SZQDG & Anor v Minister for Immigration & Anor - [2011] FMCA 836

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 836

MIGRATION – Review of decision of the Refugee Review Tribunal – whether in interests of administration of justice to extend time – extension of time not granted – application for ministerial intervention – application not competent.

Migration Act 1958 (Cth), ss.417, 476, 476A, 477
Commonwealth of Australia Constitution Act 1901, s.75

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
G v The Queen (1984) 35 SASR 349
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576
Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238
Ponnudurai v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 91
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu & Ors (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affair; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Karmaker v Minister for Immigration & Anor [2011] FMCA 595

First Applicant:

SZQDG

Second Applicant:

SZQDH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 691 of 2011

Judgment of:

Nicholls FM

Hearing date:

1 September 2011

Date of Last Submission:

1 September 2011

Delivered at:

Sydney

Delivered on:

7 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Messrs Rasan T Selliah & Associates

Appearing for the Respondents:

Mr I Temby

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application to extend time is dismissed.
The application made on 11 April 2011 is dismissed as not competent.
The first applicant pay the first respondent’s costs set in the amount of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 691 of 2011

SZQDG

First Applicant

SZQDH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 11 April 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 June 2010, which affirmed the decision of the delegate of the first respondent to refuse protection visas to the applicants.

Background

The applicants are a mother and her daughter (now aged 14), both Sri Lankan citizens of Tamil ethnicity, who arrived in Australia as visitors in October 2009. The mother (“the applicant”) applied for a protection visa on 13 November 2009 and made specific claims to be a refugee. Her daughter (“the applicant daughter”) applied as a member of her family unit (see Court Book – “CB” – CB 1 to CB 60).
The applicant’s claims were initially set out in a written statement attached to her application (CB 16 to CB 19). The applicant was also interviewed by the Minister’s delegate on 18 June 2010 (CB 73).
Her claims to protection were that as a person of Tamil ethnicity she feared persecutory harm from the Sri Lankan authorities, including the army.
The applicant was born and raised in the north east of Sri Lanka, the then stronghold of the now defeated LTTE (Liberation Tigers of Tamil Elam). The applicant claimed to have witnessed the brutality of the Sri Lankan army and their attacks on civilians.
In 1990 she and her husband moved to Colombo, where soon after her husband was arrested, detained and beaten on a number of occasions on suspicion of being with the LTTE.
She and her family moved to Brunei in 2000. She travelled back to visit Sri Lanka in 2002, 2004 and 2006 (twice in one year). She claimed that on the last occasion she was detained and mistreated, including being sexually assaulted, by the police, who suspected that she had raised money for the LTTE while overseas. She claimed to fear that, on return now, she and her daughter would be raped by the security forces.

The Delegate

The delegate refused the application on the basis that he was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 67 to CB 77).
In reaching this conclusion the delegate took into account that, despite opportunities over a long period while outside Sri Lanka, the applicant took no steps to seek protection, and she visited Sri Lanka on four occasions between 2000 and 2009.
Further, that the application now coincided with her evidence that her husband’s circumstances were that he would no longer be able to extend his work position in Brunei.
The delegate had difficulties with the applicant’s lack of corroborative evidence (“uncorroborated assertions”) and claims as to why she left Sri Lanka in 2000, given that her claims of persecution dated back to the 1980s. The delegate also had difficulty with the applicant’s travel history, which he found was not indicative of a person fleeing persecution in Sri Lanka.
Ultimately, the delegate found the applicant’s responses and demeanour at the interview as being of “little credibility”.
The application was refused on 4 February 2010, as was the daughter’s application, which depended on the outcome of her mother’s application (CB 67 to CB 77).

