FEDERAL COURT OF AUSTRALIA

DZAAD v Department of Immigration and Citizenship [2013] FCA 204

THE COURT ORDERS THAT:

1.    The Application for an extension of time within which to appeal from the decision of Federal Magistrate Lucev given on 8 November 2012 (DZAAD v Minister for Immigration and Citizenship [2012] FMCA 1017) be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant applies for an extension of time within which to appeal from a decision of a Federal Magistrate given on 8 November 2012 (DZAAD v Minister for Immigration and Citizenship [2012] FMCA 1017). By that decision, the Federal Magistrate dismissed an application for judicial review of a recommendation made by the second respondent, an independent merits reviewer, (the reviewer) in a decision dated 26 March 2011.

2    The applicant is a Tamil male from Sri Lanka. He arrived by boat with his wife and two children at Christmas Island on 20 March 2010 without a valid visa. In those circumstances, the applicant was not permitted to apply for a protection visa unless the first respondent (the Minister) considered that it was in the public interest to permit such an application pursuant to s 46A(2) of the Migration Act 1958 (Cth) (the Act). The power given to the Minister by s 46A(2) must be exercised by the Minister personally.

3    The Department has developed an administrative procedure for persons seeking a favourable exercise of the Minister’s discretion. The first step in this process is for the applicant to seek a refugee status assessment (RSA). The RSA is undertaken by a Departmental officer who determines whether Australia owes protection obligations to that person. The RSA is subject to independent merits review (IMR). The IMR was conducted in this case by the second respondent. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, the High Court held that the outcome of an IMR is amenable to judicial review.

4    On 8 May 2010, the applicant applied for a RSA. A Departmental officer made a negative assessment on 12 July 2010. The applicant then sought merits review of that assessment on 4 October 2010. By then, the applicant’s wife and children were not part of his application, as the couple had separated and had requested that their applications be determined separately, the children being included within their mother’s application.

5    On 26 March 2011, the reviewer recommended that the applicant should not be recognised as a person to whom Australia owed protection obligations. On 5 April 2011, a delegate of the Minister notified the applicant that the Minister accepted the reviewer’s recommendation.

6    On 29 April 2011, the applicant sought judicial review of the IMR in the Federal Magistrates Court.

Backgrounds and Claims

7    The applicant claimed to fear persecution by Sri Lankan authorities, specifically the Intelligence CID branch of the Sri Lankan Army, by reason of his Tamil ethnicity. He also claimed to fear persecution by the CID for reasons of imputed political opinion, specifically that the CID believed him to support the Liberation Tigers of Tamil Eelam (LTTE).

8    The applicant claimed that, in 1997, he had been arrested and beaten by the CID and that he had been released on the condition that he report to them on a weekly basis. He claimed that these reporting conditions lasted for two years, after which he no longer had problems with the authorities. This remained the position until November 2009. He claimed that he and his family had leased a room in their house to a boarder called Ravi whom he had met in mid 2008. He said that Ravi had been arrested by the CID for having alleged links to the LTTE and that, because of the applicant’s ties with Ravi, the CID had renewed its interest in him. He claimed that, after Ravi had been detained, the CID came to the applicant’s home and arrested him, keeping him in custody overnight. He claimed that, while he was detained, he was subjected to torture, including being beaten with barbed wire, and that, on his release, he had to attend hospital for his injuries. He claimed that, while he was in detention, the CID had interrogated his wife at their home and had slapped her. The applicant claimed that, following these incidents, the family moved to his brother’s house as he was fearful that he was being constantly monitored by the authorities.

9    The applicant also claimed to fear returning to Sri Lanka as a failed asylum seeker. He said that, as a failed asylum seeker, he would be arrested at the airport and that there would be a heightened risk of being detained, tortured or killed by the army, the CID or by Sinhalese because of his association with Ravi and because he had left Sri Lanka after he had been told to report to the CID when required.

The Independent Merits Review

10    As I have already mentioned, the independent merits review was completed on 26 March 2011. It was notified to the applicant on 5 April 2011.

11    Before completing his review, the reviewer sent a letter to the applicant dated 9 February 2011 in which he raised with the applicant and his adviser, for the applicant’s consideration and comment, some possible findings which he might make based upon the evidence which he then had before him. Under cover of that letter, he also sent for the applicant’s consideration and comment some independent country information reports on the current situation in Sri Lanka. He said that the information which he enclosed with his letter might lead him to find that the situation in Sri Lanka had improved sufficiently for the applicant to return safely to Sri Lanka. The reviewer made clear that he might rely upon this information when making his recommendations.

12    The reviewer accepted that the applicant had been detained in 1997. However, the reviewer was not satisfied that the applicant had been suspected by the authorities of having links to the LTTE, given that he had been released from his reporting conditions.

