Plaintiff A33/2016 v Minister for Immigration and Border Protection

[2016] HCATrans 253

[2016] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A33 of 2016

B e t w e e n -

PLAINTIFF A33/2016

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEOLINK TO ADELAIDE

ON WEDNESDAY, 26 OCTOBER 2016, AT 9.29 AM

Copyright in the High Court of Australia

MR S.D. OWER:   If it pleases your Honour, I appear with my learned junior, MS K.M.M. EATON.  (instructed by Craig McKay Legal)

MR K. TREDREA:   May it please the Court, I appear for the defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Mr Ower, I have read the affidavits, thank you, so I will take them as read.

MR OWER:   Yes, thank you, your Honour.  We are in a position to proceed with the argument concerning the extension of time, if your Honour is minded to hear that today.

HIS HONOUR:   Yes, I am, thank you.

MR OWER:   If it pleases your Honour.  We respectfully submit, your Honour, that this is the very exceptional case identified by Justice McHugh in Marks’ Case.  Your Honour has had the benefit of reading the affidavits, and while the delay in the circumstances is lengthy there is a proper explanation on the basis of that material, namely, that the plaintiff and his then legal and migration agent advisers were not aware of the availability of review in this Court.  We submit that that distinguishes the circumstances of this case from those considered in Marks.

Without wanting to take your Honour to the detail of Marks, we note that the plaintiff in that case was aware of the availability of review of the decision of the Industrial Relations Commission in this Court and allegedly had spent the intervening period seeking advice as to the availability of grounds.

That is a distinct matter from the circumstances of this case where the evidence of both the plaintiff and his then pro bono migration adviser was that he was not aware of the ability of seeking review in this Court of the decision of the delegate.  Instead, he conducted what we have characterised as a sustained and continued attempt to review the nature of his refugee status in Australia by first of all seeking review in the Federal Circuit Court of the decision of the Refugee Review Tribunal and then, alternatively, seeking the intervention of the Minister under sections 48B and 417.

In that context, we say the comments relied upon by the Minister of Justice McHugh – and in particular the comments at paragraph 16 of his Honour’s judgment – need to be understood in the context of that case.  The applicant in that case knew of the decision and the availability of review but deliberately delayed taking such relief until it was advantageous to him.  Here, the plaintiff has not sought delay in seeking relief in respect of his status, only in respect of seeking review in this Court.

We would also submit that a number of other factors support it being in the interests of the administration of justice for there to be an extension of time.  The applicant is an asylum seeker, he is not proficient in English, he is illiterate and he was unable to seek merits review of the decision through no fault of his own.

We accept, as the Minister submitted, those factors in and of themselves are neither uncommon nor reason to grant an extension, but we say that combined with the fact that the plaintiff has in the circumstances sought review as well as the merits of the decision there are sufficient circumstances here to warrant what is a very great extension of time.

Other than the length of the delay, the only other fact relied upon the Minister in opposition to the extension of time is the fact that the application under section 48B and section 417, and there have been a number of matters both in this Court and in the Federal Court where the making of such an application and its adverse determination to the plaintiff has been held to weigh against there being an extension of time, and your Honour has recently considered that in a number of matters as well, we note.

However, our submission is that none of those cases have treated the making of section 417 application as an absolute bar to there being an extension of time. The explanation, which goes back to the decisions relied upon by my learned friend in paragraph 8.5 of his outline filed on 14 October 2016, is that in each of those cases the applicant or the plaintiff has made a conscious decision to treat the decision of either the delegate or the Refugee Review Tribunal as being conclusive of their immigration status in Australia and, in particular, has treated it as a basis to seek intervention by the Minister on an alternative basis. The inference that arose in each of those cases is that there has been, in effect, an election to treat the decision as binding but to seek the Minister’s intervention.

We submit that no such inference should arise in this case. The evidence before your Honour regarding the section 417 application is limited but, nevertheless, we say it should not be weighed against the plaintiff. To the extent that the application is a factor that weighs against the extension of time, we submit that it only does so in the sense that it caused further delay and, as such, it does not weigh the other factors in support of the extension, especially in light of the merits of the matter. We note that the Minister points to no individual prejudice arising in this particular case other than the generalised prejudice to the proper administration of the migration system.

