Huynh v Minister for Immigration and Citizenship

[2012] HCATrans 39

[2012] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 2012

B e t w e e n -

HOAI HAN HUYNH

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 FEBRUARY 2012, AT 11.00 AM

Copyright in the High Court of Australia

MR H.H. HUYNH appeared in person.

HER HONOUR:   Mr Huynh, you are appearing today without any legal representation and seated next to you, Mr Huynh, is there an interpreter in the Vietnamese language?

THE INTERPRETER:   Yes, your Honour.

HER HONOUR:   Thank you, Mr Interpreter.  Mr Huynh, are you able to understand the English language or would you be assisted by the interpreter?

MR HUYNH:   I would prefer the interpreter.

HER HONOUR:   Very well.  Mr Huynh, I will endeavour to speak slowly to permit the interpreter to interpret for you.  Do you wish that to be done throughout the proceedings?

MR HUYNH:   Yes.

HER HONOUR:   Very well.  Thank you, Mr Interpreter, could you explain.  If at any time you find that you are not able to follow anything that I say or anything that counsel appearing for the Minister says, please feel free to interrupt me or counsel in order to explain your difficulty.

MR HUYNH:   Yes.

HER HONOUR:   Thank you.

MR J.D. SMITH:   May it please the Court, I appear on behalf of the Minister.  (instructed by DLA Piper Australia)

HER HONOUR:   A submitting appearance has been filed on behalf of the second defendant, the Administrative Appeals Tribunal.

MR SMITH:   Yes, your Honour.

HER HONOUR:   Yes, thank you.  Mr Huynh, on the last occasion the Court made orders requiring you to file an amended application and any additional material that you wished to place before the Court as well as written submissions in support of the relief that you claim.  You have filed an amended application for an order to show cause together with an outline of submissions and two affidavits.  I will come in a moment to the affidavits and to the material that you tendered before the Court on the last occasion, but before I do that, there is a matter that I wish to clarify concerning the nature of the hearing before me today and I think it might be helpful if I took that matter up with Mr Smith.  I will return to you after I have raised the matter with Mr Smith in order to hear from you about that question.  You may sit down for a moment.

Mr Smith, I note that in a folder of materials filed on behalf of your client there are extracts from the Migration Act including an extract of amendments made to the provisions of section 486A of the Migration Act, that provision purporting to impose limits, time limits, on both the making of an application to this Court for a remedy in the Court’s original jurisdiction respecting a migration decision and limiting the circumstances in which the Court might extend time under the provisions of subsection (1)(a).

I note that in the amended application for an order to show cause, among the relief claimed in paragraph 7 is that the requirement to comply with time limit be dispensed with for the reasons set out in that paragraph.  The form of the relief claimed in the amended notice is in similar terms to that claimed in the original show cause notice. 

Justice Crennan drew attention to some difficulties in understanding precisely the relief claimed in that original notice.  The intention in directing the plaintiff to file an amended application was, no doubt, to give attention to the question of the relief claimed.  It would appear that the plaintiff has not been successful in obtaining legal representation which, no doubt, explains why the clarification that Justice Crennan suggested might be addressed has not been in the form of the amended application.

Among the orders claimed in that amended application is an order prohibiting your client from taking any further actions on the judgment of Justice Edmonds and on the orders made by Justice Edmonds in the Federal Court on 23 November 2011.  Justice Edmonds on that occasion dismissed an application to extend time for the purpose of the jurisdiction conferred on the Federal Court to review a decision of the Tribunal relating to a migration matter. 

It is not clear to me from your submissions whether you understand the matter to be, the matter in paragraph 7 of the application, to be a claim for an extension of time under section 486A in which to bring proceedings in the original jurisdiction of this Court and if that is the application, whether or not you oppose it or whether I am to understand paragraph 7 as in some way relating to the determination in the Federal Court not to extend time. It seems to me important from the outset to understand what it is that I have before me for decision today. What is your submission in that respect?

MR SMITH: We took the broadest view of paragraph 7, your Honour, that it be an application in writing for an extension of time referable to section 486A of the Migration Act.

HER HONOUR:   Firstly, what is the Minister’s attitude to the grant of that extension?

MR SMITH:   The Minister opposes the extension.

HER HONOUR:   Do you contend that the relevant time limits for the purposes of that provision relate to the decision of Justice Edmonds refusing the application for an extension of time or to the antecedent decision of the Tribunal?

MR SMITH:   We took it to the Tribunal principally because that is the critical relief that is sought as addressed to the Tribunal who, it is said, did not properly fulfil their function.

HER HONOUR: I have not done the arithmetic. Is it suggested that the provisions of section 486A preclude the Court from making an order extending time if the relevant migration decision is that of the Tribunal? Is that put or not?

MR SMITH:   No.  The Court can extend time – and this is pursuant to the amended legislation rather than ‑ ‑ ‑

HER HONOUR:   That is what I wanted to take up with you.  This is an amendment following the decision of this Court in ‑ ‑ ‑

MR SMITH:   Bodruddaza, I think it is.

HER HONOUR:   Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.

MR SMITH:   Yes.

HER HONOUR:   Yes.  Can you take me to that amendment?

MR SMITH:   Can I first say I am not sure if this amendment is in the material, but that amendment came into force in March 2009.

HER HONOUR:   I see.

MR SMITH:   The amendment appears at page 41 of the bundle.

HER HONOUR:   Thank you.

MR SMITH:   As the provision as it now stands.

HER HONOUR:   The effect then of the provision as amended is that this Court may extend the period as it considers appropriate if:

(a)an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

MR SMITH:   Yes.  As I noted before, we took paragraph 7 to be to fulfil the first part of those requirements.  So the issue falls for consideration under (2)(b).

HER HONOUR:   Thank you.  Having regard to the relief claimed in paragraphs 1 to 6 of the amended application which, as I understand your submission, Mr Smith, seems to be directed to setting aside the decision of the Tribunal on the ground of jurisdictional error, it is said that the operative date is the date of the Tribunal’s decision in terms of the extension of the 35‑day period for the purposes of the provision.

MR SMITH:   Yes, your Honour.

HER HONOUR: So that the preliminary matter for my determination is whether it is in the interests of the administration of justice to extend time under section 486A(2)?

MR SMITH:   Yes, your Honour.

