CSD18 v Minister for Immigration - [2020] FCCA 1878

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSD18 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1878

Catchwords:
MIGRATION – Application for judicial review of decision by Administrative Appeals Tribunal – application for extension of time – explanation for delay was that the applicants could not afford to travel to file their application in time – un-particularised grounds of review – consideration of merits of substantive case – prospects of success – application for extension of time refused – no jurisdictional error established – application dismissed.

Legislation:

Immigration Regulations 1993 (Cth), subclause 866.411

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 474, 476, 477

Migration Regulations 1994 (Cth), Sch 2

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs (2003) 75 ALD 630

Craig v South Australia (1995) 184 CLR 163

EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR

259

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR

473

SZBYR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190

SZNJG v Minister for Immigration & Border Protection [2018] FCA 344

SZNXA v Minister for Immigration & Citizenship [2010] FCA 775

SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319

Tickner v Chapman (1995) 57 FCR 451

WZAQU v Minister for Immigration & Citizenship (2013) FCA 327

First Applicant:

CSD18

Second Applicant:

CSE18

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 204 of 2018

Judgment of:

Judge Brown

Hearing date:

31 January 2020

Date of Last Submission:

16 April 2020

Delivered at:

Adelaide

Delivered on:

9 July 2020

REPRESENTATION

Counsel for the Second Applicant:

Mr Senanayake by video

Solicitors for the Second Applicant:

Rodney Senanayake

Counsel for the Respondents:

Ms Butler

Solicitors for the Respondents:

The Australian Government Solicitor

ORDERS

The application filed 24 May 2018 is dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of seven thousand four hundred and sixty seven dollars ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 204 of 2018