The Tribunal

The applicants applied to the Tribunal for review of the delegate’s decision on 19 February 2010 (CB 207 to CB 210). They were assisted by a registered migration agent (CB 205). The applicants’ representative made submissions, with annexures, on 8 April 2010 (CB 222 to CB 330), including the applicant’s statutory declaration made on 1 April 2010 (at CB 331 to CB 336).
It appears that the applicant attended at a hearing with the Tribunal on 21 April 2010 (this can be inferred from some of the material in the Court Book, even though the usual Tribunal hearing report was not included). The Tribunal’s account of what occurred is set out in its decision record ([43] at CB 425 to [83] at CB 434).
The applicant’s representative made further submissions on 4 May 2010 (CB 374 to CB 409 with annexures).
The Tribunal was not satisfied that if the applicant, or her daughter, were to return to Sri Lanka they would face persecutory harm for a Convention reason ([120] at CB 442).
The Tribunal’s reasoning relevantly included the following factual findings:
1)There was nothing in the family’s travel history to suggest that they had ever been of interest to the Sri Lankan authorities ([101] at CB 437).
2)The applicant returned to Sri Lanka from Brunei on four occasions between 2000 and 2009 “for personal reasons” in circumstances where there did not appear to be any difference in the level of peace in Sri Lanka between then and the time of the Tribunal’s consideration ([102] – [103] at CB 138).
3)The Sri Lankan government’s concerns regarding the LTTE did not necessarily amount to a real chance that the applicants would be persecuted ([103] at CB 438).
4)The applicant claimed to have been tortured in 2006. She later travelled to the United Kingdom (“UK”) in September 2009, but did not seek protection there ([105] at CB 438).
5)The Tribunal rejected the applicant’s explanation as to why she did not seek protection before coming to Australia. The explanation was that she only applied when the situation in Sri Lanka had deteriorated. The Tribunal referred to country information that, on the contrary, indicated that the situation had improved ([106] – [107] at CB 439).
6)The Tribunal also found that the applicant’s alternative explanation, that the timing of her protection visa application was connected to the impending Sri Lankan presidential election, had been suggested by her representative and adopted by her. In any event, it did not assist because she had claimed that she realised that the situation in Sri Lanka would not improve when her preferred candidate was defeated, yet the election was held two months after her application. Further, the applicant was prompted by her representative at the hearing in referring to this explanation ([108] – [109] at CB 439).
7)The applicant’s evidence about the abduction and rape of a particular girl was confused with another incident some years earlier, and contradicted by country information provided by her own representative ([110] at CB 439).
8)The Tribunal found the real reason she did not apply for refugee protection in the UK was her dislike of the weather. Her subsequent travel to Australia, where she then did apply, suggested in all the circumstances that her desire was to remain in Australia, rather than to avoid persecutory harm in Sri Lanka ([111] at CB 440).
9)The Tribunal considered that the applicants would return to live in Colombo, where the applicant and her husband lived for 10 years prior to their departure for Brunei. The Tribunal was confirmed in this view when it found the applicant to be “deliberately evasive” at the hearing about where her husband’s family were now living. It found they were in Colombo ([112] at CB 440).
10)The Tribunal found that the applicant and her daughter could safely return to live in Colombo, given that she had lived there for 10 years at the height of the civil war. In this the Tribunal considered information provided by the applicant’s representative about human rights abuses against young women and found these to be “isolated examples” which had not occurred in Colombo ([113] at CB 440).
11)For reasons that will become obvious below, it is important to note the following (at CB 441):
“[115] The applicant said that because she used to go to Jaffna frequently they had classified her as someone who had been giving information to the LTTE but, as I put to her, if this were the case I do not accept that she would have been returning regularly to Sri Lanka from Brunei. The applicant then said that they had only accused her of giving information to the LTTE in 2006. However, as I put to her, I do not accept that she is telling the truth about the incident in March 2006 because I consider that if she were telling the truth about that incident she would have applied for refugee status when she visited the United Kingdom later that same year. I accept that cordon and search operations continue to take place in Colombo but as I put to her the information available to me suggests that in general it is young male Tamils originating from the North or the East who are most at risk of being detained in the cordon and search operations in Colombo (UK Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka, 23-29 August 2009, page 5). I do not accept that, if the applicant and her daughter return to Colombo now or in the reasonably foreseeable future, there is a real chance that they will be arrested, detained, tortured or killed because of their race (Tamil or Jafna [sic] Tamil) or any political opinion imputed to them on the basis of their race such as support for the LTTE.”
[Emphasis added.]
12)The Tribunal rejected claims that the applicants were at risk of abduction or harm from Sri Lankan security or paramilitary forces if they were to return, or that as returnees from abroad they would be taken into custody by intelligence officials ([117] – [118] at CB 441).
Following the affirmation of the delegate’s decision on 13 June 2010, the applicant appears to have made a number of requests to the Minister to intervene and provide a more favourable outcome to her (see further below).

The Applications

The application to the Court was made on 11 April 2011, some 10 months after the date of the Tribunal’s decision. Given the provisions of s.477 of the Act, the applicant has made an application, in writing pursuant to s.477(2)(a), that the time for the making of the application to the Court be extended on the basis that it is in the interests of the administration of justice to do so.
Section 477 is in the following terms:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates 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 Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates 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 Magistrates 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.”
In her application the applicant, with the assistance of her current lawyers, advances the following in support of her application to extend time:
“1. She sought to avoid the necessity of seeking judicial review by making a request pursuant to section 417 of the Migration Act.
2. This application has reasonable prospects of success.”
As I said in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 (“SZMFJ”) at [44], there are a number of elements relevant to the consideration of determining whether it is in the interests of the administration of justice to extend time pursuant to s.477(2):
“… These are:
1. The extent of the delay and the reason for the delay.
2. Whether there is any merit in the application.
3. Whether there is any prejudice to the respondents.
4. The impact on the applicant.
5. The interests of the public at large.
6. The Court’s discretion itself.”

Before the Court

At the hearing of this matter, Mr L Karp of counsel appeared for the applicants. Mr I Temby appeared for the respondent. The affidavit of the applicant of 18 August 2011 was read into evidence. The applicant was cross-examined.
For the reasons that follow, I find that it is not in the interests of the administration of justice to extend time in the circumstances of this case. The application to the Court is therefore not competent.

