SZUSH v Minister for Immigration
[2015] FCCA 1013
•21 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1013 |
| Catchwords: MIGRATION – Refusal of an extension of time to review a decision of the Refugee Review Tribunal. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.417, 477 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration v Al Sham [2001] FCA 919 Minister for Immigration v Eshetu (1999) 197 CLR 611 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 | ||
| Applicant: | SZUSH | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1942 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Ford of Hugh Ford & Associates |
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
INTERLOCUTORY ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1942 of 2014
| SZUSH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 21 April 2015 I rejected the applicant’s request for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (Migration Act). I also made a costs order against her. The following are my reasons for those orders.
On 10 July 2014, the applicant sought judicial review of a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 18 November 2013. The judicial review application was filed some 200 days after the expiry of the period prescribed for such an application in s.477(1) of the Migration Act.
On 11 September 2014 I made the following orders:
1.The Court directs that the proceedings be transferred to the Canberra registry of the Federal Circuit Court.
2.The second applicant be removed as an applicant in the proceedings.
3.The application, insofar as it seeks review of a decision by or on behalf of the Minister pursuant to s.417 of the Migration Act 1958 (Cth) is struck out for the reasons advanced in SZUQH v Minister for Immigration [2014] FCCA 1704.
BY CONSENT, THE COURT ORDERS THAT:
1.The First Respondent file and serve a Court Book by 25 September 2014.
2.The Applicant file and serve any affidavit containing additional evidence relied upon, including in support of the applicant’s explanation for the delay in filing her application to the Court, and including any transcript of the tribunal hearing, by 31 October 2014.
3.The Applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 31 October 2014.
4.The application is listed for a hearing on an extension of time and, if required, a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) at 10.15am on 10 April 2015 in Canberra.[1]
5.The Applicant file and serve written legal submissions and list of authorities 14 days before the hearing.
6.The First Respondent file and serve written legal submissions and list of authorities 7 days before the hearing.
7.Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days clear notice of the time, date and place of that listing.
[1] At the applicant’s request, the listing was varied to 21 April 2015 in Sydney.
8.Costs of today are costs in the proceedings.
The background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 14 April 2015.
The applicant is a citizen of Zimbabwe who arrived in Australia on 1 November 2010 on a Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) visa.[2]
[2] Court Book (CB) 11 and 13.
The applicant claims protection based on her alleged fear of persecution in Zimbabwe by reason of her involvement with the Movement for Democratic Change (MDC) political party in Zimbabwe.[3] In summary, her claims are as follows:
[3] The applicant's claims are set out at items 42 to 46 of her application for a protection visa at CB 17-20, her handwritten statement of claims at CB 110-121 and as part of the submissions made to the Tribunal at CB 193-194. The applicant elaborated on her claims at a Departmental interview (CB 173) and at hearings before the Tribunal (CB 305-312).
a)from 2007, the applicant and her brother were involved with the MDC by driving supporters to rallies, encouraging people to join the party, putting up posters and handing out flyers;[4]
[4] Decision Record (DR) [6]-[8].
b)the applicant was the deputy organising secretary of an electoral ward for the MDC from 2007 to 2009 and, because she was effective in the 2008 presidential election, she became a target of the Zimbabwe African National Union - Patriotic Front (ZANU-PF);[5]
[5] Ibid [24].
c)the applicant and her family were then subjected to the following:
i)threats to their lives by supporters of the ZANU-PF;[6]
[6] Ibid [9], [11].
ii)the applicant's brother was killed in June 2009 when his car was petrol bombed. There were no witnesses because this happened at night. The authorities did nothing about this;[7]
[7] Ibid [9], [13].
iii)the applicant was not able to return home after this time because ZANU-PF had reported to the chief of her home village, Makoni (a ZANU-PF member) that she supported the MDC. Her relatives were afraid to have her stay with them because ZANU-PF sometimes burned down the houses of MDC members;[8]
[8] Ibid [11], [14].
