BRJ16 v Minister for Immigration
[2018] FCCA 2929
•18 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRJ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2929 |
| Catchwords: MIGRATION – Protection visa – application to extend time. |
| Legislation: Migration Act 1958 (Cth), ss.417, 477, 477(2), 65, 424A |
| Cases cited: WZAWB v Minister for Immigration and Border Protection & Anor (2016) 309 FLR 398 |
| Applicant: | BRJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 612 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 18 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Keane |
| Solicitors for the Applicant: | Dbl Solicitors |
| Counsel for the Respondents: | Mr Byrnes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the Application filed 6 July 2016 and Amended 13 September 2016 be dismissed.
That by no later than 4:00pm on 19 October 2018, the parties shall jointly consult with each other and forward to the Court by way of email to [email protected] a draft final order which appropriately reflects the Reasons for Judgment including in respect of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 612 of 2016
| BRJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant was born on 7 July 1991 in Charrampur, Bangladesh. The village of Charrampur is approximately four hours travel by motor vehicle from Dhaka, the capital city of Bangladesh.
The Applicant is a Sunni Muslim of Bengali ethnicity. He is a citizen of Bangladesh. In 2013 the Applicant travelled from Bangladesh via aeroplane to Kuala Lumpur, Malaysia. The Applicant then travelled to Indonesia and then onto Australia by boat. He arrived in Australia as an unauthorised maritime arrival at Darwin on 6 May 2013.
On 13 August 2013 the Applicant applied for a Protection (Class XA) Visa.
In a decision dated 28 October 2014, the Minister's delegate refused to grant a Protection Visa to the Applicant.
On 6 November 2014 the Applicant applied to the Tribunal for a review of the delegate's decision.
On 16 December 2015 the Applicant attended a hearing before the Tribunal. In a decision dated 24 December 2015, the Tribunal affirmed the delegate's decision. Notification of that decision was provided to the Applicant under cover of a letter dated 4 January 2016. The letter also contained a fact sheet which included information about the Applicant's right to apply to the Federal Circuit Court of Australia for a judicial review of the Tribunal's decision. The Applicant was further notified in writing that the time period for such an application was 35 days from the date of the decision.
In a letter dated 1 February 2016 the Applicant, pursuant to Section 417 of the Migration Act 1958 (Cth) (the Act), requested Ministerial intervention and sought that a more favourable outcome be substituted. In a letter dated 31 March 2016 the Applicant was informed that the request did not meet the Minister’s guidelines in relation to a referral. Accordingly, the matter had been finalised without a referral to the Minister.
Eventually, on 6 July 2016, the Applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision dated 24 December 2015. The time limit for the filing of an application for judicial review had expired on 29 January 2016. The application for judicial review was therefore made approximately 129 days outside the limitation period. In the original application filed 6 July 2016 and again in the Amended Application filed on 13 September 2016 the Applicant, at the outset, seeks an order that the time for the making of the application be extended under Section 477 of the Act.
In a decision entitled WZAWB v Minister for Immigration and Border Protection & Anor (2016) 309 FLR 398 His Honour Judge Lucev stated from paragraph [49] in relation to an application to extend the time limit:-
49. “Section 477(2) of the Migration Act provides that the Court may order that the period be extended as the Court sees appropriate, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
50. Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) provides that, relevantly, such an application must be supported by an affidavit explaining the delay and showing why it is in the interests of the administration of justice that an extension be allowed. The applicant filed such an affidavit: Applicant’s February 2015 Affidavit.
51. Generally, in cases of an application for an extension of time, the Court considers the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (‘Hunter Valley’), relevantly:
a) whether, an acceptable explanation for the delay being offered, it would be fair and equitable in all the circumstances to extend the time;
b) any prejudice suffered by the respondent resulting from the delay;
c) the merits of the substantial application; and
d) considerations of fairness between the applicant and other individuals in a like position, taking into account the wider public interest.