Consideration: The Extension of Time

In considering what is in the interests of the administration of justice in the current case, the elements at [23] above are relevant.
The applicant made submissions on the question of the meaning of the phrase “… necessary in the interests of the administration of justice”. She relied on G v The Queen (1984) 35 SASR 349 (“G”) for the proposition that “interests of the administration of justice” confers on the Court a wide discretion (see at 351 per King CJ).
The Minister sought to distinguish the context in G with the circumstances of this case. That is, a case concerned with the prohibition of the name of an accused in a criminal matter, as opposed to the current extension of time application to facilitate judicial review of an administrative decision.
Whatever the differences in context, I accept, as Mr Karp submitted, that the characterisation of the phrase “in the interests of the administration of justice” used in the current context does confer a wide discretion on the Court. That does not mean, however, that this Court can or should ignore the guidance provided by other authorities of the superior courts (see below at [46] – [51]).
In her application for an extension of time the first ground of that application is:
“1. She sought to avoid the necessity of seeking judicial review by making a request pursuant to section 417 of the Migration Act.”
In her affidavit the applicant’s evidence was relevantly:
1)She had been referred to a Mr Sutharshan, who represented her before the Tribunal.
2)He was described as a “lawyer” by the person who had referred her to him. Mr Sutharshan referred to himself as a “lawyer”.
3)The day after the Tribunal made its decision (she says 15 June 2010, the day of notification), Mr Sutharshan rang to tell her of the decision.
4)The day after she rang him to ask as to her options, she said he told her she had time (14 days) to “apply to the Minister”.
5)In the ensuing weeks she spoke to him several times. He said to her words to the effect of:
a)“You should make a request to the Minister for a visa and if that fails you can go to Court”.
b)“The last option will be the Court”.
6)He gave her some “initial advice” about preparing the request to the Minister.
7)After the Minister refused to intervene (about 22 March 2011), Mr Sutharshan told her (at [9] of her affidavit):
“Now an application has to be made to the Court, but I cannot do it. I do not have the authority. You will have to find a barrister or someone. I will get somebody for you… I do not have time. You will have to find somebody yourself.”
8)It was then that she consulted her current lawyer, and the application to the Court was made on 11 April 2011.
In her oral evidence to the Court the applicant confirmed that, after the refusal of her application by the Minister’s delegate, she consulted someone whom she described as: “… That was my first lawyer”, who told her that if her application to the “RRT” was rejected that: “I will take your matter to the Court”. She was told “something to the effect” that she had 14 days to go to the Tribunal.
A number of matters immediately arise.
First, the applicant’s evidence is that her “first lawyer”, Mr Sutharshan, did, at the time following the delegate’s decision (on the basis of other evidence before the Court therefore sometime between 4 February 2010 and 19 February 2010), tell her of the opportunity of going to the Court if her application to the Tribunal was unsuccessful. The applicant can therefore be taken to have known of the option of coming to Court at least as at the time of the notification of the Tribunal’s decision being conveyed to her (on her own evidence 16 June 2010).
Second, it was also the applicant’s evidence that after the Tribunal’s decision was notified to her she was given advice by Mr Sutharshan that the order of action was to approach the Minister first, then go to the Court.

