WZAUH v Minister for Immigration

[2019] FCCA 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2018

Catchwords:
MIGRATION – Judicial review application – Protection (Class XA) Visa – application for extension of time to file judicial review application.

PRACTICE AND PROCEDURE – Extension of time – very substantial delay – whether adequate explanation for delay – whether prejudice – whether proposed grounds of review reasonably arguable or have reasonable prospects of success.

Legislation:

Evidence Act 1995 (Cth), s.56(2)

Federal Circuit Court of Australia Act 1999 (Cth), s.75

Federal Circuit Court Rules 2001 (Cth), r.44.05

Migration Act 1958 (Cth), ss.36, 65, 414, 417, 424A, 424AA, 476, 477,486I
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1
ADN15 v Minister for Immigration & Border Protection [2016] FCA 810
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Borra v Minister for Immigration & Anor [2013] FCCA 1216
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402
BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83
DZAFG v Minister for Immigration & Anor [2015] FCCA 168
Gill v Minister for Immigration & Border Protection& Anor [2014] FCCA 1929
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration & Citizenshipv SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration & Citizenship v SZJSS& Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446
Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration & Citizenshipv SZQHH & Anor [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12
MZWDG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 497
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
MZYPY v Minister for Immigration & Border Protection [2014] FCAFC 68
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
MZZXD v Minister for Immigration & Anor [2015] FCCA 104
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZNYE v Minister for Immigration & Citizenship [2010] FCA 500
SZOBL v Minister for Immigration & Citizenship [2012] FCA 824
SZQGL v Minister for Immigration & Citizenship & Anor [2012] FCA 1011; (2012) 206 FCR 474
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17
SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
SZTDM v Minister for Immigration & Anor [2013] FCCA 1130
SZTDM v Minister for Immigration & Anor (No 2) [2013] FCCA 2060
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Wei v Minister for Immigration & Anor [2013] FCCA 262
WZASC v Minister for Immigration & Anor [2013] FCCA 1452
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415

First Applicant: WZAUH

Second Applicant:	WZAUI
First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 178 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 24 June 2015

Date of Last Submission: 24 June 2015

Delivered at: Perth

Delivered on: 25 July 2019 (by Judge Street, pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicants: Mr E Vasilyev

Solicitors for the Applicants: Morris, Alexander and Nelson

Counsel for the First Respondent: Mr B Dube

For the Second Respondent	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the name of the second respondent be amended to “Administrative Appeals Tribunal”.

2. That the applicants’ application for an extension of time in which to file the Originating Application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 178 of 2014

WZAUH

First Applicant

WZAUI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants (“applicants” or “WZAUH” and “WZAUI”) filed an application seeking judicial review (“Proposed Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the former Refugee Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision is at Court Book (“CB”) 431-476. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse each of the applicants a Protection (Class XA) visa (“Protection Visa”). The Delegate’s Decision is at CB 349-363.

2. The Proposed Judicial Review Application was filed out of time and as such the applicants have made an application for an extension of time pursuant to s.477(2) of the Migration Act (“Extension of Time Application”).

3. The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including the transcript of the hearing from 24 June 2015 (“Transcript”) and the materials relied upon including:

   a)the CB of relevant materials, which includes the Tribunal Decision at CB 431-476;

   b)the various Court documents (other than the CB), including:

   i)the Proposed Judicial Review Application filed on 24 June 2014;

   ii)the Response filed on 8 July 2014;

   iii)the orders of a Registrar of this Court made on 6 August 2014;

   iv)a consent order of 19 September 2014;

   v)the applicants’ outline of submissions filed on 10 June 2015; and

   vi)the Minister’s outline of submissions filed on 17 June 2015.

   c)the affidavits of:

   i)WZAUH in support of the Extension of Time Application sworn 24 June 2014, and filed on behalf of both WZAUH and WZAUI (“WZAUH’s June 2014 Affidavit”);

   ii)WZAUH sworn 18 November 2014 in support of the Proposed Judicial Review Application (“WZAUH’s November 2014 Affidavit”);

   iii)WZAUI sworn 18 November 2014 in support of the Proposed Judicial Review Application (“WZAUI’s November 2014 Affidavit”); and

   iv)a “Joint Affidavit” sworn by WZAUH’s biological sister and brother on 3 December 2014 in support of the Proposed Judicial Review Application (“Siblings Affidavit”).

4. It is also relevant to note that there was no witness evidence or examination at the hearing of the matter before this Court.

5. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.

Extension of Time Application

1. Pursuant to s.477(1) of the Migration Act the applicants were required to file an application for judicial review of the Tribunal Decision, made on 11 February 2013, within 35 days, that being by 18 March 2013.

2. The application before this Court was not filed until 24 June 2014. This was 498 days after the Tribunal Decision, and the application is therefore 463 days outside of the 35 day period permitted by the Migration Act. The applicants have therefore made the Extension of Time Application.

3. The grounds of the Extension of Time Application are as follows (transcribed verbatim):

   1.  The Applicants have been pursuing Ministerial Intervention;

   2.  The substantive Application has merits;

   3.  The Applicants did not have legal representation and did not obtain a legal advice in relation to judicial review as a venue available.

   4.  The Applicants obtained legal advice in relation to judicial review only on 12 June 2014.

4. WZAUH’s June 2014 Affidavit was sworn in support of the Extension of Time Application, and:

   a)sets out the process leading to the Delegate’s Decision: at [2]-[7];

   b)sets out the process leading to the Tribunal Decision: at [8]-[10];

   c)says that when WZAUH received information about an option to appeal the Delegate’s Decision to the Tribunal he also found out about the options “to appeal to the Minister”, and that in March 2013 he “sent a letter to the Minister”, and in December 2013 received a letter from the Department that his “application was refused”: at [12]-[15] and Annexures B and C;

   d)says that he was unaware that he had the option to “make an appeal” to this Court: at [16];

   e)that after two refused applications (presumably a reference to the Delegate’s Decision and the refused request for Ministerial intervention) the applicants realised that they needed legal representation and could afford some legal fees at this time (being December 2013), and that in January 2014 when looking on the internet found “MyVisa” and made an appointment: at [17] and [18];

   f)WZAUH attended MyVisa’s office for an appointment on 10 January 2014, and was sent an email by MyVisa on 13 January 2014 (“MyVisa 13 January 2014 Email”): at [19] and Annexure D;

   g)the MyVisa 13 January 2014 Email appears to be largely generic in its content, and its subject matter is plainly, as it says: “Application for Ministerial Intervention”;

   h)WZAUH says that he met a migration agent, who said that he had an option to apply for a second time to the Minister, and that that was the best option for WZAUH and that there was still a chance that the Minister may attend to his case: at [20], and that WZAUH accepted this advice and gave the migration agent the go ahead to make a further application (for Ministerial intervention) to the Minister: at [20] and Annexure E;

   i)the migration agent requested information about WZAUH’s situation and lodged an application for Ministerial intervention, but “never mentioned the option of making an application to … [this] Court”: at [21];

   j)the January 2014 application for Ministerial intervention was refused on 28 April 2014: at [23] and Annexure G;

   k)says that he was unable to get an appointment with the migration agent for approximately two to three weeks, but when he did so asked what other options were available and was told that he “had taken all the steps and nothing else can be done … [and] to get ready to pack my bags and prepare to leave the country”, but that he may be able to extend his bridging visa to facilitate his departure: at [24];

   l)that on 12 June 2014 he made an appointment with Go To Court, a law firm, and at that appointment the lawyer told him that he “still had the option to apply” to this Court, but that the “merits of my application would be … subject to further analysis of my documents and factual circumstances”, and that he was therefore willing to lodge the application with this Court because he “had no other option”, and that prior to this he had no idea that he could lodge an application to this Court: at [26]; and

   m)makes observations and comments on the Tribunal Decision, related to the merits of that decision: at [27]-[32].