52. In regard to applications under s.477(2) of the Migration Act, this Court has held that an extension of time will only be granted where:
a) the applicant so applies in the correct form; and
b) the Court considers it necessary in the interests of the administration of justice to grant the extension: Tang v Minister for Immigration & Citizenship [2013] FCA 824 (‘Tang’), WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 (‘WZASQ’).
53. It is generally accepted by this Court that a non-exhaustive list of factors to be considered in determining whether an extension is in the interests of the administration of justice includes:
a) the extent of any delay;
b) the reasons for such delay;
c) prejudice to the respondents;
d) impact on the applicant should time not be extended;
e) interests of the public at large;
f) merits of the proposed substantive application; and
g) the general discretion of the court.
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 matter was initially called on for hearing in the Federal Circuit Court of Australia in 22 February 2018. At that point in time the Applicant had not filed an affidavit setting out evidence explaining the delay. The matter was adjourned. Subsequently, on 5 April 2018 the Applicant filed an affidavit setting out the reasons for the delay.
Extent of Delay
The length of the delay is approximately 129 days. This is not insignificant.
Reasons for Delay
The reasons for the delay contained in the affidavit filed 5 April 2018 are, to say the least, pretty light on. The Applicant had legal representation at the relevant time but, the Applicant says, based on the advice of his former solicitors at the time of the Tribunal's decision, he did not immediately lodge an appeal to the Federal Circuit Court of Australia. Mr Keane of the Counsel appears on behalf of the Applicant. Mr Keane informed the Court that he had not cited any opinion from the former solicitors. The Applicant does not state in his affidavit whether the advice from the solicitors was verbal or written.
The Applicant referred to his application for ministerial intervention and stated in his affidavit filed 5 April 2018 what occurred in that regard. The decision in WZAWB (supra) and the cases cited at paragraphs [82] and [83] therein provide ample authority for the proposition that on its own – seeking a ministerial intervention – is not a satisfactory explanation for the delay in making an application for judicial review to the Federal Circuit Court of Australia.
The affidavit of the applicant filed 5 April 2018 does not, in my view, provide a satisfactory explanation for the Applicant’s delay in the filing of the application for judicial review.
Prejudice to the Respondents
The late filing of the application for judicial review has not caused any prejudice to the Respondents. In these types of cases, it rarely would.
Impact on the Applicant
The impact on the Applicant if time is not extended will be that he has reached the end of the road in relation to this current application for a Protection Visa and the review/appeal process.
Interests of the Public
The interests of the public at large are best served when applications that are brought to the Court are dealt with expeditiously. Equally, if the Court comes to the conclusion that, based on the evidence, there has been jurisdictional error then the interests of the Australian public at large would be best served by granting the extension application.
The Merits of the Substantive Application
The exercise of the discretion of the Court in the present case to grant or not to grant an extension of time pursuant to section 477(2) of the Act depends largely upon whether or not the Court considers that the substantive application is meritorious. If it is indeed a meritorious substantive application, then the failure to provide a satisfactory reason for the delay in the filing of the application becomes a less significant factor.
I therefore find it necessary to examine in detail the substantive application.
The grounds for review in the Amended Application filed 13 September 2016 are as follows:-
“Amended Grounds of application
Ground 1: No evidence/ decision not based on logical or rational grounds
1. The learned Tribunal member committed a jurisdictional error by finding that:
(a) the country information does not provide any support for the proposition that a person with no political involvement would attract such a level of interest on the part of the Awami League that they would pursue [the Applicant] (Reasons at [29];
(b) there is nothing available in the available country information to support his claim that this would have led the Awami League supporters to trace him to his village and to threaten and assault his father while looking for him; (Reasons at (34]);
(c) that the applicant has no reason to fear persecution should he return to Bangladesh should he return to Bangladesh on the basis of his political opinion. imputed or otherwise and there is not a real chance that he would face such persecution were he to return to his home village in Bangladesh (Reasons at [35);
when there was no evidence to support those findings and where those findings were not based on logical or rational grounds.
