SZVMA v Minister for Immigration and Border Protection
[2016] FCA 1058
•31 August 2016
FEDERAL COURT OF AUSTRALIA
SZVMA v Minister for Immigration and Border Protection [2016] FCA 1058
Review of: SZVMA v Minister for Immigration and Border Protection [2016] FCCA 727 File number: NSD 629 of 2016 Judge: FARRELL J Date of judgment: 31 August 2016 Catchwords: MIGRATION – application under s 39B of the Judiciary Act 1903 (Cth) seeking review of a judgment of the Federal Circuit Court of Australia dismissing the applicants’ application for an extension of time in which to seek judicial review of a decision of the Refugee Review Tribunal – where Tribunal affirmed decision of the Minister to refuse to grant protection visas Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 48A, 417, 476, 476A(3)(a), 477
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25
ApplicantVUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
Parker v The Queen [2002] FCAFC 133
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77
SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389
SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151
SZVMA v Minister for Immigration and Border Protection [2016] FCCA 727
Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59
Date of hearing: 12 August 2016 Date of last submissions: 24 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Applicants: Mr J Williams Solicitor for the Applicants: Russell Byrnes Solicitors Counsel for the First Respondent: Mr H Bevan Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent submitted save as to costs Counsel for the Third Respondent: The Third Respondent submitted save as to costs ORDERS
NSD 629 of 2016 BETWEEN: SZVMA
First Applicant
SZVMB
Second Applicant
SZVMC
Third Applicant
SZVMD
Fourth Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
31 AUGUST 2016
THE COURT ORDERS THAT:
1.The application is dismissed
2.The first and second applicants pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The applicants are citizens of Libya. They are four members of a family. The father applied for a Protection (Class XA) visa on 19 March 2013. The mother and their two children applied for visas as members of his family group. On 24 July 2014, the Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed a decision of a delegate of the first respondent (Minister) made on 13 September 2013 to refuse the visas.
The applicants did not seek judicial review of the Tribunal’s decision within the 35 day period prescribed by s 477(1) of the Migration Act 1958 (Cth). They filed a “show cause” application in the Federal Circuit Court of Australia (FCCA) on 11 November 2014 seeking an extension of time in the exercise of the court’s jurisdiction under s 477(2). There was therefore a delay of approximately two months and 14 days in seeking judicial review of the Tribunal’s decision. In an affidavit affirmed in March 2016, the father explained the reason for the delay (as written, save that an identifying descriptor has been omitted):
The reason why my application is late is:
(a)My Solicitor at that time the Refugee Review Tribunal (RRT) handed down its decision (the decision) on the 24th of July 2014 was Mr Sam Issa (Sam).
(b)Sam provided me with a copy of the decision shortly after the 24th of July 2014.
(c)I was not happy with Sam and so I sought other advice and went to see Dr Al Jabiri of International Migration and Support at Fairfield. I was advised that I could proceed another way and lodge a Protection Visa Application for my son [name] who was born after I had lodged the original Visa Application which is the subject of these proceedings.
(d)I accepted the advice of Dr Al Jabiri and he lodged the Protection Visa Application for my son which included my wife and I. I understood that this was an alternative to appealing the decision of the RRT. I understand that this further Application was lodged on 24 August, 2014.
(e)Subsequently I was informed by Dr Al Jabiri that the Department of Immigration refused to accept the new Application because it had my name and my wife’s name on it. Acting on the advice of Dr Al Jabiri we agreed to have our names removed so that the new Application would be accepted.
(f)Once the Application was amended and re-lodged I was advised by Dr Al Jabiri that I should lodge an appeal against the decision of the RRT. This was in September, 2014 after the time for lodging such Appeal had expired.
(g)Dr Al Jabiri recommended that I see a solicitor to help me lodge the Appeal and I was referred to my current solicitor Matthew Byrnes on or about 30 September, 2014. I contacted that solicitor immediately and sent to him a copy of the decision on 2 October, 2014.
(h)Mr Byrnes briefed Counsel on 3 October, 2014 and received advice from Counsel on 31 October, 2014.
(i)On 6 November, 2014 the Appeal was ready to be filed and I was asked to pay a filing fee. I paid such fee on 7 November, 2014 and the Appeal was lodged on 11 November, 2014.
The primary judge dismissed the application on 4 April 2016: see SZVMA v Minister for Immigration and Border Protection [2016] FCCA 727 (SZVMA v MIBP).
