain under the provisions of s424A. The fourth point concerns an alleged statement by the applicant’s brother that the applicant fled Sri Lanka after being detained for five (5) days in November 2011 by the SLA in Colombo. However at Pt 88 of the RRT decision the Tribunal Member refers to this same incident as being for a period of three (3) days. The applicant was therefore asked to explain an incident that was mentioned neither by himself nor his brother.
(copied without amendment from the Judicial Review Application).
In order for the Judicial Review Application to be successful the applicant must establish that the Tribunal Decision is affected by jurisdictional error.
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
Ground 1 seeks to dispute the Tribunal’s credibility finding concerning the applicant.
It is well established that the Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J. As to credibility findings the Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ, and it is recognised that credibility findings are a matter par excellence for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. Where the assessment of an applicant’s credibility and the credibility of an applicant’s claims are open on the evidence before the Tribunal, there is no jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The Tribunal was aware of the law with respect to the issue of credibility, and set it out at some length in the Tribunal Decision: see Tribunal Decision at [71] and [157]-[161].
In this case the Tribunal considered, sifted, weighed, and in significant respects rejected, the applicant’s evidence. There is no doubt that the Tribunal placed reliance upon inconsistencies between the applicant’s evidence, and evidence related to his brothers. Indeed, the Tribunal found that inconsistent claims between the applicant and his brother caused the Tribunal to have serious concerns as to the applicant’s credibility: Tribunal Decision at [89]. What is significant however is that the applicant was given the opportunity to respond to those inconsistencies, and did not do so. Furthermore, it was not merely the inconsistencies that caused the Tribunal concern. It was the failure of the applicant to be able to explain, even briefly, the reasons his older brother fled Sri Lanka, and the inconsistent claims of the applicant and his other brother, which caused the Tribunal concerns about the applicant’s credibility, vis-à-vis the evidence of his brothers: Tribunal Decision at [89]. The assessment of credibility in circumstances where there was inconsistent material from the brothers before the Tribunal, and where the applicant failed to respond to an opportunity to deal with the inconsistencies arising in respect of at least one of the brothers, does not give rise to jurisdictional error, and for this Court to intervene in those circumstances would be to do no more than conduct its own impermissible merits review: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, and in any event, the Tribunal noted an array of inconsistencies in the applicant’s evidence and materials before the Tribunal, upon which it relied in coming to a decision that the applicant was not detained by the CID, police or Sri Lankan authorities: Tribunal Decision at [92]. Those inconsistencies included inconsistencies in the account of when the CID came to his house: Tribunal Decision at [82]; as to when he was detained, particularly vis-à-vis the time at which he said he went to Saudi Arabia: Tribunal Decision at [84]-[85]; as to when he found his mother: Tribunal Decision at [87]; and as to what happened each time when he alleged he was detained or when the CID visited his home was also inconsistent: Tribunal Decision at [91].
In this respect it is important to remember that the Tribunal found that the applicant was credible in respect of certain aspects of his evidence, but not credible in others, and rejected aspects of his evidence as unreliable, exaggerated or fabricated for the purposes of strengthening his Protection Visa claims: Tribunal Decision at [73]. It is also relevant that the inconsistent claims were in respect of relatively fundamental matters such as the fact that the family were not separated, and that they remained living together until the elder brother left and the applicant married: Tribunal Decision at [88].
Ground 1 is therefore not made out because it disputes an evidentiary issue which is a matter for the Tribunal, particularly in circumstances where that evidentiary issue goes to the applicant’s credibility, and where, in any event, there was a more than adequate basis otherwise for the Tribunal to arrive at its conclusions as to credibility, and more particularly, its conclusion that it did not accept that the applicant had ever been detained by the Sri Lankan authorities, or otherwise adversely dealt with, and was not and had never been presumed to be a member or supporter or associated with the LTTE by the Sri Lankan authorities: Tribunal Decision at [92].