iv)some of her friends were abducted and repeatedly raped at a ZANU-PF camp;[9]
v)despite this activity, ZANU-PF and their supporters were never arrested for the crimes they committed, and the authorities would not protect her as they are 'in the hands' of the ZANU-PF;[10]
vi)she stopped attending rallies in 2009 out of fear for her life;[11] and
vii)she was abducted by members of ZANU-PF in September 2009. She was stabbed and fainted. Her kidnappers thought she was dead and left her at a cemetery. Some women then arranged for her to go to Botswana where she worked until June 2010. She returned to Zimbabwe between June and October 2010 in order to have her passport application processed for travel to Australia. She stayed “undercover” during this time out of fear of violence from ZANU-PF militia;[12]
d)the applicant claimed to fear returning to Zimbabwe because:
i)MDC would not be able to protect her because they do not have an army or a strong security force;[13]
ii)if she returned, ZANU-PF and their supporters would beat, rape or kill her as they were “after her” when she ran away to Botswana and were still looking for her;[14] and
iii)the mere fact that she had been out of the country meant that she would be targeted upon return.[15]
[9] Ibid [9].
[10] Ibid [9], [11].
[11] Ibid [15].
[12] Ibid [12], [17], [20].
[13] Ibid [10].
[14] Ibid [10], [15].
[15] Ibid [10].
The applicant further explained that:
a)she did not mention several of the incidents that had happened to her when she completed her original application because she did not have time to explain her situation thoroughly;[16]
b)the delay in submitting her protection visa application was attributable to her belief that she could stay here working after she completed her nursing degree and she was not aware that she could apply for protection. She was not aware that her husband had previously unsuccessfully applied for a protection visa until August 2012;[17] and
c)the allegations about her claims being false (which were explicitly disregarded by the Tribunal) were likely from her former employer who might be taking “revenge” on her for reporting them to the Fair Work Ombudsman.[18]
[16] Ibid [15].
[17] Ibid [21], [25].
[18] Ibid [22].
Tribunal decision
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations. The Tribunal identified several issues with the applicant's credibility, namely:
a)her lack of knowledge about MDC political leaders;[19]
b)that the evidence she put forward in support of her purported involvement with the MDC was inconsistent or implausible, given that the MDC had no record she had ever been a member;[20]
c)inconsistencies in her account of the dates of significant events;[21]
d)that she remained living in Chitungwiza for some time after she claimed to have been abducted and assaulted, indicating she did not in fact fear harm in this area;[22]
e)that she had not applied for protection in Botswana, indicating that she was not fleeing persecution in Zimbabwe at the time;[23]
f)that her movements between Botswana and Zimbabwe indicated she did not in fact fear harm in Zimbabwe;[24] and
g)there were inconsistencies between her original application and later claims, and in her account of how that application was prepared.[25]
[19] Ibid [32]-[33], [45], [67]-[68].
[20] Ibid [50]-[63], [72]-[80].
[21] Ibid [34].
[22] Ibid [35], [46], [71].
[23] Ibid [36], [70].
[24] Ibid [38]-[41].
[25] Ibid [43], [65]-[66], [69].
Based upon these credibility issues, the Tribunal did not accept the applicant's claims about involvement with the MDC and the resulting problems she suffered.[26] Further, the Tribunal referred to country information and concluded that she would not be in danger for having lived outside Zimbabwe.[27]
[26] Ibid [81].
[27] Ibid [47], [82].
The judicial review application
The applicant has not taken up the opportunity I afforded her to file and serve an amended application.
There are eight grounds listed in support of the applicant's application for an extension of time and nine grounds of review listed in her application for judicial review filed on 11 July 2014. Grounds 1, 9 and 17, which seek review of a decision by or on behalf of the Minister pursuant to s.417 of the Migration Act, were struck out by me on 11 September 2014. Each of the remaining grounds is duplicated as both a ground of application for extension of time and a ground of application for judicial review, as follows:
a)"The Tribunal took into account an irrelevant consideration, that is, the fact that the applicant was not a member of the MDC opposition party" (Grounds 2 and 10);
b)"The Tribunal took into account an irrelevant consideration namely the fact that the applicant had made a new claim. The applicant had every right to make a new claim. The fact that a new claim is made does not of itself mean that all of the claims have been fabricated" (Grounds 3 and 11);
c)"The Tribunal has acted unlawfully by making an error of law. The Tribunal has incorrectly applied the law as it applies to the issue of credibility" (Grounds 4 and 12);
d)"The Tribunal has taken account of an irrelevant consideration that is, the fact that the applicant did not apply for protection in Botswana. The fact that the applicant did not apply for protection in Botswana does not mean that the applicant was not the subject of persecution" (Grounds 5 and 13);
e)"The Tribunal took account of further irrelevant considerations when arriving at its decision namely that the applicant had made herself into a target of persecution" (Grounds 6 and 14);
f)"The Tribunal took into account further irrelevant considerations because of the fact that an individual who answered the phone had no idea as to who the applicant was" (Grounds 7 and 15); and
g)"The Tribunal made further errors of law by asserting that the existence of an inconsistent evidence [sic] means that all of the claims by the applicant have been fabricated" (Grounds 8 and 16).