CSD18

First Applicant

CSE18

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 18 April 2018, not to grant the applicants concerned protection visas pursuant to the Migration Act 1958.[2]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”
[2] Hereinafter referred to as “the Act”
In the AAT, the case concerned two applicants.[3] The husband is Singhalese by ethnicity and a practising Catholic. He claimed that he and his family had been members of the United National Party[4] and as a consequence were at risk of suffering serious harm because they would be liable to attack by supporters of the ruling party.
[3] The identity of each applicant has been anonymised through the use of an acronym. Their claims and more significantly their migration histories are different. It is convenient to refer to the first applicant as “the husband” and the second applicant as “the wife”
[4] Hereinafter referred to as the “UNP”
In support of his claim, the husband indicated that his brother had been murdered in 2007 and he himself assaulted, in the same year, by individuals associated with the governing authorities. This had resulted in the husband living overseas, for around a year, because he feared for his safety.
The husband was in Sri Lanka during the 2010 election and took part in in campaigning for the UNP. He claims that his mother’s house was ransacked that year. Later, he claims that he personally was abducted and again assaulted, in 2010.
In 2012, he was knocked from his bicycle by a vehicle, which he believes was politically motivated. The wife indicated that she and the husband had been involved with one another since 2004 and married since 2010. She too claimed that she and her family had been involved with the UNP since the 1980s. She had personally been involved with electioneering since 2003.
As a consequence of her political profile, she claimed that she had been attacked in July 2007 following her attendance at an UNP rally. She and her sister were each stabbed with knives and badly injured, requiring hospitalisation. She was pregnant at the time but suffered a miscarriage.
The attack was reported to the police and her assailants charged. The wife gave evidence against her attackers and she was awarded significant compensation. A further court date was set for the possible sentencing of her assailants. In this context the wife claims that she was threatened that she would be killed, if she attended court again.
After the attack, the wife also claimed she received a number of threatening phone calls. This caused her to feel that her safety was in jeopardy, in Sri Lanka, particularly because she did not consider that the relevant authorities would be inclined to protect her because of her long-standing association with the UNP.
On these various bases, the applicants each applied for a temporary protection visa, pursuant to the provisions of the Act, on 20 August 2013. A delegate of the Minister for Immigration & citizenship declined each of the applications concerned on 12 May 2015.
The basis of the delegate’s refusal to grant the husband a visa was that it was considered that his claims to fear harm, as a consequence of his political activities, were not credible. The delegate doubted that the applicant had been an active member of the UNP.
In respect of the wife, the delegate characterised her as a low level UNP supporter. As such, the delegate formed the view that she was unlikely to be targeted, because of her political affiliations in a manner which would result in her suffering serious harm. Accordingly, her application for a protection visa was refused on the basis that the delegate was not satisfied that the applicant’s fear of harm was well-founded.
On 2 June 2015, each applicant applied to the AAT for a review of their separate decisions. The hearing before the AAT initially took place on 12 October 2017 and each applicant was invited to attend the hearing and give evidence, which invitation each party took up.
Following this first hearing, the Tribunal adjourned proceedings and the presiding member asked each of the applicants to provide further comment in respect of various aspects of their evidence, particularly in respect of issues arising from the creditability of various integers of their claims for protection.
This request resulted in both the husband and wife providing further statements addressed to resolving the issues raised by the Tribunal. As previously indicated, the AAT made its decision on 18 April 2018 and it was conveyed to each applicant on 20 April 2018.
On 24 May 2018, in a joint application, the husband and wife commenced proceedings in this court seeking an order that the decision of the AAT be quashed and their case returned for re-determination by the AAT.
The applicants prepared their own application, which listed three grounds of error, as follows:
“The Administrative Appeals Tribunal (AAT) committed jurisdictional error by applying the wrong test and failing to take into account relevant facts…
The AAT has applied the wrong test and has failed to take into account relevant country information that was provided to it by and behalf of the applicant…
The AAT has failed to actively and intellectually engage with all the integers of our claim for protection and has only summarily mentioned our claims in the passing but has not paid objective weight to the different aspects of our claims.”[5]
[5] See case book at 4
Section 477(1) of the Act prescribes a period of thirty-five days, in which to bring proceedings in respect of the review of any migration decision. Accordingly, the relevant review application in the current matter is one day outside of the thirty-five day statutory time limit.
In an affidavit in support of an application for extension of time, the husband deposed that he was living in rural South Australia, at the time of his application.
As a consequence, it was necessary for him to travel to Adelaide to lodge the application personally. He further deposed that it took him some days to raise the necessary money for the bus fare and this led to him being one day late in filing the relevant application.
Pursuant to section 477(2) of the Act, the court is conferred with a discretion to extend the thirty-five day period, if it considers that it is necessary in the interests of the administration of justice to do so.
In SZNJG v Minister for Immigration & Border Protection[6] Markovic J summarised three principles which are relevant to the exercise of the discretion to extend time in the following manner:
·Whether the applicant had provided a reasonable explanation for the delay;
·Whether the respondent would suffer prejudice in the light of the delay; and
·The merits of the substantial application itself.
[6] SZNJG v Minister for Immigration & Border Protection [2018] FCA 344 at [24]
In written submissions, counsel for the Minister submits as follows:
“On 24 May 2018, the applicants filed an application for judicial review, 1 day outside of the 35 day statutory time limit in s 477(1) of the Act. The Minister accepts that the delay is very short and there is no prejudice to him. However, the grounds of review have no prospect of success, even at an impressionistic level. For that reason alone the extension of time application should be dismissed.”[7]
[7] See first respondent’s written submissions at [25]
On 28 January 2018, Laura Rose Butler filed an affidavit in the proceedings. She is a solicitor employed by the Australian Government Solicitor, the solicitors for the first respondent. She deposes that immigration records available to her indicated that the husband voluntarily departed from Australia on 18 September 2018.
Given the husband’s immigration status, when he left Australia, he is not entitled to re-enter this country. The regulatory regime applicable to the grant of a protection visa[8] requires each applicant concerned to be in Australia at the time of any decision to grant such a visa.
[8] See subclause 866.411 of the Immigration Regulations 1993
In these circumstances, axiomatically, the husband is not in a position to pursue his application because, even if the case was remitted back for reconsideration, he would be unable to satisfy an essential criterion applicable to the grant of the visa sought by him, namely he is present in Australia at the time of grant.
The husband did not appear at the hearing before this court and was not represented by counsel. Mr Senanayake, counsel for the wife, emphasised that he did not have instructions from the husband.
In all these circumstances, I agree with the submissions of the first respondent that the application, so far as the husband is concerned, must be dismissed as his application can have no useful purpose, even if it was established that the decision of the AAT was vitiated by jurisdictional error.
As the High Court pointed out in SZBYR v Minister for Immigration & Citizenship,[9] “irrespective of any question of procedural fairness or individual merits, the decision maker was bound by the governing statute to refuse.” For these reasons, the proceedings so far as the husband is concerned, are dismissed.
[9] See SZBYR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190 at [29]
The wife’s application is lodged out of time, albeit by not a great period of time. In these circumstances, it will be necessary for me to assess the merits of her application for review and the strength of her explanation for the delay.

