BTK16 v Minister for Immigration

[2017] FCCA 505

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 505

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection visa – whether an extension of time is warranted in the interests of the administration of justice – adverse findings made by the Authority cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 189(3), 473CA, 473CB, 473DA, 473DC, 473GB.

Cases cited:

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BTK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1806 of 2016

Judgment of: Judge Street

Hearing date: 17 March 2017

Date of Last Submission: 17 March 2017

Delivered at: Sydney

Delivered on: 17 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

On a direct access basis

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to the Applicant to rely upon the amended application sent to the Registry on 6 March 2017 deleting the word “proposed” and the Court dispenses with the need to file any further document.

2. Leave is granted to the First Respondent to file the affidavit of Ms Gabrielle Doyle affirmed 17 March 2017.

3. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1806 of 2016

BTK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 27 May 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant is a national of Afghanistan and entered Australia as an unauthorised maritime arrival on 11 November 2012 and was taken into immigration detention pursuant to s.189(3) of the Act. The applicant was released from immigration detention on 23 April 2013.

3. On 23 July 2015, the applicant made an application for a Temporary Protection class XD subclass 785 visa. In support of the application, the applicant made a statement dated 17 June 2015 in which the applicant set out his claims for protection. In summary, the applicant feared that if he returned to Afghanistan he would face serious harm at the hands of the Taliban by reason of his Shia Muslim religious beliefs, by reason of an imputed political opinion because he favoured his daughters being educated and did not favour them being married off as children. Further, the applicant claimed that he would be perceived as a traitor because he lived in Australia. 

4. On 18 November 2015, the applicant participated in an interview with the Minister’s delegate. On 2 May 2016, the delegate made a decision to refuse to grant the applicant a temporary protection visa. 

The Authority

1. On 3 May 2016, the Minister referred the delegate’s decision to the Authority pursuant to s.473CA of the Act. On the same day, the Authority wrote to the applicant advising him that he could provide new information in support of his case but that the IAA could only consider such information under limited circumstances.

2. On 27 May 2016, the Authority affirmed the delegate’s decision. The Authority commenced its reasons by stating that it had regard to the material which the Secretary of the Department had provided pursuant to s.473CB(1) of the Act, as well as more up-to-date country information. The Authority noted that although the latter comprised new information as defined by s.473DC(1), the Authority was satisfied there were exceptional circumstances for doing so.

Consideration of the applicant’s claims and evidence

1. The Authority accepted that the applicant and his wife received two threatening letters. The first threatening letter was sent to the applicant’s wife after taking on a temporary teacher position in a school in Kandahar. The second threatening letter demanded that the applicant withdraw his daughters from school and require his older daughter to marry. The Authority accepted the applicant’s claim to object to the underage marriage of his children. However, the Authority did not, accept that those letters had been sent because the applicant and members of his family were Shias.

2. The Authority did not accept the applicant’s claim that his family received a third threatening letter and that his younger brother and parents fled from Kandahar to Kabul. 

Assessment of refugee criterion

1. The Authority assessed the applicant’s claims for protection against the statutory criteria in s.5H and s.5J of the Act.

2. The Authority found the applicant facing serious harm in Kandahar on the basis of his wife’s previous employment as a teacher to be remote. In reaching that conclusion, the Authority relied upon the fact that the applicant’s wife had resigned from her position and had not received any subsequent threats in the six months leading up to her departure to Quetta.

3. The Authority accepted that if the applicant were to continue to send his daughters to school in Kandahar, he would face a real chance of being killed by the author of the second letter by reason of his imputed political opinion. The Authority accepted that the applicant would face a more than remote chance of serious harm on the basis that he had refused to accede the demands of the Taliban and anti-government elements to require his older daughter to marry. 

4. Consequently, the Authority considered whether the applicant would face serious harm if he were to relocate to Kabul. The Authority referred to the country information that indicated there were few references of incidents occurring in Kabul where teachers and students would be targeted in relation to girls’ education. 