Applicants’ submissions

1. The applicants submitted that:

   a)the applicants’ previous migration agent failed to advise them of the time limits applicable to the commencement of judicial review proceedings and the applicants did not obtain any legal advice before filing the Proposed Judicial Review Application;

   b)in between times the applicants pursued Ministerial intervention twice, and on 28 April 2014 the Minister’s Department (“Department”) rejected the second request for Ministerial intervention in the applicants’ matter;

   c)after receiving the second rejection letter from the Department in relation to the request for a Ministerial intervention, the applicants’ previous migration agent advised them that they had no further options and no venues available to seek further review of their case, and advised the applicants that they had to pack their bags and prepare to leave Australia;

   d)the applicants were further advised that as they prepared to leave Australia, they might be able to extend their bridging visa in order to facilitate their departure from Australia;

   e)the applicants then sought advice from another migration agent and current lawyer who advised them that they were out of time to initiate these proceedings for judicial review;

   f)after seeing another migration agent the applicants knew that they could in fact apply for judicial review, and then acted promptly on this advice thereby initiating these proceedings in Court; and

   g)because of the lack of access by the applicants to appropriate legal advice about their right to seek a judicial review and also merits of the case, it will be in the interests of the administration of justice to grant an extension of time: SZTDM v Minister for Immigration & Anor (No 2) [2013] FCCA 2060 (“SZTDM (No 2)”).

Minister’s submissions

1. The Minister submitted that:

   a)the Proposed Judicial Review Application is over 16 months out of time, and unless time is extended pursuant to s.477(2) of the Migration Act, the Proposed Judicial Review Application is incompetent;

   b)two matters are of central importance to the exercise of the s.477(2) of the Migration Act discretion:

   i)the applicants’ explanation for the delay and the extent of the delay; and

   ii)the nature of the substantive application and its prospects of success: MZZXD v Minister for Immigration & Anor [2015] FCCA 104 at [35] per Judge Whelan.

   c)in WZASC v Minister for Immigration & Anor [2013] FCCA 1452 (“WZASC”) at [7] per Judge Lucev this Court identified the following factors:

   i)the extent of the delay;

   ii)the reasons for the delay;

   iii)the merits of the proposed substantive application;

   iv)any prejudice to the respondent;

   v)the impact on the applicant if time is not extended;

   vi)the public interest; and

   vii)considerations of fairness as between the applicant and other persons otherwise in a similar position;

   d)in the present case, the Minister contends that:

   i)the explanation for the delay is inadequate;

   ii)the length of the delay is extensive;

   iii)the substantive merits of the application are lacking; and

   iv)none of the other factors when considered warrant in themselves either the granting or declining of the Extension of Time Application;

   e)in respect of the reliance on the claim that the applicants were seeking Ministerial intervention as the explanation for the delay, it is well established that an applicants’ conduct in seeking Ministerial intervention under the Migration Act, is indicative of a decision by the applicants to abandon a course that would seek to challenge the Tribunal Decision on grounds that may have been available to them: Gill v Minister for Immigration & Border Protection& Anor [2014] FCCA 1929 (“Gill”) at [8] per Judge Emmett, and this is therefore not an adequate explanation for the delay;

   f)in respect of the substantive merits, for the reasons set out below the Minister contends that the Proposed Judicial Review Application is lacking in merit;

   g)in respect of the claim that the applicants did not have legal representation and that legal advice was only sought in 2014, the Minister notes that the Tribunal Decision contained the fact sheet “Information about Tribunal Decisions” (“Tribunal Information Sheet”): CB 477-478, which explained the applicants’ rights of judicial review. No explanation is provided as to why the applicants chose not to seek legal advice until 2014 or why they only chose to pursue Ministerial intervention. Furthermore, the fact that the applicants are unrepresented does not justify an extension of time being granted: SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 at [9] per Katzmann J, and this is not a ground which warrants the granting of the Extension of Time Application; and

   h)the Court should refuse to grant the Extension of Time Application as the applicants:

   i)have not adequately explained the delay;

   ii)there is prejudice to the Minister; and

   iii)have not demonstrated that the Proposed Judicial Review Application has reasonable prospects of success.

Consideration – Extension of Time Application

1. The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:

   a)the length or extent of delay;

   b)the reason for the delay;

   c)any prejudice to the opposing party; and

   d)the merits of the proposed application.

   Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J.

1. Under s.477(1) of the Migration Act an application to this Court for judicial review must be made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 11 February 2013, and therefore the applicants were required to file the Proposed Judicial Review Application by 18 March 2013. Having not lodged the Proposed Judicial Review Application until 24 June 2014 the applicants are 463 days out of time.

2. The Court may make an order extending the 35 day time limit in which to accept the Proposed Judicial Review Application if, pursuant to s.477(2) of the Migration Act:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. Regard must be had to r.44.05(2) of the FCC Rules which states that:

   (2)     An application must be supported by an affidavit including:

   (a) …; and

   (b) …; and

   (c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.

Length of and reason for the delay

1. In considering the length of the delay in making the Proposed Judicial Review Application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard to the judgments of the High Court in Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:

   a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;

   b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;

   c)where a significant period of time has elapsed, in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and

   d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.

2. The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 (“SZOBL”) at [35] per Gilmour J (dismissing an application to extend time to appeal two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 (“SZANS”) at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”) at [29] per Spender, Buchanan and Perram JJ. The summary demonstrates the error in the observations made in cases such as DZAFG v Minister for Immigration & Anor [2015] FCCA 168 (“DZFAG”) and SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 (“SZTDM”) and SZTDM (No 2), where, as the applicants’ submissions suggest, this Court has made observations that time might be extended notwithstanding extensive delay merely because a proposed application for judicial review had arguable merit. That is not the law, and as Marks observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated, and so, as Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J observes, delay alone may defeat some claims.

3. The Court also notes that both DZAFG and SZTDM were extempore decisions given in relation to injunction applications to prevent a person being removed from the Commonwealth, and in DZAFG in circumstances where no application for review had been considered by the then Refugee Review Tribunal. In neither DZAFG nor SZTDM was any reference made to Marks or Brisbane South Regional Health Authority. The observation in both SZTDM at [20] per Judge Cameron and DZAFG at [34(a)] per Judge Harland to the effect that because a proposed application for judicial review has merit, justice would require that consideration of the merit be given priority over the question of delay, runs directly counter to the observations of the High Court in both Marks and Brisbane South Regional Health Authority, and ought not to be followed, as in the Court’s view, those observations are plainly wrong. For the above reasons, the Court will not follow what was decided in DZAFG, SZTDM or SZTDM (No 2). Indeed, the Court is bound not to, but rather to follow otherwise binding High Court and Federal Court authority: see SZANS; Suh, that authority being the cases set out above: see Marks, Brisbane South Regional Health Authority, Tran and SZOBL.

4. A further observation may be made: in Marks consideration was being given to the application of rules of court, whereas in s.477(1) of the Migration Act it is the Parliament which has specifically legislated the relevant time limit, representing therefore the judgment of Parliament as to how the welfare of society is best to be served: Brisbane South Regional Health Authority CLR at 553 per McHugh J. This must be afforded proper and due regard, for as much as rules of court must be obeyed: Marks at [16] per McHugh J, the rationale for obeying legislation enacted by Parliament representing the people as a whole must carry even more weight.

5. This is a case in which, in the Court’s view, the delay alone in bringing the Proposed Judicial Review Application is so lengthy that, of itself, it justifies not granting the Extension of Time Application.

6. The applicants’ failure to make an application for judicial review to this Court earlier is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, the application for an extension of time proceeds on a false premise which is again inconsistent with previous authority of the High Court, the Federal Court and this Court.

7. In Marks at [17] per McHugh J the High Court observed as follows:

   An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.

8. In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:

   3 The first paragraph of the affidavit in support of the application is:

   ‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’

   4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.

9. In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:

   Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].