The grounds of review

The grounds for review in this case were personally prepared by the applicants themselves and have not subsequently been amended. They are formulaic and non-specific in their drafting and not supported by any particulars of error.
In general terms, the grounds assert that the decision in question was wrong and adopt a grab bag of jurisdictional complaints which are not tied to any specific incident arising from the decision making process. Rather, the applicants assert their disagreement with the decision.
The un-particularised and broad nature of the grounds of review present difficulties for the court in conducting its task of judicial review, particularly in determining whether the decision of the IAA is legally unreasonable.
As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [10] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.
[10] SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21]
The grounds for review lend themselves to founding the basis for a dismissal of their claim, given their un-particularised nature. However, despite the fact that no particular errors are alleged, I will attempt to identify whether any of the grounds raises any apparent error overall on the part of the AAT.

Legal considerations relevant to the grant of protection visas

Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of each such protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention,[11] to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
[11] Hereinafter referred to as “the Convention”
The High Court has established that this definition has both subjective and objective elements; the question to be asked by the relevant decision-maker being does the applicant subjectively fear persecution and is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.[12]
[12] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478–479 [72]–[73]
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[13]
[13] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution.” This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicants by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[14]
[14] See Craig v South Australia (1995) 184 CLR 163

The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[15]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[15] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
In Minister for Immigration & Citizenship v Li[16] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[16] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76]
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[17]
[17] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[18] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[18] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In order to be successful in their application for review, it will be necessary for the applicants to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[19] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
“Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
[19] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at [31]