Ground 2
Ground 2 relies upon a factual difference in relation to the length of time that the applicant was, or was not, detained by the SLA in Colombo prior to fleeing Sri Lanka in November 2011. The applicant’s brother says that the applicant fled Sri Lanka after being detained in Colombo. In the particulars of a letter sent for the purposes of s.424A of the Migration Act the Tribunal says that the brother said that the period of detention was five days. The Tribunal dealing with the same issue, and again noting that the applicant’s brother said that he was detained in Colombo prior to the applicant’s departure from Sri Lanka, but that the applicant did not make that claim to the Tribunal, said that the period of detention was three days: Tribunal Decision at [88]. The period of the detention is immaterial: at most it is a factual error not amounting to jurisdictional error: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263, (1990) 93 ALR 1; CLR at 35-36 per Brennan J; SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 at [40] per Flick J; WZATF v Minister for Immigration & Anor [2014] FCCA 333 at [19] per Judge Lucev. The inconsistency to which the Tribunal refers at [88] is the inconsistency between the applicant’s brothers’ claiming that the applicant was detained, and the applicant not making that claim at all. Notably, the Tribunal put that inconsistency to the applicant under the provisions of s.424A of the Migration Act, but did not receive a response: Tribunal Decision at [88]. In that regard, the Court notes that the applicant was represented during the Tribunal hearing process by a registered migration agent: Tribunal Decision at [3].
As explained above, ground 2 cannot succeed because it does not assert jurisdictional error, but rather a factual error, which of itself is inconsequential, but also was not the basis for the Tribunal’s Decision, either as to inconsistency, or as to any other part of the Tribunal Decision.
Grounds 1 and 2 – whether jurisdictional error established
It follows from the Court’s consideration of grounds 1 and 2 above, neither of which has been made out, that neither of those grounds establish jurisdictional error, and that the Tribunal Decision would not in any event be reviewable by this Court: Migration Act, ss.474 and 476.
Extension of Time Application
In relation to the Extension of Time Application s.477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
The Judicial Review Application contains grounds for the Extension of Time Application as follows:
1. The applicant speaks minimal English and did not understand the requirement to appeal within 35 days.
2. The applicant states he suffers from mental health issues including anxiety and finds it difficult to deal with matters in a prompt and organised manner.
3. Once aware of the need to appeal the applicant, who has no money and is in Immigration Detention has struggled to find a pro bono lawyer to act for him in this matter.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The applicant has filed no affidavit explaining the delay or shown why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [18]-[30] per Judge Lucev the Court set out the history of r.44.05 of the FCC Rules, and in particular r.44.05(2)(c) of the FCC Rules, together with the interaction between it and s.477(2) of the Migration Act as follows:
18. Rule 44.05 of the then Federal Magistrates Court Rules 2001 (Cth) (“FMCA Rules”) was first amended by the Federal Magistrates Court Amendment Rules 2007 (No.1) (Cth) by replacing the words “form of application under the Migration Act set out in Part 1 of Schedule 2” with the words “approved form”.
19. Rule 44.05 of the then FMC Rules was amended again by the Federal Magistrates Court Amendment Rules 2009 (No.1) (Cth) (“the 2009 Amendment”) by substituting for the then para.(c) of r.44.05(2) of the FMC Rules the following:
(c)(c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
20. The Explanatory Statement accompanying the 2009 Amendment stated that the 2009 Amendment reflected amendments under the Migration Legislation Amendment Act 2009 (No. 1) (Cth) (“Migration Amendment Act 2009 (No. 1)”) to s.477 of the Migration Act (“2009 s.477 Amendment”).
21. The 2009 s.477 Amendment was a significant change to the process by which extensions of time might be granted to applicants. Section s.477(2)(a) was inserted into the Migration Act requiring applicants to state the reasons in their applications why it is in the interests of the administration of justice to grant an extension of time. The time for application was extended from 28 to 35 days, and the limitation of a maximum allowable extension (at that time being 56 days) was removed. This gave the Court wide discretion if it is in the interests of the administration of justice to grant an extension. The Second Reading Speeches and Explanatory Statement to the Migration Amendment Act 2009 (No. 1) stated that requiring applicants to give reasons for an extension of time in their applications was intended to assist the Court by drawing attention to cases where there were compelling reasons to extend time, so as to enable quicker and more efficient disposal of any applications to extend time.