5. The Authority observed that there was no evidence to indicate that the Taliban or anti-government elements would pursue the applicant in Kabul due to his support of the education of his daughters and the employment of his wife. For these reasons, the Authority was not satisfied that the applicant would face a real chance of serious harm in Kabul, even if his daughters were to re-join him there and to be sent to school. 

6. The Authority found that the applicant did not have an association to the government or international community that would make him a specific target in Kabul.

7. The Authority considered whether the applicant would face serious harm in Kabul on the basis of his Shia religious belief. The Authority found that due to the infrequency of attacks against Shia population in Kabul, the prospect of the applicant being targeted on the basis of his religious beliefs was remote.

8. The Authority then considered the applicant’s claims to fear serious harm on the basis of being a returnee from a western country and found the chance of the applicant facing serious harm to be remote.

Assessment of complementary protection criterion

1. The Authority had regard to the country information and considered the applicant’s claims for complementary protection. The Authority found from the reasons identified with respect to the applicant’s Refugees Convention claims, that the applicant would not face a real risk of significant harm in Kabul by reason of being a Shia, for sending his daughters to school, for his wife’s/women’s employment as a teacher, for reasons of underage marriage of his children or for returning to Afghanistan from a western country.

2. The Authority considered whether it be reasonable in the sense of being practicable for the applicant to relocate to Kabul as required under s.36(2B)(a) of the Act. In doing so, the Authority found that the applicant had access to significant resources and would have the means to afford suitable accommodation in Kabul and that he would have family support and a sizeable Shia community in Kabul. The Authority found the applicant would be able to send his daughters to school and his wife may be able to work as a teacher. The Authority found the risk of the applicant being discriminated against on the basis of being a Shia was low. The Authority found that the applicant did not have a particular profile that would make him the target of generalised violence.

Before this Court

1. The application in the present case was filed on 4 July 2016, being three days after the 35 day period identified in s.477(1) of the Act. Accordingly, the applicant requires an extension of time under s.477(1) of the Act.

Factors to consider for an application for extension of time

1. The material considerations for an extension of time are the explanation for the delay, whether there is any particular prejudice, and the merits of the application in determining whether it is necessary in the interests of the administration of justice to make an order extending time.

2. The applicant proffered an explanation for the delay in relation to self-harm and also identified an attendance at hospital in relation to a laceration. The applicant’s explanations for the delay albeit short, are not satisfactory.  However, the material issue in the present case are the merits of the application. No prejudice is suggested by the first respondent.

Unfiled proposed amended application

1. On 6 March 2017, Mr Williams, counsel on behalf of the applicant, sent by email to the Court registry a proposed amended application. No objection was made to the application to amend by the first respondent. The Court made an order granting leave for the applicant to rely upon the amended application as received by the Registry but not filed on 6 March 2017 and had deleted the word “proposed” and dispensed with the need for the filing of the document. 

2. The grounds in the application are as follows:-

   Ground 1 – Failure to accord procedural fairness or constructive failure to exercise jurisdiction with regard to the claims of the wife and daughter of the applicant

   1.1 The second respondent (IAA) failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction with regard to the claims of the applicant or the claims of his wife and daughters that they face a real risk of harm on the basis of their membership of a social group as females at risk from Islamic extremism, including (a) his wife’s employment as a teacher and (b) his daughters attendance at school or (c) opposition to underage marriage.

   1.2 The IAA committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s individual or accumulative claims, or an integer of those claims, including the claims of wife and daughters that they face a real risk of harm on the basis of their membership of a social group as females at risk from Islamic extremism, including (a) his wife’s employment as a teacher and (b) his daughters attendance at school or (c) their opposition to underage marriage.

   Particulars

   a) At [37] and [47], the IAA did not strictly consider whether the wife or daughters faced a real risk harm at the hands of Islamic extremists if they are relocated from Kandahar to Kabul in Afghanistan. Such considerations raise different issues and needed to be considered separately to the harm that might be faced by the applicant de facto of his wife and daughters.