On 3 May 2016, the applicants applied to this Court for judicial review of the primary judge’s decision pursuant to s 39B of the Judiciary Act 1903 (Cth).
PROTECTION CLAIMS MADE
The claims made by the father in his protection visa application and before the Tribunal at the hearing on 14 May 2014 and 17 June 2014 are usefully summarised by the primary judge at J[4] (as written, identifying descriptors omitted):
a.the [father] claims to fear returning to Libya because he travelled to Australia with his wife and family so that his wife could study on a Masters of Public and Nutritional Health Ghadaffi government sponsored scholarship;
b.the family returned to Libya in August 2011 for the birth of their second child. They returned to Australia in November 2012, after waiting for the grant of a visa for their newborn baby;
c.while in Libya the [father]’s cousin was killed. The [father] was stopped by militia who beat him and confiscated his vehicle. The family is from Benghazi which has been infiltrated by radical Islamists who are extremely violent and supported by Al Quaeda networks;
d.the [father] opposes the militia which will bring him to the adverse attention of the militia;
e.the [mother] is an academic and women who engage in academia or the workforce are suppressed under such fundamentalist regimes; and
f.at the Tribunal hearing the [father] raised two significant new claims - that his brother had served in the Gaddafi military and the [father]'s family were imputed with a pro-Gaddafi profile as a result of this; and that the Ansar al-Sharia militia had attempted to forcibly recruit the [father] in Libya and would harm him if he returned and refused to join them. The [father] claimed that his business in Libya had been forced to close because of his refusal to join the militia.
All evidence in support of these claims was advanced by the father. At paragraph [46] of the Tribunal’s Statement of Decision and Reasons (Decision Record or DR) the Tribunal notes that the mother had submitted Part D of Form 866 stating that she had no claims of her own. The Tribunal accepted that the applicants were unaware of the interview with a delegate of the Minister and therefore did not attend the interview. The Tribunal hearing on 14 May 2014 was abandoned due to interpretation difficulties. Only the father appeared at the Tribunal hearing on 17 June 2014. The father advised the Tribunal that the mother did not attend the Tribunal hearing because she was sick with anaemia but did not provide a medical certificate or request an adjournment.
TRIBUNAL’S DECISION
The primary judge accurately summarised the Tribunal’s reasoning at J[6]-[7]:
The Tribunal affirmed the decision under review. It found that the [father] was not a credible witness and had fabricated his evidence in relation to his core claims. In summary, the Tribunal:
a)was not satisfied that the [father]’s brother served in the Gaddafi military or that the [father]’s family had a pro-Gaddafi profile. Consequently, the Tribunal found there was no real chance or real risk of the [father] being harmed as a result of his family's real or imputed political opinions;
b)was not satisfied that the group called Ansar al-Sharia attempted to forcibly recruit the [father] or his cousin, or that the Ansar al-Sharia targeted males who did not agree to join them. The Tribunal did not accept that the [father] was harmed or threatened by Ansar al-Sharia, and found there was no real chance or real risk of the [father] being harmed as a result of any refusal to join;
c)did not accept that the [father] had any interest in expressing in politics or expressing his political views if he was to return to Libya, and did not accept that the [father] had any kind of political profile which would bring him to adverse attention;
d)was not satisfied there was a real chance or real risk the [father] would be harmed because he was a member of the Al Hassy tribe;
e)was not satisfied, based on independent country information, that there was a real chance or real risk of either the [father] or the [mother] being targeted or imputed with a pro-Gaddafi political opinion because of the [mother]’s Gaddafi government sponsored scholarship to study in Australia;
f)was not satisfied, based on independent country information, that there was a real chance or real risk that the [mother] would be harmed as a female academic in Benghazi. While the Tribunal accepted that there was some discrimination against women and that the [mother] may be prevented from driving a car, the Tribunal did not accept that the type of harm women in Libya faced constituted serious or significant harm;
g)considered reports concerning generalised violence, however did not consider that the applicants would be targeted for harm for a Convention reason, and found that any risk of harm they would face was as a result of random violence. Therefore, the applicants did not satisfy s.91R(1)(a) of the Migration Act 1958 (Cth) (Migration Act), as a Convention reason or reasons did not constitute an essential and significant motivation for the harm feared.
