Eyk18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 8

•

12 January 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EYK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 8

File number(s): SYG 2704 of 2018
Judgment of: JUDGE LAING
Date of judgment: 12 January 2024
Catchwords: MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – application of s 48A of the Migration Act 1958 (Cth) – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to make inquiries or consider the claims and evidence before it in the manner required – consequences of the decision in question having been substituted under s 417 of the Act – extension of time granted – application otherwise dismissed
Legislation: Migration Act 1958 (Cth) ss 5, 36, 48A, 48B, 198, 415, 417, 425, 477 and 499
Cases cited:

AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153

Legal Practice Board of Western Australia v Fazio [No 2] [2021] WASC 304

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 249 CLR 398

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
Division: Division 2 General Federal Law
Number of paragraphs: 61
Date of hearing: 5 June and 20 October 2023
Place: Sydney
Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration
Counsel for the First Respondent: Mr B Kaplan
Solicitor for the First Respondent: Sparke Helmore Lawyers
Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 2704 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EYK18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LAING

DATE OF ORDER:

12 JANUARY 2024

THE COURT ORDERS THAT:

1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to and including 21 September 2018.

2.The application to this Court, as recorded in the amended application filed on 26 July 2023, is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

  1. The applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.

  2. For the following reasons, the extension of time will be granted but the application before the Court must otherwise be dismissed.

    BACKGROUND

  3. The applicant is a citizen of Egypt. He arrived in Australia a number of years ago, applying for a protection visa on 1 July 2016.

  4. The Delegate refused the application on 5 August 2016. The applicant applied for review by the Tribunal on 11 August 2016. On 24 October 2016, the applicant attended a hearing before the Tribunal with his representative.

  5. On 25 November 2016, the Tribunal affirmed the Delegate’s decision.

    THE TRIBUNAL’S DECISION

  6. The Tribunal accepted that the applicant was a Coptic Orthodox Christian from Egypt (at [11]). However, the Tribunal did not accept the applicant’s claims that he had left Egypt due to issues created by a powerful Muslim family there (Family A). This was due to inconsistencies and other issues that the Tribunal identified in the evidence that was before it (at [54]-[71]).

  7. The Tribunal considered that the applicant had given inconsistent or otherwise problematic evidence regarding the departure of his siblings from Egypt and the ability of one sibling to have remained in Egypt without incident. The Tribunal also considered that the applicant had given inconsistent evidence regarding his university studies and claims to have gone into hiding after an alleged assault (at [58]-[62]).

  8. The Tribunal considered that a supporting letter that had been provided from a leader of a Church was not consistent with the applicant’s claims. It found that the applicant’s account of what had occurred whilst he was in school was also inconsistent. Further, the Tribunal did not accept that the applicant’s front teeth would have grown back if they had been knocked out when he was 13 years old, as claimed (at [63]-[66]).

  9. The Tribunal was additionally concerned by the applicant’s delay in not applying for a protection visa until he was detained almost 9 years after arriving in Australia. The Tribunal found it implausible that a neighbouring family would have suddenly attacked the applicant, as claimed, for wearing a cross around his neck which he claimed to have done since he was a child. The Tribunal concluded that the applicant’s claims for protection because of his treatment by Family A and their surrogates were not credible. The Tribunal did not consider that medical reports demonstrating injuries that may have been suffered by the applicant warranted a different conclusion (at [67]-[71]).

  10. In relation to the applicant’s claims regarding his military service obligations, the Tribunal reasoned as follows at [72]-[75]:

    72. The applicant told the Tribunal that he still has military service obligations in Egypt which end when he turns 30 and he asked that this claim be considered. He said that he would have to pay a fine or spend time in gaol.

    73. The Tribunal accepts that the applicant has military obligations. He may fulfil them. He will only be liable to a fine and/or imprisonment of a minimum of one year if he does not fulfil the obligation. Exemptions and deferments are also possible.5 He said that he would be taken into police custody at the airport and handed over to the military. There is no country information to support that claim.