In support of the application for the extension then, your Honour, may I turn to the question of the grounds?  I do not propose to summarise them at great length, we rely upon the written outline to that extent, but I wish particularly to answer some of the matters raised by my learned friend in his outline of 14 October.

Three grounds of review are raised in respect of the delegate’s decision.  The first is that, in effect, there has been a denial of procedural fairness by the plaintiff not being informed that his decision was going to be made by another delegate in circumstances where he had initially been told by a first person that she was going to be the delegate who was going to make the decision and she was going to be the person who was interviewing him.

He has, we say, lost the opportunity to persuade the second delegate by way of an interview in a similar matter to that considered by this Court last year in the decision of WZARH. The particular question that arises here is whether, on the proper construction of Subdivision AB, in section 51A, that that common law rule is excluded and, particularly, whether under the Act the procedures in the subdivision are such that they may be undertaken by several delegates or, if they are to be undertaken by several delegates, that particular rule of procedural fairness identified in WZARH is excluded.

We submit that in light of the decision of this Court in Saeed, the question is whether that issue is a matter dealt with by the Act and we say, with respect, nothing in Subdivision AB deals with that particular matter. The first observation we make in respect of the construction of the Act is that it and, indeed, the very part dealing with the grant of visas is premised on there being one decision‑maker.

Section 29 – and I will not take your Honour to these provisions unless your Honour requests me to do so – of the Act permits the Minister to grant a visa, section 47 permits the Minister “to consider a valid application for a visa”, and section 65 provides that the Minister after considering a valid application and if being satisfied of the criteria for that visa must grant that visa.

So the statutory premise in those parts is that there will be one decision‑maker, the Minister. Pursuant to other parts of the Act, there is an ability to delegate that power to decision‑makers other than the Minister, including officers of the Department, but there is nothing in that power of delegation or the surrounding subdivisions to Subdivision AB that suggest that the decision‑making process may otherwise be bifurcated by being referred to individual decision‑makers at certain times. The real question, we submit, is whether the sections that permit the making of an interview should be construed as such as excluding this rule of procedural fairness identified in WZARH.

Could I invite your Honour to take the Migration Act up and, in particular, turn to section 56 which is the first relevant provision in the subdivision?

HIS HONOUR:   Yes, thank you.

MR OWER:   We note that the Minister is under no obligation to either seek further information or, in particular, to conduct an oral hearing or interview in relation to a decision made under section 65.  However, if the Minister determines that he or she wants to get any further information that is considered relevant and such information is sought:

the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

Section 58 then regulates the way in which that information may be sought, and your Honour will note that the section provides that if there is an invitation under section 56 “the invitation is to specify” the manner in which the additional information is to be given and, in particular, paragraph 58(1)(d) identifies that the information may be given in an interview “between the applicant and an officer”.  Subsections (2) to (5) then provide that the invitation is to otherwise provide particulars of the way in which the interview, or invitation, is to be dealt with.

Hence, we say the proper construction of sections 56 and 58 is that, first, the Minister may choose not to have an interview but then, secondly, the Minister may choose to have an interview but remain silent on the question of the identity of the decision‑maker, in that paragraph 58(1)(d) permits the interview to be made by an officer.  There is no obligation in the section that an officer be a delegate or that the Minister inform the plaintiff of whether the officer is a delegate.

However, that silence does not then permit the Minister to engage in conduct where an applicant is told one thing and acts upon that in making submissions but then have the decision proceed to be made in another way.  In this particular case, as the evidence shows, at the interview between the applicant and the officer under section 58, the applicant was told that the decision would be made by that particular officer, that she was, in effect, the delegate who was going to make the decision.

We say that once that decision has been made by the Minister or his delegate it is not then possible to resile from that without notice.  That is the very basis of the reasoning in the decision of WZARH.  I do not know whether your Honour has a copy of that decision on the Bench.  If not, I propose to simply read two brief paragraphs to your Honour from the decision of their Honours Justices Kiefel, Bell and Keane, paragraphs 37 and 38.

HIS HONOUR:   Yes.