2. Further, in making the findings in paragraph 1 above, the learned Tribunal Member committed a jurisdictional error by finding that he would not accept the Applicant's claim that the Awami League supporters were able to locate him in his village or that they could have obtained the Applicant's new telephone number within a day of him changing his SIM card (Reasons at [29]), due to the Applicant not being able to explain how the Awami League supporters could trace his number, when there was no evidence to support those findings, and where those findings were not based on logical or rational grounds.
Ground 2: Procedural fairness
3. The learned Tribunal member committed a jurisdictional error in holding that he could not accept the Applicant's claim that that the Awami League supporters were able to locate him in his village or that they could have obtained the Applicant s new telephone number within a day of him changing his SIM card (Reasons at (29)), due to the Applicant not being able to explain how the Awami League supporters could trace his number, when doing so was to disbelieve the Applicant for refusing to speculate about a matter he could not have known.”
The Applicant’s First Proposed Ground – No Evidence/Illogicality
In AUG17 v Minister for Immigration & Anor [2017] FCCA 1874 His Honour Judge Driver set out the relevant principles to be applied when a “no evidence” submission is made. His Honour stated from paragraph [70]:-
70. “First, the making of a finding of fact for which there is no supporting evidence is an error of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390). However, the mere existence of an error of law, in the context of a ‘no evidence’ ground, does not of itself give rise to the existence of jurisdictional error. Jurisdictional error will only arise where the relevant fact, for which there was no evidence to support, was a jurisdictional fact (Buchwald v Minister for Immigration (2016) 242 FCR 65);
71. Secondly, a ‘no evidence’ ground only applies to findings of fact, not to expressed opinions (SZFWB v Minister for Immigration [2007] FCA 167) or to findings of satisfaction or non-satisfaction (WAJS v Minister for Immigration (2004) 240 FCR 261).
72. Thirdly, in ascertaining whether or not a finding of fact was made in the absence of evidence:
a) determining whether a particular inference can be drawn from facts is a question of law, (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 355 ) and
b) “the no evidence ground cuts out when even a skerrick of evidence appears” (Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587).
73. Fourthly, as with all assertions of jurisdictional error, the party asserting that a finding was made in the absence of evidence bears the evidentiary onus of proving such a matter (BSB15 v Minister for Immigration [2016] FCA 1135).
74. Further to the point made at [70] above, the relevant jurisdictional fact in a refugee context is the decision-maker’s ‘state of satisfaction’ that the relevant visa criteria are met (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611).
75. Further to the point made at [73] above, in the absence of the applicant adducing a transcript of the hearing before the delegate, which was provided to the Authority (CB 250) and to which the Authority stated it had had regard (Authority reasons at [3] (CB6) it is difficult to be satisfied that there was no evidence to support findings made by the Authority (COC15 v Child Support Registrar [2016] FCCA 224).
76. I also accept that a finding of fact is not necessary to support a conclusion of non satisfaction (MZZUG v Minister for Immigration [2015] FCA 1151).”
AUG17 (supra); Buchwald v Minister for Immigration and Border Protection (2016) 24 FCR 65 per Bromberg J at [33] to [39] and Ali v Minister for Immigration and Anor [2018] FCCA 121 per Judge Riley –are authorities for the proposition that a jurisdictional error will only occur where the relevant fact – for which it is alleged there was no evidence to support – was a jurisdictional fact. In the context of an application for a Protection Visa – i.e. in the refugee context – the relevant jurisdictional fact is the Tribunal's "state of satisfaction" that the relevant visa criteria are met: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Gummow ACJ and Kiefel J at [20] and AUG17 (supra) per Judge Driver at paragraph [70].
The term “jurisdictional fact” is explained in Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) 244 CLR 144 by French CJ at paragraph [57] stated:-
57. “The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be ‘a complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.”