There was no explanation from the applicant in her evidence as to whether she sought to reconcile what on its face appeared to be contradictory evidence as to when she could bring her matter to the Court.
The first advice, on her own evidence, was that she could go to Court once the Tribunal had made its decision. The second was that “first” she had to approach the Minister.
In the absence of any alternative direct evidentiary explanation by the applicant, the first ground relied on by the applicant in her application for an extension of time remains as the only explanation. That is, that in context she knew of the options available as at the time of the notification of the Tribunal’s decision, but “sought to avoid the necessity of seeking judicial review by making a request pursuant to s.417 of the Migration Act”.
At no time during the course of the hearing did the applicant resile from, or advise that she did not press, either of the two grounds, or reasons, in support of her application for an extension of time.
Third, in submissions the applicant argued that she should not be “penalised” for following the advice of someone who represented himself as a lawyer, and was in a position of apparent knowledge and authority. In these circumstances, she followed advice to go to the Minister first.
Some attempt was made by the applicant to refer to material which supported the view that, in spite of his description to her that he was a lawyer, Mr Sutharshan was not a lawyer.
For example, Mr Karp referred to the Tribunal’s “Change of Contact Details” form (at CB 410) where Mr Sutharshan is described a “migration education consultant”, and not a lawyer. Further, that nowhere in the relevant documents is there anything to support the assertion that he was a lawyer. Where he made written submissions on the applicant’s behalf, the letterhead he used made no reference to his being a “lawyer”.
It was not entirely clear what the applicant hoped to achieve with this submission. On the one hand she insisted she was simply following the advice of someone she believed to be a “lawyer”. Yet on the other hand she sought to submit he was not a lawyer.
At best, if this was some attempt to say that the course of action she adopted was not as a result of legally informed consent, then this ultimately does not assist the applicant.
The Minister’s position is that the applicant delayed coming to this Court for almost nine months (after the 35 day period in s.477(1)) in circumstances where she knew that she could come to this Court, but exercised the “option” to at first pursue Ministerial intervention under to s.417 of the Act.
In Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, von Doussa J had before him a case that involved 16 months delay (at [5]). His Honour relevantly said:
“[9] There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.
[10] The delay therefore is not adequately explained. That, alone, in my view, would be sufficient to refuse the application for an extension of time…”.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364, Hayne J was concerned with an application to the High Court for relief in a matter concerning a Refugee Review Tribunal decision where the delay in going to the High Court was just over 8 months (from orders made by the Federal Court dismissing proceedings there concerning the same Tribunal decision). In the intervening period, the applicants unsuccessfully sought, amongst other things, Ministerial intervention pursuant to s.417 of the Act (see page 16 of 19 of the Transcript).
At page 18 of 19, Hayne J said:
“Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants 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…”.
In Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279, a case involving, amongst other things, a delay of just on two months between a Tribunal decision and the seeking of writs in the High Court, Crennan J relevantly said (at page 24 of 28):
“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…”
Further, also at page 24 of 28:
“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. However, because the delay is relatively short, it is appropriate to also approach the matter by consideration of the utility of granting an extension of time…”
Mr Temby took the Court to Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 (“Vu”) at [29] – [30] per Jessup J:
“[29] I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.
[30] This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors. The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits. Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I would draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.”
[See also DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 (“DAS”) at [11] and Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 at [14].]
In the current case the applicant (on her own evidence) was presented with two courses of action from a person whom she believed at the relevant times to be a lawyer, as to how to proceed in the face of an adverse Tribunal decision.
The first, given to her prior to her application to the Tribunal, was that if the Tribunal decision was unfavourable she should go to Court.
The second, following the adverse Tribunal decision, was to pursue Ministerial intervention first, and then if necessary go to Court.
What is clear is that the applicant was on notice, even before the Tribunal’s decision, that an adverse Tribunal decision could be challenged in the Courts. The applicant has now given an explanation for not coming to the Court as soon as possible after being notified of the Tribunal’s decision. She was told she had to go to the Minister “first”. In the circumstances, and with reference to relevant authorities, it is not a satisfactory explanation.
Even if the applicant’s explanation was that she could not have come to Court at the same time as she had a request for Ministerial intervention extant, then as was said in similar circumstances in Sithamparapillai the “pursuit of that path is… not a sufficient explanation for the failure to institute [legal] proceedings…” (at page 18 of 19 – see [48] above).
I agree with Mr Temby that the applicant was presented with two options, s.417 intervention or judicial review by the Court, as to how she should proceed following an adverse Tribunal decision. She chose to pursue the road of Ministerial intervention. When that failed to achieve a satisfactory outcome she then sought to pursue what has been described as “Plan B” (see Vu at [29]).
The two options are mutually exclusive. One seeks to challenge the lawfulness of the Tribunal’s decision. The other connotes an “acceptance” of that aspect of the decision, but seeks to alter the outcome.
It may be that the applicant did not actually intend to resile from ever taking legal proceedings if it became ultimately necessary. It may also be that she never intended some implied acceptance of the lawfulness of the Tribunal’s decision by pursuing the alternative path.
What she did, however, was, with what she believed to be legal advice, choose not to pursue judicial review upon the notification of the Tribunal’s decision.
Before the Court the applicant gave evidence that her lawyer had told her that there was a time period for making an application to the Tribunal. After he told her of the Tribunal’s unfavourable decision her evidence was that she asked him whether any time limits applied in making her “application” to the Minister.
On the basis of this evidence, I am satisfied that the applicant was at least generally on notice of the notion of time limits applying to what she believed to be the various courses in pursuing action to remain in Australia. This includes coming to this Court.
The applicant’s first ground in seeking the extension of time, drafted with the assistance of her current lawyers, is that she wanted to avoid the necessity of coming to Court. This provides the explanation as to why at the relevant time she chose to pursue Ministerial intervention. In all, it is not a satisfactory explanation. On the authorities above, this would be sufficient to dispose of the application before the Court.
Mr Karp argued that the applicant’s election was not as a result of an informed choice because the person giving the advice may not actually have been a “lawyer”. At best, there was no evidence before the Court to actually say that he was. Further, she was not a person who could speak “good English”.
In short, the argument was that the applicant should not be “penalised” for acting on advice that she believed was “genuine legal advice” in circumstances where she acted in a timely fashion in pursuing that advice.
The difficulty for the applicant with this submission is that, if the applicant did pursue what she believed to be “genuine” legal advice, then this puts her in a similar position to the applicants in such cases as Vu, where applicants from non-English speaking backgrounds made a similar election based on legal advice.
Even if Mr Sutharshan was not a lawyer, the applicant made a choice to request s.417 intervention so as to avoid the necessity of seeking judicial review. That was her election. At that point the applicant decided not to challenge the Tribunal’s decision (see DAS).
The applicant’s reliance on Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238 (“Miah”) (at [107], [152], and [219]) does not assist her in these circumstances. The submission was that, in that case, a mistake by lawyers in failing to comply with a time limit, and an attempt to seek the Minister’s intervention, was sufficient explanation for a two year delay.
I agree with Mr Temby that in Miah the concern of the Court was whether the discretion to grant certain leave should be exercised, rather than the more specific and relevant question of the extension of time for the making of the application as raised in the authorities referred to above. The relevant elements therefore are different, or different in character, as they apply to a different context.
In all, therefore, this application can be dismissed due to the lack of a satisfactory explanation for the delay in coming to this Court. But the application can also be dismissed, separately, because the sole ground of the substantive application lacks such merit as to make it not in the interests of the administration of justice to extend time.

