MZACU v Minister for Immigration - [2015] FCCA 486

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACU v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 486

Catchwords:
MIGRATION – Judicial review – extension of time to apply – tests – whether reasonable and adequate explanation for delay – whether grounds in substantive are sufficiently arguable – whether risk in the foreseeable future considered – whether decision unreasonable, irrational or illogical – extension of time granted – application dismissed.

Legislation:

Acts Interpretation Act 1901, s.36(2).

Migration Act 1958 (Cth), ss.476, 477.

Abebe v Commonwealth (1999) 197 CLR 510
Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1
Islam v Minister for Immigration & Anor [2013] FCCA 1687
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462
MZYXR v Minister for Immigration and Citizenship [2013] FCA 252
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant:

MZACU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 640 of 2014

Judgment of:

Judge F. Turner

Hearing date:

5 November 2014

Date of Last Submission:

5 November 2014

Delivered at:

Melbourne

Delivered on:

12 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Nguyen

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Aleksov

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The time for lodging the application for judicial review is extended to

7 April 2014.
The application for judicial review filed 7 April 2014 and amended application filed 24 October 2014 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 640 of 2014

MZACU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 28 February 2014. That decision affirmed the decision of a delegate to the Minister for Immigration and Border Protection not to grant the applicant a Protection (Class XA) visa.
The applicant filed an application on 7 April 2014 and an amended application on 24 October 2014. The amended application sought a show cause hearing. By orders of Registrar Caporale dated 2 July 2014, a show cause hearing was dispensed with, and the matter was set down for hearing on 5 November 2014.
The grounds for the judicial review are set out in the amended application as follow:
(1)The Second Respondent made critical findings concerning the applicant’s risk of harm for reason of his ANP involvement that we (sic “were”) unreasonable and/or illogical/irrational.
Particulars
(a)The Second Respondent did not accept that the applicant would be targeted in Swat because of his past or continuing involvement with the ANP for reasons including that neither he nor his family had been “targeted or harmed in the past” because of their involvement with the ANP,
(b)The finding is internally inconsistent with the earlier finding of the Second Respondent that the applicant had been directly threatened by the Taliban in 2009 and that he and his family would be killed if they did not stop supporting the ANP and the army.
(c)The finding that the applicant had not been targeted in the past and consequently would not be targeted in the future because of his involvement with the ANP was unreasonable and was not supported by a process of logical or rational reasoning.
(2)The Second Respondent’s finding that the applicant would not be targeted because of his involvement with the ANP was unreasonable and/or made without evidence.
Particulars
(a)The Second Respondent did not accept that the applicant would be persecuted because of his involvement with the peace committee because of his limited role and because he was not “not targeted or harmed at the time”.
(b)The finding was unreasonable given the finding made by the Second Respondent as outlined in Ground 1 that the applicant had been directly contacted and threatened by the Taliban for his work with the ANP and the Army.
(3)The Second Respondent applied the wrong test in its assessment of whether the applicant faced a real chance of serious harm upon return to Pakistan.
Particulars
(a)The Second Respondent made findings that the applicant would not “now” be targeted in Swat because of his involvement with the ANP or the peace committees.
(b)The Second Respondent’s reasons and decision as a whole indicated that it confined its enquiry to the present risk to the applicant and failed to consider whether he faced a real chance of serious harm in the reasonably foreseeable future.
(4)The Second Respondent failed to consider an integer of the applicant’s claims.
Particulars
(a)The Second Respondent accepted that notwithstanding a growing military presence in Swat, the Taliban were still present and armed attacks continued.
(b)The Second Respondent did not consider the claim that the applicant was known to the Taliban and whether consequently he faced a real chance of serious harm.
The applicant seeks an extension of time to lodge his application.
The decision of the Tribunal is dated 28 February 2014. The original application was lodged on 7 April 2014. By s.477 of the Migration Act 1958 (the “Act”) an application under s.476 of the Act must be made within 35 days of the date of the decision. Here, the 35 days expired on 4 April 2014. The application was therefore made one day late (s.36(2) Acts Interpretation Act 1901). The first respondent does not oppose an extension of time.
Section 477 of the Act provides as follows:
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit 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 Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
“date of the migration decision” means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or
(d)in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The fact that the application was only one day late does not mean that an extension should be granted without the applicant being required to satisfy the guidelines that have been developed and are set out in SZRIQ (post).
The application for an extension of time was made in the original application, in which the applicant states why he considers that it is necessary in the interests of the administration of justice that the Court make an order extending time.
The amended application filed 26 September 2014 contains an application in writing and states why the applicant considers that it is necessary in the administration of justice to extend time.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, Judge Foster considered the requirements for an extension of time under s.477 of the Act, and stated at [47]:
(47)The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
In Islam v Minister for Immigration & Anor [2013] FCCA 1687, Judge Lucev decided at [17] to [19] as follows:
(17)Even without the mandatory requirements of r.44.05(2) of the FCC Rules, there is no satisfactory explanation for the delay. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay.[1] As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay....[2]
(18)In this case there is no evidence as to the reason for the delay, and no evidence that the applicant is in any different a position to all of the other persons applying for visas around Australia, the vast majority of whom file any judicial review application under s.476 of the Migration Act with this Court within time.
(19)In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation for the delay.
[1] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at para.38 per Foster J (“SZSDA”).
[2] SZSDA at para.38 per Foster J
In his amended application, the applicant merely states under the grounds for an extension of time “see the applicant’s Contentions of Fact and Law”. The Court finds nothing in those Contentions that provides a reasonable excuse for the delay.
At the hearing before the Court on 5 November 2014, Mr Nguyen of Counsel appeared for the applicant and Mr Aleksov of Counsel appeared for the first respondent.
Mr Nguyen stated that the explanation for the delay is provided in [4] and [5] of the Affidavit of the applicant filed 7 April 2014. There the applicant states that he “was given a copy of the decision on approximately 18 March 2014”. The Court finds that that does not provide an adequate excuse. It left the applicant with time to make his application, so he was in no different position from all other persons applying for visas around Australia, the vast majority of people whom file within time: see Islam (supra) at [18].
The Court does not find that the applicant has a reasonable and adequate explanation for the delay. However, the Court takes into account that the application was lodged one day late, and the Minister does not oppose an extension.
As there would be no prejudice to the Minister for Immigration and Border Protection if an extension is granted, and as the Minister does not oppose, or agree to an extension; the question is whether the substantive application is sufficiently arguable to justify an extension?