Section 65 of the Act states:-
“Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
I note what was stated by Logan J in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404. In relation to Protection Visas and section 65 of the Act. Logan J stated at paragraph [7]:-
7. “Satisfaction’ as to the existence or otherwise of these criteria is a jurisdictional fact. The exercise of the power conferred by s 65 is a matter of obligation dependent upon the existence of that jurisdictional fact. It does not entail the exercise of a discretion.”
Therefore, in cases where the Applicant seeks a Protection Visa – the relevant jurisdictional fact is the Tribunal’s "state of satisfaction" that the relevant visa criteria are met. (Note per Judge Driver in AUG17 (supra) at paragraph [70]).
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Gummow ACJ and Kiefel J explained (from paragraph [1]):-
1. “A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) (the Act) is that the applicant be a non-citizen of Australia to whom the Minister ‘is satisfied’ that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides (14). If the Minister ‘is satisfied’ that this and other criteria ‘have been satisfied’ then the Minister ‘is to grant the visa’; if ‘not satisfied’, then the visa must be refused (s 65(1)).
2. The term ‘satisfy’ has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition.
3. Upon review by the Refugee Review Tribunal (the RRT) of a refusal by the minister (or the delegate of the minister), the RRT exercises all the powers and discretions conferred by the Act upon the minister: s 415(1).”
As was pointed out by Gummow ACJ and Kiefel J in SZMDS (supra) at paragraph [7]:-
7. “The only avenue of judicial review in the present case (is) that rooted in section 75(v) of the Constitution itself and that (requires) jurisdictional error to quash the administrative decision in question. This is because the privative clause provision found in section 474 of the Act, as interpreted in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 – (is) ineffective to exclude judicial review by the (Federal Circuit Court)…on the ground of jurisdictional error.”
Gummow ACJ and Kiefel J in SZMDS (supra) stated further under the heading, "jurisdictional error" from paragraph [16]:-
16. “Of the distinction between jurisdictional and non-jurisdictional error in the setting of the Australian Constitution, Justice Selway, writing extrajudicially, said (27):
“Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction, it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles.”
17. In Plaintiff S157/2002 (28), Gaudron, McHugh, Gummow, Hayne and Kirby JJ said:
“Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate.”
18. The constitutional jurisdiction has its origins in the control exercised by the English courts to prevent administrative authorities exceeding their authority or neglecting their duties. The execution of the laws made by the Parliament was seen as an aspect of the executive power (29). There was no distinct concept of public administration as developed in some civilian systems (30). In the English system the ‘jurisdictional fact’ was an appropriate marker for the enforcement of legality; how much further the field for judicial review of administrative action extended remained a matter of debate.
19. It is in this setting that the statement of general principle by Brennan J in Attorney-General (NSW) v Quin (31) is to be understood. His Honour said:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
20. In his work Administrative Law, Professor Paul Craig describes jurisdictional facts as those relating to the existence of the power of a public body over the relevant area and continues (32):
“The statutory conditions thus laid down may be factual, legal or discretionary in nature. A classic factual precondition is that a person should be of a particular age to qualify for a benefit; a simple legal stipulation is provided by the meaning of the term employee; a discretionary precondition is where the statute provides that if a minister has reasonable grounds to believe that a person is a terrorist then he may be detained. Claims of factual error can arise in all three types of case. It might be argued that the agency simply got the applicant’s age wrong because it confused the applicant with a different person. It might be claimed that the agency misapplied the legal meaning of the term employee to the facts of the applicant’s case. It might be contended that the minister did not on the facts have sufficient material to sustain a reasonable ground for believing that the applicant was a terrorist.”
The criterion for attraction of the jurisdiction of the decision maker in deciding an application under the Act for a protection visa is not expressed in terms of ‘fact’ as simply understood. Rather, as explained earlier in these reasons, the Act fixes upon a criterion of ‘satisfaction’ as to the existence of a certain state of affairs respecting the status of the applicant.”