10. In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that:

    … there is no right to legal representation in migration proceedings in this Court. …

11. Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J.

12. Albeit that it was not a protection visa case, there are some similarities between this case and Tran where the Federal Court found the explanation for the delay to be neither adequate nor satisfactory: Tran at [35] per Wigney J. In Tran the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:

    33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.

    34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.

    35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].

    38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

13. The facts in Tran are not dissimilar to those in this case and much of what is said in Tran can readily be applied to the present case. It follows therefore that the inability to obtain legal advice or legal representation in relation to the Tribunal Decision, and whether an application for judicial review ought to be lodged, does not explain the delay in this case. It certainly does not explain the length of the delay in this case.

14. The delay in this case is sought to be explained by the fact that the applicants made two applications for Ministerial intervention, both unsuccessful, and that they were incorrectly advised by their migration agent.

15. An application for Ministerial intervention does not provide an explanation for the delay in making an application for judicial review to this Court. The relevant law was summarised by the Full Court of the Federal Court in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 (“M211 of 2003”) as follows:

    22. In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:

    In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. …

    In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.

    23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:

    It was submitted on behalf of the respondent that the applicant's request under s 417 should be viewed as an indication that he was prepared to accept the RRT's decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court … .

    In Applicant A2 of 2002, von Doussa J said of the applicant that:

    having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.

    This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.

    It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:

    As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.

    24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant's course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge.

    M211 of 2003 at [22]-[24] per Black CJ, Sackville and Sundberg JJ.

16. The law as set out at M211 of 2003, and the cases there cited in the above extract, has been applied by this Court. For example:

    a)in Gill at [8] per Judge Emmett it was observed that:

    … it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the … [Tribunal] on grounds that may have otherwise been available to him …

    b)in Wei v Minister for Immigration & Anor [2013] FCCA 262 (“Wei”) at [22] per Judge Nicholls it was said that:

    On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court …

    c)in Borra v Minister for Immigration & Anor [2013] FCCA 1216 (“Borra”) at [38] per Judge Burchardt it was said that:

    … even if I accept the applicant's version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision …

17. It is plain from the above authorities that a request for Ministerial intervention is not merely an alternative course, but an inconsistent course which accepts the decision of the Tribunal as correct, or an inconsistent course which abandons any challenge to a decision of the Tribunal, or, at the very least, not a course which prevents the filing of a protection visa application.

18. Ignorance of time limits is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 (“SZSDA”) at [38] per Foster J where the Federal Court observed that:

    In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…

    Although ignorance may factor into the weight to be accorded to the length of the delay in the exercise of the Court’s discretion as to whether to extend time: ADN15 at [29] per Charlesworth J.

1. It is relevant to observe that the applicants are English speaking and did not require an interpreter for the Tribunal Hearing: CB 394-397. The applicants, who are in their fifties: CB 434-435 at [21] and 435 at [27], on their own account, ran several businesses including marketing and hairdressing businesses and owned property in Malawi during the period 2002-2011: CB 353 and 443-444 [87]-[88]. The applicants, and in particular WZAUH, have set out their claims in great detail, and have also provided significant country information to the Tribunal. The applicants were also not in immigration detention during the relevant period and were thus free to make such enquiries as they saw fit with respect to the issue of their immigration status.

2. The applicants were sent the Tribunal Information Sheet, together with the notification of the Tribunal Decision dated 11 February 2013, in which it was indicated that if the applicants thought the Tribunal Decision was wrong in law they may seek judicial review in the then Federal Magistrates Court: CB 477.  

3. The applicants assert that they became aware of the right to apply for Ministerial intervention at the time they were advised of the right to review the Delegate’s Decision, and that they did not become aware of the right to apply to this Court for judicial review until June 2014 when they saw a lawyer. The applicants also assert that they were wrongly advised in January 2014 by their migration agent to make a second application for Ministerial intervention, and not advised of their right to apply to this Court for judicial review.

4. The applicants’ account is inconsistent with the documentary record before the Court, and the terms of s.417 of the Migration Act. The applicants were sent the Delegate’s Decision: CB 349-363, on 15 June 2012, together with a covering letter from the Department: CB 345-348 (“Department’s Letter”).  The Department’s Letter contained a separate section under the heading “Review rights”, which referred to the applicants’ entitlement “to apply to the Refugee Review Tribunal … for a review” of the Delegate’s Decision within 28 days: CB 345, and thereafter set out various procedural and administrative requirements in relation to such an application: CB 346-347. At no point is there any mention in the Departmental Letter of the matter of Ministerial intervention or the provisions of s.417 of the Migration Act. In respect of the provisions of s.417 of the Migration Act nor should there be any reference to them at the Delegate’s Decision stage as the provisions of s.417 of the Migration Act are plainly directed to an application made, and a Ministerial discretion exercised, after the Tribunal Decision is made. In the Court’s view, the applicants’ assertion that they were told of the right to Ministerial intervention at the same time as they were told of the Delegate’s Decision is more than likely wrong.

5. In the documentary record the first and only mention of Ministerial intervention prior to the expiry of the time limitation under s.477(1) of the Migration Act is in the Tribunal Information Sheet provided to the applicants with the Tribunal Decision on 11 February 2013 at CB 478, which also advises of the applicants’ right to apply to the then Federal Magistrates Court for judicial review of the Tribunal Decision at CB 477. Two significant matters arise therefrom:

   a)first, although the applicants refer to finding out about the option of Ministerial intervention at the time of, and from information given to them in connection with, the Delegate’s Decision, it is more likely, and uncontroverted in the written record, that the applicants were advised of their right to apply for Ministerial intervention at the time of the Tribunal Decision on 11 February 2013 by way of the Tribunal Information Sheet, that is, at the same time and by the same means, as they were advised of their right to apply for judicial review in the then Federal Magistrates Court; and

   b)second, the likelihood referred to in (a) above is  strengthened by the fact that the applicants, at that stage not represented by either a migration agent or lawyer, made the first application for Ministerial intervention on 12 March 2013: WZAUH’s June 2014 Affidavit, Annexure B, a month and a day after receiving the Tribunal Decision and the Tribunal Information Sheet.

6. The record indicates, and it is more probable than not, that the first occasion on which the applicants were advised of the right to apply for Ministerial intervention and the right to apply to the then Federal Magistrates Court for judicial review of the Tribunal Decision, was on 11 February 2013 by way of the Tribunal Information Sheet, and, at that stage, not being represented by either a migration agent or lawyer, the applicants chose to make the first Ministerial intervention request.

7. The applicants then complain that they were not advised by their migration agent as to the existence of a right of judicial review to this Court when they finally sought out and obtained advice from a migration agent in January 2014 (by which time they were already ten months outside the time limitation prescribed by s.477(1) of the Migration Act). And although the applicants complain about the advice they say they were given, that there only option was to make a second application for Ministerial intervention, when regard is had to the judgment of the Full Court of the Federal Court in M211 of 2003 (and to the other Federal Court judgments there cited), and to the judgments in Gill, Wei and Borra in this Court, that advice would appear to have been “sound advice” (to borrow from Tran at [35] per Wigney J). Thus, if there was, as is asserted by the applicants, a failure by their then migration agent to advise of the existence of a right of judicial review in this Court, that failure could have no effect because of the first application for Ministerial intervention, and arguably also because the applicants were already ten months out of time in which to make a judicial review application.

8. The Court also notes that when the applicants say that they were finally made aware by their lawyers in June 2014 that they could have made an application for judicial review of the Tribunal Decision, there is no indication of any advice, either oral or written, from those lawyers that any such application for judicial review might have reasonable prospects of success. Further, the Proposed Judicial Review Application was not filed by the lawyers who appeared for the applicants at hearing, and consequently there was (and remains) no certification by a lawyer that there are reasonable grounds for believing that the Proposed Judicial Review Application has reasonable prospects of success: Migration Act, s.486I.