With respect to the complementary protection criterion, the Tribunal was not satisfied that the risk to the applicants was such that the applicants personally faced a real risk of significant harm. The Tribunal noted s.36(2B)(c) of the Migration Act, which provides that there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and not by the applicant personally. The Tribunal applied this provision to find there was no real risk of harm to the applicants as a result of generalised violence in Libya, at [54].
DECISION OF THE FCCA
The applicants’ relied on the affidavit affirmed by the father in March 2016 explaining the reasons for the delay in seeking review of the Tribunal’s decision (see [2] above). The primary judge also had before him the court book filed on 5 January 2015 and an affidavit from the applicant’s solicitor, Mr Byrnes, which annexed a bundle of country information which had been referred to by the Tribunal in its Decision Record. The applicants also relied on a further amended application which the primary judge received by leave on the day of the hearing.
The Minister opposed the grant of an extension of time.
Before turning to consider the applicants’ application, the primary judge noted (at J[12]) that the Court’s discretion to extend time is a “broad one” and that considerations “including the length of the delay, the explanation for the delay, any issue of prejudice and the merits of the grounds of review (all bearing upon the interests of the administration of justice)” are generally considered by the FCCA in determining whether to grant an extension of time under s 477(2) of the Migration Act.
The primary judge noted that the delay was “not insignificant” and the explanation for the delay was “not, to my mind, a convincing one” (at J[13]). He noted the similarity of the circumstances to those he dealt with in SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151, which decision was “not disturbed” on judicial review (at J[15]). In both cases the applicant made a considered decision to pursue another course rather than pursue a timely application in the FCCA for judicial review of the Tribunal’s decision (at J[16]).
He then went on to recognise (at J[18]) that there “will be cases where the interests of the administration of justice will nevertheless compel the granting of an extension of time” and that such cases “may include circumstances in which there is an obvious or apparent issue of jurisdictional error by the decision maker under review”.
The primary judge proceeded to consider the merits of the applicants’ grounds of review which addressed the father’s concern for the mother’s safety in Libya on the basis that “[w]omen who engage in academia or the workforce are ruthlessly suppressed under such fundamentalist regimes”. He noted that two arguments were made: first, that the Tribunal erred in its consideration of relevant and available country information; and second that the Tribunal erred in its reasoning that because the mother already wore the hijab, she could achieve a level of safety by continuing to do so, relying on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (S395/2002 v MIMA).
The primary judge found (at J[19]) that these grounds were “arguable” but they were “by no means compelling”.
In relation to the first argument, the primary judge found (at J[20]) that it was “certainly possible that the Tribunal put a gloss on that country information in order to arrive at the conclusion reached” and it was “possible that a different Tribunal might reach a different view on the same information”, but the argument that the Tribunal overlooked relevant material or a relevant consideration was “not strong”. The primary judge noted that where a report from the Department of Foreign Affairs and Trade is unavailable, it is the Tribunal’s choice what country information it takes into account. Although the conclusions reached by the Tribunal were “perhaps debatable” they were “open to it”.
In relation to the second argument, the primary judge noted (at J[21]-[22]) that it was “one thing to wear a hijab by choice” but that it was “another thing to be compelled to do so”; that it was “certainly possible that the Tribunal was wrong in its interpretation of the material in terms of the risk faced by the [mother]” and that a “different Tribunal may have reached a different conclusion”. While the primary judge conceded (at J(24) that there is an “element of speculation about circumstances in Libya” these were nonetheless “matters for consideration by relevant decision makers” and did not compel a conclusion that an extension of time should be granted so that these arguments could be further considered in the FCCA. The primary judge noted (at J[23]) that the mother’s claim to fear harm as a female in Libya (and particularly as a female academic) would be revisited when the Minister considers the claims in the protection visa lodged in respect of the third child.
Accordingly, the primary judge refused the applicants’ application for an extension of time and ordered that the father and mother pay the Minister’s costs, fixed in the sum of $4,500.
APPLICATION TO THIS COURT
The applicants’ filed their originating application for relief under s 39B of the Judiciary Act 1903 (Cth) on 3 May 2016. The application raised the following two grounds of review (as written):
Ground 1 – Unreasonableness – Denial of the Extension of Time
1.The decision by the primary judge to deny the applicant an extension of time was unreasonable.
Particulars
a)At [17], the primary judge erred by finding that ‘[h]aving made a choice on a particular course of action, it is not to my mind a persuasive explanation to say now that different advice has been received and a different course is being followed. The conclusion I draw is that a satisfactory explanation for the delay in coming to Court has not been advanced.’