    74. The Tribunal has taken into account the information about military service in the Country Report at [3.94] to [3.96] and in the Thematic Report at [3.33] and [3.34]. It has also taken into account the information in the Country Report about deaths in custody at [4.3] to [4.5] which does not indicate whether or why individuals were targeted.

    75. Taking into account all those circumstances, the Tribunal does not accept on the information before it that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of his military service obligations if he returns to Egypt.

  11. Footnote 5 referred to the following country information: “Country Report at [3.94] and Thematic Report at [3.33]”.

  12. At [76]-[82] the Tribunal concluded:

    76. Taking into account the applicant’s claims for protection singly and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm, or a real risk that he will suffer significant harm, if he returns to Egypt.

    77. For the above reasons, the Tribunal is not satisfied that there is a real chance that if the applicant returned to Egypt, the applicant would be persecuted for one or more reasons of race, religion, nationality, membership of a particular social group or political opinion. He does not have a well-founded fear of persecution.

    78. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    79. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

    80. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.

    81. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    82. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

  13. Based upon the above reasoning, the Tribunal affirmed the Delegate’s decision (at [83]).

    PROCEEDINGS BEFORE THIS COURT

  14. The applicant commenced the current proceedings on 21 September 2018. He ultimately relied upon an amended application filed on 26 July 2023 stating the following under the heading “Grounds of application”:

    1A The Applicants seeks a declaration that s.48A of the Migration Act 1958 does not apply to the Applicant as the Tribunal decision has no independent legal operation by force of s.415 of the Migration Act 1958, as a result of the decision of the first respondent to exercise the Ministerial Intervention power under s.417 on 20th September 2017, to substitute a more favorable decision to grant the Applicant a SC600 visa, subject to condition 8503.

    The Tribunal’s review miscarried because:

    1. The 2nd Respondent made a jurisdictional error in failing to provide procedural fairness to the Applicant by putting its concerns that a year’s imprisonment in Egypt would not constitute significant harm such as to engage Australia’s international obligations to afford to complementary protection.

    i. The Tribunal did not put to the Applicant its concerns that a year in prison in Egypt would not constitute significant harm.

    ii. The Tribunal’s reasoning that a year in prison would not constitute significant harm was a finding that no reasonable decision maker could make. The Tribunal failed to assess whether the conditions in prison would amount to torture or inhuman or degrading treatment or punishment, having regard to the potential length of term of imprisonment.

    iii. The Tribunal did not put to the Applicant its concerns that he may be able to avoid punishment somehow by subsequently completing military service, and in doing so failed to give him the opportunity to comment on whether he would be able to do so before the age of 30, whether he would be punished with additional service time, or whether service in the Egyptian army was reasonable having regard to its involvement in severe human rights abuses.

    iv. The Tribunal failed to afford procedural fairness by failing to put to the applicant that he may be able to complete Military Service, and that if this occurred he may thereby possibly avoid imprisonment.

    vi. The 2nd Respondent at paragraph 72-75 indicated that the Applicant claimed he would have to face a fine or gaol for avoiding compulsory military service and accepted that this may occur.

    vii.The 2nd Respondent erred by having regard in paragraph 74 to the fact that there were no available statistics to show whether deaths in custody were caused by direct targeting or why, because;

    a. the Tribunal nonetheless clearly envisaged that there was an unquantified risk of harm coming to the applicant in prison as a result of avoidance of his military service obligations,

    b. The Tribunal did not consider whether those risks were magnified by the applicant’s membership of the particular social group of failed Coptic asylum seekers.

    c. The Tribunal drew an unwarranted inference that the absence of evidence in relation to targeted or intended harm in prison against Copts is evidence of an absence of actual targeted or intended harm against Copts in prison.

    viii. The 2nd Respondent failed to consider a claim of the Applicant clearly arising on the materials, or failed to consider each integer of the Applicant’s claims, that he would face a real risk of torture or inhuman or degrading treatment or punishment if removed to Egypt because;

    a. He would be subjected to arrest and punishment for having avoided military service (past avoidance of military service obligations by overstaying the expiry of his passport and not seeking an exemption from military service)

    b. He could not comply in any case with his military service obligations if removed to Egypt (future avoidance of military service obligations) because of being over the age of 30. 