The application is supported by written submissions filed on behalf of the applicant on 31 October 2014.
I had before me as evidence the court book filed on 24 September 2014.
Both the applicant and the Minister augmented their written submissions orally at the hearing on 21 April 2015.
Consideration
I am not satisfied that it is in the interests of the administration of justice to make the order sought under s.477(2) of the Migration Act. I adopt the Minister’s submission concerning the relevant principles to be applied, derived from the decision of this Court in SZNZI v Minister for Immigration & Anor[28] at [11] per Smith FM:[29]
The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play […] None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b).
[28] [2010] FMCA 57.
[29] See also SZRIQ v Federal Magistrates Court of Australia & Ors [2013] FCA 1284 at [45]-[48].
The applicant did not prior to the hearing on 21 April 2015 provide any explanation as to why she was 200 days late in applying for judicial review of the Tribunal's decision. Nor did the applicant refer to any other circumstance which is relevant to the Court's exercise of its discretion under s.477(2). It emerged at the hearing on 21 April 2015 that her sole reason for seeking an extension of time is because she asserts that the grounds of the application have merit. The Minister submits that the applicant's grounds are without merit.
In my view, the grounds advanced in the judicial review application, while hypothetically arguable, do not bear scrutiny. Those grounds are dealt with comprehensively in the Minister’s written submissions, with which I agree.
Grounds 10, 11, 13, 14 and 15
By Grounds 10, 11, 13, 14 and 15 the applicant points to a number of irrelevant considerations the Tribunal allegedly took into account, causing it to fall into jurisdictional error. For the reasons set out below, I accept that none of the purported errors identified by the applicant constitute a jurisdictional error.
First, none of the impugned considerations were "irrelevant". In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[30] (Peko-Wallsend) at 40, Mason J said that:
[i]n the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
[30] (1986) 162 CLR 24.
All of the impugned considerations went to the Tribunal's assessment of the credibility of the applicant. The Tribunal is entitled to assess the applicant’s credibility[31] and, for the reasons that follow, each of the impugned considerations were relevant to the Tribunal's assessment of the credibility of the applicant:
a)the fact that an applicant has made new claims which might have been expected to have been included at an earlier stage is relevant to their credibility.[32] Contrary to the submissions of the applicant at [41], the Tribunal did not simply conclude that "a new claim is a concocted claim". Rather, the Tribunal reasoned (permissibly) that the applicant's failure to raise serious matters at an earlier stage of proceedings bore negatively on the credibility of her claims;[33]
b)the fact that an applicant has failed to avail him or herself of an opportunity to claim protection elsewhere (Botswana) is relevant to the genuineness of his or her claims.[34] Contrary to the submissions of the applicant at [33] that the Tribunal had no evidence that the applicant would be safer in Botswana, the Tribunal put to the applicant country information which indicated that "Botswana had a very well-developed system for providing protection for refugees and it did not expel or return people who were refugees";[35]
c)the applicant's claim for a protection visa was predicated on the consequences of her involvement with the MDC, so the applicant's membership of that organisation bears centrally on the veracity of her claims. The claim made on behalf of the applicant in her written submissions at [10] that she would suffer persecution in Zimbabwe regardless of whether she was a member of the MDC (and that membership of the MDC was therefore an "irrelevant consideration") is a new claim that was not made before the Tribunal;
d)the fact that there was a member of the MDC who might have been expected to know the applicant if her claims were genuine (and who did not know her) also bears centrally on the credibility of her claims. With the applicant's permission, the Tribunal attempted to contact the author of a letter which purported to establish the applicant's membership of the MDC, by using the contact details set out in the letter.[36] The person who answered the phone said that he had not written the letter and that his real name was not the name that appeared in the letter.[37] The applicant's written submissions at [6] and [44]-[49] merely reiterate explanations as to why this occurred which were rejected by the Tribunal, or raise new factual claims that were not before the Tribunal; and
e)the applicant misrepresents the Tribunal's reasoning by her contention that it found that "the applicant had made herself into a target of persecution". Rather, the Tribunal found that the applicant's decision to remain in Zimbabwe during certain periods in which she claimed to have feared harm cast doubt upon the genuineness of her claims.