   Ground 2: Misapplication of law or failure to ask the correct question with regard to the correct social group of the wife and daughters

   2.1 The IAA committed jurisdictional error by failing to identify and evaluate the claims of the wife and daughter against the correct social group, as females at a real risk of harm from Islamic extremism in Afghanistan, including (a) his wife’s employment as a teacher and (b) his daughters’ attendance at school or (c) their opposition to underage marriage. In so far as the IAA found that the applicant or his wife and daughters are required, or can be expected to take steps to avoid persecutory harm, the IAA misapplied the law, they are wrong in principle and should not be followed.

   Particulars

   a) At [14]: I have some concerns about the plausibility of the applicant's wife wishing to engage in such a fraught profession in 2012 when Kandahar province has been described as one of the most dangerous provinces in Afghanistan.9

   b) At [53]: Although, at times, some families decline to send their children to school in response to security incidents in Kabul,67

   Ground 3: Failure to give proper, genuine or realistic consideration to the individual or the accumulative claims of the applicant, or the claims of the wife and daughter

   3. The IAA failed to take into account relevant considerations, or failed to give proper,

   genuine or realistic consideration to the individual or the accumulative claims of the applicant, or an integer of those claims, including the claims of wife and daughters that they face a real risk of harm on the basis of their membership of a social group as females at risk from Islamic extremism, including (a) his wife’s employment as a teacher and (b) his daughters attendance at school or (c) their opposition to underage marriage.

   Particulars

   a) For the reasons articulated at ground one.

   Ground 4: Insufficient logical or evidentiary basis for the individual or accumulative findings regarding the relocation of the applicant and his family from Kandahar to Kabul in Afghanistan

   4. The findings by the IAA were affected by jurisdictional error as there was an insufficient logical or evidentiary basis to find that it is reasonable for the applicant and his family to relocate from Kandahar to Kabul in Afghanistan. Having accepted that the applicant and his family haves a well-founded fear of being persecuted for a convention or complementary reason if they are returned to Kandahar, objectively, there was an appreciable risk of the feared persecution occurring if the applicant or his family are relocated to Kabul. Alternatively, it was unreasonable, in the sense of being practicable, to expect the applicant and his family to be relocated from Kandahar to Kabul having regard to a) the particular circumstances of the applicant and his wife and daughters, b) the circumstances the applicant and his wife and daughters would reasonably be expected to face in the place of relocation, or c) the impact on the applicant and his wife and daughters of being relocated from Kandahar to Kabul in Afghanistan.

   Particulars

   Protection claims

   c) At [2]: The applicant fears return to Afghanistan on the basis of his Shia Muslim religion, his wife's employment as a school teacher, his daughters' attendance at school, being opposed to the underage marriage of his daughter to the Taliban and for being a returnee from a western country.

   d) At [11]: I accept that the applicant's family are residing in Pakistan unlawfully as has provided detailed information in relation to the living conditions of his family in Quetta and country information sources confirm there are a large number of Afghans living illegally in Pakistan.8

   Threat to the applicant’s wife

   e) At [13]: The applicant claims that in 2012 his wife took a temporary job working in a primary school in Kandahar. He claims that after five months they received a letter at their home addressed to his wife. The letter threatened that if his wife continued to go to school they would throw acid at her. In his statement he stated that he did not know who exactly sent the letter but thought it was from the Taliban as they are against the education of women and girls. During the protection visa interview the applicant clarified that the letter stated that it was from the Taliban. He cla ims that due to this threat he and his wife agreed that she should quit her teaching job which she did a few days later.

   f) At [16]: Based on the above corroborating country information I accept the applicant's claim that his wife received a threatening letter from the Taliban approximately five months after taking on a temporary teacher position in a school in Kandahar City. I also accept that due to fear of attack his wife resigned from her job a few days later.