13    The reviewer also accepted that the applicant may have had a boarder called Ravi. However, the reviewer found that the applicant’s evidence regarding his other claims differed significantly from the claims made by his wife and that the applicant did not refute nor give any plausible explanation for these inconsistencies. Consequently, the reviewer did not accept that there is a real chance that the applicant would be thought to be an LTTE supporter by Sri Lankan authorities. Similarly, although the reviewer acknowledged that Tamil citizens of Sri Lanka continue to face discrimination, the reviewer was not satisfied that this would give rise to a real chance of serious harm to the applicant. In light of these findings, the reviewer also found that any attention which the applicant might attract as a failed asylum seeker would not amount to serious harm.

14    For these reasons, the reviewer was not satisfied that there is a real chance that the applicant would suffer serious harm for a Convention reason should he be compelled to return to Sri Lanka.

The Proceeding before the Federal Magistrate

15    On 29 April 2011, the applicant filed an Application in the Federal Magistrates Court for judicial review of the recommendation which the reviewer had made on 26 March 2011. An Amended Application was filed by the applicant on 2 August 2011. In that Amended Application, the applicant relied upon the following grounds:

1.     The Reviewer denied the Applicant procedural fairness by requiring him to leave the hearing room at the time of receiving evidence from his wife

Particulars

(a)     The reviewer was advised that the Applicant and his wife were separated and wanted their applications considered separately.

(b)     For the purpose of the Applicant’s application, the wife was an important witness in his case.

(c)     The Reviewer required the Applicant to leave the hearing room at the time of receiving evidence from his wife.

(d)     The Reviewer received evidence from the wife and purported to conduct a review of the wife’s case in the middle of the Applicant’s hearing and in the Applicant’s absence.

(e)     Requiring the Applicant to leave the hearing room constituted a denial of procedural fairness notwithstanding the reviewer subsequently put to the Applicant perceived inconsistencies between the Applicant and his wife’s evidence.

2.     The Independent Merits Review decision is affected by apprehended bias.

Particulars

(a)     A fair minded lay observer might reasonably apprehend that the Reviewer might not bring an impartial mind to the applicants case by reason of the following:-

(i)    The Reviewer required the applicant to leave the hearing room when his wife gave evidence in his case.

(ii)     During the hearing, the Reviewer accused the Applicant and his wife of collusion and questioned a security guard in relation to this allegation.

(iii)     At hearing, the Reviewer’s questioning of the Applicant and his wife were directed towards eliciting inconsistencies in their evidence instead of assessing and reviewing the Applicant’s protection visa claims.

(iv)    The Reviewer used perceived ‘significant disparities in evidence’ to reject the factual claims of the applicant, when such disparities could not logically or reasonably have led to such findings.

16    The Federal Magistrate found that ground 1 invited impermissible merits review. In addition, his Honour found that, in all the circumstances, the applicant had not been denied procedural fairness in the end as he had been given the opportunity to comment on the material which was adverse to his claims both at the hearing and later in writing. In particular, after reviewing a number of relevant authorities, including several High Court authorities, at [54] of his Reasons for Judgment, the Federal Magistrate said:

54.    The duty of the IMR was to ensure that the applicant was given a reasonable opportunity to present his case, not to make sure that the applicant took best advantage of the opportunity to which he was entitled. Having regard to Naisauvou and DZAAA the applicant was initially denied procedural fairness by the IMR by not being allowed to be present during the Wife’s IMR Interview. These were, however, administrative proceedings, and the IMR took steps, which negated any denial of procedural fairness arising from the failure to allow the applicant to be present during the Wife’s IMR Interview.

17    I have removed all references to footnotes in the above citation of [54] of the Federal Magistrate’s Reasons.

18    His Honour also observed that the applicant’s migration agent had remained in the interview room when the reviewer had conducted his interview of the applicant’s wife in the absence of the applicant.

19    In relation to the second ground relied upon by the applicant before the Federal Magistrate, his Honour found that a fair reading of the reviewer’s recommendation did not reveal anything to suggest that the reviewer had predetermined the matter. There was no other evidence before the Federal Magistrate that suggested bias. Consequently, his Honour found that the submission of apprehended bias had not been made out.

20    For these reasons, the application before the Federal Magistrate was dismissed.

The Proceeding in this Court

21    On 5 December 2012, the applicant filed an Application for an extension of time within which to appeal from the Federal Magistrate’s decision. His Application was dated 30 November 2012. At most, his attempt to engage the jurisdiction of this Court was six days late. At the time that he filed his Application in this Court, the applicant filed an affidavit sworn on 30 November 2012. In that affidavit he said:

8.    I am unrepresented at present. I am applying for legal aid.

9.    I could not make this appeal within 21 days, due to a number of reasons, because I was hoping to get some legal support to apply within 21 days but I missed the deadline by one day:

(a)     I am under stress regarding the family separation and the welfare of my children.