MR OWER:   It is observed again that in WZARH there is no obligation to give an interview given the non‑statutory context of the decision. However, their Honours noted at paragraph 37 that:

In the present case, the respondent had been afforded an interview with the concomitant advantage that the individual responsible for making a recommendation to the Minister in relation to his claim to refugee status would be able to use all the information provided by him, including impressions gained from his demeanour at the interview, in coming to a conclusion as to the genuineness of his account.

Then at paragraph 38:

It may be accepted that, as the Minister argued, the respondent was not entitled to insist upon the observance of a particular form of decision‑making process.  But that is not to the point. Rather, the questions are whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the respondent the opportunity to be heard on whether the IMR should proceed in that way.  We now turn to a consideration of these questions.

We respectfully submit that the same question arises here, whether it was unfair for the delegate of the Minister to proceed without reference to the credibility impressions made by the earlier delegate of the Minister without notice.  There is no doubt – and it is clear from WZARH – that the second delegate could have informed the plaintiff in these circumstances of the change of delegate and invited comment on that particular process.  That did not occur.  Instead, after an unexplained nine‑month delay, a second delegate made the decision without any reference back to the plaintiff or his then migration agent.  So we submit that the reasoning in WZARH is entirely consistent with the proper operation of the part.

In terms of section 51A, this question of the identity of the officer and whether or not there may be a change in the officer conducting an interview under section 58, is not a matter otherwise dealt with. There is no express provision that permits an officer to make representations that they will be the person making the delegate and then otherwise changing that without notice.

We say that the reasoning in Saeed is clearly applicable here. While the process by which decisions are made and the procedure by which information is to be obtained is prescribed by the relevant subdivision, the content of fairness and the way those provisions are applied is otherwise not dealt with and section 51A has no application.

The other matter that is raised against the plaintiff in respect of the first ground of review is the question of whether the fact that there was, at the time, full merits review available to the applicant by virtue of review to the Refugee Review Tribunal is such that there is no practical injustice.  We submit that such a submission is not open to the Minister in light of this Court’s reasoning in Ex parte Miah 206 CLR 57.

Members of this Court in that judgment had to consider an earlier form of Subdivision AD of the Act in circumstances where it did not include section 51A, which was only inserted in response to that section. In considering whether there was an obligation to owe procedural fairness to an applicant based upon the provisions of the section, each member of the Court determined that it was not the case that the existence of review to the Refugee Review Tribunal should otherwise curtail or affect that and, for that purpose, I would simply refer your Honour to Justice Gaudron’s judgment at paragraph 96 where her Honour stated:

Once it is accepted that the Minister’s power to invite submissions or further information is to be exercised to ensure procedural fairness, the fact that the Act confers a right of review by the Refugee Review Tribunal becomes irrelevant. The existence of a right of review cannot deprive the provisions of subdiv AB of the meaning and effect which the heading to that subdivision directs.

Her Honour then cites the decision of this Court in Twist v Randwick Municipal Council (1976) 136 CLR 106. If I can briefly turn to the second and third proposed grounds of review, we are content in the main to rely upon the written outline in relation to them. In respect of the second ground, we note that the delegate who did make the decision made no reference to the fact that further information had been provided to the first delegate after the interview under section 58. That information was both cogent and important to the proper resolution of the plaintiff’s claim for asylum, namely, that his father had died in an explosion allegedly conducted by the Taliban after he left Pakistan.

The question that arises in relation to that ground is whether, on the materials before the Court, the inference arises that the second delegate failed to consider the information.  There seems to be no dispute between the parties that pursuant to sections 54 and 55 there is an obligation to have regard to that information, and we also rely upon a decision of his Honour Justice Sackville in the Federal Court of Singh, the citation of which is set out at footnote 42 of our outline, noting that the obligation under those sections is more than providing – if I characterise it as such, as lip service, there needs to be a proper consideration of the matter.

The decision record sets out the information considered and we simply note that there is no reference either to the fact of the plaintiff’s…..nor to the provision of the certificate in the delegate’s decision record.  To the contrary, the delegate’s decision appears to be founded upon there only ever being one occasion when the plaintiff had been involved in an attack by the Taliban. 

It seems difficult to understand in circumstances where the plaintiff was claiming to be targeted by virtue of his religion on behalf of the Taliban and then after the interview provides corroboratory material supporting the fact that his father had been involved in such an attack and, indeed, killed in such an attack, that there would be a need to have so little consideration of it by the delegate that it should not be mentioned.