HER HONOUR:   In your submission, it is not in the interests of justice so to do.  Do I understand that the submissions that were filed before the Court on the last occasion, supplemented by those filed today, which seem to be directed to the merits of the claims made by the plaintiff, is relied upon for a contention that there would be no utility in extending time since the grounds of challenge to the Tribunal’s decision do not disclose a ground having prospects of success?

MR SMITH:   Yes, your Honour.

HER HONOUR:   Apart from that contention, which I understand, is there any other matter that you advance as a reason why the Court would not extend time?

MR SMITH:   No.  We would say that, yes, the delay has to be taken into account, but in this case there are explanations that mean that we would not rely on that delay outside the merits.

HER HONOUR:   Thank you, Mr Smith.  All right.  I will just return now to Mr Huynh.

MR SMITH:   If the Court pleases.

HER HONOUR:   Mr Huynh, can I endeavour to explain the effect of that discussion that I had with counsel for the Minister.  Under the Migration Act there is a time limit on bringing an application, such as the application that you have filed, relating to a decision of the Tribunal concerning a migration matter.  This Court has the power to extend the time if it considers that it is in the interests of the administration of justice to do so.  In your amended application in which you set out the orders that you ask the Court to make, you have asked in paragraph 7 that the Court dispense with the time limit.  I understand that to be an application under the Migration Act to extend the time limit to enable you to ask this Court to make the orders that you claim in the first six paragraphs of your application.  Am I correct in my understanding?

MR HUYNH (through interpreter):   That is correct, yes.

HER HONOUR:   Counsel for the Minister opposes the grant of the extension of time.  Counsel does not invite me to refuse your application because of the delay between the decision of the Tribunal and the date that you first filed your application in this Court.  Counsel opposes the extension of time because he submits none of the grounds on which you challenge the Tribunal’s decision has prospects of succeeding and for that reason it would be futile for me to extend the time.  What I am about to embark upon is a consideration of whether time should be extended.  That consideration will necessarily involve an assessment of the strength or weakness of the grounds that you have set out in your submissions about why you say the Tribunal’s decision should be set aside.

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   On the last occasion, when you appeared before Justice Crennan, an affidavit had been filed.  It was an affidavit that you swore on 23 January 2012 and it contained a number of documents attached to it, including decisions of the Tribunal and of Justice Edmonds.  Do you rely on that affidavit today?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   In addition, you tendered a bundle of documents.  They were contained in a white manila envelope.  They were described on that occasion as being medical reports.  Do you recall that?

MR HUYNH (through interpreter):   Yes, I remember.

HER HONOUR:   Those documents included the psychological assessment carried out by Dr Jacmon, a further psychological assessment carried out by Ms Tukelija, some material about your mother’s situation including a report from Catholic Care and Anglicare and an assessment of your mother’s medical conditions prepared by an occupational therapist, a letter from your half‑sister, Michelle Lam, concerning your mother’s poor health ‑ ‑ ‑

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   ‑ ‑ ‑ a psychological report by Mr Nguyen concerning your mother’s condition together with some certificates, including your birth certificate, your mother’s certificate of Australian citizenship and documents of that description.  There were also photographs with descriptions attached to the photographs depicting some injuries to the person.  Do you recall that?

MR HUYNH (through interpreter):   Yes, I remember.

HER HONOUR:   Do I understand that you wish to rely on all of that material?

MR HUYNH (through interpreter):   Yes, I wish.

HER HONOUR:   I think there was no objection to the material which was marked as exhibit A on the last occasion?

MR SMITH:   No, there is no objection.

HER HONOUR:   Mr Huynh, may I inquire what you say the photographs depict?

MR HUYNH (through interpreter):   Those photographs were about my condition when I was in gaol.

HER HONOUR:   You appear to have suffered some injury to your hand.

MR HUYNH (through interpreter):   That was of my mother. 

HER HONOUR:   I am sorry.  The photograph depicting apparent superficial injuries to the hand is of your mother?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   What, as you understand it, is the relevance of that photograph?

MR HUYNH (through interpreter):   Yes, it has some relevance.

HER HONOUR:   What was your purpose in putting those two photographs before the Court, just so that I understand your evidence, Mr Huynh?

MR HUYNH (through interpreter):   Those photographs prove that my mother loves me very much.

HER HONOUR:   I understand.  Now, in addition to the material in the envelope and your first affidavit, you have filed two further affidavits, one sworn on 2 February and a third affidavit sworn on 7 February.  I will just ask Mr Smith if there is any objection to any part of those affidavits?  Mr Smith?

MR SMITH:   Your Honour, I only have two affidavits sworn by the plaintiff.

HER HONOUR:   I referred to the affidavit sworn on 7 February as the third affidavit because I had in mind that the affidavit sworn on 23 January, which the plaintiff has indicated he relies upon, was his first affidavit.

MR SMITH:   Yes, I have one filed on the 25th, sworn on the 23rd and one filed on the 9th and called the supplementary affidavit.

HER HONOUR:   You do not have one filed also on the 9th, sworn on 2 February attaching – annexing to it reports from the Probation and Parole Service?  Perhaps I will just hand the document down to you, Mr Smith.

MR SMITH:   No, I only have one affidavit which does attach reports from the Probation and Parole Service.

HER HONOUR:   Let me hand down both of the affidavits that are on the Court file and that were filed on 9 February.

MR SMITH:   Thank you, your Honour.  Your Honour, I have the supplementary affidavit which exhibits the probationary and parole reports, but I do not have the shorter affidavit which really appears only to be an affidavit of service, to which has been attached the exhibit, which was the exhibit to this one.

HER HONOUR:   Exactly.  So you have the affidavit and the exhibits and it is simply that in form they appear as the exhibits attached to the affidavit of service in the document filed with the Court.  Is that right?

MR SMITH:   Yes.  I do not have the affidavit of service, but I do not think it is of any note.

HER HONOUR:   Yes.  There is no issue about service.  Is there any objection to the tender of the affidavit to which is exhibited the probation reports?

MR SMITH:   No, your Honour.

HER HONOUR:   Yes, very well.  All right.  Mr Huynh, you may take it that in addition to the affidavit that you first filed, and all the material to which I have referred that became exhibit A, I will also have regard to the contents of your affidavit to which is annexed the reports from the welfare officer at Cessnock Gaol, the immigration report prepared by the Probation and Parole Service and a further immigration report prepared by that service.  Is that all of the material on which you rely in support of your application?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   Thank you.  Mr Smith, I think that you seek to rely on an affidavit.  Is that so?