22. The critical change to r.44.05(2)(c) of the then FMC Rules is that the word “reasons”, a synonym of explanation, was omitted, and the word “evidence” substituted. The distinction between the words is glaring. The use of the word “evidence” expressly requires that more than mere explanation be provided in support of any application for an extension of time. The intended purpose of the 2009 s.477 Amendment to promote efficiency in dealing with extension of time applications was supported by the requirement arising from the 2009 Amendment to provide evidence on affidavit, thereby facilitating proof of the reasons asserted in the extension of time application. That proof can be seen to be necessary, for without it, it would be very difficult for the Court to find facts necessary to satisfy it as to what is, or is not, in the interests of the administration of justice for the purposes of s.477(2)(b) of the Migration Act.
23. In Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 (“A’Hearn”) the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”: A’Hearn at 444 per Black CJ, Gray and Burchett JJ, but, as the Federal Court has otherwise observed, the failure to provide any adequate explanation for the delay may, of itself, provide sufficient reason to refuse the extension of time sought: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J (“SZMWH”).
24. In this case there is, however, a statutory rule, and unless compliance with that rule is dispensed with in the interests of justice under r.1.06(1) of the FCC Rules – which provides that: “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time” – the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang, FCR at 391 per Merkel J; Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [35]-[40] per Lucev FM, and cases there cited, applied in WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
25. The history of r.44.05(2)(c) of the FCC Rules, and its enactment and amendment at the same time as related amendments to the Migration Act, demonstrate that its purpose is to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act.
26. The interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a. if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b. any waiver under r.1.06(1) of the FCC Rules of compliance with r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c. the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i. the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii. the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii. an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv. the alleged jurisdictional error is either established (as in SZTDM (No.2)) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time (for example, issues such as the explanation for the delay and prejudice to the respondent: see the authorities cited at [32] below).
27. The above examples might be expanded upon, but absent something of their ilk, there could not otherwise be a judicially justifiable reasonable basis for dispensing with compliance with the requirement imposed upon an applicant by r.44.05(2)(c) of the FCC Rules to file an affidavit setting out the factual material relied upon by the applicant seeking to justify an order for an extension of time.
28. In SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 (“SZTDM (No.2)”) this Court observed as follows:
Under r.1.06(1) of the Federal Circuit Court Rules the Court may dispense with compliance with the requirements of the Rules. Insofar as it is necessary to do so, in the particular circumstances of this case where a jurisdictional error on the part of the Tribunal has been established, I would dispense with compliance with the requirements of r.44.05(2)(c) of the Rules. There is no requirement for an affidavit containing an explanation for delay in the Migration Act. I am of the view that it is open to the Court to grant an extension of time under s.477(2) of the Act notwithstanding non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
SZTDM (No. 2) at [10] per Judge Barnes.
29. SZTDM (No.2) was a case dealing with its particular circumstances, but clearly falls within the category referred to at [26(iv)] above in which it is unnecessary for an affidavit under r.44.05(2)(c) of the FCC Rules to be filed because jurisdictional error on the part of the administrative decision-maker, in that case the Refugee Review Tribunal, had been clearly established, and obviously sufficiently so to warrant waiving compliance with r.1.06(1) of the FCC Rules.
30. In this case there is no explanation for the delay or why the interests of the administration of justice make it necessary for the Court to grant an extension of time, because there is no affidavit setting out the necessary evidence. Nor is there any obvious jurisdictional error in the Tribunal Decision. The applicant has therefore failed to satisfy the prescribed criteria in r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time and the Court has not dispensed with compliance with r.44.05(2)(c) of the FCC Rules, and there is no basis for doing so. In the circumstances, the extension of time application must fail: WZASC at [9] per Judge Lucev and Islam v Minister for Immigration & Anor [2013] FCCA 1687 at [16] per Judge Lucev.