Submissions for the Applicant

These submissions are considered in conjunction with the first respondent’s Contentions of Fact and Law.
Mr Nguyen submits that the orders of Registrar Caporale on 2 July 2014 could be construed as giving leave to lodge the application out of time, as the applicant was ordered to file and serve any amended application by 30 October 2014.
Section 477(2) of the Act provides that the Court “may, by order extend the time” for making an application. The orders of Registrar Caporale did not extend the time for making the application. Those orders were amended by orders made in chambers on 24 October 2014 to provide for later dates for filing. The issue of an extension of time to lodge out of time was not considered. The submission that an extension to enable filing out of time has already been granted, is rejected.

Ground Three of the substantive application

Mr Nguyen submits that the Tribunal confined its consideration of risk to the applicant to the current or present situation, and not to the reasonably foreseeable future (Transcript “T” p.9).
The Court accepts that an assessment of the applicant’s claims should involve speculation as to the reasonably foreseeable future: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Failure to have regard to the chance of harm in the reasonably foreseeable future may amount to legal error: see Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189 at [42].
In Wu Shan Liang (supra) Kirby, J found at p.294:
“The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the "real chances" affecting the treatment of the applicant if he or she were to be returned to China.”
In most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past. Such findings provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a Convention reason is well-founded.
The extent to which past events can be a guide to the future was explained in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. As the High Court observed at 574:
“Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for detennining the probability - high or low - of their recurrence.”
The Tribunal stated at Court Book (“CB”) p.134 [31] that it “does not accept that the applicant will be targeted in Swat now because of his past involvement with the ANP or for any continuing involvement with the ANP”. The Court finds that the Tribunal was considering there the risk of harm in the future. Similarly at [50] and [51], the Tribunal considered the risk of harm in the reasonably foreseeable future on the other bases claimed and stated as follows:
(50)For the reasons set out above, the Tribunal does not accept that the applicant or his family have been targeted or harmed in the past because of the applicant’s involvement with the ANP or a peace committee or his father or uncle’s involvement with the ANP or a peace committee. The Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future in Pakistan because of his involvement with the ANP or a peace committee or his race and accordingly does not accept that he has a well-founded fear of persecution because of his political opinion or membership of a particular social group of ANP supporters or peace committee members or his race or for any other Convention reason, separately or cumulatively.
(51)For the reasons set out above, the Tribunal does not accept that there are substantial grounds for believing that the applicant faces a real risk of suffering significant harm in the form of torture, arbitrary death, enforced disappearance, or cruel or inhuman treatment or punishment if he is returned to Pakistan arising from his involvement with the ANP or a peace committee or his father and uncle’s involvement with the ANP or a peace committee or his Pashtun race or any other reason, separately or cumulatively.
Those findings by the Tribunal at [50] are not mere formulaic reference (MZYXR post) to the reasonably foreseeable future as it is supported by reasoning. The Court finds that ground three is sufficiently arguable to justify an extension of time.