9. Finally, the factual position as set out in WZAUH’s June 2014 Affidavit does not exhibit that sense of urgency which might have been expected in the circumstances that WZAUH then said existed. The first application for Ministerial intervention was not made until more than one month after the publication of the Tribunal Decision. When the first application for Ministerial intervention was refused in December 2013 it was a further three weeks before WZAUH made arrangements to see a migration agent, and then a further period of almost three weeks expired before the second application for Ministerial intervention was made. That application having been refused, and WZAUH having been back to see his migration agent some two to three weeks after the refusal, it was then a further three to four weeks before an appointment was made with another law firm during which appointment WZAUH says that he first became aware of the option of lodging an application for judicial review with this Court. Even then, there was a further delay of 12 days before WZAUH made the Proposed Judicial Review Application. Taken together, the various delays, at various times, are such that it is the Court’s view that the applicants exhibited no significant sense of urgency in relation to the making of the Proposed Judicial Review Application.

10. Having regard to all of the matters set out above the Court considers that the applicants have not provided an adequate explanation for the delay, and certainly not a delay of 463 days, in making the Proposed Judicial Review Application. Further, there is simply not the necessary degree of persuasiveness, in such explanation as there is, sufficient to explain such an excessive delay: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185 at 195 per Lockhart, Sheppard and Burchett JJ.

11. The length of the delay in this case is sufficient of itself in the Court’s view to warrant not exercising the discretion to extend time, but the length of the delay and the failure to provide an adequate explanation for the delay, also warrants the Court not exercising the discretion to extend time.

Prejudice to the Minister

1. There is prejudice to the Minister arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the Proposed Judicial Review Application. The Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his, or, more formally that the Minister had “a vested right to retain the judgment or decision”: Marks at [17] per McHugh J. In those circumstances there is additional prejudice to the Minister by reason of the costs incurred as a consequence of the filing of the Proposed Judicial Review Application and consequent hearing. Further, there is no evidence that the applicants are in funds to meet any award of costs against them.

2. In the above circumstances the prejudice to the Minister weighs against the grant of the Extension of Time Application.

Merits of the Amended Proposed Judicial Review Application

1. It is not necessary for the applicants to positively establish that they will succeed on the Proposed Judicial Review Application at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the Proposed Judicial Review Application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J, but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J; SZSDA at [39] per Foster J. Determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveal that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their merit: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. This Court does not have the jurisdiction to review the merits of the Tribunal Decision or determine the applicants’ claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The applicants submit that the merits of the Proposed Judicial Review Application are such that the Extension of Time Application ought to be granted. The Court has considered below the grounds of review in the Proposed Judicial Review Application for the purposes of determining whether the Extension of Time Application ought to be granted in accordance with the principles referred to at [47] above.

Background to the Proposed Judicial Review Application

1. The background to the Proposed Judicial Review Application is as follows:

   a)the applicants, citizens of Kenya, most recently arrived in Australia on 22 December 2011 on visitor visas: CB 38;

   b)on 7 February 2012, WZAUH applied for the Protection Visa: CB 26-58, with WZAUI, his wife, listed as a dependent. The applicants claimed to fear harm in Kenya and Malawi, respectively and to  be unable to return to either country;

   c)WZAUH claims that he fled Kenya on 29 July 2002 in fear of his life due to threats from the Mungiki (an organisation whose activities and beliefs the applicant did not support). WZAUH claimed that he was a Church Elder at his local Presbyterian Church and was asked by the Mungiki to assist in persuading the youth in his church to join the Mungiki. WZAUH refused and fled from Kenya to Malawi, with WZAUI and their daughters following thereafter: CB 42;

   d)WZAUH then claimed that he fled Malawi in 2011 following country-wide demonstrations and violence, and the looting of the applicants’ businesses: CB 43;

   e)WZAUH claimed a fear of harm in returning to Kenya because of the ongoing Al-Shabaab terrorist attacks and also that he might be killed by the Mungiki: CB 44-45. The applicants further claimed a fear of returning to Malawi because demonstrations and violence are continuing against foreigners: CB 44;

   f)the applicants claimed that neither the governments of Kenya nor Malawi have the capacity to offer protection to the applicants: CB 46;

   g)WZAUH was interviewed by the Delegate on 19 April 2012: CB 354;

   h)on 15 June 2012 the Delegate refused to grant the applicants Protection Visas: CB 345-363;

   i)on 13 July 2012 the applicants lodged an application for review to the Tribunal: CB 364-371;

   j)by letter dated 21 August 2012 the Tribunal invited the applicants to attend a hearing on 5 October 2012: CB 389-390. The applicants, who were self-represented, attended the hearing on 5 October 2012, and the applicants gave evidence and presented arguments in support of their application: CB 394-397, and 437 at [44]; and

   k)the applicants twice applied for Ministerial intervention, and on each of 18 December 2013 and 28 April 2014 the Assistant Minister decided not to exercise the Minister’s power under s.417 of the Migration Act to intervene and substitute for the Tribunal Decision a decision that is more favourable to the applicants.

Tribunal Decision

1. In the Tribunal Decision the Tribunal:

   a)noted that WZAUH claimed that on 29 July 2002 he fled from Kenya to Malawi because he feared harm from the Mungiki sect, which was forcing people to join it: CB 439 at [56]-[57], 441-442 at [75]-[76], 443 at [84]-[85] and 470-471 at [169];

   b)noted that WZAUH claimed that he was a Church elder at his local Presbyterian Church and that his Christian beliefs did not allow him to take the Mungiki’s traditional oath: CB 436 at [32];

   c)noted that WZAUH claimed that he feared returning to Kenya because he might be harmed by the Mungiki or the Al Shabaab terrorist group: CB 436 at [34]-[35], 437 at [37]-[38], 438 at [52]-[53], 439 at [55] and [59]-[60], 440 at [65], 441 at [71], 442 at [78], [80]-[81] and 474 at [189]-[190], and he did not believe that the Kenyan Government had the capacity to protect him: CB 437 at [39], 438 at [54], 440 at [61], 441 at [70] and [72] and 471 at [170];

   d)noted that WZAUH claimed that he fled from Malawi to Australia because he feared harm from country-wide demonstrations that occurred on 20 and 21 July 2011: CB 436 at [33] and 443-444 at [87]-[88];

   e)noted that WZAUH claimed that he feared returning to Malawi because he might be harmed by local Malawians: CB 436-437 at [36]-[38] and 444 at [92] and he did not believe the Malawi Government could protect him: CB 437at [39] and 443-444 at [87];

   f)noted that it raised with WZAUH his claims that he lost his business in Malawi in the July 2011 demonstrations, yet his visitor visa stated that his daughter remained in Malawi to look after the business. WZAUH stated that his daughter left Malawi in December 2011 because there was no business to take care of: CB 444 at [89]-[90];

   g)noted that it raised with WZAUH country information that stated that Malawi was quite a safe country and described riots as random acts. WZAUH claimed that he was threatened mostly by business competitors: CB 444 at [93]. The Tribunal further asked WZAUH why he did not apply for refugee status in Malawi, and WZAUH stated that he did not know he could, and he was focussed on building a business: CB 444-445 at [94];

   h)asked WZAUH why he did not apply for protection on one of his previous visits to Australia, and WZAUH said he thought that the situation in Kenya would settle: CB 445 at [95]; and

   i)said that it was of the view that if WZAUH felt so threatened by the Mungiki, he would have sought protection in either Malawi or during an earlier visit to Australia: CB 472 at [179].