In the present case there is no affidavit setting out the evidence explaining the delay or showing why it is necessary in the interests of the administration of justice for the Court to grant an extension. There is also no obvious jurisdictional error in the Tribunal Decision for reasons set out above. The applicant has failed to satisfy the prescribed criteria in r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time, and the Court has not dispensed with those requirements pursuant to r.1.06(1) of the FCC Rules, and there is no basis for doing so. It follows, as in Sandan, that the Extension of Time Application must fail on the basis of the failure to file an affidavit complying with r.44.05(2)(c) of the FCC Rules, or to have that requirement dispensed with.
In this case, the Court will not dispense with compliance with r.44.05(2)(c) of the FCC Rules because no good purpose would be served by doing so, insofar as a waiver of compliance would not affect:
a)the view already reached by the Court that the application has not established jurisdictional error in the Tribunal Decision, which means that the application has no prospects of success, and it is therefore inappropriate to extend time: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [39] per Foster J (“SZSDA”); and
b)that based on the other factors for consideration in extending time, which are considered below, the Court would not have extended time otherwise.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established, but not exhaustive, in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application:
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
The delay in this case is significant. The Tribunal Decision was handed down on 5 November 2015. Therefore, the Judicial Review Application ought to have been lodged by 10 December 2015. It was not lodged until 18 April 2016, and was therefore 131 days outside the prescribed time limit. Because the applicant has filed no affidavit in support of the Extension of Time Application, there is nothing in evidence that provides an explanation for the delay in lodging the Judicial Review Application by the applicant. There is, in terms of the grounds of application for an extension of time, no explanation of, for example, the following:
a)the extent to which the applicant actually speaks English as opposed to speaking “minimal English”;
b)why, given that the applicant was represented by a migration agent at the Tribunal hearing, no explanation was given of the migration agent’s lack of involvement post the Tribunal Decision, or whether, and if so in what terms, the migration agent explained the applicant’s right to apply for review;
c)the nature of the mental health issues allegedly suffered by the applicant, and whether those are diagnosed mental health issues, and, if they are, what has been done in relation to those mental health issues, and the prognosis in terms of the mental health issues, by any medical practitioners or allied health professionals that the applicant might have seen (or indeed if the applicant has seen any medical practitioners or allied health professionals in relation to the alleged mental health issues); and
d)that the applicant failed to explain what steps, if any, had been taken to find a pro bono lawyer to act for him in the matter, whether on his own behalf, or by others who might have been assisting him.
In the absence of any explanation the significant delay in making the Judicial Review Application weighs against the grant of an extension of time in the interests of the administration of justice.
In terms of the grounds of the Extension of Time Application, and notwithstanding the failure to explain those by way of affidavit evidence, the Court makes the following observations:
a)a lack of language skills of itself is not a proper explanation for delay, and were it to be accepted, a very significant number of, and perhaps even a majority of, applicants for judicial review of a migration decision under s.476 of the Migration Act would have an acceptable explanation for delay on that basis, and that cannot have been the parliamentary intention when requiring an explanation of the reason for delay: WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [17] per Judge Lucev; MZZRO at [34] per Judge Jones;
b)in SZLIH v Minister for Immigration & Citizenship [2009] FCA 108 (“SZLIH”) the Federal Court dealt with an application for extension of time from an applicant who said he was not highly educated and could not read or write English, was unemployed and did not have money to consult a lawyer, and that the Court did not advise him of any time for the lodgement of an appeal, and he did not consult anyone about the appeal, and that he was depressed as there was bomb blast in proximity to his home village and he was concerned for his children and other family members. The Federal Court held that it was not acceptable for an applicant to fail to make proper inquiries to determine when their appeal was required to be lodged: SZLIH at [33] per Cowdroy J, followed by the Federal Magistrates Court of Australia in SZOCH v Minister for Immigration & Anor [2010] FMCA 300 (“SZOCH”), where it was observed that even if there was an omission by a migration agent in relation to judicial review the onus remained on the applicant to make proper inquiries or take reasonable action to ascertain whether he could have taken action, and as to any applicable time limits: SZOCH at [43] per Nicholls FM;