The decision of the AAT as it pertains to the wife

The AAT summarised the wife’s claim for protection, which centred on her strong connections with the UNP, which had culminated in her being attacked by two individuals, Nimal and Lionel, resulting in her sustaining serious injuries.
In addition, the wife provided court documents, from September 2009, which indicated that she and a junior medical officer gave evidence to the Mathugama District Court in April 2010, about the assault and her injuries, with the case set down for a further inquiry in July of 2010. The Tribunal closely analysed the wife’s evidence, provided in a number of different contexts, in respect of the incident, but ultimately determined it was not credible.
In this context, the wife asserted that she was at risk of suffering serious harm from Nimal who remained at liberty. In addition, the wife claimed that Nimal had himself been subject to an acid attack and she feared that he would believe that she was its instigator and would therefore seek to avenge himself on her.
In this context, the AAT summarised the wife’s claims in the following terms:
“It is submitted [the wife] will face serious harm in the form of sexual abuse and violence and torture by her previous attackers, gangs working against the UNP and Sri Lankan authorities, if forced to return to Sri Lanka, including when she is detained and questioned by the criminal investigation department and other authorities upon her arrival in Colombo.”[20]
[20] See case book at 446 [25]
In her additional statement, provided to the AAT in November 2017, the wife stated that she suffered a number of significant health issues, which related to the attack on her. She stated that she suffered problems with her memory and had a compromised ability to concentrate and remember things, although she had not been formally diagnosed with any cognitive or mental health issues. In addition, she complained of blood pressure problems, dizziness and frequent headaches.[21]
[21] Ibid at 404
As will become apparent, the Tribunal was open to the proceedings being adjourned in order to allow more evidence to be presented, on the wife’s behalf in respect of these issues. The Tribunal also formally acknowledged the difficulties impacting on the wife as a consequence of her having to recall precise details, in the stressful circumstances of an application for protection. In this context, it noted that there is always the possibility that there may be a core of truthful evidence in an account which is otherwise open to be characterised as one of embellishment or fabrication.[22]
[22] Ibid at 462 [112]
However, in this context, the Tribunal indicated that although it had attempted to make allowance for the level of the difficulty facing the wife, its overall assessment of her credibility, in respect of a number of the key aspects of her claim, was such that the gravamen of her claim for protection was not accepted.[23]
[23] Ibid at 462 [114]
Given the manner in which the wife has presented her case at the judicial review stage, the essential task, which befalls the court, is to assess whether the Tribunal did, in fact, pursue its functions of merits review in a procedurally fair and reasonable way and whether the findings, including on credit, were legally open to it.
This task will necessitate a comprehensive but not zealously over-scrupulous review of the Tribunal’s reasons. In this context, it is to be noted that the reasons are some thirty seven pages in length, although not all of these pages deal with the wife’s claims.
In addition, although in the generic grounds of review, it is asserted that the Tribunal applied the wrong tests to its assessment of each applicant’s application for asylum, no particulars have been provided as to why this is so and even a cursory reading of the reasons indicates that the AAT was well acquainted with the relevant provisions of the Act and the matters, which it was required to consider to determine whether Australia owed either of the parties a duty to provide protection.[24]
[24] Ibid at 441–442 [8]–[15]
In the context of assessing each party’s claim for protection, the Tribunal considered a range of country information pertaining to the current situation in Sri Lanka. This information included assessments of the current political situation, particularly in the context of violence being inflicted on political rivals of the governing party.
It also considered information relating to the potential mistreatment and torture of individuals who were returned to Sri Lanka, from overseas, following failed asylum applications and how individuals who had illegally left the country were dealt with on return.
In general terms, it was the view of the Tribunal that this information indicated conditions were relatively benign for such individuals and whilst political monitoring of opponents continued there was no widespread or systematic abuse of such individuals.
The gathering and assessment of country information is an essential element of the Tribunal’s predictive task of assessing whether there is a real chance in future of any individual being subject to persecution for a Convention reason, in the state of origin. As such, this assessment is part of its fact finding task and is necessary in order for it to properly acquit the jurisdiction vested upon it.
As such, it was open to the Tribunal to give what weight it considered appropriate to the various aspects of the wide range of country information before it. Necessarily some of it was more favourable to the wife than other aspects of it. Again her formal ground of review in respect of this aspect of her case is expressed in generic or formulaic terms without any concrete examples of what relevant country information was overlooked or given token weight.
No doubt, the wife would have preferred that the Tribunal gave greater weight to country information more favourable to her. However, just because two different individuals may reach different conclusions about matters of fact and weight is not, of itself, indicative of jurisdictional error. As the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[25]
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[25] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
Even if the wife had been able to point to particular incidents of country information (which she did not) and assert that this information favoured her claim, it is not open to this court, on judicial review, to substitute its overall assessment of the country information for that of the jurisdiction fact finder – in this case, the AAT.
The Tribunal was satisfied that the wife had been the victim of a serious stabbing, which occurred in July of 2007. However, it did not accept the wife’s account that this attack was politically motivated and she herself was the intended victim of it, rather than an innocent bystander or someone trying to assist, given evidence that indicated her nephew had also been involved.