2. Having also considered the available evidence before it the Tribunal:

   a)found that the applicants’ temporary residence rights in Malawi had ceased and they therefore did not have a legally enforceable right to enter or reside in Malawi, and therefore found that the applicants were not excluded from Australia’s protection obligations under s.36(3) of the Migration Act: CB 469-470 at [163];

   b)accepted that the Mungiki are active in the Central Province of Kenya: CB 471 at [172];

   c)accepted that WZAUH’s father and cousin had been assaulted, but did not accept that the Mungiki committed the assaults: CB 471 at [173];

   d)did not accept that WZAUH was a threat to the Mungiki because he has information on the initiation process for the Mungiki, as it is information or knowledge that is freely available: CB 471 at [174];

   e)accepted that WZAUH was approached by Mungiki in 2002, that he refused to assist them, that he fled in 2002 to Malawi and that the Mungiki made threats to WZAUH and his family: CB 471 at [175];

   f)did not accept that WZAUH is still considered a threat to the Mungiki or that the Mungiki will kill WZAUH: CB 472 at [178];

   g)noted country information regarding the availability of protection from the Mungiki and considered that the information indicated that protection was adequate, even for ex-Mungiki members: CB 472-473 at [181];

   h)concluded that the chance that the applicants would be harmed by the Mungiki was remote, and was of the view that there was not a real chance of their suffering harm from the Mungiki: CB 473 at [183]-[184];

   i)did not accept that the possibility of the applicants being harmed in relation to election violence in Kenya was more than a potential of a random act of violence and that it did not amount to harm for a Convention reason: CB 473-474 at [186]-[187];

   j)did not accept that the applicants face a well-founded fear of persecution by members of Al-Shabaab for a Convention reason in the reasonably foreseeable future: CB 474 at [193];

   k)considered the applicants’ claims cumulatively, and did not consider that there was a real chance of serious harm on a Convention ground: CB 474 at [194];

   l)in respect of complementary protection grounds, did not consider that the risk from Al-Shabaab was a “real risk” on the evidence before it: CB 475 at [199];

   m)in respect of the possibility of significant harm from violence during elections, considered that the applicants would not be in a position substantially different from the general population of Kenya, and that s.36(2B)(c) of the Migration Act applied: CB 475 at [201];

   n)in respect of the risk of significant harm from the Mungiki, noted its previous findings of fact, the country information and the finding that WZAUH was no longer a person of interest to the Mungiki, concluded that there was adequate state protection for the applicants, and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to Kenya that there was a real risk that they will suffer significant harm: CB 475 at [202]; and

   o)concluded that the applicants did not satisfy either s.36(2)(a) or (aa) of the Migration Act, and affirmed the Delegate’s Decision not to grant the applicants Protection Visas: CB 475-476 at [203]-[205].

Grounds of the Proposed Judicial Review Application

1. The grounds of the Proposed Judicial Review Application as put by the applicants in their submissions at hearing are as follows:

   a)ground 1: the Tribunal erred in finding that the applicants did not have a well-founded fear of persecution in Kenya;

   b)ground 2: the Tribunal erred in finding that effective state protection exists and would not be withheld from the applicants; and

   c)ground 3: the Tribunal erred in finding that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Kenya there is a real risk that they will suffer significant harm.

Consideration of the merits of the grounds of the Proposed Judicial Review Application for the purposes of the Extension of Time Application

1. As set out at [47] above the Court need not embark upon a full consideration of the merit of each of the grounds of review for the purposes of the Extension of Time Application, but rather is to determine, on an impressionistic and preliminary examination, whether any of the grounds of review might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their merit. Each of the grounds of the Proposed Judicial Review Application are dealt with hereunder on that basis. In considering the merits of each of the grounds of review for the purposes of the Extension of Time Application the Court has had regard to the submissions of both parties (which are set out in full at [71]-[72] and [87]-[88] below), and also to the various authorities cited by both parties and the Court in its actual consideration of the grounds of the Proposed Judicial Review Application below (see [73]-[86] and [89]-[94] below).

2. In relation to ground 1 the Tribunal considered the relevant law and criteria for the grant of Protection Visas, set out and understood the claims made by the applicants (in particular WZAUH), dealt extensively with relevant country information in relation to the applicants’ claims, and considered in detail those claims having regard to relevant High Court authority concerning the necessity for a genuine fear founded upon a real chance of persecution, and considered cumulatively the applicants’ claims, before determining that there was not a well-founded fear of persecution for Convention reasons. On the basis of the evidence and materials before the Tribunal the conclusions that it reached were open to it, and to interfere with them would be engaging in impermissible merits review.

3. In relation to ground 2 the Court considers that the Tribunal properly set out the applicants’ claims, considered the relevant country information, in particular as it related to the Mungiki, the Kenyan police and Al Shabaab, in detail, and made findings based upon its consideration of the applicants’ particular circumstances (contrary to what was asserted by the applicants) and the country information, which was extensive and authoritative, before making an express finding that effective state protection was available to the applicants should they seek to avail themselves of it in Kenya. That was a finding plainly open to the Tribunal on the basis of the evidence and materials before it, and one which if it were to be disturbed, would involve this Court engaging in impermissible merits review.

4. In relation to ground 3 the Tribunal considered the relevant criteria concerning complementary protection, and set out the evidence in relation to the applicants’ fears of violence if returned to Kenya, particularly in relation to the threats of electoral violence, including violence from Al Shabaab, and the Mungiki, and having regard to all of the evidence before it, almost all of which had been considered in relation to the Convention protection grounds, found that there was not a real risk of significant harm in the foreseeable future as a consequence of the applicants being removed from Australia to Kenya. Once again, that was a finding open to the Tribunal on the materials and evidence before it, and one which this Court ought not interfere with lest it engage in impermissible merits review.

5. Overall, the Tribunal Decision is a detailed and comprehensive examination of the applicants’ claims, the materials and evidence before the Tribunal, which included a comprehensive survey of country information based on reliable and authoritative sources, which resulted in a finding that the applicants’ claims could not be made out either in relation to the Convention or complementary protection criteria, and therefore affirming the earlier Delegate’s Decision not to grant the applicants Protection Visas. It is not in the administration of justice to extend time to file the Proposed Judicial Review Application because in the Court’s view it has no, or very little prospect of success: MZZIV at [6] per Mortimer J; SZSDA at [39] per Foster J. It follows, therefore, that the merits of the grounds of the Proposed Judicial Review Application, considered for the purposes of the Extension of Time Application, do not support the extension of time for the filing of the Proposed Judicial Review Application.

Conclusion re extension of time

1. In relation to the Extension of Time Application the Court has concluded that:

   a)the 463 day delay in making the Proposed Judicial Review Application is such a lengthy delay that it alone in this case is a sufficient basis for dismissal of the Extension of Time Application;

   b)the length of the delay in making the Proposed Judicial Review Application, together with the failure to adequately explain that delay, taken together, are also a sufficient basis for dismissal of the Extension of Time Application;

   c)the length of the delay in making the Proposed Judicial Review Application, together with the failure to provide an adequate explanation for that delay, and the significant prejudice to the Minister, taken together, are also a sufficient basis for dismissal of the Extension of Time Application;

   d)the grounds of the Proposed Judicial Review Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore extend time: SZSDA at [39] per Foster J; MZZIV at [5] per Mortimer J, but, even if the Proposed Judicial Review Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.477(2) of the Migration Act, finds that for the reasons leading to the conclusions both individually in the case of (a) and (b) of this paragraph, and in combination in the case of (a) and (b), and also (a), (b) and (c) of this paragraph, would warrant dismissal of the Extension of Time Application in any event, and thus even if the applicant had a good case it would be defeated by the time limitation: Brisbane South Regional Health Authority CLR at 553 per McHugh J; Tran at [38] per Wigney J; and

   e)further, the Court is not persuaded, and particularly so having regard to the findings in (a), (b), (c) and (d) of this paragraph, and the notoriously heavy and ongoing case load in the Perth Registry of this Court, that it would be in the interests of the administration of justice under s.477(2) of the Migration Act to extend time in this case.

2. It follows that there should be an order that the Extension of Time Application under s.477(2) of the Migration Act be dismissed.