Ground 2 – Jurisdictional Error of Law – Arguable Case
2.The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question by finding that the applicant did not raise an arguable case.
Particulars
(a) Country Information
a)The applicants advance two arguments in the present proceedings concerning the claims for protection by the [mother]. They turn first on the proposition that the Tribunal erred in its consideration of relevant and available country information.
b)At [20], the primary judge was correct to find that ‘[i]t is certainly possible that the Tribunal put a gloss on that country information in order to arrive at the conclusion reached. It is possible that a different Tribunal might reach a different view on the same information.’
c)However, the primary judge erred by finding that ‘[i]n my view, however, the argument that the Tribunal overlooked relevant material or a relevant consideration is not strong. The information available was considered by the Tribunal and an assessment made on it.’
(b) Membership of a Social Group – Female Academic
a)The second proposition advanced on behalf of the [mother] is that the Tribunal fell into the error identified by the High Court in Appellant S395/2002 v Minister for Immigration. This involves consideration of her wearing of the hijab or headscarf.
a)At [22], the primary judge was correct to observe that ‘[i]t is certainly possible that the Tribunal was wrong in its interpretation of the material in terms of the risk faced by the [mother]. A different Tribunal may have reached a different conclusion.’
b)At [24], the primary judge was correct to observe that ‘[t]here is an element of speculation about circumstances in Libya in the absence of a country report from DFAT. As I observed in SZUWX, the Tribunal was to some extent grappling in the dark. I am not aware of any significant improvement in circumstances in Libya.’
c)However, the primary judge erred by finding that ‘[t]hese are matters for consideration by relevant decision makers, but they do not compel a conclusion by the Court that an extension of time should be granted so that the arguments can be further considered on this application.’
The application was supported by an affidavit of the applicants’ solicitor, Mr Byrnes made on 2 May 2016 which annexed the relevant documents from the proceedings in the FCCA.
Applicants’ submissions
The applicants’ written submission and submissions made by their counsel at the hearing did not reflect the demarcation of issues suggested by the particulars in the two grounds in the application.
In relation to Ground 1, the applicants contended that the primary judge’s decision to deny them an extension of time was an unreasonable exercise of the discretion, relying on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (MIC v Li) per Hayne, Kiefel and Bell JJ at [63] and [76]. They relied on the particulars to Ground 1 to submit that the primary judge’s finding that “a satisfactory explanation for the delay in coming to Court was not… advanced” was unreasonable. The applicants’ written submissions argued in the alternative that while the primary judge was correct to observe at J[18] that “[t]here will be cases where the interests of the administration of justice will nevertheless compel the granting of an extension of time…[where] there is an obvious or apparent issue of jurisdictional error by the decision maker under review”, the primary judge erred by finding (at J[19]) that, while the two grounds advanced by the applicants were “arguable”, they were “by no means compelling”.
The applicants submitted that:
(1)The extent of the delay was minor, being two months and 14 days.
(2)There was a satisfactory explanation for the delay: through no fault of their own, the applicants relied on and trusted the advice of their former migration agent to apply for a protection visa for their newborn third child (including the father and the mother in the application) which was incorrect or misconceived and which caused the delay in filing their application for judicial review of the Tribunal’s decision in the FCCA.
(3)There is little to no prejudice to the respondents.
(4)It is in the interests of the Australia community that the applicants have their refugee claims reviewed according to Australian and international law.
(5)The extent of the delay is minor and should not displace the merits of the application.
(6)The Tribunal and then the primary judge fell into jurisdictional error: the mother faces a real risk of harm at the hands of Islamic extremists in Libya (including death, torture and inhuman or degrading treatment) on the basis that she is a female academic who does not wish to abide by their “strict, oppressive and sexist doctrines” including the dress code in Libya. The Tribunal erred at DR[54] by finding that the fact the mother wears a hijab would lessen the risk of her being subject to adverse attention in Libya as it is wrong in principle for a Tribunal to find that an applicant is required, or can be expected, to take reasonable steps to avoid persecutory harm, relying on S395/2002v MIMA per McHugh and Kirby JJ at [50].
In relation to Ground 2, the applicants submitted that even if there was no adequate explanation for the delay, the jurisdictional errors by the Tribunal identified in Grounds 2 and 3 of their further amended application in the FCCA are such that the interests of the administration of justice compelled the grant of an extension of time. In the applicants’ submission those grounds “establish clear jurisdictional errors by the Tribunal and the primary judge”. Those grounds were (as written):
Ground 2: Relevant Considerations
2.The second respondent failed to take into account a relevant consideration in the exercise of power or failed to give proper, genuine or realistic consideration of the [father]’s claims or integer’s of those claims.