The following principles must also be kept in mind when having regard to the current application before the Court:-
a)As noted earlier in the decision of Judge Driver in AUG17 (supra) a "no evidence" ground only applies to findings of fact. It does not apply to expressed opinions, or to findings or conclusions of satisfaction or non-satisfaction;
b)A finding of fact is not necessary to support a conclusion of non-satisfaction: note MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 per Murphy J at paragraph [57];
c)In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 – the Court noted at paragraph [12] that is difficult for a "no evidence" ground to apply in respect of a rejection of evidence. In WAJS (supra) the Court upheld the decision of His Honour Judge Driver at first instance. Paragraph [13] of WAJS (supra) the Full Court of the Federal Court quoted from the decision of Judge Driver from paragraph [18] of His Honour's judgement at first instance where he noted:-
13. “The evidence before the presiding member which led to the adverse findings on credibility was the applicant’s own account. The presiding member found the applicant’s account to be implausible and illogical. The presiding member did not require other evidence to support her rejection of the applicant’s evidence. She had to satisfy herself, or not, on the basis of the material put before her. It is up to an applicant to satisfy the decision maker that he or she faced persecution. If an applicant presents evidence and it is rationally rejected by the decision maker, the applicant can hardly complain that there was no evidence supporting the rejection. There plainly was evidence, being the evidence presented by the applicant himself. Provided that the presiding member approached the consideration of the applicant’s evidence in a rational and logical manner, which, in my view, she did, the applicant cannot found a judicial review application on a no evidence ground, or on the third limb of the rules of procedural fairness, if it exists in Australia.”
In paragraph [17] of the decision in WAJS (supra), the Full Court of the Federal Court noted:-
17. “We agree with these comments. Like Driver FM, we would not necessarily have agreed with the view of the Tribunal member, if it were for us to determine the facts of the case. However, it is not. Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said the Tribunal member’s view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. We do not think the ‘no evidence’ ground has application to such a situation…
18 …A tribunal of fact is entitled to reject the evidence even of an impressive witness, if it rationally considers that evidence to be implausible; for example, where the evidence is inherently unlikely or at odds with established facts.”
Tracey J in Shop, Distributive and Allied Employees Association v the National Retail Association and Another (No 2) (2012) 205 FCR 227 stated at paragraph [31]:-
31. “The ‘no evidence’ ground is available where legislation imposes a precondition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the precondition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ; 78 ALD 224 ; [2004] HCA 32 at [39] per Gummow and Hayne JJ. The ground will not be made out unless it is established that there was ‘no evidence, or other material, to justify the findings of fact made’: see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 ; 228 ALR 28 ; [2005] FCA 1707 at [575] per Weinberg J. The point is put more bluntly in Aronson, Dyer and Groves, ‘Judicial Review of Administrative Action’, 4th ed, p 259 where the learned authors say that the ‘no evidence’ ground ‘cuts out when even a skerrick of evidence appears’.”
As to Grounds 1(a), 1(b) and 2 contained in the Applicant's Amended Application filed 13 September 2016 – I agree with the submission made on behalf of the First Respondent. The matters particularised in these paragraphs relate to subsidiary matters concerning the Tribunal's assessment of the country information and the Tribunal's assessment of the particular claims made by the Applicant.
Furthermore, paragraph 1(c) of the Amended Application (referring to paragraph [35] of the Tribunal’s decision) does not relate to a jurisdictional fact. It is not a “finding” as to the “satisfaction” of the criteria applicable under section 65 of the Act.
The paragraphs of the Tribunal's decision referred to in the Amended Application (in Grounds 1 and 2) do not actually concern findings of fact. These paragraphs contain the Tribunal's assessment of the evidence (in particular at paragraphs [29] and [34]) and provide the Tribunal’s opinion or assessment as to the possibility (or otherwise) of a future occurrence (for instance paragraph [35]).