    c. The Tribunal failed to consider whether he would be more likely to suffer punishment of imprisonment, because of being a Coptic failed asylum seeker.

    ix. In considering the risk of harm coming to the applicant through imprisonment for past and or future avoidance of his compulsory military service obligations, the Tribunal failed to consider the country information showing that the prison conditions were so bad as to amount to significant harm, torture, or deliberately inflicted inhuman or degrading treatment or punishment

    2. The Tribunal made a jurisdictional error in failing to assess the complementary protection claims independently, specifically through failure to consider whether conditions in prison for up to one year for the offence of draft evasion, could be so bad as to amount to significant harm intentionally inflicted by the authorities: AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008.

    3. The Tribunal at 67 failed to deal with a claim made by the applicant that subjectively the reason why he made the late claim was because of fear of harm to his family in Egypt. The Tribunal in only considering the objective risk of harm failed to consider, and did not reject, that this was the subjective reason for the late making of the claim.

    (As per the original)

    Extension of time application

  15. The principles regarding extension of time applications are not in dispute and have been considered in cases such as BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819.

  16. The delay in this case is substantial, with the application made nearly a year and nine months out of time. I do not find the applicant’s explanation that he had successive attempts towards Ministerial intervention under ss 48B and 417 of the Act (one of which resulted in the grant of a temporary visa) sufficient to satisfactorily explain the inordinate delay that has occurred in seeking judicial review. The applicant has not satisfactorily explained, for example, why Ministerial intervention could not have been sought in the event that his application for judicial review had proven unsuccessful.

  17. However, for the reasons given below, this case involves novel questions of construction in relation to the consequences of Ministerial intervention. Although I have found that they ought to be resolved one way, I accept that it is arguable that they ought to be resolved in another. The brevity of the Tribunal’s reasoning regarding military service gives rise to an arguable case, that is of merit, that the Tribunal’s decision in this regard was affected by relevant error.  

  18. For these reasons, I am satisfied that the extension of time sought by the applicant ought to be granted in this rather unusual and difficult matter. The applicant should have the ability to contest the conclusions that I have reached on appeal. The extension of time in this case will accordingly be granted. However, for the reasons that follow, I am not ultimately persuaded that the substantive application before this Court ought to succeed.

  19. I note that it was confirmed at the hearing of this matter that the parties did not seek for any further hearing to occur regarding the substantive application, in the event that I granted the extension of time. 

    Ground 1A 

  20. By ground 1A, the applicant sought a declaration that s 48A of the Act did not apply. This was said to be because the Tribunal’s decision had no independent legal operation by force of s 415 of the Act, due to the exercise of Ministerial intervention that occurred on 20 September 2017. By that intervention, the (then) Assistant Minister decided to substitute, by reference to s 417 of the Act, the decision of the Tribunal with a “more favourable” decision by granting a Visitor (Subclass 600) visa. That visa was valid from 20 September 2017 to 20 March 2018. The conditions upon it were 8201 (maximum 3 months study) and 8503 (no further stay).

  21. I accept the Minister’s submission that ground 1A is unable to succeed before this Court, following the decision in FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153 (FEL17). In that case, it was found (per Abraham and Halley JJ, Snaden J dissenting) that Ministerial intervention pursuant to s 417(1) of the Act did not mean that a person has no longer been refused a protection visa for the purposes of s 48A. The applicant ultimately conceded, in accordance with FEL17 at [64]-[67], that this Court is bound to find that the Delegate’s decision is operative to impose the s 48A bar. I therefore understood ground 1A to be pressed in order to preserve the applicant’s rights in the event of any appeal.

    Grounds 1 and 2

  22. Ground 1 contended that the Tribunal made a jurisdictional error in failing to provide procedural fairness to the applicant. This was said to have occurred through the Tribunal failing to put to the applicant its concerns that:

    (a)a year’s imprisonment would not constitute significant harm; and

    (b)he may be able to avoid punishment by completing military service.