The Ground of the Substantive Application

The ground asserts a failure to lawfully construe the words “a well founded fear of persecution” as they appear in Article 1A(2) of the UN Refugees Convention.
Mr Karp’s submissions derive from what he said was a large amount of material before the Tribunal of “human rights abuses” being inflicted on the Tamil people by the Sri Lankan authorities because of their race, or suspected affiliation with the Tamil Tigers. This included information submitted by the applicants’ representative about Tamil youths arrested in Colombo in December 2009 (CB 312).
Also amongst this evidence submitted by the representative was information about:
1)Tamils from the north and the east, as was (originally) the applicant (CB 250 to CB 254);
2)Tamils returning from overseas (CB 237); and
3)Abductions and disappearances of Tamils (see in particular: “Sri Lanka: A Better Peace” – International Crisis Group at CB 264 and British Foreign Office and Commonwealth Office report at CB 259).
The applicant’s argument derives from reference to the following parts of the Tribunal’s reasoning:
“[103] The applicant and her representative have said that she felt able to return to Sri Lanka in 2002, 2004 and 2006 because she genuinely believed that peace was there but, as I put to her, peace is there now: the LTTE has been militarily defeated (see the International Crisis Group, Sri Lanka: A Bitter Peace, 11 January 2010, produced by the applicant’s representative, at folio 113 of the Tribunal’s file). The applicant referred in this context to the material submitted by her representative indicating that the Sri Lankan Government remains concerned by the potential threat posed by the LTTE. That is hardly surprising, given that the civil war lasted for more than 25 years, but it does not mean that there is a real chance that the applicant or her daughter will be persecuted if they return to Sri Lanka now.” [At CB 438.]
…
“[107] The report issued by the International Crisis Group in January 2010 part of which the applicant’s representative produced said for example that the human rights situation had slightly improved since the end of the war in May 2009 with very few reports of extrajudicial killings, abductions or enforced disappearances received in the final months of 2009. It said that such reports as there were had been primarily from the Northern and Eastern provinces (see the International Crisis Group, Sri Lanka: A Bitter Peace, 11 January 2010, produced by the applicant’s representative, at folio 111 of the Tribunal’s file). The US State Department said that disappearances had declined from previous years and that the majority had occurred in the North and the East (US State Department, Country Reports on Human Rights Practices for 2009 in relation to Sri Lanka, Section 1.b, Disappearance).” [At CB 439.]
…
“[115] The applicant said that because she used to go to Jaffna frequently they had classified her as someone who had been giving information to the LTTE but, as I put to her, if this were the case I do not accept that she would have been returning regularly to Sri Lanka from Brunei. The applicant then said that they had only accused her of giving information to the LTTE in 2006. However, as I put to her, I do not accept that she is telling the truth about the incident in March 2006 because I consider that if she were telling the truth about that incident she would have applied for refugee status when she visited the United Kingdom later that same year. I accept that cordon and search operations continue to take place in Colombo but as I put to her the information available to me suggests that in general it is young male Tamils originating from the North or the East who are most at risk of being detained in the cordon and search operations in Colombo (UK Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, page 5). I do not accept that, if the applicant and her daughter return to Colombo nor or in the reasonably foreseeable future, there is a real chance that they will be arrested, detained, tortured or killed because of their race (Tamil or Jafna Tamil) or any political opinion imputed to them on the basis of their race such as support for the LTTE.” [At CB 441.]
In essence, the error asserted is that the Tribunal reasoned from the general proposition that those most at risk were young, single Tamil males originating from the north and east, and used this as a basis to make findings about the particular situation of the applicants.
The applicants rely on Ponnudurai v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 91 (“Ponnudurai”) to submit that a similar course of reasoning (coincidentally said by the applicant now to be by the same Tribunal member some eleven years earlier) fell into legal error:
“[12] Having negatived, not that the applicant’ fear of persecution was well-founded in a real chance of it, but that ‘he will be arrested’, the Tribunal continued by referring to a suggestion it had derived from the evidence ‘that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East’. But the expression ‘those most at risk’ and the word ‘particularly’ indicate how far the Tribunal had strayed from the path of decision according to law. The question was not whether the applicant was most at risk, or whether he was one of those particularly at risk, but whether his fear of persecution was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution. The Tribunal went on to refer to the submission of the applicant's representative, which did relate to the true question, put in reliance on ‘information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members’, and urging that, a fortiori, a young male Tamil with the applicant's antecedents would be at risk. But the Tribunal, while acknowledging the accuracy of this to the extent that it ‘is certainly true that ... it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo’, then avoided the issue by a return to the irrelevancy that what was submitted to be a demonstrable risk was not ‘particular’, so as to put the applicant ‘equally at risk’ with others for whom a particular risk could be shown. The Tribunal said ‘it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk.’ It said it accepted evidence ‘that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East.’ This simply does not meet the point made by the applicant's representative. Of course, for example, in World War II, the crew of a bomber were not all ‘equally at risk’. The rear gunner was notoriously ‘at particular risk’. But it did not follow that other members of the crew were not at risk, and did not have a real chance of being killed. The Tribunal’s discussion of those most at risk, or particularly at risk, just diverted its attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant’s account of particular arrests he claimed to have suffered. A failure of this kind involves an error of law within s 476(1)(c) and (e) of the Migration Act 1958, and, in addition, s 476(1)(a): Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 at para 32 (Kenny J); Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at paras 17, 19-23, per Wilcox and Madgwick JJ, 49-50 and 60, per Hill J; Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998, Burchett J) at 13-14, a passage cited when the case went on appeal as Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 45; Paramananthan at 37, 60, 62-63; Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, 21 December 1998, Wilcox, Lindgren and Merkel JJ) at 12-13 per Wilcox and Lindgren JJ, and at 1-2 per Merkel J.”

