SZQGV v Minister for Immigration & Anor
[2011] FMCA 743
•27 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 743 |
| MIGRATION – Review of a recommendation of an Independent Merits Reviewer in respect of an offshore entry person seeking protection in Australia – applicant claiming ethnic and religious persecution in Afghanistan – Reviewer not accepting that the applicant’s fear of persecution was well-founded – judicial review application filed out of time – refusal of an extension of time. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 477 |
| Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 Minister for Immigration v Respondent S152/2003 (2004) 222 CLR 1 Minister for Immigration v SZGUR (2011) 241 CLR 594 NAOA v Minister for Immigration [2004] FCAFC 241 Siaw v Minister for Immigration [2001] FCA 953 SZBEL v Minister for Immigration (2006) 231 ALR 592 SZQDZ v Minister for Immigration & Anor [2011] FMCA 652 SZQGU v Minister for Immigration & Anor [2011] FMCA 718 |
| Applicant: | SZQGV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1091 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 27 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco, pro bono publico |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1091 of 2011
| SZQGV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of an Independent Merits Reviewer (“the Reviewer”) in respect of an offshore entry person made on 24 February 2011. The Reviewer found that the claimant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) and recommended that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The decision was notified to the applicant by letter dated 25 February 2011.
Background
The following statement of background facts is derived from the Minister’s written submissions filed on 19 September 2011.
The applicant is a 28 year old citizen of Afghanistan. He claimed to fear persecution from the Pashtuns, the Taliban and/or the Sunni Muslims based on his Hazara ethnicity and the fact that he is a Shia Muslim. He also claimed to fear persecution by reason of imputed political opinion as a returnee from a Western country, as a perceived sympathiser of the coalition forces or NGOs, and/or as a failed asylum seeker.
The applicant claimed that he first left Afghanistan in 2000 (age 17) after an incident with some members of the Taliban after he was found eating during Ramadan in breach of the fast. The applicant went to Iran, where he lived for approximately five to six years, working on construction sites as a builder.
The applicant returned to Afghanistan in 2006 to his home village of Dawood in the Jaghori district and began working in his family owned shop. He claimed that in order to obtain supplies for his shop it was necessary to travel regularly on unsafe routes to Ghazni city and to Kabul.
The applicant claimed to have left Afghanistan for Australia following an incident that arose in 2009 when he bought an unregistered car from a Pashtun person.
The Reviewer discussed with the applicant various country information that suggested that the Hazara/Shia Muslims were not specifically targeted by the Taliban, that his district (Jaghori) was not a Taliban dominated area and was reasonably secure, that there were many returnees in Jaghari and that they were not targeted for that reason alone.
On 17 January 2011, the Reviewer sent a letter (relevant documents “RD” 158 and following) to the applicant inviting comment on certain country information and the applicant's representative responded on 6 February 2011 providing submissions and reference to various country information.
Findings of the Reviewer
On 24 February 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. He accepted that the applicant was a Hazara and Shia Muslim. However, the country information did not support the proposition that such people have been targeted and persecuted for reason of their minority status alone. The effects of the general insecurity and insurgency in Afghanistan did not give rise to a fear for a Convention reason. Deaths of other Hazaras at the hands of the Taliban arose by reason of other involvement, such as involvement with the Afghan government and NATO forces. He did not accept that social discrimination against Hazaras was so severe as to amount to persecution.
The Reviewer found that the security situation in the applicant's home area and Jaghori would not prevent the applicant from returning to reside there, as it was protected by Hazara factions and in particular the Hizb-I Wahdat Khalili/Nasr faction which remains robust in the region.
Country information showed that whilst there had been incidents of harm to returnees reported, this was usually where the returnee was known or suspected of returning with substantial amounts of cash. Such incidents were in any event very isolated, and sources did not conclude that returnees were being adversely targeted by non-state agents or government authorities for that reason alone. There was no credible evidence which showed that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted. As the applicant had not modified his religious views or been Westernised to any degree, the Reviewer did not accept that the applicant would be considered a Christian or a spy on his return.
As to the applicant's specific claims, the Reviewer made adverse credit findings rejecting the claim to have fled Afghanistan due to alleged fear of harm from two Pashtuns who wished to avenge the killing of their brother. He found the claim was inherently implausible and the applicant's evidence about it was internally inconsistent (see RD 203 [122-123] of the statement of reasons). Furthermore, even if he had accepted the claim as true (which he did not), the harm that the applicant claimed to fear was not for a Convention reason.