[31] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at [56]; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at [31]; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at [49].
[32] See WZAPP v Minister for Immigration & Anor [2013] FCCA 270 at [60]: "Administrative decision makers routinely make adverse findings as a consequence of a party making a new claim which might be considered significant in the relevant factual context at an advanced stage of the administrative proceedings."
[33] DR at [43]-[44].
[34] See Minister for Immigration v Al Sham [2001] FCA 919.
[35] DR at [37].
[36] CB 216.
[37] DR at [72].
Secondly, it is a matter for the Tribunal to determine the weight to be given to material it has considered. In Abebe v Commonwealth[38] (Abebe) at [197] Gummow and Hayne JJ said:
[I]n the end, the criticisms made by the Applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.
[38] (1999) 197 CLR 510.
As such, it was legally permissible for the Tribunal to find that the applicant's evidence was not credible based upon the considerations impugned by the applicant, as well as other considerations.[39]
[39] See also Peko-Wallsend at 41; Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33].
Thirdly, the Tribunal's findings based upon the impugned considerations were open on the evidence and had a lawful justification or basis. The Tribunal's decision cannot be characterised as "unreasonable" in the sense that it was "illogical", "irrational", "disproportionate" or "lacking justification", which is the relevant threshold for jurisdictional error.[40]
[40] see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]; Minister for Immigration v Li [2013] HCA 18 at [68], [74] and [76].
Accordingly, I find that Grounds 10, 11, 13, 14 and 15 are without merit and fail to raise an arguable case for the relief sought by the applicant.
Grounds 12 and 16
By Grounds 12 and 16 the applicant claims that the Tribunal's decision was affected by jurisdictional error due to the Tribunal's impermissible application of the "law as it relates to credibility". The gravamen of the applicant's complaint is that the Tribunal "incorrectly applied the law as it relates to credibility" by relying upon "the existence of inconsistent evidence" to find that "all of the claims by the applicant have been fabricated". This reasoning is elaborated in the applicant's written submissions, which (when read as a whole) advance the proposition that the Tribunal's identification of inconsistencies in parts of the evidence given by the applicant should not have been used to make findings with respect to the genuineness of other parts or all of the evidence of the applicant. In brief, the applicant claims that the Tribunal incorrectly applied the law by:
a)finding that the applicant's claims were concocted because she had "made an apparently inconsistent/untruthful statement about her membership of a political party";[41]
b)finding that applicant's claims were concocted because of "the comments of a political representative" about "the Applicant's membership of a political party";[42]
c)failing to consider the effect of post-traumatic stress as an explanation for the apparently inconsistent statements made by the applicant;[43] and
d)finding that applicant's claims were concocted because she had "made an error in naming a particular political representative".[44]
[41] at [5].
[42] at [9].
[43] at [12].
[44] at [27].
In support of the submissions, the applicant seeks to rely upon the judgment of Kirby J in Minister for Immigration v SGLB,[45] and in particular his Honour's statement at [73] that "[t]here is no necessary correlation between inconsistency and credibility in [refugee] cases". The Minister submits that the reliance is misplaced. The applicant does not acknowledge that Kirby J was in dissent in that case, and the submissions fail to refer to, or to consider, what the majority said on the issue of credibility, notably the joint judgment of Gummow and Hayne JJ at [39]–[44]. Similarly, the applicant fails to acknowledge that Kirby J was also in dissent in Minister for Immigration v Rajamanikkam[46] and that his Honour's view does not represent the "position of the High Court". The Minister further submits that the quotation from Gummow and Hayne JJ's judgment in Abebe relied upon by the applicant is merely a cautionary dicta, and does not describe jurisdictional error.
[45] [2004] HCA 32.
[46] (2002) 210 CLR 222.
In any event, in my opinion, the applicant significantly mischaracterises the Tribunal's reasoning process. The Tribunal did not, as alleged by the applicant, base its overall finding that the applicant was not a credible witness on any individual inconsistency it identified. Rather, it had regard to the totality of the applicant's evidence, including the several inconsistencies it identified, and found that the weight of evidence supported that conclusion. In light of its function as an inquisitorial body, it is for the Tribunal to weigh the evidence before it in making its decision.[47] If there are significant inconsistencies in the evidence given by an applicant, then it is open to the Tribunal to find that it cannot accept any of the evidence provided by the applicant, subject to the requirement that the decision reached by the Tribunal must be "reasonable" in the sense described above. This threshold is not reached in this matter and the complaints made in the applicant's submissions merely express strong disagreement with the Tribunal's reasoning process.[48]
[47] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [68]; Abebe at [197].