The answer to the applicants’ attack is that the current case is distinguishable from the facts, and importantly the reasoning, of the Tribunal in Ponnudurai. What is at the heart of the Minister’s response is that the Tribunal’s reasoning must be read holistically, and that the part giving rise to the applicants’ concern now was but one part of the Tribunal’s reasoning, and dealt with a specific aspect of the applicant’s claims.
In Ponnudurai the applicant was a young Tamil male, originally from the north-east of Sri Lanka, who came to Australia seeking protection after having lived in Colombo “without serious problems”. He did claim that he had been “… arrested on several occasions in general search and round-up operations conducted by the authorities.” (At [2] – [3].)
The Court found that the Tribunal did not address the question of whether the applicant’s “… fear of persecution was well founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution…”. But it addressed a different question, namely whether the applicant would or would not be arrested on return.
I cannot see that the Tribunal in the current case fell into the same error as that identified in Ponnudurai.
In the current case that part of the Tribunal’s reasoning which was the central feature of the applicants’ attack now is plainly but one part of the Tribunal’s reasoning. Further, it is a part focussed on a specific aspect of the applicant’s claims as put by her to the Tribunal.
First, the Tribunal set out the correct and relevant test in the usual unexceptional terms (see at [11] – [12] at CB 418).
Second, the applicant made a number of claims as to why her fear was well-founded. These emanated from her Tamil ethnicity in light of the longstanding conflict in Sri Lanka, her and her daughter’s position as Tamil women, her having migrated from the north east, an area which had formed the power base of the Tamil Tigers, her having lived abroad, her vulnerability as a returnee, and an incident in March 2006. (For the latter, see [7] above.)
The Tribunal dealt with each of these aspects. On a plain reading of the decision record it did so with reference to, and in context of, addressing the question as to whether the applicant had a well-founded fear of persecution for a Convention reason if she were to return to Sri Lanka in the foreseeable future. Where appropriate it included her daughter in this analysis.
In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”), Minister for Immigration and Ethnic Affairs v Wu & Ors (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, the High Court set out and explained the test for determining whether a fear was well-founded in the Convention sense. The definition of refugee as set out in Article 1A(2) will be met, or more precisely satisfied, if an applicant demonstrates a genuine fear based upon a real chance of persecution for a Convention reason.
For current purposes it is necessary to note that the concept of a “well founded fear” contains both a subjective and objective element. The subjective element involves the applicant’s state of mind. The objective element requires a factual basis, or foundation, for that fear (see, for example, Chan at 429 per McHugh J, and at 396 per Dawson J).
The need to make reference to the above is by now to be considered trite. However the necessity to set it out in the current case arises from the applicants’ failure to properly address this in the current proceedings, and to simply rely on a very small part of the Tribunal’s reasoning, and to seek to juxtapose it with Ponnudurai.
Whatever may have occurred in Ponnudurai, a case distinguishable given relevant circumstances and reasoning, the task for this Court now is to apply the direction given by the High Court to the actual circumstances before the Court. In this the Court must be careful not to confuse judicial review of an administrative decision with challenging the facts as found by the Tribunal. Facts as found, if open to the Tribunal to make, and for which reasons are given, are of course not susceptible to challenge in this Court.
Before the Court the applicants referred extensively to country information before the Tribunal. Given the rather narrow focus of the complaint (in effect one part of the Tribunal’s reasoning, and one part of [115]) it was not immediately clear why the applicant chose to present her case in this way. It may have been some attempt to draw parallels in approach with Ponnudurai (see for example at [5] – [12] in that case and the Court’s description of the applicant’s counsel’s concentration of “… her thoughtful submissions on the reasoning which followed [the Tribunal’s] rejection of the applicant’s evidence about his own experiences…” at [6]).
In the case now before the Court the Tribunal found that there was nothing in the applicant’s family’s travel history to suggest that the family (including the applicant) has ever been of interest to the Sri Lankan authorities ([101] at CB 437-8).
This finding, drawing on the family’s travel history, was open to the Tribunal on what was before it. Importantly, and relevant to the charge against the Tribunal now, the Tribunal’s finding was plainly expressed in terms contemplative of a well-founded fear of return ([101] at CB 438).
The Tribunal also found that the applicant’s return to Sri Lanka on four occasions between 2000 and 2009 was for “personal reasons”. The Tribunal rejected the applicant’s explanation that she could do so because “… she genuinely believed that peace was there… ” in light of country information, submitted by the applicant’s representative that the civil war lasted for 25 years, and that the Sri Lankan government had been concerned about the LTTE ([103] at CB 438).
The Tribunal found that, contrary to the applicant’s assertion, peace existed now in Sri Lanka, as opposed to the time when she did return there, leaving the situation that it was safer to return now than at the times when she repeatedly did return ([101] – [103] at CB 437-8).
Again, these were findings open to the Tribunal on what was before it, and for which it gave reasons. Again, importantly and relevantly, the Tribunal expressed its findings in the context of a “real chance” of persecution on return (see for example the last two lines of [103] at CB 438 when read in context).
The Tribunal was not persuaded by the applicant’s evidence, including documentary evidence, in relation to her claim that she had been tortured on her last visit to Sri Lanka in 2006 ([104] at CB 438). The Tribunal found it difficult to accept that the applicant was telling the truth about this incident in circumstances where she said she left Sri Lanka immediately on being released following the intervention of a lawyer, yet when she travelled to the UK later that year she did not apply for protection as a refugee ([105] at CB 438).
The Tribunal rejected the applicant’s explanation as to why, despite opportunity, she had not applied for refugee status on an earlier occasion. This explanation, put forward by her representative, was that the applicant hoped that the situation would improve in the future in Sri Lanka. The submission was that she only applied when the situation had deteriorated. The Tribunal found, based on country information available to it, that to the contrary the situation in Sri Lanka had improved “… now that the war is over” ([106] at CB 439).
In this context the Tribunal referred to a number of independent country reports which found slight improvement in the human rights situation, and that killings, abductions or enforced disappearances, all of which the applicants said they feared, had declined. In any event the Tribunal found that such incidents had been reported primarily from the north and east of Sri Lanka, and not from Colombo where the applicant and her husband had lived before moving to Brunei ([107] at CB 430).
Further, the Tribunal found that the applicant’s claim that the timing of her application for a protection visa had been connected to the presidential election to be a matter suggested to her and prompted by her representative. The critical factor here also was that the presidential elections post-dated the application ([108] – [109] at CB 439).