A realistic or genuine intellectual process, in our respectful submission, would require the very noting of it in the decision, even if it is only in circumstances to dismiss its relevance or otherwise to set it to one side.  For those reasons we say that it is a proper inference that that material has not been mentioned and sections 54 and 55 have been contravened.

If I can turn briefly then to the third ground of review, we submit that, properly considered, there has been a misconstruction of sections 36(2)(aa) and 36(2A)(a).  I will not take your Honour to the relevant passages; they are set out in the outlines, and both parties have made submissions in relation to them, but in short, it is difficult to understand the basis of the reasoning that in terms of the complementary protection provision under section 36(2)(aa) there were in the circumstances no bases upon which it could be said that the applicant had substantial grounds for believing that it was “a necessary and foreseeable consequence” of a real risk that he would “suffer significant harm”.

The reasoning appears to be on the basis that the plaintiff had not met the criteria for a protection visa under the Refugees Convention, the criterion under paragraph (2)(a), and therefore could not meet the reasoning under paragraph (2)(aa).  It is difficult to see in the circumstances what logical connection the two have given that there is a difference between the two; indeed, the very purpose of the complementary protection provisions is to remove any contention ground bases.

The Minister points to provisions in the Act which otherwise permit the fear that may be suffered by an entire population to be excluded. We say in response that pointing to those provisions is beside the point in that there is no evidence that the Minister’s delegate in the particular circumstances considered the matter.

For those reasons, we submit that ground 3 is also made out and we say that all three of these matters are sufficient to give rise to an arguable case of jurisdictional error which would otherwise support both your Honour making an order for an extension of time and making an order to show cause before the Full Court as to the merits of the matter.

One final issue that is raised by the Minister that is not addressed in the plaintiff’s written outline is the question of discretion and, in particular, your Honour has been referred to the decision of his Honour Justice Gageler in the matter of Plaintiff S231/2015.  We note in that decision that his Honour did not in fact refuse to issue constitutional writs on the basis of an exercise of discretion but, rather, that his Honour considered that the likelihood of such writs being refused as a matter of discretion was such as to warrant there not being an extension of time in the circumstances.

His Honour’s reasoning in that particular case was that there was a separate basis for concluding by the delegate that the plaintiff in the circumstances of that case was not a person to whom Australia owed protection obligations, that separate basis being, in effect, the person could travel to other regions of his country of origin.

That basis was founded upon the fact that in that case the plaintiff had been found to be a credible witness and the breach identified as giving rise to jurisdictional error would in no way affect that credibility finding, as it obviously could not, or the question of relocation.  Here, we submit that there is no alternative basis upon which the decision could reasonably be understood as not having been affected by one of the three grounds. 

Clearly, the denial of procedural fairness identified in ground 1 goes quite strongly to an assessment of the plaintiff’s credibility and it could not be said with any sort of categorical determination that a determination in favour of the plaintiff on grounds that he was credible would be such as to not affect the decision of the delegate.

In a similar fashion, ground 2, we would say – that is to say that the failure to consider the provision of further materials, again in circumstances where the plaintiff had not been found to be a credible witness by the

delegate, could not be said in the same manner identified by Justice Gageler in Plaintiff S231 to otherwise not affect the decision.  Both ground 1 and ground 2 go to the very heart of what the delegate has done here, not believed the plaintiff, and determined that on the fact that his basis for claiming asylum is not to be accepted that he in turn should not be granted a protection visa.

Ground 3 is an error of law which we say goes to the heart of the consideration of the complementary protection provisions.  Clearly, it is unknown what conclusion the delegate would take if she had properly considered the matter in accordance with the law but, again, that is a very different case, we submit, from the reasoning in Plaintiff S231 and, indeed, other cases where this Court has in fact gone on to refuse relief in the exercise of discretion such as the decision of SZBYR which was relied upon by his Honour Justice Gageler.

While it would be open to the Minister to argue at any subsequent hearing that relief should be refused as a matter of discretion, we say that the prospects of that are not so great as they were in Plaintiff S231 to otherwise weigh against there being an extension of time and the matter proceeding now.  Those are my submissions, if it pleases the Court.