As to the applicant's claim to be unable to travel safely outside Jaghori to obtain supplies for his shop, the Reviewer found on the basis of country information that there were safe routes available for travel to Ghazni and Kabul.
The present application and the issue of an extension of time
These proceedings began with an application for judicial review filed on 30 May 2011. That application sought an extension of the time for the filing of the application pursuant to s.477(2) of the Migration Act. The reasons for the extension of time application were set out in the application. When I gave procedural directions in relation to the application on 15 June 2011, I ordered by consent that the extension of time application be heard at the same time as a final hearing, if required, today.
An amended application was filed on 29 August 2011. The amended application varied the legal basis upon which the decision of the Reviewer is challenged and did not repeat the application for an extension of time. I clarified, however, at the outset of today’s hearing that an extension of time was still sought upon the grounds set out in the original application as elaborated upon by evidence.
I received as evidence the affidavit of Frances Lillian Milne made on 27 September 2011 detailing the circumstances causing delay in the filing of the judicial review application. I also have before me the book of relevant documents filed on 6 July 2011.
The extension of time is opposed by the Minister upon the basis that the application as amended has no prospect of success. I accept from the Minister’s submissions that time began to run against the applicant on the date of notification of the Reviewer’s recommendation[1]. I have already noted that the notice is dated 25 February 2011. The limitation period in s.477(1) therefore ran out after 35 days on 2 April 2011. The proceedings were commenced on 30 May 2011. The delay involved in bringing the proceedings is, therefore, approximately two months. That delay is a delay of significance that merits a thorough explanation. That explanation is provided by Ms Milne in her affidavit.
[1] See section 477(3)(d) of the Migration Act.
I accept from that affidavit that the applicant and those assisting him faced a range of difficulties relating to the location and movement in detention of the applicant, difficulties in finding legal practitioners willing and able to assist, difficulties in obtaining instructions and difficulties in preparing and filing particular documents. The Court appreciates the value of the assistance provided to applicants by groups dedicating themselves to the welfare of asylum seekers. The Court also appreciates the assistance provided by legal practitioners, including counsel for the applicant in the present case, who make themselves available to appear and represent applicants in this jurisdiction on a pro bono basis. The interests of justice are well served by that assistance.
I accept from the affidavit of Ms Milne that a sufficient explanation has been advanced for the delay in bringing the proceedings. That, however, is not the end of the matter. As I have noted, the Minister asserts that the application as amended has no prospect of success and that an extension of time should be refused, having regard to the interests of the administration of justice. The grounds of review advanced in the amended application are:
1.The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Migration Act 1958 (Cth) (“the Act”).
Particulars
The second respondent found the applicant did not have a well founded fear of persecution, because the applicant could avail himself of the protection of a non-state actor, the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
2. The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
Particulars
In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hizb‑I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan, the second respondent failed to take into account the insufficient protection offered by the Afghan state.
3. The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
Particulars
In finding the applicant did not have a well founded fear of persecution, the second respondent took the irrelevant consideration into account that the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
4. The second respondent’s recommendation was not made in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection in the Jaghori region.
Particulars
The applicant refers to and repeats the matters referred to in the particulars to Ground 2 above.
5. The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.
Particulars
In assessing the reasonableness of requiring the applicant to live in the Jaghori region of Afghanistan, the second respondent failed to consider:
a. whether the applicant’s freedom of movement would be significantly curtailed;
b. whether the internal safety of the applicant would be illusory or unpredictable;
c. the quality of protection offered by the Hizb-I Wahdat Khalili/Nasr faction; and
d. what conditions attached to any protection offered by the Hizb-I Wahdat Khalili/Nasr faction.
6. The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
Particulars
The second respondent relied on particular assumptions to conclude that the applicant did not have a well founded fear of persecution:
a. That Jaghori and Malistan districts both remain out of Taliban control due to the military and political power of Hizb-I Wahdat Khalili/Nasr faction;
b. That protection afforded by the Hizb-I Wahdat Khalili/Nasr faction is strong across the Hazarajat including the Jaghori district;
c. That the applicant would not be able to purchase a car with “no proof of ownership”;
d.That Pashtuns who falsely accused the applicant of a crime would “just let him go” and allow him “two weeks” to advise them of the car seller;
e. That the said Pashtuns knew the applicant “because they had traded in the shop in the past”.
The specific assumptions as to the military and political ability of the Hizb-I Wahdat Khalili/Nasr faction to protect Hazaras in the Jaghori district were never put to the applicant, denying him the opportunity to call evidence or make submissions on the point.
The specific assumptions about the applicant’s account of persecution by certain Pashtuns was also never put to the applicant, denying him the opportunity to call evidence.