The applicant had also claimed to fear abduction and rape for herself and her daughter. She referred to a particular report of such an incident. The Tribunal found that the applicant had “conflated” this incident with another ([110] at CB 439).
The Tribunal found that the real reason the applicant had not thought of applying for protection in the UK was her dislike of the weather. That her application for a protection visa in Australia was derived from her desire to remain here, and not dictated by any fear of persecution ([111] at CB 440).
The Tribunal gave greater weight to its adverse view of her credibility and motivation than to a supportive letter from a neighbour as to past events. The Tribunal found the applicant was not telling the truth about the problems she said she and her husband experienced in Colombo between 1990 and 2000 ([111] at CB 440).
Again, these findings were all reasonably open to the Tribunal on what was before it. These are findings within jurisdiction, noting also that findings as to credibility are factual findings made by the Tribunal (Re Minister for Immigration and Multicultural Affair; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). There is nothing here, nor was it alleged by the applicant that the Tribunal failed to apply the correct test here.
While past events are a useful guide as to what is likely to occur in the future (see Guo at 574-5), it is of course the determination of the real chance of something occurring (persecution) in the reasonably foreseeable future that sits at the heart of the correct test to be relevantly applied by the Tribunal (see for example VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59).
The fact that the Tribunal then turned its attention (at [112] at CB 440) to a specific consideration of what was likely to occur to the applicant and her daughter if they were to return to Colombo provides a further strong indication that the Tribunal was well seized of, and did apply, the correct test.
In this regard, it was open to the Tribunal on the evidence before it to find that the applicants would return to live in Colombo. The Tribunal then turned to look at those aspects of the applicant’s claims and evidence going to the question of whether she could return.
The applicant claimed that she had no protection in Colombo. The Tribunal found that if she had been able to live there for 10 years during the height of the war, she should be able to return now that the war was over ([113] at CB 440).
Against this, the applicant and her representative had put, variously, that the information coming out of Sri Lanka was for the “consumption” of foreign governments, and that the real situation was different ([114] at CB 440).
The applicant told the Tribunal that the Sri Lankan government had classified all Tamils as “terrorists”. The Tribunal gave reasons for rejecting this ([114] at CB 440).
The applicant also claimed, as being specific to her, that she had been “classified” as someone giving information to the LTTE because she frequently used to go to Jaffna (in the north east). The Tribunal rejected this because it reasoned that, if this were the case, the applicant would not have returned regularly to Sri Lanka from Brunei ([115] at CB 441).
The applicant’s response to this was that she had only been accused of this on her last visit in 2006, at the time of the claimed incident in March 2006. The Tribunal had rejected this claim (see [95] above).
The applicant had also claimed that she feared, as in the past, that she and her daughter would be targeted in operations against all Tamils who, for example, had been classified as terrorists (see [114] at CB 440 and [115] at CB 441).
It was in this particular context, that is her return to Colombo as a Tamil and who claimed to have been targeted in the past, that the Tribunal then referred to an independent country report that suggested “… that in general it is young male Tamils originating from the North and East who are most at risk of being detained in the cordon and search operations in Colombo” ([115] at CB 441).
I do not see this as being, or involving, some application of the wrong test. The Tribunal was plainly not saying that the delegate’s decision should be affirmed simply on the basis that the applicant was at less risk than young Tamil males, who were most at risk.
What the Tribunal was plainly doing was to evaluate the real risk of persecutory harm to the applicant who had claimed that as a Tamil returning to Sri Lanka, and in context Colombo, she would be subject to government operations that would target her both because of her race, and the political opinion imputed to her.
The words “in general” as they appear at [115] (at CB 441) are revealing of what the Tribunal was doing. The applicant had made claims, specific to her, that she had been targeted at the time of the incident in March 2006 and that a political opinion had been imputed to her at that time. The Tribunal rejected this for reasons already referred to above.
The applicant also made claims that she was at risk because she was a Tamil and a woman. The Tribunal found that, in relation to this claim, it is young males, and not all young males but “in general” usually young males from the north and east who are in Colombo, in context rather than any females, who are at risk in Colombo from being targeted by the authorities.
This is a finding of fact made by the Tribunal open to it. That the Tribunal understood and applied the correct test is evident by what immediately follows at the end of [115]: “… I do not accept on the evidence before me that there is a real chance that the applicant or her daughter will be abducted (whether for ransom or otherwise), raped, tortured or killed by elements of the Sri Lankan security forces or paramilitary groups if they return to Colombo now or in the reasonably foreseeable future.” [Emphasis added.]
The remainder of the Tribunal’s analysis similarly addressed other aspects of the applicant’s claims. The claimed fear that as returnees from abroad she and her daughter would be targeted for ransom ([116] at CB 441) or targeted at the airport “selectively” ([117] at CB 441), were rejected for cogent reasons given by the Tribunal ([116], [118] and [119] at CB 441-2).
Importantly, this assessment took place with reference to the correct test (see in particular at the last sentence of [116], the second sentence at [118], the last sentence at [118], the second sentence at [119], and at [120]).
In Ponnudurai the Tribunal was found to have rejected the applicant’s claims relating to specific incidents in the past (as it has done here). However the error was said to have been that it also rejected the applicant’s claim in that case to also fear harm as a young Tamil male by comparing the level of risk with other particular young Tamil males, those from the north and east, who were said to be particularly at risk. The error therefore was that the Tribunal was diverted from the correct test of a well-founded fear of persecution and the assessment of a real risk by this analysis of comparative risk, which failed to address the applicant’s own level of “real risk”.
On a plain reading of the whole of its analysis, the Tribunal has not fallen into this error in the current case. The applicant and her daughter were not being compared in terms of level of risk with young, single Tamil males from the north and east. Simply, the Tribunal rejected the applicant’s claim to fear harm as a Tamil who would be subjected to random cordon and search operations by finding that the targets for those operations, “in general”, were not female Tamils in Colombo but young, single males from the north and east.
As the Tribunal told the applicant ([114] at CB 440):
“… even at the height of the war the government was able to distinguish between long-term residents of Colombo and people who had recently arrived from the North or the East”.
Ultimately, a plain holistic reading of the Tribunal’s analysis reveals that it addressed the correct question. It made findings of fact each of which was open to it on what was before it, and for which it gave reasons. The applicants’ attack now really invites a challenge to one such factual finding. This invites impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). The sole ground of the application is therefore without merit.