HIS HONOUR:   Thank you very much, Mr Ower.  Mr Tredrea.

MR TREDREA:   If your Honour pleases, the defendant relies upon the contents of our outline of submissions.  I simply have three points I want to develop before your Honour this morning.  Two of them are in relation to the extension of time issue.  The first one is this, your Honour.  The time is too long.

HIS HONOUR:   Yes.

MR TREDREA:   There is a public interest in the ultimate finality of administrative decision‑making.  The delay here is approximately 21 months, the relevant delay, and my figure of 21 months comes from the 30 September 2014 decision of the delegate, and I think it is 30 June this year initiation of the summons and application in this Court and that is too long. 

It feeds into a couple of points I have already made in writing, your Honour, in relation to Marks, firstly, that the issue of very exceptional case and, with respect, the circumstances of this matter are not such.  I just simply want to add in relation to the reference to Wei – and I make the point that it is observed all the facts in this case are manifestly different.  In Wei I think the situation, your Honour, was that after Mr Wei attempted to file his application in the Migration Review Tribunal and that application was dismissed for lack of jurisdiction, it was then a matter of less than 35 days before the application was then made in this Court to show cause.

Here, I think we have a situation well in excess of 12 months from when this plaintiff’s first application to the RRT was dismissed on 24 February 2015 and then we have some 14/15 months or so before we have the application to this Court.  The second point I wanted to develop, if I may, your Honour, was ‑ ‑ ‑

HIS HONOUR:   Mr Tredrea, just before you depart from that, is it relevant that this non‑English speaking illiterate claimant did not have the slightest idea about the ability to make an application for order to show cause?

MR TREDREA:   Well, your Honour, I have to say, that is obviously in the mix.  There is affidavit material which is certainly genuine that is before your Honour, and it is understandable how the situation arose, but I think in Marks there is a reference by Justice McHugh to an inability of an applicant to obtain favourable legal advice on a ground for extending time.

Now, here the applicant had advisers.  He obviously did not get – I accept he was not advised of the ability to make an application for show cause to this Court.  I accept the affidavit evidence of the plaintiff, but my primary point is – one of my primary points – is it is simply too long.

HIS HONOUR:   Yes.

MR TREDREA: The delay here is too long. The second point I was going to develop before your Honour, if I may, is the section 417 ministerial intervention point. I would agree with my learned friend, Mr Ower, that the authorities I have drawn your Honour’s attention to do not present that as an absolute bar, but, your Honour, it is becoming very close. I say that with reference to the words of Justice Hayne in the first case - authority I cite – Sithamparapillai ‑ I have probably pronounced that incorrectly.  I have given your Honour the transcript reference.  I will read from that if I may just very briefly, from the passage I have drawn to your Honour’s attention where his Honour says this:

Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants –

that is the Minister:

contended, that there be no continuing legal proceedings extant.  Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegations which now it is sought to pursue.  That of itself would be reason enough to conclude that the proceedings brought should stand dismissed –

which is a strong condemnation, with respect to your Honour.  The second authority I cite from the transcript is Plaintiff M90 of Justice Crennan.

HIS HONOUR:   Just before you go from Sithamparapillai, is there not a distinction here inasmuch as it is plain from the uncontested affidavit evidence that the plaintiff did not appreciate that there was another legal avenue open to him at the time of his application for the Minister’s intervention?

MR TREDREA:   What I think is still open, your Honour, is that there has been a path pursued where this application is an application of last resort after a failure of the application for ministerial intervention.

HIS HONOUR:   As Justice Hayne points out, if the claimant, or plaintiff, had elected to go the ministerial route, knowing that there was available a further curial route, it would be a pretty good basis for refusing him the opportunity to thereafter change his mind.  Is it not a little different here inasmuch as this plaintiff did not know of the curial route?

MR TREDREA:   Yes.

HIS HONOUR:   Yes, thank you.

MR TREDREA:   I am not going to say no to your Honour because I think the answer is yes.

HIS HONOUR:   No, thank you.  Sorry, you were about to go to M90.

MR TREDREA:   Yes, I was going to go to M90, if I may, your Honour.  Justice Crennan at the passages I draw your Honour’s attention to says this:

The plaintiff’s decision to seek ministerial intervention rather than commence legal proceedings within time is not a sufficient reason to justify the plaintiff’s delay in bringing the present application to this Court.