MR SMITH:   Yes, that affirmed by Emilia Ramos on 13 February.

HER HONOUR:   Mr Huynh, the Minister in his case seeks to rely on an affidavit sworn by Emilia Ramos which attaches the submissions that the Minister relied on before the Tribunal.  Have you seen that document?

MR HUYNH (through interpreter):   No, I have not.

HER HONOUR:   You have not?

MR HUYNH (through interpreter):   No, I have not.

MR SMITH:   It was sent to the immigration detention centre yesterday by facsimile.  I have another copy here.

HER HONOUR:   You understand, Mr Huynh, the affidavit was apparently sent by facsimile to the Villawood Detention Centre.  What I am going to do is ask Mr Smith to give you a copy of it.  I will give you a moment to have a look at it and to discuss it with the interpreter and then I will hear from you further about it.

MR HUYNH (through interpreter):   I have received it yesterday afternoon but I did not have time to read it.

HER HONOUR:   I understand.  Do you have a copy of it with you?

MR HUYNH (through interpreter):   No.

HER HONOUR:   All right.  Mr Smith has kindly made one available to you.  The purpose of the tender of the submissions that were placed before the Tribunal is to address one of your grounds of complaint about the Tribunal’s decision‑making process.  You say that you were not on notice of certain issues at the hearing before the Tribunal and you assert that the Tribunal should have given you an opportunity after the hearing to put further submissions and material before it.  As I understand it, the Minister wants to place before the Court material to show the issues between you and the Minister that were live in the proceedings before the Tribunal.  Is that right, Mr Smith?

MR SMITH:   That is right.

HER HONOUR:   That is the purpose of the tender.  Do you have any objection to me receiving that evidence?

MR HUYNH (through interpreter):   No.

HER HONOUR:   That completes the evidence that you seek to place before the Court?

MR SMITH:   Yes, your Honour.

HER HONOUR:   All right. 

MR HUYNH (through interpreter):   I want to say something.

HER HONOUR:   Mr Huynh, you may take it that I have read your affidavit of 25 January and the various documents that you attached to that affidavit, including the Tribunal’s decision and Justice Edmonds’ decision.  You may also take it that I have read those parts of the reports that you have placed before the Court in your affidavit filed more recently reflecting on the assessment made by the welfare officer and the Probation and Parole Service of your prospects for rehabilitation.  You have filed submissions in support of the relief that you claim.  I take it you rely on those written submissions that you filed on 9 February?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   Are there further matters that you want to draw to my attention today?

MR HUYNH (through interpreter):   I have some new documents ‑ ‑ ‑

MR HUYNH:   I have some document which is the psychologist that I have – psychology report and a letter from my pastor at Hillsong Church and a certificate of baptism and a letter from myself and I would like to submit.

HER HONOUR:   I see.  You want to place that material before the Court, do you?

MR HUYNH:   Yes.

HER HONOUR:   Yes.  Would you show it to Mr Smith?

MR HUYNH:   Excuse me, your Honour, and there is some certificate from correctional centre that I have achieve while I was in prison.

HER HONOUR:   Any further material that you wish to place before the Court you should show to Mr Smith now.

MR HUYNH:   Thank you, your Honour.

HER HONOUR:   Then I will hear from him about the attitude to the tender of the material.

MR HUYNH:   Thank you, your Honour.

MR SMITH:   There is no objection, your Honour.

HER HONOUR:   Yes, very well.  The documents, the subject of the tender, comprise a letter addressed to the Court by the applicant; a letter signed by Pastor Waininau of the Hillsong CityCare Church; a baptismal certificate; a report of a psychologist, Ms Tukelija; a statement respecting the applicant’s completion of a general induction course in occupational health and safety together with correspondence relating to his participation in that course, and four certificates respecting the applicant’s participation in various courses.  I will together mark that material as exhibit B.

EXHIBIT:    Exhibit B.....A letter addressed to the Court by the applicant, a letter signed by Pastor Waininau of the Hillsong CityCare Church, a baptismal certificate, a report of a psychologist, Ms Tukelija, a statement respecting the applicant’s completion of a general induction course in occupational health and safety together with correspondence relating to his participation in that course and four certificates respecting the applicant’s participation in various courses.

HER HONOUR:   I will just read the letter.  Mr Huynh, your letter addressed to the Court and the pastor’s letter address factual questions concerning your care for your mother and your growth in your commitment to your religious beliefs.  It is necessary for you to understand that the merits of the Tribunal’s determination, including the Tribunal’s assessment of the weight to give to the facts that it was satisfied were established respecting your care for your mother, your religious convictions and the like are not matters with which this Court is concerned. 

The relief that you seek is confined to establishing that the Tribunal erred in law in a way that tainted its decision as a matter of law, a consideration which is quite distinct from whether its decision as to whether your prospects of rehabilitation and other circumstances made it appropriate to refuse to cancel your visa was a good decision or a bad decision.  Do you understand what I am putting to you? 

I would like to now just draw your attention to some of the matters that the Minister relies on in support of his contention that the Tribunal did not make any of the errors that you claim and for that reason that I should not grant you the extension of time that you are seeking. 

MR HUYNH (through interpreter):   I would like to speak to your Honour.

HER HONOUR:   Yes.

MR HUYNH:   What I have written in this letter - your Honour, I respectfully ask leave of the Court file this additional materials of evidence which I have just received.  They are psychology report I just show to Mr Smith and your Honour to have a look and further, very late yesterday, about 6.00 pm, I was handed some documents from DLA Piper, solicitor for the defendants.  I have not had the time to go through them yet due to electric power failure at the Villawood Detention Centre last night.  Power was restored very late and I was already asleep being very stressed and fearful of today. 

Your Honour, I am supposed to be on parole but I have not been given the opportunity to demonstrate that I am rehabilitated man and a changed person because of my cancellation visa.  I respectfully ask the Court, in my submission, to make permanent the injunction in restraining the Minister from removing me from Australia and to tell the delegate of Minister I have more than one option.  In decision record in the views of this correction, he had the option to warn me and give me a chance to prove that I am not going to commit any other crime, given the facts as appear on the face of the record, of Administrative Appeals Tribunal record.  In my favour I had never been warned by the Minister before.  Those things I did in ignorance will never ever happen again.  That is all I have to say, your Honour.  Thank you.