The AAT reached this conclusion on nine inter-related grounds on the wife’s credibility and what it assessed as being inconsistencies in her account of her and her family’s involvement with the UNP, particularly during election campaigns. In addition, the Tribunal was troubled as to why the wife’s sister was also attacked if it was only the wife herself who had engaged in political activities.
In this context, the Tribunal noted that the court records produced made no mention of the fact that the motivation for it was said to be political. In this context, the Tribunal considered that it was more likely that the wife and her sister had been attacked because they sought to intervene in an attack on the wife’s nephew, which was criminally motivated.
The AAT also analysed the wife’s evidence regarding the alleged asset attack on Nimal and doubted its credibility. In summary, the AAT found as follows:
“In summary, the Tribunal is not satisfied that the second named applicant has been threatened or harmed as a result of civil and criminal prosecutions in relation to the attack by Nimal and Lionel, or the award of all the potential or award of damages to the applicant and harm as a result of the applicant seeking payment of this award from Nimal and Lionel. The Tribunal is not satisfied that the applicant went into hiding away from her home area to avoid harm from Nimal or Lionel. The Tribunal is not satisfied that Nimal has an intention to harm either the applicant or the second named applicant as a result of an acid attack, assuming that it was perpetrated by the applicants. The Tribunal is not satisfied that the applicant has received threatening phone calls in relation to not progressing with court action.
The claim has been made that the second named applicant faces harm as a victim of crime. Reference has been made to a backlog in court cases with an indication that the delay exacerbates the risk from Nimal and Lionel. The Tribunal reiterates its view that the second named applicant does not face a real chance of serious or significant harm from Nimal or Lionel including as a victim of crime, acknowledging that there are backlogs in the court system in Sri Lanka.
The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm from Nimal or Lionel as a result of court action taken in relation to the 2007 attack or due to an assumption that the applicants have perpetrated an acid attack on Nimal.”[26]
[26] See case book at 469 [165]–[167]
The wife’s previously appointed solicitors withdrew from the proceedings in August of 2019. Her solicitor, who appeared at the hearing, Mr Senanayake filed a Notice of Address for Service shortly prior to the hearing on 29 January 2020.
At this stage, the wife herself filed an affidavit in which she took issue with some of the factual findings of the Tribunal. In addition, she asserted that the husband had been imprisoned in Sri Lanka, on his return there, on a trumped up charge, which was politically motivated. She sought an adjournment of these proceedings to enable her to inquire further into this particular issue.
In her affidavit, the wife reiterated that her memory remained compromised, as a consequence of the assault on her, and it was therefore unfair her evidence, particularly in respect of minor issues, had been criticised by the Tribunal.
In this context, she asserted that the Tribunal’s conclusion that the relevant attack on her was not politically motivated, was fallacious as it was well known that political operatives, in Sri Lanka, were able to manipulate illiterate thugs through plying them with alcohol, to bring about the political intimidation of their opponents.
I am not entitled to receive further evidence from the applicant as this will have the consequence of changing the proceedings into a merits review. In any event, a close reading of the Tribunal’s findings indicate that it closely considered the accounts of the assault, provided by the wife, at various stages of the proceedings and as a result of its analysis considered that the wife’s various accounts were logically inconsistent and contradictory. In this context, it considered that her evidence, in respect of the incident, shifted.
The wife was also critical of the Tribunal’s finding that her evidence lacked credibility because she had falsely indicated that the motivation for the attack on her was her involvement in elections in 2007, when country information available to the Tribunal indicated that there had been no such elections held in the wife’s district in either 2007 or 2008.[27]
[27] See ibid at 463 [120]
In answer to this criticism, the wife deposed that large meetings, with political connotations, occurred whenever a party leader came to a village, regardless of whether any formal election was imminent and this had occurred in respect of her land in 2007.
In this context, she was also critical of the Tribunal’s finding that there was a lack of precision, in her evidence, regarding whether the land used for this meeting was in fact hers or her mothers. It being her position that the land in question was owned by her family and would have been inherited by her in due course.
Again, in my view, these submissions are in the nature of an application to adduce fresh evidence and so persuade this court to a different view of the merits of the applicant’s claim for protection, which is not a course open to it through any process of judicial review.
The wife is also critical of the Tribunal’s adverse finding as to her credit arising from the fact that the Sri Lankan court documents provided to it made no mention that the attack on the wife was politically motivated. In this context, the wife deposed that it would have been imprudent for her to have disclosed this fact, in a Sri Lankan court, given that very many Sri Lankan judicial officers were political appointments and so likely to be biased against a person, such as herself, perceived to be aligned with the political opposition.
As I have already indicated, it is not open to me to accept further pieces of evidence or to substitute my own personal view of the evidence. However, in my view, what the wife’s evidence and the supporting submissions of her counsel, Mr Senanayake, boil down to is an assertion that the various findings of the Tribunal, including in respect of the wife’s credit, are legally unreasonable because it lacks a sufficient level of inherent logicality.
Different decision makers may reach different conclusions about the same evidentiary issues as a result of placing differing levels of weight on the various factual matters concerned. Caution must be taken not to turn a process of judicial review into a review of the merits of the decision concerned.
In this context, the following comments of Crennan & Bell JJ in Minister for Immigration & Citizenship v SZMDS[28] are germane:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[28] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 649 [135]
In Minister for Immigration & Border Protection v SZUXN [29] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[29] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