c)ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA at [38] per Foster J. As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner; WZAUQ v Minister for Immigration & Anor [2016] FCCA 152 at [10] per Judge Lucev;
d)insofar as the applicant complains that he did not have the services of a lawyer to assist him, that also does not assist the applicant in terms of an explanation of the delay, particularly a delay of this length. There is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. It follows that a lack of legal representation cannot of itself, be a reasonable explanation for a delay in filing judicial review proceedings in this Court; and
e)there is simply no evidence of the applicant suffering from mental health issues, or what those mental health issues are, or how if he has mental health issues they affect, or affected, his capacity to lodge the Judicial Review Application within the prescribed time. It is not sufficient for an applicant to simply assert as a ground of review that the applicant has mental health issues, and say what they are, and how they might affect him, because:
i)the grounds are not of themselves evidence; and
ii)there is no evidence that the applicant is an expert, and there is no evidence from the applicant annexing, for example, his medical records, so as to provide a proper basis for an evidentiary finding by this Court as to the applicant’s state of mental health and its affect upon him for the purposes of lodging the Judicial Review Application.
It follows that there is no reasonable explanation for the very significant delay in lodging the Judicial Review Application.
In terms of prejudice to the Minister there may be some prejudice in relation to the Minister’s expectation that the applicant would be deported having regard to the provisions of s.198 of the Migration Act. The degree of prejudice must, however, remain minimal in the context of proceedings where it is ultimately necessary to give consideration to the merit of the Judicial Review Application as one of the factors in determining whether to extend time. Further, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett. Overall, any prejudice to the Minister would not weigh against the grant of an extension of time.
As to the impact on the applicant it is tolerably clear that a refusal to extend time would have, absent the present interlocutory injunction application and the Notice of Intention to Remove, a negligible impact, given that the Judicial Review Application has no reasonable prospect of success because of the absence of jurisdictional error, for reasons explained above: see [27]-[34] above.
As to the interests of the public at large, this matter is determinable on existing well understood provisions in the Migration Act and under the Migration Regulations 1994 (Cth), and on established applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
As to the merits of the Judicial Review Application, for reasons set out above, the two grounds of the Judicial Review Application have no prospect of success as they fail to establish jurisdictional error in the Tribunal Decision.
It is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J, and the authorities there cited. This principle applies to the Extension of Time Application: SZSDA at [39] per Foster J.
In the above circumstances, the Court having concluded that the grounds of the Judicial Review Application have no prospect of success, the Court would not extend time for the filing of the Judicial Review Application, and there would therefore be no application in relation to which there is an issue to be tried at all.
In all of the above circumstances, the Court is of the view that there is no serious question to be tried in these proceedings, and in the absence of an order extending time, no question at all to be tried.
Balance of convenience
In public law cases the public interest is a factor in determining where the balance of convenience lies. In Castlemaine Tooheys Ltd & Ors v The State of South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553, in which the applicant sought declarations of invalidity of statutory provisions and an interlocutory injunction restraining the enforcement of those provisions, the High Court at CLR 154-155 per Mason ACJ said:
… the court has indicated its willingness to protect a plaintiff’s alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest …
It is a different matter where it is suggested that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter.
and
In arriving at a balance of convenience the court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement.
In Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 the Federal Court said at [15] per Griffiths J:
There is a line of legal authority to the effect that a court should be very wary about granting relief on an interlocutory basis which has the effect of preventing the operation of primary or delegated legislation.
The assessment of the public interest in this case must have regard to the terms of the Migration Act itself. Section 198 of the Migration Act sets out the circumstances in which a person must be removed. Relevantly for present purposes, under s.198(6) of the Migration Act a person detained must be removed as soon as practicable once any applications for visas that can be granted while the person is within the migration zone have been finally determined in circumstances where the visa cannot be granted. No residual discretion resides in the Executive to decline to remove a person if the statutory circumstances exist.