  23. In submissions, the applicant also suggested that the Tribunal’s procedural fairness obligations extended to inquiring why the applicant did not wish to serve in the Egyptian military, given the country information before it regarding human rights abuses.

  24. I accept the Minister’s submissions as to why these contentions are unable to succeed. The Tribunal’s procedural fairness obligations were limited under Division 4 of Part 7 of the Act. The applicant has not sufficiently explained why the Tribunal’s obligations in this regard required the matters contended to have been put to him. Whilst s 425 required the Tribunal to identify issues that were not identified by the Delegate and that would not otherwise have been relevantly apparent, it did not require the Tribunal to provide “a running commentary upon what it [thought] about the evidence that [was] given”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]-[48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

  1. In the present case, it was the applicant who put in issue before the Tribunal that he had not completed his military service obligations and that, on account of their non-satisfaction, he may face harm after returning to Egypt. It would have been sufficiently apparent from the nature of this claim and from the legislative context that this may put in issue associated penalties, his ability to avoid them and whether they amounted to significant harm. Had the applicant wished to provide evidence or claims regarding the reasons he did not wish to serve in the Egyptian military, then it would have been open for him to have done so. The applicant has not demonstrated that this was a matter about which the Tribunal was obliged to make inquiries, in the particular circumstances of this case. 

  2. Whilst it may have been more clearly pleaded under separate grounds, the applicant also under ground 1 contended that the Tribunal did not consider various claims and/or evidence.

  3. A number of the applicant’s contentions in this regard may be dealt with succinctly. The applicant has not demonstrated that he claimed before the Tribunal that the risks of harm he had identified would be faced due to “past avoidance of military service obligations”. To the extent that this was suggested by the applicant’s claim that he would be taken into police custody at the airport, or handed to the military and harmed, this was rejected by the Tribunal by reference to the absence of any supporting country information (at [73]). No relevant error has been demonstrated in this regard.

  4. The applicant did not claim that he would be unable to comply with his military service obligations due to being over the age of 30 upon return to Egypt. The applicant, at the time of the hearing before the Tribunal, stated that he was 27 years old: page 5 of the transcript before the Court (Transcript). The applicant’s observation to this Court that his applications for Ministerial intervention, judicial review and other actions taken extended (and were capable of extending) his time in Australia is not sufficient to demonstrate that a claim in this regard “clearly emerged”. In any event, such actions did not negate the Tribunal’s consideration in 2016 that the applicant “may” then have been able to complete his obligations by the age of 30. The Tribunal did not find that he would necessarily do so. The applicant has not established that he made any claim (or that a claim clearly arose) to the effect that his risks in this regard were magnified by membership to the particular social group of failed Coptic asylum seekers. The applicant has also not drawn attention to specific material that was before the Tribunal that gave rise to such claims, or that was evidence of central relevance to their determination.

  5. The applicant further contended under ground 1 that the Tribunal “drew an unwarranted inference that the absence of evidence in relation to targeted or intended harm in prison against Copts is evidence of an absence of actual targeted or intended harm against Copts in prison”. The Tribunal made no clear finding in this regard beyond its observation at [74] that certain country information relating to deaths in custody did “not indicate whether or why individuals were targeted”. In any event, the applicant has not adequately explained why it would have been closed to the Tribunal to have reasoned that the absence of evidence of targeted or intended harm indicated against its occurrence.

  6. The applicant’s contentions that the Tribunal otherwise failed to consider the claims and/or evidence before it regarding whether he faced a real chance of significant harm on account of being imprisoned for non-performance of his military service obligations fall within a different category. Relatedly, the applicant contended under ground 2 that the Tribunal failed to consider whether conditions in prison for the period contemplated could be so bad as to amount to significant harm intentionally inflicted by the authorities.