3. In any event, having regard to the fact that the parties filed complete written submissions and argued the merit of each ground of review fully at hearing, the Court deals below with the grounds of the Proposed Judicial Review Application lest any of the conclusions reached with respect to the Extension of Time Application considerations be wrong. That should not be taken as an indication that the Court considers them to be wrong.

Consideration of the grounds of the Proposed Judicial Review Application

1. For the purposes of the Proposed Judicial Review Application the applicants seek to rely upon WZAUH’s November 2014 Affidavit, WZAUI’s November 2014 Affidavit and the Siblings Affidavit.

2. WZAUH’s November 2014 Affidavit is an affidavit which deals with:

   a)WZAUH’s personal background, including his position as an elder of a church: at [2]-[8];

   b)his time as an elder of the church and his duties in relation thereto: at [9]-[12];

   c)information about the Mungiki, and an incident in 2002 where the Mungiki approached WZAUH to recruit the youth of the church, and the threats and activities of the Mungiki following WZAUH’s refusal of that request: at [13]-[24];

   d)the escape of WZAUH to Malawi through Tanzania and his conduct of a business in Malawi until the occurrence of riots in Malawi which affected his business, and the circumstances in which he periodically returned to Kenya during his time in Malawi: at [25]-[35];

   e)WZAUH and WZAUI’s coming to Australia and seeking protection in Australia, and subsequent events involving WZAUH’s father and an assertion that the Mungiki are still looking for WZAUH, and some commentary on the current political position in Kenya: at [36]-[45]; and

   f)an assertion, under the heading “Mistake of Law” with respect to the Tribunal Decision, criticising its reasons, and asserting that it ignored relevant information and relied on irrelevant information (which it claims was mainly from the Kenyan government).

3. WZAUH’s November 2014 Affidavit is composed, apart from that part of it under the heading Mistake of Law, entirely of matters of fact going to the merits of the Protection Visa application itself, rather than any jurisdictional error by the Tribunal. Insofar as the paragraphs under the heading Mistake of Law are concerned, they are a mix of submissions and asserted facts in relation to the Tribunal Decision.

4. WZAUI’s November 2014 Affidavit deals with:

   a)her personal background, her marriage to WZAUH, her husband’s involvement in the church, and the fact that she was part of the women’s guild taking care of the church: at [3]-[12];

   b)assertions concerning the Mungiki and the Mungiki’s involvement targeting her husband in 2002, and WZAUH’s subsequent escape to Malawi: at [13]-[23];

   c)threats that were allegedly made to WZAUI and her daughters following her husband’s escape to Malawi in 2002, and the move of WZAUI, her daughters and a grandchild from Kenya to Malawi in October 2002: at [24]-[31];

   d)the fact that the applicants’ daughters were sent to Australia to study following the arrival of the applicants in Malawi, and that the applicants ran a marketing business in Malawi until the riots of 2011 which resulted in the applicants’ business being burnt down: at [33];

   e)the applicants’ travel to Australia, and subsequent events involving WZAUH’s father, including his coming to Australia for radiotherapy treatment on a medical visa and his passing away in June 2014: at [38]-[47]; and

   f)commentary on the Mungiki, and what WZAUI says the Mungiki will do to WZAUH if he returns to Kenya: at [48]-[51].

5. WZAUI’s November 2014 Affidavit is composed entirely of factual material which was either put before the Tribunal at the Tribunal Hearing, or is material which is relevant only to a merit based determination of the Protection Visa application.

6. The Siblings Affidavit at [3]-[10] asserts that:

   a)the Mungiki threatened to kill WZAUH in 2002;

   b)consequently, WZAUH fled to Malawi;

   c)the applicants’ children later joined the applicants in Malawi, and were then sent to Australia to further their studies;

   d)WZAUH’s father travelled to Australia when he was seriously ill, and on his return to Kenya his house was surrounded by the Mungiki who mistook him for WZAUH; and

   e)the Mungiki came uninvited to WZAUH’s father’s funeral, and WZAUH did not attend his father’s funeral due to fear of the Mungiki, and that he is still under threat from the Mungiki.

7. The Siblings Affidavit is composed entirely of factual material relevant only to a merits consideration of the applicants’ Protection Visa application.

8. The WZAUH November 2014 Affidavit, WZAUI November 2014 Affidavit and the Siblings Affidavit are all inadmissible because they comprise factual material relevant only to a merits based consideration of the applicants’ Protection Visa application, save for that part of WZAUH’s November 2014 Affidavit which relates to “mistake of law”, which is a mix of such factual material and also submissions concerning the Tribunal Decision. Leave to file all of these affidavits will not be granted as the factual matters to which they relate were either canvassed before the Tribunal, or to the extent that they are fresh evidence are matters which are appropriate only to be considered by the Tribunal as part of the merit consideration of the Protection Visa application, and are therefore inadmissible as fresh evidence on judicial review: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per RD Nicholson J, or otherwise irrelevant to the task of the Court on judicial review, and therefore inadmissible: Evidence Act 1995 (Cth), s.56(2).

9. It follows from the above that the Minister’s objections to the WZAUH November 2014 Affidavit, the WZAUI November 2014 Affidavit and the Siblings Affidavit are upheld, and those affidavits are inadmissible, and will not be considered by the Court.

Grounds 1 and 2

1. The applicants’ submissions dealt with grounds 1 and 2 together, and the Court has therefore considered them together.

Applicants’ submissions

1. The applicants’ submissions in relation to grounds 1 and 2 are as follows:

   a)the Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 547; (2013) 136 ALD 547 (“MZYTS”) observed that descriptions such as "failure to consider evidence" may explain a path of legal analysis leading to jurisdictional error, and held that the Tribunal’s task on review under s.414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Migration Act in respect of the criterion for a visa in issue before it: MZYTS at [32] per Kenny, Griffiths and Mortimer JJ. The formation of the state of satisfaction for the purposes of s.36(2)(a) and (aa) of the Migration Act involves two steps:

   ... first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and,

   second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

   b)in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J the Federal Court held that the requirement of the Tribunal to review a decision of a delegate of the Minister to grant or not to grant a protection visa under s.414 of the Migration Act:

   … requires the Tribunal to consider all the claims of the applicant. To make a decision without having first considered all the claims is to fail to complete the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act ...

   c)in Htun the Federal Court also observed that the Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence: Htun at [7] per Merkel J;

   d)in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58] per Black CJ, French and Selway JJ the Full Court of the Federal Court said:

   The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at  [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (200 l) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

   e)in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 (“NAVK”) at [15] per Allsop J the Federal Court said:

   Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   f)the common sense approach identified in NAVK should equally be adopted where a claim is to be identified by reference to the findings of the Tribunal in the sense identified in MZWDG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 497. That is, the claim should arise tolerably clearly from the findings made by the Tribunal. Therefore, an applicant’s claims for a protection visa may arise from each of the bases cumulatively;

   g)the Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an applicant claims a well-founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Migration Act: MZYTS. The Tribunal's consideration of such material must be “real or active”: MZYTS. As was said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 595 per Kirby J:

   … the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.

   h)as was emphasised in MZYTS, the task for a Court on review is not to assess the quality of the Tribunal's reasons, but rather to consider what the Tribunal's reasons, as they are, reveal about the Tribunal's performance of its statutory task: MZYTS at [57] per Kenny, Griffiths and Mortimer JJ;

   i)the issues which the applicants invite the Court to determine are:

   i)is the statutory task of review by the Tribunal with respect to the applicants’ claims for a Protection Visa confined to the basis upon which they made their application for a Protection Visa;

   ii)if not, was a claim made on an alternative basis; namely under s.36(2)(a) or (aa) of the Migration Act, and what was the nature of the claim made;

   iii)did the Tribunal consider the claims; and

   iv)was the Tribunal required to consider, in completing its statutory task of review, whether:

   A)    the applicants would have a well-founded fear of persecution in Kenya;

   B)    the applicants would obtain efficient protection from the government authorities; or

   C)    there was a real risk that the applicants may suffer significant harm as a consequence of being removed from Australia to Kenya;

   j)a Tribunal reviewing a decision of a delegate under s.414 of the Migration Act is obliged, in completing its statutory task, to consider all claims made, irrespective of the basis on which the application for protection is made;

   k)the question then becomes, were claims made on an alternative basis; namely under s.36(2)(a) or (aa) of the Migration Act;

   l)having regard to the authorities considered above, it can be submitted that the Tribunal, if it is to complete its statutory task, and hence avoid falling into jurisdictional error, is required to consider claims that are articulated by the applicant or which arise tolerably clearly from the material before the Tribunal or from the Tribunal's findings of fact;

   m)the Tribunal relied on country information rather than on the applicants’ particular personal circumstances;

   n)in relation to the existence of effective state protection the Tribunal was relying on the country information;

   o)in Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61/2010E”) at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ the High Court said as follows:

   … country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal.

   p)the Tribunal did not consider claims in relation to the efficiency of  state protection; and

   q)the Tribunal relied on the country information in relation to ex-members of the Mungiki: CB 472-473 at [181], which is not relevant to the applicants’ matter, and also did not consider claims about the efficiency of state protection to protect the applicants.