   Threat to the applicant’s daughters

   g) At [17] The applicant claims that his daughters were attending school in Kandahar. He claims that he was aware of the security situation in Kandahar but encouraged their pursuit of education due to the importance he places on education. The applicant provided a school certificate given to his eldest daughter from her school in Iran and has provided personal genuine testimony about his belief in the value of education. I consider it plausible that the applicant would want his daughters to continue their education after returning to Afghanistan despite the security risks which he acknowledged. A 2011 article by Human Rights Watch also claims that Afghan parents want their children educated, including their daughters, and fight for it, even when it puts them at risk.17

   h) At [18]: Approximately six months after receiving the threatening letter addressed to his wife, the applicant claims to have received a second threatening letter. This letter was addressed to the applicant demanding that he take his daughters out of school or they will be killed. The letter also demanded that he give away his eldest daughter in marriage and that "we will find you where you go". His eldest daughter was twelve years old at the time.

   i) At [19]: Given the above information and, taking into account the security situation in Kandahar and the applicant's consistent evidence in relation to this claim, I accept that the applicant received a threatening letter from AGEs or the Taliban demanding that he withdraw his daughters from school and demanding the marriage of his eldest daughter.

   j) At [20]: The applicant claims to object to the under-age marriage of his daughters. Given his convincing account of encouragement of their education and genuine concern for their safety I have accepted this claim as credible.

   k) At [25]: It appears that the nature of threats were in direct response to his wife's employment as a teacher and his daughters' school attendance and the proposed marriage of his eldest daughter. For this reason I do not accept the applicant's claim that the applicant's family were sent threatening letters because they were Shia.

   l) At [32]: Although the letter was addressed to the applicant's wife, in assessing the risk to the applicant, I have taken into account reports that AG Es target family members of individuals associated with, or perceived as supportive as the Government, both as acts of retaliation and on a "guilty by association" basis.30

   Real risk of harm in Kandahar

   m) At [33]: I have also taken into account the applicant's statements during the protection visa interview where he claimed that, when his wife received the letter they were not that afraid but agreed that it would be better for her to resign from her position. By his own evidence the wife's employment as a teacher did not appear to be of critical importance to the family to outweigh the risks involved. I have also taken into account the applicant's evidence that his wife worked as a teacher for only five months, was willing to resign from her position within days of receiving the letter, now lives in Quetta, did not receive any subsequent direct threats or was subjected to any serious harm in relation to her employment in the six months prior to leaving for Quetta. For these reasons I find the prospect that the applicant will be seriously harmed on return to Kandahar on this basis of his wife's previous employment as a teacher to be remote. 6

   n) At [34]: I have accepted that the applicant subsequently received a second threat letter demanding that he withdraw his daughters from school otherwise people would come at night time to their house and kill them. There are numerous reports of AGEs and the Taliban continuing to target female students and girl's schools.31 I note, however, that the applicant fled with his family to Quetta shortly after receiving this threat and that his daughters now reside there. In this way the applicant has acquiesced to the demand of the author of the letter. However, in his statement of claims the applicant said that if he went back to Afghanistan he considers it crucial to send his daughters to school even though he is worried about what might happen. I accept that if the applicant were to return to Kandahar with his wife and daughters he would seek to continue to educate his daughters based on his genuine testimony in this regard. Given that I accept that he has already received a threat letter demanding that he withdraw his daughters from school, if he were to continue to send his daughters to school in Kandahar I am satisfied that the applicant will face a real chance of being killed by the author of this letter on the basis of his imputed political opinion and I accept that being killed comes within the definition of serious harm as per s.SJ(S) of the Act.

   o) At [35]: The above letter also demanded that the applicant give away his eldest daughter for marriage. By fleeing to Quetta shortly after receiving this letter the applicant, by virtue of his actions, has refused this demand. I have considered the country information that was before the delegate. There is no country information on the material before me to indicate the Taliban target men who refuse the forced marriage of their daughters. However, I have also taken into account the security situation in Kandahar which is described as one of the most dangerous provinces.32 For this reason, if the applicant were to return to Kandahar, I find that the chance the applicant will face serious harm from AGEs/Taliban on the basis that he has refused their demand to marry his eldest daughter to be more than remote. The applicant fears he will be killed on the basis of his imputed political opinion and I accept that being killed comes within the definition of serious harm as per s.SJ(S) of the Act.