Her Honour then cites the passage from Justice Hayne which I have just read to your Honour.  But she goes on to say this:

As in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, bringing a late application in this Court appears to be an alternative approach to be employed after the application under

section 417 has failed. This is sufficient reason for finding that it is not necessary in the interests of the administration of justice to grant an extension under section 486A(2) of the Act.

I do not think I can put the matter on the facts of this any higher than that.  In exercise of your Honour’s discretion under 486A(2)(b), it is not in the interests of the administration of justice in the circumstances of this matter given the length of the delay that an order extending the time should be made.  Your Honour, they are the two principal matters I wanted to add. 

One point about prospects of success, and I am not going to address that head‑on because I say that the prospects are, indeed, weak for the reasons we have said in our outline, but I do want to emphasise this.  Everything said to you this morning by my learned friend, with respect, completely ignores the significance of the relevant DFAT December 2013 thematic report referred to by the delegate.  That was crucially significant because it came over the top of everything else in respect to the merits of this matter in respect to what was acceptable, found to be changed country circumstances.

Now, that is my phraseology, your Honour.  But, effectively, what was in the DFAT advice to the delegate was that there had been changed country circumstances in respect to Shia and Sunni insurgencies and fighting and as a result I say that came over the top of all of this and there are extensive references in the delegate’s decision to the DFAT information, and then for the reasons I have outlined in writing I say that casts the entire prospects of what the plaintiff would seek to agitate in a very poor light.

That was the matter I wanted to draw to your Honour’s attention because, indeed, it was not mentioned by my learned friend and I say it was absolutely central to the ultimate decision made by the delegate, both in considering the merits of the particular claims and also the issue of complementary protection.

HIS HONOUR:   Yes, thank you.

MR TREDREA:   If your Honour pleases, they were the matters I wanted to highlight this morning.

HIS HONOUR:   Thank you very much, Mr Tredrea.  Mr Ower, anything in reply?

MR OWER:   Two brief points in reply, your Honour.  In response to the submission that the extension of time sought is too long, we submit that there is no such principle that requires any assessment of there being a period of time as too long.  Obviously, each case turns on its own merits,

but in paragraph 15, footnote 15 of the applicant’s outline, we have identified two decisions, one by his Honour Justice Gummow which extended time by some two and a half years, and the other by his Honour Justice Hayne which extended time by a period of a year and a half.  Clearly, each case turns on its own merits, but we would reject, and respectfully invite your Honour to do so, any submission that there is simply a period of time which it is too long; each case must be considered on its merits.

As to the second point, the question of the utility of the DFAT report, that report is not in evidence before your Honour and, in my submission, whatever may be made of it by virtue of the findings of the delegate, it could not be said in the circumstances that the likelihood of relief being refused as a matter of discretion on the basis of that document is so great now as to warrant an extension of time.  We would say it is in fact a quite extraordinary position for the Minister to take and say that on the basis of a document that has not been produced to the Court relating to circumstances some four years ago that there is a certainty by which your Honour may now refuse an extension of time without a full consideration of the merits both in relation to the issue generally and in relation to the question of discretion.  Those are my submissions in reply, if it pleases the Court.

HIS HONOUR:   Thank you, Mr Ower.

The plaintiff seeks an extension of time in which to apply for an order to show cause why mandamus should not go to compel the defendant (“the Minister”) to determine the plaintiff’s application for a Protection (Class XA) visa according to law. 

The extension that is sought is lengthy. The Minister’s decision to refuse the plaintiff’s application for visa was made on 20 September 2014 and the plaintiff did not file his application for an order to show cause until 30 June 2016. Section 486A of the Migration Act 1958 (Cth) (“the Act”) provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction must be made within 35 days of the date of migration decision, but that the Court may extend time if satisfied that it is necessary in the interests of the administration of justice to do so. It has also been said that an extension of many months should not be granted unless the circumstances are exceptional: see Gallo v Dawson (1990) 93 ALR 479 at 480 - 481; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 [15] per McHugh J.