Ground One

Ground one contends that the Tribunal’s findings concerning the applicant’s risk of harm for reasons of his ANP involvement were unreasonable and/or illogical/irrational.

Ground Two

Ground two contends that the finding that the applicant would not be targeted because of his involvement in the peace committee was unreasonable and/or made without evidence.
Mr Nguyen contends that the Court has to be more vigilant where the findings have the potential to affect in a significant way the right to life and liberty. Mr Nguyen referred to the decision in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [150]. The Court is unable to locate [150] in that decision.
Mr Nguyen referred to the decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at p.151 which contains the following passage:
“If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
Mr Nguyen then referred to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68] as follows:
“Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury[3] has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it[4]. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King[5], before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation[6], which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area[7].” (emphasis added)
[3] [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.
[4] See Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation [1990] FCA 139; (1990) 96 ALR 153 at 166 per Gummow J, referring to Allars, Introduction to Australian Administrative Law, (1990) at 187 [5.52].
[5] (1936) 55 CLR 499; [1936] HCA 40.
[6] [1949] HCA 26; (1949) 78 CLR 353 at 360; [1949] HCA 26.
[7] Wright v Wright [1948] HCA 33; (1948) 77 CLR 191 at 210; [1948] HCA 33; Commissioner of Stamp Duties (NSW) v Pearse [1953] UKPCHCA 2; (1953) 89 CLR 51 at 63-64; [1954] AC 91 at 112.

And at [75]:
“What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.” (emphasis added)
Then at [76]:
“Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (emphasis added)
Mr Nguyen referred to the Tribunal’s reasons in its Decision at [24] where the Tribunal accepted that the “Taliban told the applicant and his family… to stop supporting the Army and the ANP”, and accepted that the applicant’s “house was attacked in February 2009 and that family members were killed”. Mr Nguyen submits that there was no evidence for the Tribunal to find that the attack on the applicant’s house was not specifically targeted at the applicant and his family. What the Tribunal found at [24] was that:
There was a high degree of insecurity in Swat at that time and the applicant’s evidence that the Army was looking for militants and there was gunfire and other houses may have been damaged indicates that the attacks occurred in the course of the generalised fighting rather than the applicant’s family having been specifically targeted. The Tribunal accepts that many people were killed in Swat at that time and that the Taliban engaged in beheadings at that time in order to exert control and influence in the district” (emphasis added)
The Court is able to comprehend how that decision was arrived at; the army was looking for militants and there was gunfire and other houses may have been damaged. It was open to the Tribunal to consider that the attacks occurred in the course of generalised fighting. That conclusion was not unreasonable, illogical or irrational.
Mr Aleksov referred to the decision in SZMDS (supra) per Crennan and Bell, JJ at [135]:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.”
Mr Nguyen submits that it was unreasonable, illogical or irrational to find that the applicant was not targeted in the past in relation to his work or involvement in the village peace committee. Mr Nguyen did not take the Court to the actual finding to which the applicant objects; however, the Court is able to locate the finding in [41] that the Tribunal did “not accept that the applicant will be targeted now because of his limited role with a peace committee in 2010 and 2011, particularly as he was not targeted or harmed at the time”. The Tribunal set out its reasons for reaching that conclusion. There was evidence before it to reach that conclusion.
The Tribunal’s findings, under question in grounds one and two, are not unreasonable, illogical or irrational.
Grounds one and two are not sufficiently arguable to justify an extension of time.

Ground Four

Ground four alleges a failure to consider an integer of the applicant’s claims that he was known to the Taliban and consequently faces a real chance of serious harm.
Mr Nguyen referred to the decision in MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462 at [41] about an integer arising from the material and being apparent on the face of the material.
Mr Nguyen submits that there was evidence that the Taliban knew the applicant, and that he was therefore at an increased risk of persecution, particularly because of his involvement in the ANP and his support for the army.
Mr Nguyen referred to the decision in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] as follows:
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
The Tribunal considered the applicant’s claims: see [21] and [27].
The Tribunal found (at [31]) that “the applicant was a low level member of the ANP…” who had limited involvement, and that his father who had a more important role in the ANP had been targeted (Ibid).
The Tribunal did not accept that the applicant’s brother had been kidnapped as a warning to the applicant or his family to cease involvement with the ANP and the army. Country information does not indicate that ordinary members of the ANP are being specifically targeted in Swat (Ibid). The Tribunal found that any risk to the applicant as an ANP supporter is remote (Ibid).
The Court finds that the Tribunal considered and dealt with the integer. Mr Nguyen claims that there is a strong inference that the integer, that the Tribunal knew the applicant individually, had been overlooked. That is arguable.
Paragraph 31 of the Decision refers to the applicant individually, as being a low level member of the ANP, and to his father and brother. At D [33], the Tribunal found that the Taliban had formulated a list of high profile leaders and opponents, but that the applicants profile would not put him on the hit list.
Ground four is sufficiently arguable to justify an extension of time.
The applicant referred to two decisions, without notice to the first respondent. They are MZYXR v Minister for Immigration and Citizenship [2013] FCA 252 and SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572. The first respondent was given leave to file and serve submissions in respect of those decisions.
In those submissions the first respondent contends that neither case assists the applicant because each case turns on features specific to each case, and that they are distinguishable. The applicant has relied on the decisions to support his claim in ground three that the Tribunal had applied the wrong test in assessing whether the applicant faced a real chance of serious harm upon return to Pakistan. The applicant alleged that the Tribunal had not assessed the risk in the reasonably foreseeable future.