[48] see Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40].
Accordingly, it is submitted that Grounds 12 and 16 are without merit and fail to raise an arguable case for the relief sought by the applicant.
Bias
Finally, the applicant raises a new claim in the written submissions, namely that the Tribunal was biased against the applicant. This claim is not supported by any evidence.
The applicant alleges that the Tribunal member has a "very poor track record when it comes to protection visa applications" and that his bias against the applicant was evident because he found that the applicant was "in a fit state to answer the questions" and did not take into account factors which may have explained inconsistencies in the applicant's evidence.[49] Elsewhere the applicant claims that:[50]
[t]the reason why the Tribunal asked for [further hearings] is because the Applicant had not made any overtly inconsistent statements and the Tribunal wanted another opportunity to catch the Applicant out and then use this as a reason to reject the application.
[49] applicant's written submissions at [19]-[20].
[50] at [44], and also see [48].
I accept the Minister’s submission that a claim of bias can only be made out where the Tribunal's conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.[51] The applicant's claims regarding the conduct and character of the Tribunal member are bald assertions that do not go to identifying any particular interest, affection, enmity or prejudice which may have influenced the Tribunal's decision. Nor do the applicant's assertions evince an apprehension of predisposition, tendency or propensity towards a given result.
[51] NADH of 2001 v Minister for Immigration [2004] FCAFC 328 at [14] per Allsop J.
I find that the claim of bias is without merit and fails to raise an arguable case for the relief sought by the applicant.
In his oral submissions, the applicant’s representative sought to develop the written submissions both in general terms and by particular reference to selected paragraphs in the Tribunal’s statement of reasons. The applicant takes issue with the Tribunal’s reasons at [4], [15], [22], [24], [25], [33], [35], [36], [40], [42], [43], [46], [47], [49], [50], [51], [58], [60] and [61]. It is, in my view, material that none of those paragraphs constituted the Tribunal’s conclusions, which commence at [64]. The applicant seeks to argue from points of principle as to the manner in which the Tribunal should conduct its review function. The applicant’s representative, in the course of oral submissions, reflected adversely on the presiding member in the case. There appears to have been some history between the two, although I note that the applicant’s representative before me was different from her representative before the Tribunal.[52]
[52] see DR [57] at CB 311.
The core propositions advanced on behalf of the applicant orally were that the applicant was not fit to participate in the hearings conducted by the Tribunal (of which there were apparently four) and that the Tribunal set out to find a basis on which to reject the applicant’s claim to protection on credibility grounds. Neither proposition could be sustained. On the question of the applicant’s fitness, in my opinion the Tribunal was entitled to reach the conclusion it did at [4] based upon the material before it[53] and its own assessment of the applicant at hearing.
[53] see CB 122.
As I have already noted, there is no substance to the allegation of bias. Further, there could be no serious allegation of unreasonableness in the legal sense. The adverse credibility conclusions reached by the Tribunal were open to it on the material before it. The applicant contends that the Tribunal’s decision depends critically on the finding that she was not a member of the MDC, whereas it should have found that she was a member of the MDC, in view of the supportive oral evidence ultimately given by her witness Mr Munanzvi.[54] In my view, however, the Tribunal was entitled to place greater weight on the adverse information obtained from the MDC Organisation in Zimbabwe.[55]
[54] see [58] at CB 311 and [60] at CB 312.
[55] see [80] at CB 316.
Conclusion
The applicant delayed for a significant period before filing her judicial review application. The applicant’s representative explained to me from the bar table on 21 April 2015 that the reason for the delay was a request for Ministerial intervention under s.417 of the Migration Act. He was acting for the applicant at the time and it may reasonably be concluded that the applicant made a considered choice on advice to pursue Ministerial intervention in preference to seeking judicial review. That in itself would be sufficient to reject the request for an extension of time.[56] I have, however, considered whether the grounds of review proposed are sufficiently strong to outweigh that consideration. As explained above, they are not. On analysis, they are not arguable.
[56] Vu v Minister for Immigration [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 April 2015
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