HER HONOUR:   Mr Huynh, I understand you to be telling me that yesterday you received some documents from the Minister and because of the power failure at the detention centre you did not have an opportunity to fully absorb their contents.  Is that right?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   Were the documents the affidavit that a few minutes ago Mr Smith gave you a copy of and which you told me earlier you had not had a chance to read through fully?  Was the other document a two‑page document setting out the Minister’s outline of submissions?  Were those the documents?

MR HUYNH (through interpreter):   That is right.

HER HONOUR:   What I was proposing to do, Mr Huynh, was to address your attention to the things that the Minister puts in his submissions as the reasons why I should reject your application so that you could tell me anything further you wanted to put about those matters.  In the course of doing that, I was going to ask Mr Smith to just identify precisely the material attached to the affidavit that he served on you yesterday that he relies on and then I was going to direct your attention to that.  What I propose is that we proceed in that way and that if you believe you have difficulty in dealing with the matter, you should raise that with me again.  Do you understand?

MR HUYNH (through interpreter):   I understand.

HER HONOUR:   Perhaps I will just ask Mr Smith if he can identify the parts of the earlier submissions on which he relies and then I will explain it to you.  Mr Smith.

MR SMITH:   Earlier submissions or the affidavit, your Honour?

HER HONOUR:   I am sorry, when I said earlier submissions, I was referring to the submissions that were placed before the Tribunal and that are annexed to the affidavit of Ms Ramos.

MR SMITH:   Particularly page 6, paragraph 21.5.

HER HONOUR:   Yes, thank you.  Mr Huynh, as I understand the substance of your claim, it has three aspects to it.  The first is your contention that the Tribunal was required to give primary consideration to an obligation accepted by Australia under international law owed to your mother as a refugee to maintain the unity of her family.  That is the submission that was argued on your behalf by a barrister appearing for you before Justice Edmonds in the Federal Court - is that right?  You maintain the submissions that that barrister made on your behalf in support of the relief that you claim here? 

The Minister submits that there is no such obligation imposed on Australia by international law.  Those arguments are arguments that I think you understand because they date back to the proceedings before Justice Edmonds.  They were also subject to some submissions filed on the Minister’s behalf when this matter was first before this Court on 3 February. 

The fresh material, in terms of submissions made by the Minister, is directed to the two additional claims that you have made in your written submissions.  The first of those is a claim that the Tribunal was unfair in the procedures that it adopted because the Tribunal member found that she was not satisfied that you had converted to Christianity and you assert that you had no notice that there was any doubt about the fact of your conversion to Christianity, so it was unfair for the Tribunal to decide that question against your interests without letting you have a chance to put further material before the Tribunal.  Is that the way you put it?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   In answer to that, the Minister has filed the affidavit, that you have a copy of, and attached to that affidavit is a copy of the Minister’s statement of the facts and the contentions that he advanced before the Tribunal.  On page 6 of that document that was before the Tribunal in paragraph 21.5, the Minister’s legal representative put in issue the question of whether you had converted to Christianity.  You were represented before the Tribunal by a barrister, were you?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   The significance of the attachment of the submissions that the Minister placed before the Tribunal is that it is said Mr Huynh’s barrister was on notice that this was an issue and that you had an opportunity in the hearing before the Tribunal to put the material that you wanted to put before the Tribunal to demonstrate that you had converted to Christianity and for your barrister to put any submission about that matter and that there was, for that reason, no unfairness about the procedure that the Tribunal adopted.  That is the Minister’s position, if I can put it in short form, about your second ground of challenge to the Tribunal’s reasons.

Your third ground of challenge is an assertion that the Tribunal was wrong in finding that you were a person who presented a risk to the Australian community because you might reoffend in the future.  The submission that is put is that that was a factual finding that was open to the Tribunal and that no question of an error tainting the Tribunal’s decision arises by reason of the facts that the Tribunal found.  That is, in essence, the substance of the Minister’s answer to your third ground of challenge.

As I understand it, the only significance of the affidavit evidence on which the Minister relies is the reference on page 6 of the submissions that are attached to the affidavit to which I have directed your attention.  Is there anything further that you want to put to me about the circumstance that you say you had some difficulty in fully absorbing that material when it was sent to you yesterday?

MR HUYNH (through interpreter):   Yes.  I could not understand much of the document and I had to seek help from other people.

HER HONOUR:   You understand the matters that I have put to you a few moments ago concerning the answers that the Minister makes?

MR HUYNH (through interpreter):   Yes, I understand.

HER HONOUR:   Is there some application that you wish to make to me arising out of the matters that you told me about concerning the difficulties at Villawood yesterday?

MR HUYNH (through interpreter):   I am in the process of preparing some further materials.

HER HONOUR:   What further materials are those?

MR HUYNH (through interpreter):   I do not know because I have to get help from some other people.

HER HONOUR:   Mr Smith, I think this might be understood as an application for an adjournment for some period.  Before I explore that further, what is the Minister’s attitude?

MR SMITH:   An adjournment would be opposed, your Honour.

HER HONOUR:   Mr Huynh, when you first appeared before the Court, Justice Crennan stood the matter over for a short period of time granting the injunction that you claimed to give you an opportunity to put the things that you wanted to put before the Court in order so that they may be presented today at this hearing.  Is there some reason why you have not been able to put all the material that you wish to put before the Court today?

MR HUYNH (through interpreter):   That is because I forgot a few things and I could not remember some other things.

HER HONOUR:   You were able to prepare quite detailed written submissions addressing your grounds of challenge.  The material that you say you now wish to locate and place before the Court, is that further reports or letters of the type that you have tendered this morning?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   What additional material – I appreciate yo do not have it with you today, but what additional material is it that you wish to obtain and put before the Court?

MR HUYNH (through interpreter):   I will submit in the future.

HER HONOUR:   The Minister opposes the adjournment of the proceedings to give you that opportunity.  In light of that opposition and given the nature of the issues raised in your outline of submissions, I do not consider that you have made out a proper basis for an adjournment in the absence of some better explanation of the relevance of the material that you wish to put before the Court.  Is there anything further you wish to put to me?  For the reasons I have just explained, Mr Huynh, I do not propose to further adjourn the hearing of your application for an extension of time in which to bring these proceedings.