The statutory scheme would be defeated or seriously undermined if the Court were to grant an injunction restraining the removal of the applicant pending the resolution of this proceeding. That is a factor in assessing the balance of convenience which tells against the grant of the injunction, especially where, as here, there is no serious question to be tried, and the Judicial Review Application is out of time.
The existence of judicial review proceedings does not preclude the removal of the applicant in compliance with the statutory obligation under s.198 of the Migration Act. In SZSPI v Minister for Immigration & Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 (“SZSPI”) the Full Court of the Federal Court stated at [46] per Allsop CJ, Mansfield and Besanko JJ:
[W]here it has been demonstrably shown that a person has had a reasonable opportunity to obtain legal advice and injunctive relief if desired, the removal of an applicant from Australia with a subsisting and pending application, such as an application for an extension of time in which to file a notice of appeal, may not raise either questions of contempt, or Constitutional issues concerning the intersection of judicial and executive power to which we have made reference. Such a conclusion would be able to be reached by a Court if it were demonstrated that the person was aware of her or his ability to approach the Court to prevent deportation until disposition of any application and that the person had been given a reasonable opportunity and reasonable facilities to seek advice about and, if desired, make such an application.
Ms Thompson’s Affidavit indicates that the applicant has been receiving assistance from non-legal advisors, including herself, and that more than a month prior to the Judicial Review Application and the Extension of Time Application being filed she had received a copy of the Tribunal Decision from Ms Hill at Centrecare Migrant Services. There is no explanation as to how or why Ms Hill came into possession of a copy of the Tribunal Decision, and the only inference open to the Court is that she was providing some kind of assistance to the applicant. It does not appear that any action was taken with respect to the making of the Judicial Review Application following receipt of a copy of the Tribunal Decision by Ms Thompson. Four weeks passed, and during a visit to the Yongah Hill IDC the applicant gave Ms Thompson a copy of the Removal Notice. It was only after receipt of the Removal Notice that the Judicial Review Application, incorporating the Extension of Time Application and an application for interlocutory injunctive relief to prevent the applicant’s removal from Australia, was filed, four days later. There is no evidence that the applicant, or those who may have been assisting him, including Ms Thompson, have sought any legal advice for the applicant, or that it was sought and was not able to be obtained, either following the receipt of the Tribunal Decision by Ms Thompson on 16 March 2016, or following the receipt of the Removal Notice on 14 April 2016. Furthermore, notwithstanding ground 3 of the Extension of Time Application, there is no evidence of what, if any, steps have been taken “to find a pro bono lawyer to act for” the applicant. Nor is there any evidence, either from the applicant or those assisting him, as to when the applicant actually became aware that he was entitled to apply for a review of the Tribunal Decision by way of the Judicial Review Application. The applicant has availed himself of the opportunity to seek interlocutory injunctive relief to prevent his removal, and has had some assistance in that regard, albeit from a non-legal source. In the circumstances set out above, the applicant has had the reasonable opportunity anticipated by the Full Court of the Federal Court in SZSPI.
The Court also observes that the balance of convenience does not favour the grant of the interlocutory injunction in circumstances where the Court would not grant the Extension of Time Application so as to extend time to file the Judicial Review Application in any event.
Conclusion and orders
The Court has concluded that:
a)the applicant’s injunction application ought not to be granted because there is no serious issue to be tried and the balance of convenience does not favour the issuance of the injunction sought;
b)the Court would not grant the Extension of Time Application; and
c)even if the Judicial Review Application was taken as being within time, it does not establish jurisdictional error in the Tribunal Decision.
Taking into account its conclusions set out above the Court dismissed the Judicial Review Application by order on 19 April 2016, and made a further order that the applicant pay the Minister’s costs in the sum of $3416 by 19 May 2016.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 April 2016
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