  7. I accept that the applicant claimed to face relevant harm through imprisonment, even though the claim was not made by the applicant with significant detail. At the hearing before the Tribunal, the applicant claimed (inter alia) that his outstanding military service obligations would result in him having “to pay a fine or do time in [gaol]” (page 5 of the Transcript). Whether this contended harm attracted protection obligations required consideration of (inter alia):

    (a)whether the contended harm would occur, and what this would involve, by reference to the evidence before the Tribunal including country information; and

    (b)whether it amounted to “significant harm” (as defined in s 36(2A) of the Act).

  8. This was, to some extent, acknowledged by the Tribunal. The Tribunal observed at [8] of its decision that it was required to take into account country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they were relevant: Direction 56, made under s 499 of the Act. At [73]-[74], the Tribunal stated that it had considered parts of the DFAT Country Information Report on Egypt dated 24 November 2015 (DFAT Country Report) and a DFAT Thematic Report dated 24 November 2015 (DFAT Thematic Report). At [75], the Tribunal stated its conclusion that it did not accept that the applicant faced a real risk of significant harm because of his military service obligations if he returned to Egypt.

  9. The difficulty is in ascertaining from the Tribunal’s decision how or why the Tribunal reached its conclusion in this regard. This is not to say, as was contended by the applicant, that no reasonable decision maker could have concluded that a year in prison did not amount to “significant harm” within the meaning of the Act. There may have been, potentially, logical pathways that the Tribunal could have taken in reaching this conclusion by reference to the requirements in s 36(2)(aa) of the Act (including the requirement of intention that attaches to definitions such as "degrading treatment or punishment" and “torture”). However, it is not clear from the Tribunal’s reasoning how the Tribunal, in fact, reached the conclusions that it reached in the present case.

  10. The Tribunal appears to have accepted at [73] that the applicant may face imprisonment for at least a term of one year. Whilst the Tribunal considered that he “may” avoid this outcome through completing his obligations in time, and/or by obtaining deferment or exemption, the Tribunal does not appear to have clearly rejected that the applicant would face a penalty of at least one year’s imprisonment. This appears to be why the Tribunal, briefly, stated that it had considered country information regarding the conditions in prison at [74]. However, other than stating in fairly general terms that this country information had been considered, the Tribunal did not expressly engage with the information other than to state that the part relating to deaths in custody did “not indicate whether or why individuals were targeted”. The Tribunal then went on to conclude that it did not accept that there was a real chance of the applicant suffering significant harm because of his military service obligations (at [75]).

  11. The Tribunal did not explain why it had found that there was not a real chance of the applicant suffering the requisite harm. The Tribunal did not say, for example, that it was not satisfied that the nature of the prison conditions to which the applicant may be subjected may amount to degrading treatment or punishment. It did not find that the applicant would avoid imprisonment through completion of military service, deferment or exemption. If the applicant would not complete his military service obligations, in time, the Tribunal made no findings regarding the possible reasons for this. The Tribunal did not find that the prison conditions indicated in the country information involved no intention to inflict relevant harm, such as to exclude them from the definition of significant harm in the sense considered in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362.

  12. As in AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008 (AWU15), there was country information before the Tribunal which, at least potentially, may have justified such a finding of intention to inflict degrading treatment, by reference to the prison conditions in issue and the degree of impunity effectively granted regarding their infliction (see AWU15 at [67]-[69]). As was submitted by the applicant, the DFAT Country Report referred to deaths in custody occurring as a result of torture, physical abuse, overcrowding and/or inadequate medical care (at [4.3]). Reference was made to the number of deaths at the hands of police (including in custody) and to “few police or prison officers” being investigated or prosecuted (at [4.4]-[4.5]). It also referred to “torture or cruel, inhuman or degrading treatment” within the context of a judicial system “heavily reliant on confessions”, and to prisoners who complained about mistreatment being likely to face punishment (at [5.20]). It stated that human rights bodies were generally not allowed to visit prisons (at [5.19]) and to investigations within the context of complaints being “generally considered to not be credible” (at [5.20]).