   The Refugee Criterion

   p) At [37]: Although country information confirms the continual targeting of teachers and students in relation to girls education, there are few references of such incidents occurring in Kabul.33 Education facilities for girls tend to be better in Kabul and girls' participation in education is significantly higher than in other parts of the country.34 Whilst violence against women is still common, women in Kabul tend to enjoy greater freedom of movement and better opportunities for employment, education and access to healthcare than in other parts of Afghanistan. 35 There is also no evidence to indicate that the Taliban/AGES will pursue the applicant in Kabul as a result of his support for the education of his daughters/girls and the employment of his wife/women as teachers or for his daughters' previous attendance at school and his wife's former employment as a teacher in Kandahar. For these reason I do not consider the applicant will face a real chance of serious harm in Kabul from the Taliban or AGEs. The applicant claims that if he went back to Afghanistan he still thinks it is crucial to send his daughters to school. Based on the above information I also do not consider the applicant will face a real chance of serious harm if his daughters re-join him in Kabul and are sent to school there.

   q) At [38]: In September 2015 DFAT assessed that the security situation across the country deteriorated significantly over the last 12·18 months, but security is better in major urban areas like Kabul, although attacks remain a common occurrence even in these areas.36 The Institute for the Study of War reported recent attacks in Kabul focused on targeting Afghan government and Western interests, including foreign military and diplomatic personnel, Afghan security forces, and western NGOs.37 On 22 April 2015, the Taliban also announced the launch its spring offensive where their main targets were "foreign occupiers, especially their permanent military bases ... officials of the stooge regime, their military constellations, especially their intelligence, interior ministry, and defense ministry officials". 38 DFAT notes that people associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul.39 Although the applicant claims that the second threat letter he receives said they he would be found anywhere, I consider that the applicant does not have an association to the government or international community that would make him a specific target in Kabul. I have not accepted that the applicant's brother received a third threat letter asking for his whereabouts and I see little incentive for the author of the second letter to pursue the applicant outside Kandahar for having ignored their demand to marry his eldest daughter. There is no information to support his claim that AGEs/Taliban seek out individuals who have refused the proposed marriage of their daughter in Kabul. Country information referred to above confirms that the main targets for attack by AGEs/Taliban in Kabul are high profile institutions connected to the Afghan government or international community there. For this reason I do not consider the applicant will face a real chance of serious harm in the reasonably foreseeable future in Kabul for refusing the under-age marriage of his daughter to AG Es/Taliban.

   r) At [42]: I have also considered the applicant's claims cumulatively in assessing whether he will face a chance of serious harm in Kabul as a result of his combined experiences as a Shia who supports the education of girls, supports the employment of women/his wife as teach ers, has refused the under-age marriage of his daughter to the Taliban and who has returned from a western country. Having considered the available information cumulatively, I am not satisfied that the applicant, if returned to Kabul, would face a real chance of serious harm.

   The Complementary Criterion

   s) At [47]: In the applicant's written statement of claims he indicates that he fears he would still be targeted by the Taliban in Kabul and claimed that the second threat letter he received said that he would be found anywhere. I have not accepted the applicant's evidence that his brother and parents received a third threat letter seeking his whereabouts and have concluded that there is little supporting evidence, taking into account country information, that the authors of the second threat letter will pursue the applicant in Kabul. I have found that the applicant will not face a real chance of serious harm in Kabul on account of the applicant being Shia, for sending his daughters to school, for his wife's/women's employment as a teacher, for refusing the under-age marriage of his daughter to AGEs/Taliban or for returning from a western country or cumulatively for these reasons. As 'real chance' equals 'real risk's2 I am not satisfied there is a real risk the applicant will face significant harm upon return to Kabul for these reasons.