At one level, those grounds may be seen to be an attack upon the merits of the Reviewer’s decision. The grounds, however, are couched in legal terms and are directed in particular at the question of whether the Reviewer erred in considering the availability of state protection in Afghanistan to the applicant. The grounds, in particular, focus upon the Reviewer’s reliance upon the protection that would be available in the applicant’s district from non-state elements. The Minister’s submissions traverse the grounds of review in some detail. I agree with and accept the Minister’s submissions.
Ground 1 - misconstrues the correct test
This ground of review asserts that the Reviewer’s misconstrued and misapplied the test set out in Article 1A(2) of the Refugees Convention and s.36(2) of the Migration Act by asking himself whether the applicant could avail himself of the protection of non-state actors, that is, the Hizb-I Wadhat Khalili/Nasr faction (the Khalili/Nasr faction) rather than the Afghan state.
The complaint in Ground 1 misconstrues the reasoning of the Reviewer in arriving at the relevant finding. In summary, the Reviewer, in finding that there was not a real chance that the claimant will face serous harm in the future because of the protection afforded by the Hizb-i Wahdat Khalili/Nasr faction, was making an assessment of whether the applicant had a “well-founded fear of persecution”, otherwise known as the first limb of Article 1A(2). Having answered that question in the negative, the Reviewer did not, and was not required to, proceed to make a finding as to whether the applicant was unwilling or unable to avail himself of the protection of the country of his nationality, otherwise known as the second limb of Article 1A(2).
It was plainly open to the Reviewer to consider the protection afforded by the Khalili/Nasr faction because it was relevant to the assessment of whether or not the Jaghori district was a secure area.
Having made the assessment that the Jaghori district was a secure area, the Reviewer therefore concluded that the applicant did not face a real chance of serious harm there.
The Reviewer would only be required to consider whether the State could afford protection if he had concluded that the applicant did face a real chance of serious harm.
The Court recently considered an identical ground in SZQDZ v Minister for Immigration & Anor [2011] FMCA 652. As was correctly observed and held by Cameron FM:
29 The applicant’s argument was that the availability of effective state protection was a matter to be considered by the Reviewer whether or not he, the applicant, required protection from the Afghan state and the Reviewer erred because he did not consider this but instead concluded that protection was available from the Hizb-I Wahdat Khalili/Nasr faction.
30 As to the latter point, the Reviewer did not conclude that the applicant could avail himself of the faction’s protection. Rather, he found that the military and political power of that faction seemed to be robust across the Hazarajat to the exclusion of the Taliban. The Reviewer’s conclusion was simply that circumstances in the Hazarajat were such that any fear of persecution by the Taliban in that area which the applicant might have was not factually well-founded. The Reviewer said nothing about whether the applicant could avail himself of the faction’s protection, confining his observations to the practical effect which the faction’s operation in the Hazarajat had on Taliban activities in that area.
31 As to the other point raised by the applicant, the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution in the Jaghori district meant that there was no need for him to consider whether effective Afghan state protection was available to the applicant were he to return there. The political composition of those who keep the peace and make an area secure is not relevant to the assessment of whether an applicant has a well-founded fear: Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7] per Sundberg J. Contrary to the applicant’s submissions, Respondents S152/2003 does not require another conclusion. Nothing said by the majority in that case suggests that in this case there was a need to consider the question of state protection in the absence of actions by third parties which could amount to persecution, whether in their own right or because of the acts or omissions of the Afghan state.
32 For these reasons, the first ground of the amended application does not disclose error on the Reviewer’s part.
Ground 2 - failure to take a relevant consideration into account
This ground contends that the Reviewer erred by failing to take into account a relevant consideration, namely the insufficient protection offered by the Afghan state.
A relevant consideration is a consideration which the decision maker is bound to take into account in making a decision. What factors a decision maker is bound to consider in making the decision are determined by the construction of the statute conferring the discretion. Not every consideration that a decision maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision. A factor might be so insignificant that the failure to take the factor into account could not have materially affected the decision.[2]
[2] Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39-41 per Mason J
The applicant relies on Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1, in which Gleeson CJ, Hayne and Heydon JJ noted that the sufficiency of internal state protection “may be relevant at three stages of the enquiry raised by Article 1A(2)” (emphasis added).
I accept that, in certain circumstances, the sufficiency of internal protection may be relevant at any stage of the enquiry raised by Article 1A(2). It does not follow, however, that the sufficiency of internal state protection is a mandatory consideration at all of those stages.