  13. The Minister submitted that it should be inferred from the Tribunal’s reasoning and, specifically, its reference to the country information not indicating “whether or why individuals were targeted” for deaths in custody, that the Tribunal found that the requisite “intention” on the part of the authorities was generally lacking. For the reasons given above, I am unable to accept this. The Tribunal made no express findings regarding the nature of the conditions that the applicant may experience in prison, nor whether the country information considered above was capable of supporting a finding of intention. The Tribunal simply referred at [74] to part of the country information regarding deaths in custody not indicating whether or why individuals were “targeted”. This lack of “target[ing]”, without more, was not determinative of the question of whether the applicant may face a real chance of significant harm.

  14. The Minister submitted, by reference to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], that the “Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence”. The Minister also referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69], where it was stated (footnote omitted):

    69.It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material30…  

  15. However, the difficulty in this case is that the Tribunal did not set out its reasons for reaching the conclusion that the applicant did not face a real risk of significant harm because of his military service obligations, nor the facts that it considered material to that conclusion. These matters are therefore unable to be identified by the applicant, or by the Court.

  16. The Minister further submitted that the country information before the Tribunal (at [3.96] of the DFAT Country Report) supported the law in question of being of general application. This was by reference to “individual[s]” suffering penalties under the “Military and National Service Act 1980”. The Minister submitted that the result was that there was taken not to have been a real risk of significant harm, pursuant to s 36(2B)(c) of the Act. Even if this were a potential manner in which the Tribunal could have reasoned, however, the Tribunal did not reason in this fashion. The application of s 36(2B)(c) of the Act can involve complex questions, particularly within the context of compulsory military service. Those questions were for the Tribunal to resolve. It is possible that, had the Tribunal dealt with such questions, they may have been resolved in a manner favourable to the applicant.

  17. Having regard to the above, I accept that grounds 1 and 2 demonstrate relevant error in the decision of the Tribunal. This is so whether the error is characterised as a failure to consider a claim or centrally relevant evidence, or as a constructive failure to exercise jurisdiction in the manner considered in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431.

    Ground 3

  18. Ground 3 contended that the Tribunal at [67] of its decision failed to deal with the applicant’s claim that, subjectively, the reason why he made his late claim(s) for protection was because he feared harm to his family in Egypt. The Tribunal was said to have erred by only considering the objective risk of harm and failing to consider that this was the subjective reason for the late making of the claim(s).

  19. The Tribunal’s reasoning at [67]-[68] of its decision was as follows:

    67. The Tribunal does not accept that not applying for a protection visa until detained almost nine years after arriving in Australia, having been unlawful since July 2010, is consistent with the applicant’s claiming to fear serious and significant harm from [Family A] if he returns to Egypt. His explanation is that a lawyer told him when he first arrived here that the Australian government would make inquiries in Egypt and [Family A] would find out. When the Tribunal doubted that a lawyer would say that, the applicant’s representative, who is a lawyer, said that checks are made and that the applicant believed that his family would be put in danger if that occurred. The Tribunal does not accept that his seeking protection in Australia would put his family at higher risk than he claims that they have been because of him. Further, the Tribunal does not accept that [Family A] would be concerned about inquiries being made in Egypt, given their claimed power and network.

    68. For the above reasons, the Tribunal does not accept that the applicant’s claims for protection because of his treatment by [Family A] or their surrogates are credible. It does not accept that he has suffered serious or significant harm from [Family A] or their surrogates in the past and does not accept that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm from [Family A] or their surrogates if he returns to Egypt.

  20. From the above, it is sufficiently apparent that the Tribunal did consider that the applicant claimed that he had not made his protection application earlier because he believed that his family would be put in danger. Whilst the Tribunal did not expressly state, in terms, that it did not accept the subjective element of this explanation, I accept the Minister’s submission that this was the effect of the Tribunal’s reasoning at [67]-[68]. It is apparent that the Tribunal did not accept the applicant’s explanation for the delay, nor the credibility of the applicant’s claims regarding Family A. I accept that implicit in this was the Tribunal’s rejection that the applicant held a genuine subjective belief that his family would be harmed by Family A. This rejection was couched in the Tribunal’s findings of greater generality at [67]-[68]: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] (French, Sackville and Hely JJ).