MR HUYNH (through interpreter):   I would like to – is it possible that I could contact a person back at the centre to seek the person’s advice?

HER HONOUR:   Who do you wish to contact?

MR HUYNH (through interpreter):   Pastor Steve in Blaxland in room three – dorm three.

HER HONOUR:   Did you say you wished to contact someone who you know as Pastor Steve?  He is a minister of religion who has been providing you with some assistance.  Is that so?

MR HUYNH (through interpreter):   That is correct.  Yes, I call him pastor.

HER HONOUR:   Did he assist you in the preparation of your submissions?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   Mr Huynh, the submissions, as I have said, are detailed and appear to have been prepared with the assistance of someone with some understanding of the legal issues involved in a challenge such as this.  Justice Crennan directed you to file the submissions by Friday, 10 February.  In fact, you were able to file them on 9 February.  Have you some explanation for why now you wish time to supplement those submissions or present some other material with the assistance of Pastor Steve?

MR HUYNH (through interpreter):   I would like to double check all the material.

HER HONOUR:   As I have indicated, Mr Huynh, in light of the Minister’s opposition, the background of the matter, including the orders made by Justice Crennan on the last occasion and the issues raised by the relief that you claim, I do not intend to adjourn this hearing to afford you a further opportunity to speak with Pastor Steve.  Have you put the things that you want to say in your outline of submissions?

MR HUYNH (through interpreter):   I will need to double check to see whether anything is missing.

HER HONOUR:   I am sorry, could you repeat that?

MR HUYNH (through interpreter):   I would like to double check to make sure that nothing is missing.

HER HONOUR:   Mr Smith, if I were to stand the matter down till 2.00 pm on the basis that Mr Huynh would then have an opportunity to read over your submissions and his submissions, in that time he might, if he cared, ring Pastor Steve, and I would return to the matter at 2.00 pm with a view to proceeding to determine it, does that present any problem?  That seems to me an appropriate course having regard to Mr Huynh’s difficulties yesterday arising from the power failure and the desirability that he have the opportunity to check the material as he has indicated he would like to do?

MR SMITH:   No, your Honour. 

HER HONOUR:   Very well, Mr Huynh.  What I am going to do is, it is now 25 past 12 – Mr Interpreter, is there some difficulty with you being here at 2.00 pm?

THE INTERPRETER:   Your Honour, I was asked to be here from 10.30 to 12.30 and I have accepted another assignment in Bankstown at 2 o’clock and that was with Translation and Interpreting Service and I do not know whether they could, because of very short notice, even if I asked them that I could be relieved because of the type of matter, I do not know whether I could do it, because, to be honest with you, this is my first assignment I am going to do with TIS.

HER HONOUR:   I see.

THE INTERPRETER:   Unless your Honour make an order to TIS.

HER HONOUR:   I do not propose to do that, Mr Interpreter.  What I would be grateful for is your assistance in contacting them and seeing if, as a matter of urgency, some alternative arrangement could be made.

THE INTERPRETER:   Yes, I will contact them immediately.....officers.

HER HONOUR:   Thank you, Mr Interpreter.  Mr Huynh, you wish an opportunity to go through the material that you have filed and to look at the submissions that have been filed by the Minister.  What I propose doing is standing the matter down till 2.00 pm to give you that opportunity.  In that time it would be open to you to telephone Pastor Steve or any other person.  I would resume the hearing at 2.00.  I would then hear any further submissions that you have to make.  It is possible that the interpreter would not then be available.  Am I right in thinking that you are able to understand English?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   Would you like me to stand the matter down till 2.00, even though there is some chance that the interpreter may not be present, to give you the opportunity to check the documents as you have said you would like to do?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   Yes, very well.  That is the course that I will take.  I would be grateful, Mr Interpreter, if you could use your best efforts to see if arrangements can be made for you to be with us at 2.00.  Yes, very well, I will adjourn till 2.00 pm.

AT 12.29 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

HER HONOUR:   Mr Interpreter, I see that you have made arrangements to be present this afternoon.  May I thank you for that.

THE INTERPRETER:   It was my duty, your Honour, and thank you.

HER HONOUR:   Before we proceed any further, I will have the documents that were tendered before lunch marked, as I indicated, exhibit B and I have had a copy made for you, Mr Smith.

MR SMITH:   Thank you, your Honour.

HER HONOUR:   Now, Mr Huynh, you have had the opportunity in the last hour and a half to review your submissions and to look at the short written submission that was sent to you by facsimile yesterday prepared by the Minister.  Are there further matters that you wish to raise with me?

MR HUYNH (through interpreter):   Yes.

HER HONOUR:   What are those?

MR HUYNH (through interpreter):   The reason that all the documents at the Administrative Appeals Tribunal, my evidence ‑ ‑ ‑

MR HUYNH:   Because the Tribunal did not have regards to material that – and did not have regards to this material and did not mention it in their decision, my matter at the Tribunal.

HER HONOUR:   What matter do you say the Tribunal did not mention?

MR HUYNH:   Because I need to get some material from the Tribunal that was not mentioned in my matter at the Tribunal.  There was some material that was left out.  I need some time so I can get ‑ ‑ ‑

HER HONOUR:   I am sorry, you need some time, did you say?

MR HUYNH:   That is I need to ask for the adjournment.

HER HONOUR:   Well, now, Mr Huynh, this material that you say the Tribunal did not refer to in its decision, is this some new ground of challenge to the Tribunal, that is, a ground that is in addition to the ‑ ‑ ‑

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   It is in addition to the material in your written submissions?

MR HUYNH (through interpreter):   That is correct.

HER HONOUR:   In your amended application for an order to show cause, that is the document that you filed last Thursday setting out the relief that you claimed from the Court - do you know the document I am referring to?

MR HUYNH (through interpreter):   I have submitted so many documents.

HER HONOUR:   I will have the amended application handed down to you so you can look at it.  Tell me if you have a copy among the papers that you have, Mr Huynh.  Do you have a copy of that amongst your papers in front of you?

MR HUYNH:   Not at present, your Honour.

HER HONOUR:   Not at the moment?

MR HUYNH:   Not at the moment, no.

HER HONOUR:   Can you have a look at that document that I have just handed down to you.  Do you see on the third page you set out the grounds for the relief that you claim?  Do those refer to this additional matter that you now say you wish to raise?

MR HUYNH (through interpreter):   I do not have anything new.