Particulars
Country Information – Claims relating to the [mother]
n)At [54] of the decision record, the second respondent found that ‘[t]he Tribunal is not satisfied on the basis of the evidence before it, that the independent country information suggests that there is a real chance or risk that she would be harmed as a female academic in Benghazi.’
o)However, there was an abundance of country information before the second respondent supporting the claims of the [mother], including:
a)At [47], footnore 15, ‘After Gadhafi, Libyan women now press back against rising Islamists’, Associated Press (AP), 7 March 2013, CX3 1 7709; ‘O&A: “Libyan Women Were Handed Over as Spoils of War”, Inter Press Sentence, 19 December 2013, CX318046.
b)At [48], footnote 17, ‘Country Reports on Human Rights Practices for 2012 – Libya’, US Department of State, Section 6, [48], footnote 18 ‘Libya Status of Women Survey 2013’, International Foundation for Electoral Systems September 2013, CIS27196.
d)At [48], footnote 19, ‘Libya’s Grand Mufti Wants to Veil Female Teachers’, Voice of America (VOA), 15 October 2013, CX316636.
e)At [54] the Tribunal itself found that ‘the country information suggests that there is discrimination against women generally in Libya and there are religious issues in relation to female teachers and academics.’
f)However, erred by not being satisfied ‘on the basis of the evidence before it, that the independent country information suggests that there is a real chance or risk that she would be harmed as a female academic in Benghazi.’
Ground 3: Misapplication of law or failure to ask the correct question
3.The second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question, with regard to the
Particulars
The discrimination faced by the [mother]
a)At [53], the second respondent ‘discussed this country information with the [father] (as the [mother] failed to attend the hearing). In response the [father] stated that she would not be permitted to drive a car and would have to wear the hijab. When the Tribunal put to him that her photograph shows her already wearing the hi jab he stated that he had no comment in relation to this.
b)At [54], the second respondent observed that the ‘…country information suggests that there is discrimination against women generally in Libya and there are religious issues in relation to female teachers and academics…’
c)At [54], the second respondent erred by finding that ‘the evidence before the Tribunal suggests that the [mother] currently wears a hijab which the Tribunal considers would lessen the risk of her being subject to adverse attention as the reports referred to above suggest that this is a significant issue for the fundamentalist Islamists.’
d)The second respondent fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct “particular social group”, that being a female academic forced to comply with the doctrines of Islamic fundamentalism. In so far as decision of the Tribunal found that the [mother] is required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.
The applicants submitted that the Tribunal failed to take into account relevant considerations and did not “give proper, genuine and realistic consideration to the merits of the case”, relying on Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 and Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457. They also submitted that the Tribunal failed to consider corroborative evidence which may also constitute jurisdictional error, relying on Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. The submissions contain excerpts from the materials referred to in paragraph (o) in the particulars to Ground 2 of the further amended application in the FCCA.
The applicants further submitted that by finding that the mother currently wears a hijab and that this would lessen the risk of her being subject to adverse attention from fundamentalist Islamists (as the country information suggested that this was a significant issue for the fundamentalist Islamists), the Tribunal assumed that she would continue to do so and effectively broke the genus of women in Libya into two groups – discreet and non-discreet women. They say that the finding that the mother had not suffered harm in the past because she had acted discreetly was central to the Tribunal’s decision. Insofar as the Tribunal decided that the mother could be required or would be expected to take reasonable steps to avoid persecutory harm, it was wrong in principle and is irrelevant to the task to be undertaken by the Tribunal; indeed, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether she was forced to conform with strict Islamic dress codes so as not to attract attention. These submissions effectively tracked the language of S395/2002 v MIMA per McHugh and Kirby JJ at [50] and Gummow and Hayne JJ at [82] and [88].The applicants noted that laws or policies which target, or apply to a particular section of the population are not properly described as laws of general application, relying on the decision of the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19]-[21] and Kirby J at [72]. Relying also on Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 at [45], the applicants say that a law that “specifically requires female academics to be veiled as a symbol of wider discrimination and suppression is not a law of general application and may be regarded as a measure that, according to standards of civil societies, is not appropriately adapted to achieving a legitimate object” and the Tribunal erred by failing to consider this. It also erred by failing to consider whether the mother has a well-founded fear of persecution on the basis that she is a member of a particular social group, being an “academic woman in Libya” or an “academic woman who does not wish to abide by strict Islamic dress codes” if she returns to Libya, now or in the reasonably foreseeable future.