The decision in MZYXR (supra)

The decision in MZYXR (supra), concerned an appeal from the decision of a Federal Magistrate who dismissed the application for judicial review. As in the present case, the Tribunal found that the applicant was not a person with a particular profile (p.3 [139]) and after having regard to the material, decided that there was not a real chance of the claimant being harmed now or in the reasonably foreseeable future.
Justice North concluded in MZYXR at [19] that:
“… a fair reading leads to the conclusion that the issue of the prospects of persecution in the reasonably foreseeable future was not addressed. The formulaic reference... that there is no real chance... now “or in the reasonably foreseeable future” is not supported by any earlier reasoning…”.
His Honour then referred to the evidence contradicting “the conclusion that the appellant would have no reasonable basis for fearing harm in the reasonably foreseeable future” (at [20]). And at [21], the evidence “contradict[s] the conclusion... that the appellant would have no reasonable basis for fearing harm in the reasonably foreseeable future”.
The Court accepts the submission for the first respondent that the decision in MZYXR turns on features specific to that decision. The decision turned on a consideration of the actual evidence in that case which included a reasonable basis to find a risk of harm in the future. The decision is therefore of no assistance to the applicant in this case.

The decision in SZGHS (supra).

This decision was relied on by the applicant for similar purpose to the reliance on MZYXR. The decision in SZGHS turned on Judge Allsop’s “assessment of what the reasons of the Tribunal reveal in the context of the facts and the material put before it” (at [2]). His Honour then set out, what was apparently uncontested, the evidence of beatings of the applicant (at [9] to [12]). His Honour recorded that the Tribunal discounted the seriousness of the incidents ([20]). His Honour then examined the evidence and concluded that it “made difficult a conclusion of changed circumstances” ([24]). His Honour concluded at [26] that “one of the incidents in 1999 (in which the first appellant was beaten and hospitalised) was consequent upon campaigning for the FLP, which is likely to re-occur”.
His Honour set out at [29], the facts which led him to conclude that “the Tribunal did not look at all the material from the perspective of the reasonably foreseeable future”. Clearly the decision in SZGHS is based on particular facts in that case.
The decision in SZGHS is of no assistance to the applicant in this case. In the present matter, the Tribunal considered the applicant’s evidence and concluded at [31] that it did not accept that the applicant will be targeted now, because of his past involvement with the ANP, or for continuing involvement with the ANP. At [50] and [51], the Tribunal considered the risk of harm in the reasonably foreseeable future on the other bases claimed.
Those findings of fact are not amenable to review.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
The Court refers to the following decisions:
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Wu Shan Liang (supra) at p.272.
·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
The Court refers to the following passages in Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”
The Court does not find the decision to be so unreasonable that no repository of the power could have taken it. The Court does not find it evident that some error has been made in exercising the discretion as required in Li (supra). The Court can comprehend how the decision was arrived at.
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
The Court finds that the applicant has not provided a reasonable and adequate explanation for not making his application for judicial review within time.
The Court finds grounds three and four set out in the amended application are sufficiently arguable to justify as extension of time. The first respondent does not oppose an extension. The Court has taken into account the considerations in SZRIQ and finds that is necessary in the interests of the administration of justice to make an order extending the time to make the application.
The application for an extension of time is granted. The time for lodgement is extended to 7 April 2014.
After considering the Tribunal’s decision and the submissions, the Court dismisses all of the grounds for judicial review. Based on the reasoning set out above, the Court finds, as to:
·Grounds 1 and 2 – that the Tribunal’s findings were not unreasonable and/or illogical or irrational;
·Ground 3 – that the Tribunal conducted an assessment of risk in the reasonably foreseeable future;
·Ground 4– the Tribunal considered the applicant’s claim that he was known to the Taliban and consequently faces a real chance of serious harm.
The application for judicial review is dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 12 March 2015