HER HONOUR:   I am not sure that I understand what you are putting to me, Mr Huynh.  Do you now say you wish to raise some additional ground of complaint to the grounds that are set out in that document that you have in front of you?

MR HUYNH (through interpreter):   No.  However, I would like to ask – seek an adjournment so that I could get some materials from the first court.

MR HUYNH:   In the interests of administration of justice.

HER HONOUR:   I will ask for the amended application to be handed back to me.  Mr Huynh, you asked for an adjournment earlier today.  That application was opposed and I refused it.  I stood the matter down to give you some time to go over your papers.  Are you able to tell me with some precision what it is that you wish to place before the Court that you do not have with you now and for which you require an adjournment?

MR HUYNH (through interpreter):   The reason is that at the first court I could not say that I was not Christian.

HER HONOUR:   This is the matter that you have referred to in your submissions and that is one of the three grounds on which you challenge the Tribunal’s decision.  Mr Huynh, I have pointed out to you earlier that there is evidence that the Minister’s legal representatives served your legal representatives with an outline of the issues in the proceedings before the Tribunal. 

One of those issues was whether the Tribunal would accept that you had converted to Christianity.  It was pointed out to your legal representatives that there was no evidence of you having practised Christianity while you were in prison.  Ordinarily, one would expect that all the evidence that you had tending to establish that you had converted to Christianity would have been placed before the Tribunal, or that your barrister would have sought an adjournment if he or she thought it was necessary in order to put that material before the Tribunal.  Is there any other matter that you want to put before the Court, apart from the submissions that you have already filed?

MR HUYNH (through interpreter):   I do not have anything at the moment.

HER HONOUR:   Thank you.  You may sit down, Mr Huynh.  Mr Smith, can I just inquire, do you have in front of you a copy of the Ministerial Direction numbered 41?

MR SMITH:   That is in the bundle that was prepared.

HER HONOUR:   Thank you.  Where do I find it?

MR SMITH:   Page 86.

HER HONOUR:   Page 86.  Yes.

MR SMITH:   Your Honour will see the reference to international obligations starting at page 96 and at page 100.

HER HONOUR:   Thank you.  The relevant international obligations under clause 10(1)(d) include the best interests of the child under the Convention of the Rights of the Child and the non‑refoulement obligations under the Convention and Protocol Relating to the Status of Refugees and under the ICCPR and the Convention against Torture, but they are not expressed to be limited.

MR SMITH:   No.

HER HONOUR:   It is accepted that if an international obligation of the character claimed could be identified, then it would be a primary consideration.

MR SMITH:   Yes, if it was on the material before the Tribunal.

HER HONOUR:   Yes.  There is further reference to international obligations in clause 10.4, but that appears to be, in a sense, more specific relating to the Conventions under the CROC and the non‑refoulement obligations under the Refugees Convention.

MR SMITH:   Yes, that gives some flesh to the considerations set out under paragraph 10(1)(d).

HER HONOUR:   Yes.  Then going over to 10.4.3, there are other relevant international obligations.  There is reference to the ICCPR again in the context of the non‑refoulement obligation.

MR SMITH:   Yes.

HER HONOUR:   The only source of the claimed obligation in the proceedings before Justice Edmonds was Article 23.

MR SMITH:   That is said at page 72.

HER HONOUR:   Yes.  It is really clause 1 of Article 23.  That is expressed in general terms.  The argument advanced on the plaintiff’s behalf ties the recognition of the family as the natural and fundamental group unit of society and its entitlement to protection by society and the State to the status of his mother as a refugee.  There is some reference in ‑ ‑ ‑

MR SMITH:   S134 volume 211.

HER HONOUR: Yes - to the significance of the fact that the Convention does not incorporate the principle of family unity in the definition of the term “refugee”. Their Honours went on to note that the provisions of section 36, to the extent that they make provision for the spouse or a dependant of a non‑citizen who has protection claims to apply for a protection visa, that, as it were, goes beyond our international obligations. This is the ‑ ‑ ‑

MR SMITH:   It does, your Honour.  It highlights firstly that the international obligations do not go that far and then takes the further step which was aspired towards in Recommendation B, which is referred to at page 455.

HER HONOUR:   Yes.  That was the recommendation “included in the Final Act of the Conference of Plenipotentiaries” in 1951.  Reference is also made in the decision in Applicants S134 211 CLR 441 at 445, paragraph 21 to the views of a commentator who suggested that the non‑inclusion of Recommendation B was indicative of the wish of the signatories to retain freedom in these matters.

MR SMITH:   Yes, your Honour.

HER HONOUR:   Apart from the discussion in Applicants S134, has this question been touched on elsewhere?

MR SMITH:   Not that I am aware of, no.  I am certainly not aware of it in the context of Direction 41.

HER HONOUR:   Yes.  As to the third of the grounds, I note your submissions that this is a challenge to the Tribunal’s fact finding.  I suppose in the way it is put in the outline of submissions, it might also embrace a notion that the conclusion respecting the risk posed by the plaintiff was arrived at – I think the plaintiff suggests on evidence that was entirely contradictory and to that extent it may be that his submission takes up the notion addressed in SZMDS 240 CLR 611 respecting the determination of a jurisdictional fact on findings or inferences not supported by logical grounds such that no rational or logical decision‑maker could have reached the conclusion. The answer to that, in your submission, is, no doubt, the

reference to the Tribunal’s findings respecting the criminal and prison history.

MR SMITH:   Yes.  Those were contained, amongst other things, in the reports now relied upon.

HER HONOUR:   Yes.  That is in the probation – yes.

MR SMITH:   Yes.

HER HONOUR:   Albeit there are parts of those documents that happen to perhaps ‑ ‑ ‑

MR SMITH:   Support the later improvement in – that is right.  We took the submission at its highest to be setting up the distinction between the opinion that must have been arrived at by the Parole Authority to release him from prison into parole, which took into account the best interests of society.  It could not then also be faced with the countervailing opinion by the Tribunal which, of course, in answer to that, there was different material before both of the decision‑makers and they had different roles and different responsibilities.

HER HONOUR:   I understand.  Yes, thank you, Mr Smith.

MR SMITH:   Thank you, your Honour.

HER HONOUR:   Mr Huynh, is there anything you want to raise with me in light of that exchange between myself and Mr Smith?

MR HUYNH (through interpreter):   No.