As in Ground 1, the Reviewer made a finding as to whether there was a real chance of serious harm. It is well established that, at least in unexceptional circumstances, the Reviewer is only required to consider whether or not the protection offered by the state is sufficient once he has made a finding that there is a real chance of serious harm.[3]
[3] Siaw v Minister for Immigration [2001] FCA 953 at [7]; Minister for Immigration v Respondent S152/2003 (2004) 222 CLR 1 at [84]-[88] per McHugh J
Siaw[4] concerned a Sierra Leone national who fled his home in the east of Sierra Leone because of fear of being persecuted by rebels who had taken over the area. The Refugee Review Tribunal considered whether the applicant, given his background and circumstances, could relocate to Freetown. A question arose as to whether and why Freetown was a secure area. Sundberg J considered what kinds of protection were available when considering the first limb of Article 1A(2). His Honour noted at [8]:
[4] ibid
Accordingly, the Tribunal's initial task was to determine whether or not the applicant had a well-founded fear of persecution for a Convention reason. If such a fear existed, it was then required to decide whether the applicant's state of nationality was or was not able to offer protection to him. On the first part of its task, after assessing the material before it, the Tribunal found that Freetown and its environs were secure, that the applicant would be able to live there safely, and that he did not have a well-founded fear of persecution "at least for the reasonably foreseeable future". The political composition of those who are keeping the peace and making an area secure is not relevant to the assessment of whether an applicant has a well-founded fear. In this connection I see no difference between cases where adequate protection is provided
* entirely by government forces
* by a combination of government forces and friendly forces
* by forces from a neighbouring country or ally
* by mercenaries (alone or paid to assist government forces)
* by United Nations forces invited to assist government forces.
(emphasis added)
Accordingly, although the claim of insufficient state protection was expressly advanced by the applicant, the Reviewer was not obliged to consider the sufficiency of state protection in view of his finding that there was not a real chance of the applicant suffering serious harm. I agree with and adopt the analysis of this Court in SZQDZ in finding:
35 For the reasons given in relation to the first ground of the amended application, the Reviewer was not required to turn his mind to whether, in circumstances where the applicant did not have a well-founded fear of persecution by the Taliban were he to return to the Jaghori district, the Afghan state was able to provide him with adequate protection. As a consequence, the Reviewer did not fail to take into account a relevant consideration as the applicant alleges
Ground 3 - taking an irrelevant consideration into account
This ground contends that the Reviewer erred by taking into account an irrelevant consideration, namely the protection afforded by the Khalili/Nasr faction.
When assessing whether there is a real chance of serious harm[5] it was plainly open to the Reviewer to find, as he did, that the Khalili/Nasr faction acts to keep the peace in the Jaghori district and makes the area secure, and to have regard to the protection offered by the Khalili/Nasr faction in assessing whether the applicant faced a real chance of serious harm.
[5] Siaw ibid
I agree with and adopt the reasoning of this Court in SZQDZ in its consideration of an identical ground:
38 This ground of the amended application proceeds on a false premise, namely, that the Reviewer concluded that the Hizb-I Wahdat Khalili/Nasr faction provided the applicant with some form of surrogate state protection. The Reviewer did not do this; instead he found that the presence and operation of that faction in the Hazarajat had the practical effect of excluding the Taliban from operating there. To conclude that a political organisation’s military force effectively excludes the influence of another is a very different thing to saying that the former provides surrogate state protection to individuals living within its area of control.
39 Consequently, this ground does not disclose error on the Reviewer’s part.
Ground 4 - no evidence
The applicant's submissions make clear that this ground refers to the adequacy of protection afforded by the state of Afghanistan.
This ground is misconceived. As I have previously stated, the Reviewer did not make any finding, nor was he required to make any finding, as to the adequacy of the protection afforded by the Afghan state.
Ground 5 - misunderstood the correct test to be applied
In response to this ground, I again agree with and adopt the analysis of this Court in SZQDZ in finding:
45 The applicant submitted that the Reviewer was required to consider whether his unwillingness to return to the Jaghori district in Afghanistan was objectively reasonable. He submitted that there were several possible impediments to his return which were relevant to whether it was reasonable of him to be unwilling to return there, namely:
a)his freedom of movement would be significantly curtailed;
b) his safety was illusory or unpredictable;
c)the quality of protection offered by the Hizb-I Wahdat Khalili/Nasr faction was questionable; and
d)there may have been conditions attached to any protection offered by the faction.