The relevant decision, in respect of the wife occupies over ninety paragraphs and engages in all aspects of the wife’s claim for protection. In this context, I do not consider that the wife has established that the Tribunal failed to consider any obviously articulated aspect or integer of her claim or reached its relevant conclusions about her credibility on spurious or capricious grounds.
In my view, the factual findings, made by the Tribunal, were intellectually open to it and cannot be characterised as being legally unreasonable. In addition, in my view, the various findings made by the Tribunal, in respect of the wife’s credibility, were also open to it.
In this context, it appears to be the case that, at least by implication, the wife is critical of the Tribunal because she was not given an adequate opportunity to present further evidence regarding the medical aetiology of her memory difficulties. In this sense, she asserts procedural unfairness in the sense envisaged in Singh.[30]
[30] Minister for Immigration & Border Protection v Singh (supra)
In this context, it is to be noted that the proceedings before the Tribunal took place over a protracted period of time and involved several adjournments. One of these adjournments was motivated by the wife’s then representative making the submission that the wife had been diagnosed with mental health/cognitive issues, which affected her ability to give evidence.
In this context, the Tribunal adjourned the proceedings and later wrote to the wife requesting that she provide appropriate medical evidence to support her case. The wife did not apparently avail herself of this opportunity. In this context, the Tribunal found as follows:
“The Tribunal accepts hurdles for the second named applicant in obtaining relevant medical opinions as to her mental state given language issues and her residing in a regional area. Nevertheless, the mental state of the second named applicant has been claimed as an issue and canvassed with her since an early stage in the claim for the protection visa which was made in August 2013. The preponderance of medical evidence at the time of the delegate's decision did not support the contention that the applicant was suffering from mental conditions which would affect her memory significantly or her ability to give evidence.
Given the maintenance of submissions by the second named applicant's representative at the third Tribunal hearing that her mental health was an issue, the Tribunal, with significant latitude, did provide one last opportunity to provide supporting evidence. Despite a number of months passing, and two extensions being provided by the Tribunal, such evidence was not provided.
Although accepting hurdles in obtaining relevant appointments, the Tribunal is not prepared to provide a further extension. The second named applicant has had a number of years after claims and discussion as to mental health issues affecting her capacity to give evidence in relation to her protection visa claim. The Tribunal acknowledges the view of a general practitioner and a social worker that the second named applicant has some memory issues, but without any medical diagnosis being provided.
Considering all of the evidence, the Tribunal is not satisfied that the second named applicant suffers from any medically diagnosed mental health condition significantly affecting her capacity to give evidence. Whilst the Tribunal is prepared to accept that the second applicant has some memory issues that might impact on her evidence, the Tribunal has not expected perfect recollection or consistency. ,
The credibility concerns identified, cumulatively considered, have been done accepting some lack of perfect recall and consistency. Many of the credibility concerns go beyond issues that could readily be explained by such weaknesses. Ultimately, in considering the entirety of the credibility concerns, the Tribunal remains of the view that the second named applicant has been an inherently unreliable and untruthful witness in a way that causes the Tribunal to disbelieve her key claims.”[31]
[31] See case book at 471–472 [179]–[183]
In all the circumstances of this case, I am satisfied that the Tribunal did afford the wife a proper opportunity to put her case. She (and indeed the husband) attended the hearing and gave oral evidence. They were each represented at the hearing and had an interpreter.
As such, in my view, the Tribunal did all that was within its power to facilitate the applicant’s putting their case to it, notwithstanding the inherent difficulties facing each of them due to the fact that the proceedings were conducted in a language not their own and in a cultural milieu foreign to them.
The final ground of appeal is also formulaic in nature and lacking in particularisation. It asserts that the Tribunal failed to intellectually engage with the essential components of the claim for protection and in lieu of such active consideration engaged in a supercilious exercise of dismissal. In so doing, it failed to exercise the jurisdiction conferred upon it.
The phrase active intellectual process derives from Tickner v Chapman[32] in which the Full Court of the Federal Court considered what was required of a ministerial decision maker in undertaking a process of consideration of a submission made to him. Black CJ said as follows:
“Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”
This concept has been applied to decision makers in the discrete area of migration decisions.[33]
[32] See Tickner v Chapman (1995) 57 FCR 451 at 462
[33] See WZAQU v Minister for Immigration & Citizenship (2013) FCA 327 at [12]
It is also clear that the failure of a decision-maker to deal with a claim or part of a claim may also constitute a jurisdictional error. A migration decision-maker will fall into jurisdictional error if it fails to constructively deal with an aspect of a claim for protection which squarely or clearly arises on the material before it.