  21. For these reasons, ground 3 is unable to succeed.

    The consequences of the decision in question having been substituted under s 417 of the Act

  22. The Minister submitted that the purported legal effect of the Tribunal’s decision was moot or spent, as that decision had been substituted under s 417 of the Act by the decision of the Assistant Minister. The decision of the Tribunal, it was submitted, therefore had no independent continuing legal operation under s 415(2) of the Act and was not the operative decision governing the applicant’s rights. In these circumstances, it was submitted that certiorari was unavailable, by reference to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [25] per French CJ, Crennan and Bell JJ, Gageler J (as his Honour then was) and Keane J.

  23. This was disputed by the applicant. The applicant submitted that a different conclusion was supported by FEL17 at [43]-[44] and [56] (Abraham and Halley JJ), where it was stated:

    43.Although the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker, its task in conducting a merits review application is not, in itself, an exercise of a power to grant or refuse to grant a visa. The Tribunal does not decide a visa application under s 65 of the Migration Act. Rather the Tribunal, pursuant to s 500(1)(c) of the Migration Act, conducts a review of the decision to refuse the grant of a protection visa under s 65 and arrives at a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to either affirm, vary, or set aside the decision made under s 65: see s 415 of the Migration Act. The Tribunal in this case did not, contrary to the appellant’s submission, make a decision itself refusing to grant the appellant a protection visa. The Tribunal, in affirming the Delegate’s Decision, “made a decision which operated upon the initial decision of the delegate”: Daher v Minister for Immigration and Ethnic Affairs [1996] FCA 1011; (1996) 70 FCR 585 at 587. As explained below, nothing in [70] of Plaintiff M174/2016 suggests otherwise.

    44. As the Minister correctly noted, the exercise of power by the Assistant Minister under s 417(1) of the Migration Act to grant the appellant a visitor visa is not the exercise of the power under s 415 (which provides the Tribunal’s powers). It is not the exercise of the power in s 415(2)(d) to set aside the Delegate’s Decision and substitute a new decision. The Assistant Minister did not set aside the Delegate’s Decision. We note that s 417 only provides for the substitution of a decision, which is to be contrasted with the Tribunal’s powers under s 415 which include the power to “set the decision aside and substitute a new decision”…

    56.If the Tribunal’s Decision has no legal effect, or no longer has legal effect, the Delegate’s Decision has legal effect in its own right. It has not been set aside.

  24. The applicant submitted that the Delegate and Tribunal’s decisions together resulted in the applicant’s protection visa application being “finally determined”, following the logic of FEL17, for the purpose of s 198 of the Act: see s 5(9) and (9A) of the Act. The applicant submitted that this had consequences regarding the removal obligations in s 198 of the Act. The applicant submitted that since the s 48A bar is operative, and affirmed by the Tribunal’s decision, the applicant faces a risk of refoulement, and the Tribunal’s decision has ongoing legal operation.

  25. FEL17, however, concerned a different question. The question in that case was whether Ministerial intervention pursuant to s 417(1) of the Act rendered s 48A of the Act inapplicable. The Court in FEL17 was not asked to determine the question of whether this Court may appropriately quash or require redetermination of a Tribunal decision that has been substituted under s 417 of the Act. The Minister contended that certiorari was unavailable once the Tribunal’s decision had been so substituted.

  1. The Minister further submitted that, on the better view, mandamus was unavailable without quashing an invalid decision. Reliance was placed upon Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [86] (McHugh J) and Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 693-694 (Lord Denning), applied in Legal Practice Board of Western Australia v Fazio [No 2] [2021] WASC 304 at [32] (Smith J). The Minister acknowledged that there were some indications to the contrary, including in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11;  (2002) 209 CLR 597 (Bhardwaj) at [148] (Hayne J) and Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 249 CLR 398 (Public Service Association) at [57] per Gummow, Hayne and Crennan JJ, Kiefel J (as her Honour then was) and Bell J.