Extension of Time

The applicant has not provided a satisfactory explanation for her delay in now coming to this Court. The sole ground of the application is without merit. While there most certainly will be an impact on the applicant and her daughter if the Court were to decline to extend time pursuant to s.477(2), the two factors above far outweigh any impact on the applicants, particularly in circumstances where they have been found, without any attendant legal error, not to be persons to whom Australia owes any protection obligation. Therefore, it is not in the interests of the administration of justice to extend time.
Mr Karp submitted that the applicant had provided a satisfactory explanation for the delay, there is no prejudice to the Minister, and in circumstances where there is a sufficiently arguable case, even if that case was not ultimately successful, time should be extended under s.477(2). The reason being that if the applicant were to be unsuccessful in these circumstances she would be denied the opportunity of an appeal to the Federal Court of Australia in light of s.476A(3)(a) of the Act.
Mr Karp’s submission was that, irrespective of the ultimate outcome of the substantive application, it would be in the interests of the administration of justice to extend time so that the applicant could appeal an unfavourable outcome in relation to the substantive application without having to resort to some action “in terms of s.75(v)” of the Australian Constitution.
Of course there may be cases where an extension of time can be granted even where the substantive application is subsequently dismissed (see for example Karmaker v Minister for Immigration & Anor [2011] FMCA 595 per Barnes FM, as referred to by Mr Karp).

As Mr Karp submits, a satisfactory explanation for the delay may be one positive element in this regard. Particularly when coupled with an arguable case where an extension of time could enable that case to be properly argued and developed.
But to extend time merely, and only, so that an applicant can have an “appeal right”, in circumstances where the legislature has expressly provided for the opposite, cannot be in the interests of the administration of justice. It is trite to say that this Court must apply the will of the Parliament as expressed in legislation.
This is not a case where an extension should be granted. The delay has not been satisfactorily explained. The sole ground of the application is not of such merit as to warrant an extension to enable it to be further argued. In any event, the ground was fully argued and heard. In these circumstances there is no unfairness to the applicants such that the interests of the administration of justice are engaged in their favour.
It is not appropriate that time be extended pursuant to s.477(2). The substantive application is therefore not competent, and I will make the appropriate orders in this light.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 7 November 2011