There was, in fact, no need for the Tribunal to make findings of fact in order to reach the conclusion (which it did) that it (the Tribunal) was not satisfied that the Applicant met the relevant criteria.
The assessments and the opinions stated by the Tribunal (whether or not they actually amounted to findings of fact) were open to the Tribunal based upon the evidence before it. The Tribunal had regard to the Applicant's own evidence. The Tribunal had regard to country information. The choice, and weight to be given to such country information is solely a question for the Tribunal – not the Court. The Tribunal is able to draw inferences from the country information to which it had regard. Such inferences inform the Tribunal’s view as to the plausibility of the Applicant's claims. The Tribunal referred to the country information; drew inferences from that information; had regard to its own assessments and views of the plausibility of the Applicant's evidence; had regard to the Applicant's lack of political involvement and came to the conclusion that the Applicant's version of events was not plausible – in particular, it was not plausible that the Awami league supporters would have traced the Applicant to his home village – some four hours bus drive away from the capital of Bangladesh, Dhaka – a city with a population of approximately 18 million – one of the largest cities in the world.
As noted earlier, all of the views, opinions and assessments of the Tribunal were open to the Tribunal on the evidence.
I agree, further, with the submission from the First Respondent that the current case is similar (in relation to the matters currently under discussion) to the decision of Murphy J in MZZUG (supra). From paragraph [59] to [61] (inclusive) His Honour noted – in a case (like the present) where the "no evidence" submission was not successful:-
59. “In any event, the contention that there was ‘no evidence’ is untenable as there was some evidence before the Tribunal. As the learned authors Aronson and Groves put it in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) the no evidence ground ‘cuts out when even a skerrick of evidence appears’: see also Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (Weinberg J).
60. The Tribunal referred (at [46]) to country information set out in the delegate’s decision which was put in evidence by the applicants. The delegate’s decision described the relevant country information in more detail, including that 5,000 Sri Lankans had returned from India since the end of the civil war and that ‘… there is no country information to suggest that returnees are targeted based on their absence from Sri Lanka or their illegal departure’. The Tribunal referred (at [50]) to country information including that while there were ‘… some reports of the mistreatment of Tamil returnees provided by the applicant’s agents and others … these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the applicants.”
61. In my view there was some evidence, of a negative character, before the Tribunal going to the likelihood of the first and second applicant being charged for illegally departing Sri Lanka.”
The Tribunal came to the conclusion that it did not believe the Applicant in relation to certain key aspects of his claims. The assessment of an Applicant's credibility is solely a matter for the Tribunal: note per McHugh J in the matter Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 - where His Honour referred to credibility assessments as being a matter for the Tribunal and stated that it is a “function of the decision-maker par excellence”. I note, for instance, that the complaint in paragraph 1(b) of the Amended Application was rejected in paragraphs [30] and [31] of the decision. The Tribunal noted:-
30. “Each of the prosecutor's claims for mandamus and prohibition is based upon the contention that the tribunal's decision was void ab initio. That being so, in order to succeed in his claims for mandamus and prohibition, the prosecutor must demonstrate that, in reaching its decision, the tribunal made a jurisdictional error.19 A non-jurisdictional error would not ground prerogative relief. At common law certiorari lies for non-jurisdictional errors apparent on the face of the record,20 but because the power of this court to issue certiorari is ancillary to the jurisdiction to issue mandamus or prohibition, to obtain an order of certiorari the prosecutor must demonstrate that the tribunal has made a jurisdictional error.
31. In addition to the claim for prerogative relief, the prosecutor also seeks an injunction against the third respondent. No doubt the power to grant injunctions under s 75(v) is not confined to jurisdictional error, and, if an injunction was appropriate, in some situations certiorari would also lie to quash a decision or order so as to effectuate the grant of an injunction. But there is nothing in this case which would warrant the grant of an injunction against the third respondent unless the decision of the tribunal was void. Indeed, no order could be made against that respondent unless relief was obtained against the first and second respondents. Nor is there anything in the case which would justify an injunction against the first and second respondents if mandamus or prohibition is not available. There is nothing to suggest that, even if the first and second respondents have acted within their jurisdiction, they have acted or are threatening to act unlawfully in some way that infringes or threatens to infringe the legal rights of the prosecutor to stay in this country.”