1. It is well accepted the Tribunal may get any information it considers relevant, and that the weight it affords that material is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, subject, however, to the Tribunal giving “proper, genuine and realistic consideration” to the claims and the evidence before it: Minister for Immigration & Citizenship v SZJSS& Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [26] and [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

2. There was clearly sufficient evidence and materials in the country information to enable the Tribunal to make the conclusions that it did with respect to the effectiveness of state protection for the applicants if they return to Kenya. There is, as the authorities demonstrate, nothing inappropriate in the Tribunal relying upon country information to determine whether or not there is in existence effective state protection for the applicants. Insofar as it is asserted in this case that the Tribunal relied on country information rather than on the applicants’ particular circumstances, that contention is not made out. The Tribunal plainly relied upon country information, but also clearly relied upon the applicants’ particular personal circumstances, as is made evident by its setting out of the claims made by the applicants (and in particular WZAUH) and by its conclusions with respect to the applicants’ particular circumstances, most notably in relation to the Mungiki’s interest in the WZAUH which was said to have “waned”: CB 473 at [182] and 475 at [202], and the Tribunal’s detailed consideration of the general claims made by reference to the applicants’ personal circumstances as set out at CB 470-472 at [168]-[180]. The Tribunal’s conclusions in the above respects, based as they are on a consideration of both the applicants’ evidence and materials which were before the Tribunal, including WZAUH’s responses to country information put to him, and the Tribunal’s consideration of the country information, demonstrate that the Tribunal considered the claims on the basis of the materials before it, and reached conclusions that were open to it on the basis of the evidence and materials before it, including the country information.

3. There is no jurisdictional error in the Tribunal Decision in relation to ground 2 of the Proposed Judicial Review Application, and what is sought by ground 2 is in fact impermissible merits review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. In the above circumstances, there is no basis for a finding that the Tribunal has not completed its statutory task under s.414 of the Migration Act, and it follows that ground 2 is not made out.

Ground 3

Applicants’ submissions

1. The applicants’ submissions in relation to ground 3 are as follows:

   a)the Tribunal erred in failing to consider the applicants’ claim that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Kenya there is a real risk they will suffer significant harm in the context of the complementary protection criterion;

   b)the statutory task of the Tribunal in relation to s.36(2) of the Migration Act is a predictive one. In MZYTS at [33] per Kenny, Griffiths and Mortimer JJ the Full Court said as follows:

   The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573.

   c)the Tribunal was obliged to consider the claim that the applicants will suffer significant harm if the family returned to Kenya and to engage in a predictive exercise regarding the circumstances on the basis of the material before it, but the Tribunal did not do so;

   d)the Tribunal briefly reviewed general country information and the common approach to risk of significant harm: CB 475 at [196]-[203], but did not invite the applicants to provide additional documentary evidence in relation to the complementary protection claim;

   e)having regard to the definition of “significant harm” in s.36(2A) of the Migration Act the applicants submitted to the Tribunal that they would suffer significant harm if they returned to Kenya. The particulars of the significant harm were identified to the Tribunal as fear of violence or possibly being killed, and that the Mungiki have a high level of involvement in government authorities in Kenya;

   f)in January 2015 the applicants filed the Siblings Affidavit;

   g)the kind of evidence contained in the Siblings Affidavit could be submitted to the Tribunal Hearing and shows that the Mungiki still target the applicants and their family in Kenya, but the Tribunal did not invite the self-represented applicants to provide additional evidence in relation to that and did not exercise its “inquisitorial jurisdiction”: Applicants’ Submissions at [43] citing NABE (No 2);

   h)the Tribunal applied general country information rather than the applicants’ personal and factual circumstances. The applicants repeat what was said in Plaintiff M61/2010E: see [71(o)] above; and

   i)the Tribunal failed to consider the complementary protection claim made that the applicants would be at risk if they returned to Kenya, and therefore failed to complete its statutory task under s.414 of the Migration Act, and fell into jurisdictional error.

Minister’s submissions

1. The Minister’s submission in relation to ground 3 are as follows:

   a)the applicants appear to contend that:

   i)the Tribunal should have invited the applicants to provide additional documentary evidence in relation to the complementary protection claim; and

   ii)WZAUH’s and WZAUI’s November 2014 Affidavits and the Siblings Affidavit provide “additional evidence” in respect of the claim that the Mungiki still target the applicants so that the Tribunal should have investigated this issue further;

   b)there is no jurisdictional error committed by a Tribunal when it refers to a previous finding of fact under the complementary protection provisions as articulated, particularly where:

   i)those claims could not survive earlier findings of fact; and

   ii)the Tribunal addressed the criterion by reference to the language of the Migration Act and its particular findings of fact which led to the conclusion that the Tribunal did not accept the applicants’ claims: SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56]-[57] per Robertson J;

   c)in respect of the first aspect of ground 3 it appears to be a contention that the Tribunal should have exercised its powers under s.424A or 424AA of the Migration Act. That contention cannot be sustained because “Information” for the purposes of those sections does not include the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, and where the Tribunal had evaluated the applicants’ evidence and concluded that the claims were not established, there was no obligation on the Tribunal to give the applicants an opportunity to provide “additional documentary evidence”;

   d)the applicants were on notice of a number of the issues arising in the matter because of the findings in the Delegate’s Decision that:

   i)“the applicant’s fear of being harmed or killed by members of the Mungiki, if he returns to Kenya, not to be well founded”: CB 360; and

   ii)“I consider that the applicant’s fears are in relation to violence that affects the broader population and not as a result of persecution that is faced by him individually”: CB 357.

   e)although the above findings in the Delegate’s Decision related to the satisfaction of the criteria under s.36(2)(a) of the Migration Act they were also referred to in the context of the complementary protection criteria: CB 362, and the applicants had the opportunity to place further material in relation to the application before the Tribunal. Both the acknowledgment of application: CB 385-386, and invitation to hearing: CB 389-390, provided the applicants with the opportunity to provide the Tribunal with additional information;

   f)in respect of the second aspect of ground 3, the provision of the further evidence by way of affidavit amounts to a plea for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the Minister formally objects to the tender of those affidavits;

   g)the Minister contends that there is no obligation under the Migration Act for the Tribunal to “investigate” claims made by visa applicants as the Tribunal does not have a “duty to inquire” rather, it is a “duty to review”;

   h)the applicants’ claims in relation to this ground must be considered in light of the evidence that was provided to the Tribunal as well as the proceedings in general, and in that regard the applicants were aware that the risk of harm upon return to Kenya was generally in issue;

   i)in response to a question from the Tribunal WZAUH claimed that his father and cousin had been attacked: CB 440 at [63] and 441 at [73]. The Tribunal asked a number of questions in relation to the issue, including how WZAUH knew that it was the Mungiki that attacked his relatives, and referred to country information that many criminal elements were committing crimes: CB 441 at [73]. WZAUH again referred to his father and cousin being bashed later in the Tribunal Hearing: CB 442 at [81]. No further information was provided either at the Tribunal Hearing, or subsequently, in relation to that claim despite the applicants providing further information after the Tribunal Hearing;

   j)in circumstances where the Tribunal invited evidence, engaged with the applicants and raised concerns in relation to the issue at the Tribunal Hearing, if it could not be satisfied on the basis of the material presented by the applicants that the claims were genuine, it did not have any duty to make further inquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224;

   k)it cannot be maintained that the Tribunal failed to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained” such that it fell into jurisdictional error: Minister for Immigration & Citizenshipv SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [24]-[26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; and

   l)no jurisdictional error arises with respect to ground 3.