   t) At [53]: I have also taken into account the possibility that the applicant's wife and daughters may reunite with him if he relocates to Kabul and the applicant's claim that if he goes back to Afghanistan it is crucial for him to send his daughters to school. In his written statement of claims the applicant claims that the situation for his [younger] brother and mother in Kabul is different to his because they do not have young dependent children to take care of and will not be threatened for sending them to school. The 2016 UNHCR Guidelines claim that antigovernment elements continue to carry out direct attacks against schools, teachers and students, especially in relation to education for girls. In support of this claim it cites references to incidents occurring in provinces such as Herat and Nangahar.65 I note that there was no reference to such incidents having occurred in Kabul. I have also given weight to DFAT's 2015 assessment that the quality and participation of education for girls is significantly higher in Kabul.66 Although, at times, some families decline to send their children to school in response to security incidents in Kabul,67 there is no information to indicate that female students and girts' schools are regularly targeted in Kabul. I have also considered that the applicant's wife may decide to enter the teaching profession again in Kabul. Country information indicates that women in Kabul tend to enjoy greater freedom of movement and better opportunities for employment and education than in other parts of Afghanistan. 68 A 2015 United Kingdom Home Office Report also noted that 90% of qualified female teachers are located in the nine major urban centers including Kabul.69

   Ground 5: Procedural Fairness

   2 The non-disclosure of material before the IAA constituted a denial of procedural fairness.

   Particulars

   a) If the IAA proceeded on the basis that the certificate under section 473GB of the Migration Act 1958 (Cth) is valid, it is entirely unclear how the authority considered the potential operation of s 473GB(3) or (4) or whether it considered s 473GB(3) or (4) at all. As such, there has been a denial of procedural fairness and accordingly a jurisdictional error is established.

   b) Alternatively, the section 473GB certificate did not relate to a matter permitted under section 473GB(1) of the Migration Act 1958 (Cth), with the result that it was invalid. If accepted that the section 473GB certificate is invalid, in addition to the denial of procedural fairness, there is also a jurisdictional error established as a consequence of the IAA not following a procedure according to law.

Consideration

Ground 1

1. In relation to Ground 1, the application for protection was that of the applicant, not that of his wife and daughters. It is apparent that the Authority took into account the applicant’s concerns expressed in relation to his wife and daughters and made adverse findings that were open to the Authority. Those adverse findings cannot be said to lack an evident and intelligible justification. Ground 1 fails to identify any arguable jurisdictional error. 

Ground 2

1. In relation to Ground 2, the wife and daughters were not applicants for protection.  Ground 2 fails to identify any arguable jurisdictional error. 

Ground 3

1. In relation to Ground 3, the Authority’s reasons reflect a real and genuine consideration of the applicant’s claims and evidence and reflect taking into account the applicant’s concerns expressed in relation to the education of his daughters and his wife’s role as a teacher. Ground 3 is in substance an invitation to this Court to engage in an impermissible merits review. No arguable jurisdictional error is disclosed by Ground 3. 

Ground 4

1. Ground 4 seeks to challenge the Authority’s finding as to it being reasonable for the applicant to be able to relocate. The adverse finding made by the Authority in relation to it being reasonably practical for the applicant to relocate to Kabul was open on the material before the Authority and cannot be said to lack an evident and intelligible justification. The summary of findings and the so-called particulars do not identify any basis upon which the decision could be said to be illogical or unreasonable. The Authority considered the applicant’s personal circumstances. Ground 4 fails to identify any arguable jurisdictional error. 

Ground 5

1. Ground 5 seeks to raise an argument in relation to a certificate issued under s.473GB of the Act. The certificate in the present case referred to a particular document concerning the applicant’s identity. There is nothing on the face of the material to suggest that the Authority took into account the certificate in determining the applicant’s claims. Further, the applicant’s identity was not an issue before the Authority and the Authority accepted the applicant’s country of citizenship.

2. Part 7AA of the Act is different to the statutory provisions in Part 7 of the Act. I do not accept that there is any arguable case that the certificate in the present case is invalid. The provisions of Part 7AA of the Act and in particular, s.473DA of the Act exclude the common law rules of procedural fairness of the kind that were dealt with by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. Mr Williams of counsel sought to argue that the Authority should have identified in its reasons how it dealt with the certificate information. The Authority does not need to do so. Ground 5 does not identify any arguable jurisdictional error.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The grounds identified in the application lack sufficient merit to warrant an extension of time. In the present case, it is not necessary that the Court order an extension of time in the interests of the administration of justice under s.477 of the Act.

2. The application for an extension of time under s.477 of the Act is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 March 2017