In assessing whether there has been the required level of intellectual engagement, with each aspect of a claim squarely raised before it, it is the reality and not the appearance which matters.[34] However, it is not a conclusion which is to be easily drawn, particularly if the reasons in question are comprehensive in nature.
[34] See WZAQU (supra) at [12]
As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[35]
[35] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]
In all these circumstances, I am not persuaded that there is any merit in the non-specific grounds of appeal provided by the wife, as elaborated upon by her counsel at hearing. Rather, the wife, in effect, seeks to argue that the appeal is wrong, on its merits, rather than being able to point to a specific example of jurisdictional error.
In all these circumstances, I have reached the conclusion that the wife has not presented a case which has prospects of securing the relief sought by her, namely the quashing of the AAT’s decision on the basis that it represents a legally unreasonable exercise of the power reposed in it or is someway illogical or otherwise unconscionable.
Nor can it be established that there is some integer or aspect of the case that has not been properly considered or has been overlooked by the Tribunal. In my view, the AAT carefully considered the case presented by each applicant at the time.
I appreciate the moment of the refusal to grant an extension of time to the applicant concerned. The grant of such an extension is governed by what is assessed to be in the overall interests of the administration of justice.
The merits of the particular case concerned are not the only factor relevant to whether an extension should be granted. It is also necessary to consider the length of the delay involved; the explanation proffered for the delay; and any prejudice to be accorded to the respondent concerned.[36]
[36] SZNJG v Minister for Immigration & Border Protection [2018] FCA 344 at [24] per Markovic J
In EXU17[37] Griffith J warned against applying these criteria unduly prescriptively, being of the view that the discretion was one which was fundamentally to be informed in a manner which ensured that the interests of justice were served.
[37] EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 at [29]
In this context, he cited the following comments of Mortimer J in MZZIV v Minister for Immigration & Border Protection:[38]
“The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.
Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.”
[38] MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 [5]–[6]
In an affidavit filed on 24 May 2018, the husband (and presumably the wife relies on these reasons also) provided the following explanation as to why the application was out of time, as follows:
“I am one day late in filing my application and I seek an extension of time to make my application.
I was one day late because I live in Berri and I did not have enough money to travel to Adelaide to file my application. A return bus ticket costs $238.
I was only able to get enough money to travel to Adelaide by bus yesterday, Wednesday 23 May 2018.
My mother in Sri Lanka sent me, some Sri Lankan money via our friend in Perth.
Our friend in Perth then exchanged the Sri Lankan money into Australia money and sent it to my lawyer in Adelaide…
Our lawyer in Adelaide then transferred some money into my bank account, which appeared in the account at about lunch time on Wednesday 23 May 2018.
At that time, the next bus to Adelaide only left at 5.30pm, which would have been too late for us to catch to go to Adelaide to file our application.
We then bought tickets for the bus that left Berri at 7.30am this morning, Thursday 24 May 2018.”
Admittedly, the delay involved is insignificant, one day, and counsel for the Minister, Ms Butler, concedes that the delay has occasioned no significant prejudice to the Minister. However, in her submission, it would not be in the interests of the administration of justice to allow the extension of time given the application itself has no prospect of success, even at an impressionistic level.[39]
[39] See first respondent’s written submissions at [25]
As I have already concluded, the wife’s claim does not have prospects of succeeding. Regarding the delay, the husband, in his affidavit, relies on the fact that he was unable to obtain money for a bus fare until it was sourced, through a variety of individuals, from his mother in Sri Lanka. He does not specify exactly when he put this transfer into motion and therefore, it is unclear whether he was engaging in this process during the entirety of the 35 day period or whether it was a last minute scramble.
In all the circumstances of this matter, I do not consider that the husband’s explanation for the delay can be considered satisfactory or acceptable. The applicants had 35 days to prepare their application and organise their travel to Adelaide, if it was necessary, which was achievable. There is no reason offered as to why the applicants could not have organised their travel to Adelaide earlier.
In determining the extension of time issue, I must keep in mind the comments of Forster J in SZSDA[40] that the more important consideration, which needed to be addressed in an extension of time application as the real prospects of obtaining judicial review.
[40] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]
Given the lack of a satisfactory explanation for delay, I do not consider that it would be congruent with the proper administration of justice to grant an extension of time in order to enable the applicant to argue a case further, which I have assessed to have little merit.
For these reasons the application for an extension of time is dismissed and I will direct that the applicant pay the Minister’s costs fixed in the sum of seven thousand four hundred and sixty seven dollars ($7,467.00).
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 9 July 2020