In submissions in reply at the hearing, counsel for the applicants noted that at J[20], the primary judge identified that the Tribunal had put a “possible gloss” on the country information. Counsel submitted that there was a disconnect between the country information and the Tribunal’s findings at DR[54] (outlined in the particulars set out above at [23]) and DR[64] (that there is generalised violence, primarily directed at public institutions and officials and the applicants would not be at any personal risk to which the general population was not exposed) such that the findings were not supported by the country information. Counsel also submitted that the primary judge should have weighed the length of the delay against the consequence of repatriation of the mother to Libya.
The applicants’ written submissions did not address the principles relevant to judicial review of the exercise of discretion by an inferior court at all and counsel’s oral submissions on the topic were sparse.
Minister’s submissions
The Minster submitted that the application ought be dismissed, having regard to the approach taken by the High Court in Craig v South Australia (1995) 184 CLR 163 at 176-178 and more particularly in this context by judges of this Court in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [43]-[53] per Foster J and SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [35]-[51] per Griffiths J (affirmed on appeal by the Full Court (Allsop CJ, Flick and Bromwich JJ) in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77). These cases highlight the need to distinguish between judicial review for jurisdictional error of a decision of an inferior court as opposed to an administrative tribunal or decision-maker.
In summary, the Minister submitted that:
(1)The primary judge had jurisdiction to hear and dispose of the application for an extension of time. The resolution of that issue lay within the authority of the primary judge.
(2)The primary judge correctly recognised that the discretion conferred under s 477(2) to extend time is a “broad one” and he correctly addressed the statutory task by considering relevant factors. The finding that the applicants’ explanation for delay was unacceptable was open to him. Even if the primary judge found that the merit of the application for judicial review of the Tribunal’s decision was “arguable” but “not compelling”, it remained a matter for him to balance that consideration with the other matters which he viewed as significant.
(3)In doing so, the primary judge did not misconstrue his task or the extent of his powers.
(4)There is no need for this Court to undertake a detailed review of the Tribunal’s decision. This is not review in the nature of an appeal: even if the primary judge was wrong in his assessment of the merits of the proposed application for judicial review of the Tribunal’s decision, such an error would be within jurisdiction, it is not a jurisdictional error.
(5)The passages of MIC v Li on which the applicants rely relate to the supervisory role of the Court in relation to administrative decisions, not judicial review of decisions of inferior courts. The primary judge’s refusal to extend time did not lack any evident or intelligible justification; the decision was not “unreasonable” on any standard: see the reasons of Griffiths J in SZUWX at [73]-[75].
CONSIDERATION
I accept the Minister’s submissions. I will dismiss this application having regard to the authorities cited by the Minister and the essential difference between the task of this Court on an application for judicial review of a decision of an inferior Court compared to both an appeal from a decision of a judge of the FCCA under s 477(2) of the Migration Act (which is precluded by s 476A(3)(a)) or judicial review of the decision of an administrative decision-maker.
Section 477(2) permits the FCCA to grant an extension of time in relation to an application for the exercise of that Court’s original jurisdiction under s 476 (in the context of a migration decision) if two preconditions are satisfied: (a) there is a written application specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time; and (b) the Court is satisfied that “it is necessary in the interests of the administration of justice to make the order”.
The first precondition was plainly met. The primary judge’s reasons at J[12] note that the discretion conferred by s 477(2) is broad and went on to set out an entirely conventional statement of considerations which he should take into account in determining whether he was satisfied that the grant of an extension of time was “necessary in the interests of the administration of justice”. The applicants do not cavil with this statement but rather the manner in which the primary judge evaluated the matters which the primary judge found to be relevant to the exercise of his jurisdiction.
The particular of Ground 1 is that the primary judge was wrong to find that the applicants’ reason for delay in seeking judicial review of the Tribunal decision was unsatisfactory. However, that finding was plainly open to the primary judge and accords with authorities which recognise that observance of legislated time limits is an important aspect of the administration of justice.