46 However, the issue was not whether it was reasonable and practicable for the applicant to relocate from his home district in Afghanistan but whether, were he to return to it, he would have a well-founded fear of persecution for a Convention reason. Considerations relevant to relocation within a person’s country of nationality are not relevant to the question of whether a person can return to their home district or area and live there without a well-founded fear of persecution for a Convention reason. Consequently, the fifth ground of the amended application does not disclose error on the Tribunal’s part.
Ground 6 - procedural fairness
Ground 6 contains two complaints of denial of procedural fairness. Both would fail for want of evidence because the applicant has not filed a transcript of the interview, and the Reviewer’s reasons alone do not provide a sufficient evidential basis for the breach of procedural fairness he alleges of matters not being put to him: NAOA v Minister for Immigration [2004] FCAFC 241 at [21].
The first complaint in Ground 6 is that the Reviewer failed to alert the applicant to the “determinative weight” given to the protection afforded by the Khalili/Nasr faction.
Insofar as the relevant country information contained material that was adverse, credible, relevant and significant, that relevant information was expressly provided to the applicant for his comment, through the natural justice letter sent on 17 January 2011[6]. The Reviewer is not required to put the applicant on notice of the weight that he may give to any evidence, including country information.
[6] RD 158 and following, see especially the country information which was enclosed at RD 165
The second complaint of denial of procedural fairness is in relation to the adverse credit findings made by the Reviewer.
It is plain that the applicant was on notice that his credibility was at issue in light of the Reviewer's account of his interview with the applicant (see RD 184). Furthermore similar adverse credit findings had previously made by the delegate (eg at RD 133) .
The rules of procedural fairness do not require a decision maker to expose his or her thought processes or provisional views for comment before making the decision: Minister for Immigration v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J, or to
give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.[7]
[7] SZBEL v Minister for Immigration (2006) 231 ALR 592 at [48]
The complaint of denial of procedural fairness cannot be made out.
In summary, the amended application is misconceived in that the adequacy of state protection is not ordinarily relevant to an inquiry relating to the entitlement of an individual to receive protection, in the absence of a finding of fact that an applicant faces a real risk of harm.
It is true, and I accept, that the question of state protection may be relevant to the consideration of the well-foundedness of a fear of harm, but even there it is necessary to make factual findings on what the risk is. If a decision maker does not accept the factual assertions made by an applicant and therefore does not accept that an applicant faces any risk, the question of the adequacy of state protection against a risk which is not accepted is, in my view, irrelevant. In the present case the Reviewer did not accept some of the particular factual assertions made by the applicant.
More generally, the Reviewer did not accept that the applicant faced a well-founded fear of harm simply on the basis that he was a Hazara Shia. I do not see in the Reviewer’s decision any findings on the factual claims made by the applicant that called for a consideration of the adequacy of state protection, in respect of particular harm to which the applicant was allegedly at risk. That is because the Reviewer did not accept those assertions. The Reviewer did consider questions of the safety of the applicant in his home district, having regard to the obvious fact that the security situation in Afghanistan is fragile and there is a level of risk to which anyone in Afghanistan is subject.
The Reviewer concluded that the circumstances in the applicant’s home district were certainly no worse and probably somewhat better than in other areas of Afghanistan, and that protection from local leaders was available in respect of the risk of generalised violence. However, even if the Reviewer had been wrong on that and the applicant did face a well-founded fear of harm against generalised violence because of the security situation in Afghanistan, it would not follow that there was any Convention nexus with that harm.
As I have already noted, the issues raised in the present application were considered recently by this Court. In SZQGU v Minister for Immigration & Anor [2011] FMCA 718, Smith FM granted an extension of time but found no error in the Reviewer’s decision after considering propositions very similar to those being advanced in the present application. In SZQDZ, Cameron FM refused an extension of time in circumstances analogous to the present. His Honour gave careful consideration to the grounds being advanced in that application, which I cannot distinguish from the grounds advanced in this application, and found no merit in those grounds. As I have already noted, I agree with and adopt his Honour’s reasons. I consider that his Honour was right in refusing the extension of time in that case. It was inevitable that initially a range of legal issues in relation to the assessment of claims of offshore entry persons would need to be considered by this court on a final basis. The present issues were considered in SZQGU and rejected. They were considered again in SZQDZ and an extension of time for the filing of the application was refused.
The only additional element I see in the present application is the assertion of a want of procedural fairness. However, as I have already noted, there is no evidentiary basis for those assertions.
I conclude that the applicant cannot succeed upon the grounds advanced in the amended application and that it would be in the interests of the administration of justice for the extension of time application to be refused, and I so order.
In consequence of the dismissal of the application, the Minister is seeking an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 October 2011
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