Consideration – ground 3

1. Insofar as the applicants refer to and seek to rely upon WZAUH’s November 2014 Affidavit, WZAUI’s November 2014 Affidavit and the Siblings Affidavit specifically for the purposes of ground 3 the Court has not had regard to those affidavits as they are inadmissible for the reasons set out at [61]-[69] above.

2. In relation to complementary protection, which is the subject of ground 3, the Tribunal:

   a)said that it had considered the application of s.36(2)(aa) of the Migration Act to the applicants’ circumstances, and considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Kenya, that there is a real risk that they will suffer significant harm: CB 475 at [196], and concluded that having regard “to all the evidence before it” it was not so satisfied, and that the applicants did not satisfy the requirements of s.36(2)(aa) of the Migration Act: CB 475 at [203];

   b)in making the finding set out in the previous subparagraph the Tribunal considered:

   i)whether WZAUH might face the death penalty, be subject to torture or cruel or inhuman treatment, or degrading treatment or punishment, and found that there was nothing before the Tribunal which would justify a finding that there are substantial grounds for believing that there was a real risk that significant harm will be suffered on those bases: CB 475 at [197];

   ii)whether the possibility of election related violence, from either the Mungiki or Al Shabaab might give rise to a fear of arbitrary deprivation of life, but found that the evidence of Al Shabaab attacks did not give rise to the necessary degree of likelihood associated with the term “real risk”: CB 475 at [199]; and

   iii)whether there may be some basis for suggesting that the applicants might face significant harm from election related violence, but found that the applicants had no profile, political or otherwise, that would make them a target for election related violence, and after “considering all the available evidence and country information” found that the applicants would not be in a position substantially different from the general population of Kenya, and by reason of s.36(2B)(c) of the Migration Act held that there was not to be taken to be a real risk of significant harm if the risk faced was one faced by the population generally and not the applicants personally, and that that was the situation with respect to the applicants in relation to possible attacks by Al Shabaab: CB 475 at [200]-[201]; and

   c)in relation to the Mungiki, found “based on the evidence, that the Mungiki’s interest in the applicant [WZAUH] has waned since his departure from Kenya and that he is not a person in whom they are interested”: CB 475 at [202], and that having regard to the country information, adequate state protection existed for the applicants and that there were therefore not substantial grounds for believing that there was a real risk that they would suffer significant harm in relation to their Mungiki claims: CB 475 at [202].

3. Insofar as the submissions in support of ground 3 suggest that the Tribunal ought to have invited the applicants to provide additional documentary evidence in relation to their complementary protection claim (or, indeed, their other claims), the Court notes that:

   a)the applicants were on notice by reason of the Delegate’s Decision as to the issues in respect of which the applicants’ claims had not succeeded, and that those claims included the alleged threat to the applicants from the Mungiki if the applicants returned to Kenya, which the Delegate found not to be well-founded: CB 360, and which the Delegate adopted for the purposes of its findings in relation to complementary protection: CB 362;

   b)the Tribunal’s acknowledgment letter to the applicants in relation to the application for review to the Tribunal advised the applicants at CB 385 as follows:

   If you wish to provide material or written arguments for the tribunal to consider, you should do so as soon as possible.

   c)the Tribunal’s invitation to the applicants to attend the Tribunal Hearing invited the applicants “to give evidence and present arguments relating to the issues arising in your case”: CB 389, and enclosed an information leaflet concerning Tribunal Hearings: CB 389;

   d)the applicants appeared at the Tribunal Hearing and both gave oral evidence, and prior to the Tribunal Hearing WZAUH provided more information in relation to the claims concerning the Mungiki: CB 437-438 at [44]-[45]; and

   e)the Tribunal considered, in detail and comprehensively, the applicants’ (especially WZAUH’s) claims and the country information with respect to the threat posed by the Mungiki in Kenya, including putting that country information to the applicants for comment at the Tribunal Hearing: see [73(f)(i), (h) and (l)], [75], [77](f), (h) and (i)], [79] and [84] above.

4. In the above circumstances, it cannot be said that there was any basis upon which the Tribunal ought to have invited the applicants to provide additional documentary evidence in relation to their claims. The Tribunal had before it the evidence and materials of the applicants, and had and took the opportunity to question the applicants about their evidence and materials, as well as having regard to the country information (which, was extensive and primarily from very authoritative and primarily non-Kenyan sources: see CB 445-469 at [96]-[162] and footnotes 1-150). In the circumstances, the occasion for the exercise of any powers that the Tribunal had under ss.424A or 424AA of the Migration Act did not arise: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

5. Ultimately, it was for the applicants to advance whatever evidence and arguments they wished in support of their grounds of review before the Tribunal in an endeavour to satisfy the Tribunal pursuant to s.65 of the Migration Act that they were entitled to a Protection Visa: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [187] per Gummow and Hayne JJ. There was no obligation on the Tribunal to conduct an inquiry or investigation to determine or discover if the applicants’ case might have been better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; SZIAI. That is particularly so, where, as here, there was more than sufficient evidence for the Tribunal to reach the conclusions that it did on the basis of the evidence and materials (including the country information) before the Tribunal.

6. Ground 3 does not establish jurisdictional error in the Tribunal Decision, and is not made out.

Conclusions and orders

1. The Court has concluded that:

   a)the 463 day delay in making the Proposed Judicial Review Application is such a lengthy delay that it alone in this case is a sufficient basis for dismissal of the Extension of Time Application;

   b)the length of the delay in making the Proposed Judicial Review Application, together with the failure to adequately explain that delay, taken together, are also a sufficient basis for dismissal of the Extension of Time Application;

   c)the length of the delay in making the Proposed Judicial Review Application, together with the failure to provide an adequate explanation for that delay, and the significant prejudice to the Minister, taken together, are also a sufficient basis for dismissal of the Extension of Time Application;

   d)the grounds of the Proposed Judicial Review Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore extend time: SZSDA at [39] per Foster J; MZZIV at [5] per Mortimer J, but, even if the Proposed Judicial Review Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.477(2) of the Migration Act, finds that for the reasons leading to the conclusions both individually in the case of (a) and (b) of this paragraph, and in combination in the case of (a) and (b), and also (a), (b) and (c) of this paragraph, would warrant dismissal of the Extension of Time Application in any event, and thus even if the applicant had a good case it would be defeated by the time limitation: Brisbane South Regional Health Authority CLR at 553 per McHugh J; Tran at [38] per Wigney J; and

   e)further, the Court is not persuaded, and particularly so having regard to the findings in (a), (b), (c) and (d) of this paragraph, and the notoriously heavy and ongoing case load in the Perth Registry of this Court, that it would be in the interests of the administration of justice under s.477(2) of the Migration Act to extend time in this case.

1. In circumstances where the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [34] per Judge Lucev. The Court does, however, note that if it had to determine the grounds in the Proposed Judicial Review Application, the grounds would not have been made out, for the reasons set out at [73]-[86] and [89]-[94] above, and the Court would therefore have concluded that the Tribunal Decision was not affected by jurisdictional error.

2. The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

3. The Court will hear the parties as to costs.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 25 July 2019