The Full Court (Spender, O'Loughlin and Dowsett JJ) in Parker v The Queen [2002] FCAFC 133 at [6]-[7] emphasised that legislated time limits for the conduct of litigation are not to be ignored and applications for an extension of time are not to be granted unless it is proper to do so. The Full Court went on to say that action taken by an applicant, other than by way of making an application for review, is relevant to the question of whether an acceptable explanation for the delay has been furnished, albeit that the Court may exercise some leniency where the liberty of the individual is at stake.
In M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293 at [16]-[24] the Full Court (Black CJ, Sackville and Sundberg JJ) considered, without disapproval, the authorities in which the need for an extension of time to seek review of a Tribunal decision was occasioned by a deliberate forensic choice to pursue another course and found that to be an unacceptable reason for the delay. In some of those authorities, the Court found that an application to the Minister for exercise of the discretion under s 417 of the Migration Act to substitute a decision of the Tribunal that is more favourable to the applicant may be taken as an implicit acceptance that the Tribunal’s decision was not to be the subject of challenge: see ApplicantVUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 per Weinberg J at [18]-[20] and Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 per Goldberg J at [14]. A similar view was expressed by Jessup J (with whom Gyles and Besanko JJ agreed) in Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [32].
Although the father and mother in this case did not pursue Ministerial intervention, their decision to lodge a protection visa application for their newborn third child and make claims as members of its family group (contrary to s 48A of the Migration Act) instead of filing an application for review of the Tribunal’s decision in the FCCA was a deliberate forensic choice. The father’s affidavit indicates that he understood that he was making a choice between two courses; the fact that he relied on advice in doing so does not detract from the fact that he made an election.
In relation to Ground 2, counsel for the applicants expended considerable effort in seeking to persuade this Court that the Tribunal committed jurisdictional error. However, this is not an appeal but an application for judicial review of a judge of an inferior court. Having regard to the principles enunciated by the High Court in Craig summarised and cited by Griffiths J in SZUWX at [46], [49] and [50], even if the primary judge was wrong in his assessment of the merits of the application as “arguable” but “not compelling”, that would be an error within jurisdiction; the primary judge was not misguided as to his task and this ground does not establish jurisdictional error by the primary judge.
The applicants sought to establish that if the merit of the application was “arguable”, then the primary judge was compelled to grant an extension of time whatever the length of delay or the reason for it, because otherwise the decision would be legally unreasonable and the primary judge would have failed to take into account a relevant consideration. Counsel for the applicants submitted that the primary judge should have weighed the length of the delay against the consequence of repatriation of the mother to Libya. In MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [13], a decision whether to extend time to appeal a decision of a judge of the FCCA, Mortimer J stressed the importance of the possible consequences for a protection visa applicant of refoulement to the country against which the claim for protection is made. However, at [14], Mortimer J also noted that the length of the delay and any explanation for it are also significant factors and the weight to be accorded to those factors varies considerably from case to case. The authorities cited by Griffiths J in SZUWX at [53]-[57] emphasise the breadth of the discretion to be exercised under s 477(2).
In rejecting the applicants’ argument I respectfully adopt Griffiths J’s conclusion at [57] and [77] as being equally applicable in this case:
…The applicant’s contention fails to give effect to the breadth of the discretion conferred upon the FCCA under s 477(2) and also fails to grapple with the important fact that it was a Judge and not an executive officer who had to determine whether or not time should be extended. It was essentially a matter for the primary judge to determine and assess what were the relevant considerations to be weighed in determining whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. In determining which matters were relevant or not it might be expected that the primary judge would have regard not only to the subject matter, scope and purpose of the legislation, but also to the parties’ submissions. That is not to say, however, that a consideration becomes a mandatory relevant consideration merely because one of the parties has raised it.
… even if the primary judge’s finding of “arguability” is unqualified, it remained a matter for his Honour to balance that consideration with other matters which he viewed as significant, namely the lack of a sufficient explanation for the delay and the interest of the administration of justice. Whatever standard of “unreasonableness“ is applied, it was not unreasonable for the primary judge to conclude that, having regard to other relevant circumstances, the fact that the proposed grounds of review were “arguable“ was insufficient of itself to warrant time being extended under s 477(2) of the Act. The applicant’s proposition that, having found that there was an arguable case, it was always in the interests of the administration of justice to make the order is untenable.
CONCLUSION
The applicants have not established jurisdictional error by the primary judge. I will dismiss their application and order that the father and mother pay the Minister’s costs as agreed or taxed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 31 August 2016
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