Having now, however, read the affidavit of Mary Symonds sworn 30 September 2016 and the affidavit of the plaintiff affirmed on 4 October 2016, and having heard counsel briefly as to the prospects of the plaintiff succeeding in his application for substantive relief, I am persuaded that it is necessary in the interests of justice and that the circumstances are sufficiently exceptional to grant an extension of time to the date of filing of the application.

In my view the plaintiff has provided a satisfactory reason for the delay and, as at present advised, I consider that at least one of the plaintiff’s grounds of application is sufficiently arguable to render it appropriate for determination by this Court.  Furthermore, as that ground of application turns on whether and to what extent the principle of procedural fairness identified in Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1 may operate in a case to which s 51A of the Act applies, an issue which did not arise for consideration in WZARH, I think it appropriate, and in the long run likely to prove most efficient, if the application for order to show cause is referred for further hearing to a Full Court.

I do not overlook the submissions advanced on behalf of the Minister that, even if the plaintiff were successful on that ground of his application, there is much in the material that was before the delegate to support her conclusion that the plaintiff did not qualify for the visa.  Arguably, the inconsistencies between the several versions of events which the plaintiff advanced at different times during the visa application process entitled the delegate to conclude, as she did, that the plaintiff’s claims of persecution were incredible.  Nevertheless, it is to be borne in mind that the plaintiff does not speak English and is illiterate and, consequently, that the interview of the plaintiff conducted on 10 September 2013 by an officer of the Department other than the delegate, and on the record of which the delegate appears to have relied approximately a year later when forming a view of the plaintiff’s credibility, was conducted through an interpreter.  It is also apparent from the transcript of the interview that there were at times elements of confusion between the interviewing officer and the interpreter, and thus, one might suppose, the plaintiff, as to the point of the officer’s inquiries.

Leastways, at this stage of the proceeding, I cannot exclude the possibility that if the delegate had seen and heard the plaintiff, rather than relying upon the record of the plaintiff’s interview with another officer, the delegate’s assessment of the plaintiff’s credibility might have been different.

It is said that, because the plaintiff sought ministerial intervention under s 417 of the Act, the interests of justice do not warrant the extension which is sought. It is to be noted, however, that in none of the cases which were relied upon in support of that proposition does it appear that the applicant was profoundly ignorant of the opportunity to seek relief in the original jurisdiction of this Court in the way that the plaintiff in this case appears to have been.

It is also said with respect to ground 3 of the application that whatever might be the concerns about the failure of the delegate to afford the plaintiff an opportunity to be heard once the delegate, rather than the original officer, came to make the decision, the DFAT thematic report, upon which the delegate relied in support of change to country circumstances, in effect renders ground 3 untenable.  But, at least at this stage of the proceeding, it appears to me surely arguable that, whatever was contained in the DFAT report (which is not in evidence before me), the effect of it might have, to some extent, been affected by the delegate’s perception of the credibility of the evidence given by the plaintiff as to his personal circumstances.  By that I mean that, without necessarily casting any doubt upon the content of the report, it might be that, when the report is balanced against the personal position of the plaintiff, ground 3 is sufficiently arguable to warrant the relief which is sought.

In the result I shall order, pursuant to s 486A(2) of the Act and r 25.06.1 of the High Court Rules 2004 (Cth), the time for the filing of the plaintiff’s application for order to show cause be extended until 30 June 2016. I shall further order, pursuant to r 25.03.3(b) of the Rules, that the application for order to show cause be referred for further hearing by a Full Court.

I note that it will be necessary for the parties, or at least their legal advisers, forthwith to consult with the Registrar as to the steps to be taken to ready the matter for hearing by a Full Court.  Gentlemen, may I gauge from you whether it is thought that the argument would take any more than half a day?

MR OWER:   No, your Honour, half a day would be more than sufficient.

HIS HONOUR:   Do you agree with that, Mr Tredrea?

MR TREDREA:   I agree, your Honour, thank you.

HIS HONOUR:   It is noted that the time likely to be taken for the hearing of the matter before a Full Court is less than half a day.  I shall order that each party’s costs of today be reserved.  Anything further sought, gentlemen?

MR OWER:   May it please the Court. 

MR TREDREA:   No, thank you, your Honour.

HIS HONOUR:   I am obliged to counsel for their assistance.  Adjourn sine die.

AT 10.21 AM THE MATTER WAS ADJOURNED