HER HONOUR:   Yes, thank you, Mr Huynh.  You may sit down.

MR HUYNH:   Thank you.

HER HONOUR: This is an application for an order extending the time in which the plaintiff may apply for a remedy in this Court’s original jurisdiction pursuant to section 486A of the Migration Act 1958 (Cth) (“the Act”). Subsection 486A(1) provides that such an application must be made to the Court within 35 days of the date of the migration decision. The Court may extend that period if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and if the Court is satisfied that it is necessary in the interests of the administration of justice so to do.

The migration decision was made by the second defendant, the Administrative Appeals Tribunal (“the Tribunal”), on 25 October 2010.  Delay in bringing an application is a factor to be taken into account in the assessment of the interests of the administration of justice.  However, in light of the history of these proceedings and taking into account the matters set out in the plaintiff’s written application for the order, the first defendant, the Minister for Immigration and Citizenship (“the Minister”), does not place emphasis on the lengthy delay in his opposition to the making of the order.  The Minister opposes the extension principally upon the ground that the plaintiff’s proposed grounds of challenge to the Tribunal’s decision do not demonstrate an arguable case for the grant of the relief that he claims and, for this reason, that there is no utility in making the order.

The Tribunal has filed a submitting appearance.  The plaintiff filed a summons and an application for an order to show cause on 25 January 2012.  The application came before Justice Crennan on 3 February 2012.  Her Honour commented on the difficulty in distilling the relief claimed.  The application included a claim that the requirement to comply with the time limit be dispensed with, for reasons including that, following his release on parole the plaintiff had been taken into immigration detention, that he suffers from “mental illness” and that he was unaware of the time limits applicable to the proceedings. 

Justice Crennan granted an interlocutory injunction restraining the Minister from removing the plaintiff from Australia before 4.00 pm today.  Her Honour directed the plaintiff to file an amended application for an order to show cause together with any further material in support of his summons and an outline of submissions by 10 February 2012.  The proceedings were stood over for hearing to today in Sydney.

The plaintiff complied with those directions. An amended application for an order to show cause was filed on 9 February 2012. The plaintiff had stated his intention to seek legal assistance in the course of the hearing before Justice Crennan. It does not appear that he was successful in that regard. He appears today unrepresented. The relief claimed in his amended application is in the same terms as that in the original application. Counsel for the Minister accepts that the relief claimed in paragraph 7 of the amended application is to be understood as an application made in writing pursuant to section 486A(2) of the Act.

The plaintiff is a citizen of Vietnam.  He was born in Vietnam in 1982.  His father was killed shortly after his birth.  His mother left Vietnam in 1984, leaving him in the care of his grandparents.  The mother ultimately sought and was granted status as a refugee in Australia.  In 1995, when the plaintiff was aged 12 years, he was reunited with his mother in Australia.  He has resided in Australia since that time.  On his arrival he did not speak English.  By the age of 14 years, he was associating with delinquent peers and was expelled from school.  He commenced criminal offending at the age of 15.  He was convicted of a number of offences thereafter. 

In March 2002, he was involved in an armed robbery which resulted in the death of a shopkeeper.  Three days later, he was involved in an aggravated armed robbery involving the presentation of a gun.  He pleaded guilty to manslaughter respecting the first of these incidents and was sentenced to a term of seven years and seven months imprisonment, commencing on 25 March 2002.  For the offence of aggravated armed robbery, he was sentenced to a term of nine years imprisonment to be served partly cumulatively with the earlier sentence.  His earliest release date was 24 September 2010.  He was released from the custody of the St Heliers Correctional Centre on 29 September 2010 and transferred to the Villawood Detention Centre.

On 23 July 2010, a delegate of the Minister determined to cancel the plaintiff’s Return (Residence) visa under section 501(2) of the Act. The Minister may cancel a visa under that provision if he or she “reasonably suspects that the person does not pass the character test”. A person does not pass the character test if the person has a substantial criminal record within the meaning of section 501(7). It is not in issue that the plaintiff does not pass the character test.

Section 499(1) of the Act empowers the Minister to give a person or body having functions or powers under the Act written directions. Pursuant to that power, the Minister has issued a direction entitled “Visa refusal and cancellation under s501”. It is known as Direction 41. Direction 41 requires the decision-maker to consider the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. To the extent that they are relevant, the decision-maker must take into account four primary considerations detailed in clause 10 and other considerations, although not primary, that are enumerated in clause 11. The primary considerations include:

“(d)relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

Among the other considerations which the decision-maker is to take into account where relevant are:

“(a)family ties, the nature and extent of any relationships:

(i)the extent of disruption to the person’s family, business and other ties to the Australian community;

. . . 

(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia”.

The plaintiff applied to the Tribunal for merits review of the delegate’s decision.  On 25 October 2010, the Tribunal affirmed the delegate’s decision.  The Tribunal found that the plaintiff poses an unacceptable risk of harm to the Australian community and that none of the other primary considerations in Ministerial Direction 41 outweigh that unacceptable risk of harm.

The plaintiff applied to the Federal Court for an extension of time in which to apply for a review of the Tribunal’s decision. An application for review of a migration decision must be filed within 35 days of the Tribunal’s decision, pursuant to section 477A(1) of the Act. The Federal Court may by order extend that period if an application for an extension has been made in writing and the court is satisfied that it is necessary in the interests of the administration of justice to make the order. The application came before Justice Edmonds.

The plaintiff’s amended application raised a single ground of challenge to the Tribunal’s decision.  The plaintiff submitted that the Tribunal had been required to take into account, as a primary consideration under Ministerial Direction 41, Australia’s international obligations to the plaintiff’s mother to maintain the unity of her family.  The source of the claimed obligation was identified as Article 23.1 of the International Covenant on Civil and Political Rights (“the ICCPR”).  That Article provides:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Justice Edmonds concluded that neither Article 23.1 nor any other provision of the ICCPR imposes an obligation on Australia to maintain the unity of the plaintiff’s mother’s family, she being a refugee.  The Tribunal’s failure to have regard to that matter as a primary consideration did not constitute jurisdictional error.  Justice Edmonds was satisfied that the only ground of challenge to the Tribunal’s decision was one that lacked any prospect of success and for this reason he refused the application. 