  2. None of the authorities relied upon appeared to accord precisely with the circumstances of this particular case. Ultimately, whether or not certiorari must (or ought to) precede mandamus must depend upon the circumstances. It seems that where there has been a failure to exercise jurisdiction (constructive or otherwise), mandamus may be available in the absence of certiorari (per Public Service Association at [57] and Bhardwaj at [148]) or even, in some cases, be unnecessary for the relevant statutory duty to be performed (per Bhardwaj more generally). However, it is unnecessary to determine this with precision or finality in this case. This is because of the additional persuasive force of the Minister’s submissions regarding the application of Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174).

  3. In Plaintiff M174, it was argued that the decision of a delegate of the relevant Minister was affected by jurisdictional error. That decision had been the subject of a subsequent decision by the Immigration Assessment Authority. At [69]-[70], Gageler J (as his Honour then was), Keane and Nettle JJ reasoned as follows in relation to the challenge to the underlying delegate’s decision:

    69.The conclusion, already stated, that a fast track reviewable decision is nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact means that the plaintiff's challenge to the delegate’s decision must fail unless the plaintiff’s challenge to the Authority’s decision can succeed on an independent ground.

    70.The reason is not that review by the Authority in some way “cures” a defect of jurisdiction in the decision of the Minister or delegate that is under review. The reason is that, once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant.

  4. There appears to be some force to the Minister’s submission that the reasoning in Plaintiff M174 ought to apply by analogy to the present case. In Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495, Gyles J considered at [94] (emphasis added):

    94. … The Minister, if he or she disagrees with the RRT decision, may substitute a decision more favourable to the applicant (s 417). Subject to that, the system makes the RRT rather than the Minister the final judge of the merits of the application…

  5. In FEL17, Snaden J considered at [5]:

    5.Section 417 of the Act confers upon the Minister a power to “substitute” a decision made under s 415 for one that is “more favourable” to an applicant. The verb “substitute”, read in context and with regard to the statutory purpose by which the section is evidently animated, is to be read such that an exercise of the power conferred by s 417(1) serves to relieve of operative or legal effect the decision that was made under s 415; and to leave the “more favourable” decision to operate with legal effect in its stead.

  6. I accept the Minister’s submission that this reasoning is not inconsistent with the reasoning of the majority in FEL17.  

  7. The application of the reasoning in Plaintiff M174 may depend upon whether a decision in fact or law is required for a valid decision to be made under s 417 of the Act. The Minister submitted that only a decision in fact is required. I have some reservations about this. No direct authority was provided in support of the proposition.

  8. However, the applicant in this case has not challenged the validity of the Ministerial intervention. Instead, the applicant has proceeded on the basis that the exercise of power under s 417 of the Act was valid. This was relied upon by the applicant under ground 1A. The question of validity seems likely to involve questions of some complexity and significance for the general case law. I am not convinced that it would be appropriate to require the parties to be put to the difficulty and expense of addressing such questions, in furtherance of an application that the applicant in this matter, who is legally represented, has decided not to pursue.

  9. Assuming the decision under s 417 was valid, then it has substituted the decision of the Tribunal for a valid decision under the Act. The Tribunal’s decision has not been set aside by this process, but it has been substituted or transformed by this process into “another decision”. That decision, under s 417 of the Act, is the operative one. Following the reasoning in Plaintiff M174 at [69], this means that the challenge to the antecedent decision cannot succeed unless the challenge to the operative decision also succeeds. That is not because the latter decision “cures” a defect of jurisdiction in the antecedent one. It is because it supersedes it as the operative decision.

  10. Ultimately, the applicant has not persuaded me that the relief sought ought to be granted in circumstances where the decision under review has been substituted for a decision under s 417 of the Act and the decision for which it has been substituted has not been challenged.

    CONCLUSION

  11. For the above reasons, I am satisfied that it is necessary in the interests of the administration of justice for time to be extended under s 477(2) of the Act. However, I have concluded that the application to this Court must otherwise be dismissed.

  12. I will hear from the parties in relation to costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       12 January 2024

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