These paragraphs relate to the credit assessment conducted by the Tribunal in relation to the Applicant. No jurisdictional error has been identified.
The pleading of Ground 1 in the Amended Application filed 13 September 2016 includes a reference to an illogicality argument on behalf of the Applicant. The same goes for Ground 2. I note what was stated recently in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 by Derrington J from paragraph [37] – in relation to claims of illogicality establishing jurisdictional error:-
37. “It would appear that a jurisdictional error might arise as a result of an illogical, irrational or unreasonable finding of fact which is ‘on the way’ to a final conclusion (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 648, [131]–[132]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 137–138, [151]–[153]; SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 at [61]–[62]; CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413 at 434–435, [60]). However, such errors of fact will be within the jurisdiction of the Tribunal to make if they are not critical to, or are immaterial to the final outcome. This point was made by Wigney J in Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 where his Honour said:
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J);SZNKO v Minister for Immigration & Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration & Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].”
As noted by Dodds-Streeton J in MZYOI v Minister for Immigration and Citizenship and Another (2012) 130 ALD 256 (referring to Rares J’s consideration of SZMDS (supra) in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 – the threshold for establishing illogicality is very high.
As noted earlier in these reasons – the Tribunal's reasoning; the Tribunal's opinions; the Tribunal assessments of the country information and the Tribunal's assessment of the Applicant's credibility were all open to it on the evidence. The Tribunal drew inferences from the country information. The Tribunal assessed the credibility of the Applicant. It cannot be said that the outcome reached by the Tribunal was illogical.
No jurisdictional error has been identified in relation to this ground.
The Procedural Fairness Ground (Proposed Ground 2)
The obligations of the Tribunal in relation to procedural fairness are exhaustively set out in section 424A of the Act. By this section, certain "information" must be given to the Applicant and comment invited. I note what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at paragraph [18]:-
18… “However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
I note paragraph [28] of the written submissions of the Applicant filed 29 January 2018. I agree with the submission made in writing on behalf of the First Respondent at paragraph [86] in this regard. I cannot understand how this submission can be said to be a breach of the Tribunal’s procedural fairness obligations. The allegation does not involve any failure to put "information" to the Applicant. I do not even believe it is "information". It is a query by the Tribunal or it is "the existence of doubt" (to quote the High Court in SZBYR (supra)). It is not information. The Tribunal is allowed to ask the Applicant questions. There is no suggestion that the Applicant was in some way denied an opportunity to be heard. The procedural background does indeed show that the Applicant had ample opportunity to present his claims. In relation to this particular ground – the Applicant has not identified any jurisdictional error.
Conclusion in relation to the Applicant's application to extend the time limit.
Having come to the conclusion that the Applicant has not identified any jurisdictional error – it follows that the Court has reached the conclusion that the Applicant's substantive application is without merit. Having come to the conclusion that the substantive application is without merit; and when I combine that with the fact that the length of delay was substantial (129 days) and, further, having come to the conclusion that the Applicant did not provide a satisfactory explanation for the delay in making the application for judicial review to this Court – it leads me to conclude that the Court should exercise its discretion against granting an extension of time to the Applicant pursuant to section 477(2).
The Applicant's Amended Application filed 13 September 2016 is therefore dismissed.
Both Counsel at the hearing, Mr Keane on behalf of the Applicant and Mr Byrnes on behalf of the First Respondent – conceded that costs should follow the event – including the costs thrown away in respect of the February 2018 appearance. The costs shall be in a fixed amount pursuant to the scale. The First Respondent should forward to the Court and to the solicitors for the Applicant the precise amount of costs sought.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 18 October 2018
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