There is no appeal from a judgment of the Federal Court refusing to make an order extending time under the provision.  An appeal may not be brought to this Court from a judgment of the Federal Court refusing to make an order under section 477A(2).  It is against this background that the plaintiff commenced proceedings in the original jurisdiction of this Court claiming constitutional writ relief.  The plaintiff has filed an outline of submissions in support of the claims for relief propounded in the amended application.  I approach the matter upon the basis that he relies on the contention unsuccessfully advanced before Justice Edmonds in support of his first ground.  In his outline of written submissions he develops two further grounds.  It is convenient to deal with each of the three challenges in the order in which they are addressed in the plaintiff’s outline.

Turning to the first ground, some reference should be made to the approach that the Tribunal took to the evidence relating to the plaintiff’s mother’s situation.  The Tribunal accepted that the mother is psychologically and physically scarred from tragic events that occurred in Vietnam, including the loss of her husband who was killed by the communist army in her presence in 1982, the death of her eldest child and the suicide of her father.  It noted that she is a divorced woman living on a disability support pension and that her only relatives in Australia are the plaintiff and his half‑sister, Ms Lam.  The Tribunal took into account the evidence of a psychologist and a community support worker, both of whom expressed the opinion that there exist strong compassionate grounds in favour of not removing the plaintiff from Australia.  The Tribunal accepted that, if the plaintiff’s visa was not cancelled, he would live with his mother assisting her with the burden of housework and with financial help.  It also accepted that in light of the mother’s poor health and limited financial resources, it is uncertain that she would see her son again if he is returned to Vietnam.

The Tribunal approached its determination on the basis that considerations, including hardship to the person or to the person’s immediate family members, are non‑primary considerations that are to be given less weight than the four primary considerations enumerated in clause 10 of Ministerial Direction 41.  Its ultimate conclusion respecting the unacceptable risk posed by the plaintiff was expressed not to be outweighed by reference to “other primary considerations”. 

At issue is the correctness of the plaintiff’s contention that the Tribunal was bound to have regard to the maintenance of the unity of the plaintiff’s mother’s family as a primary consideration because Australia is subject to an international obligation so to do.  As noted, the international obligations of which Ministerial Direction 41 speaks are not limited to the provisions of the international instruments to which express reference is made in clause 10.  Nonetheless, it is necessary to identify the source of the obligation for which the plaintiff contends.  The only submission in this respect is that advanced before Justice Edmonds:  that the obligation derives from Article 23.1.  As Justice Edmonds observed, Article 23.1 is cast in terms of a declaration as distinct from the imposition of an obligation. 

The plaintiff’s claim depends upon acceptance that the recognition of the family as the natural and fundamental group unit of society entitled to protection by society and the State under the ICCPR imposes an obligation respecting the maintenance of family unity in the case of a person whose status is that of a refugee.  In Ex Parte Applicants S134 of 2002 (2003) 211 CLR 441, this Court noted that the Convention does not incorporate the principle of family unity in the definition of the term “refugee”. It was said in that case:

“the point is developed by a commentator:

‘Still another question not reflected in the Convention definition and open to a variety of interpretations is that of the status of family members.  The principle of family unity is not incorporated in the Convention, but instead forms the subject matter of Recommendation B, included in the Final Act of the Conference of Plenipotentiaries of 1951 – an indication of the wish of the signatories to retain freedom in these matters.’

That freedom is expressed in the Australian legislation in the distinct treatment of refugee claims and dependant claims by family unit members.” 

Their Honours went on to note s 36 of the Act, which allows claims for a protection visa to be made by members of the same family unit as a person who has made specific claims under the Refugees Convention. That provision, it was said, went beyond observance of the international obligations imposed by the Refugees Convention. The statements in Ex Parte Applicants S134 do not support the existence of the obligation for which the plaintiff contends.

The plaintiff’s second ground asserts that he was denied procedural fairness because the Tribunal did not inform him, before affirming the delegate’s decision, that it doubted his conversion to Christianity. 

The plaintiff was represented by solicitors and counsel before the Tribunal.  Prior to the hearing, the Minister served a statement of facts and contentions on the plaintiff’s solicitors.  In that statement, the Minister identified a number of factors suggestive of a conclusion that the plaintiff presents an unacceptable risk to the Australian community.  The fifth of those factors was expressed in these terms:

“To the extent that the applicant relies upon the applicant’s conversion to Christianity as a factor relevant to the risk of re‑offending, it is contended that there is neither any evidence of the applicant having converted to Christianity nor evidence of the applicant having practised Christianity whilst he has been in prison.”

The plaintiff had the opportunity to adduce evidence and to place submissions before the Tribunal respecting his asserted conversion to Christianity.  Procedural fairness did not require the Tribunal to expose its provisional views for comment before making its decision:  Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9] per French CJ and Kiefel J.

The third challenge advanced by the plaintiff is directed to the Tribunal’s ultimate conclusion referred to earlier in these reasons.  The plaintiff asserts that the finding is contradicted by the reports of the Parole Authority.  As the Minister submits, findings of fact do not amount to jurisdictional error because they are wrong or because they are inconsistent with other evidence before the decision-maker.  To the extent that the plaintiff’s submission is to be understood as the contention that there was no evidence to support the Tribunal’s finding that he poses an unacceptable risk of harm and, for that reason, the finding was illogical, irrational and not based on findings or inferences from facts supported by logical grounds, such that no rational or logical decision-maker could have reached it, as discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the argument faces the hurdle that the Tribunal had before it evidence of the plaintiff’s criminal record and his conduct in prison, including instances when he had been disciplined for failing a prescribed urine test due to morphine use and, as recently as March 2009, when he was disciplined for possessing a prohibited sharpened instrument.

In my opinion, the plaintiff has failed to demonstrate an arguable case in respect of the grounds for the relief claimed in his amended application to show cause. It follows that there is no utility in granting the plaintiff the extension of time that he seeks. For these reasons, the application for the extension of time under section 486A(2) is refused. The plaintiff’s summons and amended application are dismissed with costs, including those reserved by Justice Crennan on 3 February 2012.

Mr Smith, is there any further matter that requires attention?  I have not made an order dissolving the injunction.  That will happen at 4.00 pm.  Nothing further?

MR SMITH:   Nothing further, your Honour.

HER HONOUR:   Mr Huynh, you understand the orders that have been made; the relief that you have claimed has been refused.  The Court will now adjourn.

AT 3.13 PM THE MATTER WAS CONCLUDED