(b)     I undergo counselling for my issues

(c)     I could not get legal support to file this case

22    Attached to his affidavit was a draft Notice of Appeal in which the applicant specified the following grounds of appeal:

1.    That there is a jurisdictional error in the Federal Magistrates Courts decision.

2.    The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

3.    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

23    In an affidavit sworn on 14 February 2013 and filed on 15 February 2013, at pars 2 and 3 the applicant said (in English):

2.    I could not secure the services of a legal professional for my hearing as I continue to undergo counselling for my mental health issues. A report from my counselling services has already been submitted to the Court.

3.    I intend to argue that “The Minister cannot lawfully act on the recommendation of the Independent Merits Review Reviewer because that recommendation failed to take into account a relevant consideration for the Minister, namely my claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The Minister is obliged to take s 36(2)(aa) of the Act and the my claims thereunder into account from 24 March 2012 notwithstanding that the Independent Merits Review Reviewer had not been obliged to take into account s 36(2)(aa) of the Act and the my claims at the time the Independent Merits Review Reviewer made his recommendation.”

24    I shall refer to the foreshadowed ground of appeal set out in par 3 of the applicant’s affidavit as the “additional ground”.

25    I very much doubt whether the applicant has any idea what is meant by the additional ground. He does not speak English apparently and the affidavit is entirely in English. It is a reasonable inference for the Court to draw that the additional ground was inserted into the applicant’s affidavit by a migration agent or some such person in order to ventilate, if at all possible, a ground of attack which finds its provenance in the High Court decision of Plaintiff M61/2010E v Commonwealth. The applicant has been unable to support this claim with any argument or any submission at all.

26    I have received some assistance from the legal representative of the Minister in relation to the issues raised by the additional ground, for which I am most grateful. However, it must be remembered that the Minister comes to this Court in this matter and in matters like it, not as amicus curiae, but as the adversary of the applicant and persons in the position of the applicant. It is quite regrettable that a ground such as the additional ground is put forward, in effect, by someone who is not here to argue it. None of this is a criticism of the applicant. After all, all he is trying to do is put forward any and every argument that might be available to him which would enable him to remain in Australia.

27    Notwithstanding that the applicant is unable to support the additional ground with any argument, I propose to treat his draft Notice of Appeal as including the additional ground. Accordingly, the grounds of appeal to which I will have regard when dealing with the present Application are the grounds in the draft Notice of Appeal attached to the applicant’s first affidavit taken together with the additional ground.

28    The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348–349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O’Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] (per Cowdroy J)).

29    The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed).

30    It would be a proper exercise of the Court’s discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one.

31    I now turn to deal with the proposed grounds of appeal.

Proposed Ground 1

32    This ground seems to raise an avenue of attack upon the Federal Magistrate’s decision, which is almost certainly misconceived. However, in any event, as matters stand, the ground has not been particularised in any way, shape or form. It is impossible from the expression of the ground in the applicant’s draft Notice of Appeal to discern what it is that is the subject of complaint. In those circumstances, I regard ground 1 as not raising any point of substance and thus as having no prospect of succeeding.

Proposed Ground 2

33    This proposed ground raises arguments which have their source and were discussed in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SJZSS), harking back to Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 (Ex parte Applicant S20/2002) at [5]. As has been said in this Court, a finding that a decision is irrational or illogical, in the requisite sense, is not to be made lightly (Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 376 [41] (per Kenny J)).

34    The Minister submitted that this particular attack on the reviewer’s decision had not been directly raised before the Federal Magistrate but had rather been included as a particular of his allegation of apprehended bias. The Minister submitted that, if the applicant now wishes to agitate illogicality or irrationality more broadly, then leave would be required to raise a new ground of appeal. The Minister went on to oppose the grant of such leave on grounds which were articulated in his Written Submissions.

35    At this stage of the matter, the question of leave to argue this ground does not arise. I propose to address the substance of the ground without troubling too much about whether leave to argue the ground would or would not be granted in due course.

36    The reviewer traversed the claims made by the applicant in considerable detail and, after interviewing the applicant and his wife, sent the letter dated 9 February 2011, to which I have referred at [11] above. In that letter, the reviewer raised a number of concerns which the reviewer had with the applicant’s version of events. There were, in the reviewer’s opinion, significant discrepancies between the applicant’s version of events and his wife’s account of the same events. In his recommendation report, the reviewer analysed these discrepancies in some detail and concluded that the applicant’s claims had not been made out. There was nothing illogical or irrational in the reasoning process undertaken by the reviewer.

37    The Federal Magistrate considered the question of illogicality or irrationality under the rubric of apprehended bias and concluded that bias had not been made out. Even if one were to view the allegation of illogicality or irrationality as a separate and stand-alone ground of appeal, I do not think that it has any prospects of succeeding in this Court. The reviewer’s analyses and findings do not fall foul of the principles articulated by the High Court in SZJSS and Ex parte Applicant S20/2002.

The Additional Ground

38    The essence of the attack encapsulated in the additional ground is that, notwithstanding that s 36(2)(aa) of the Act was not inserted into the Act and did not come into force until 24 March 2012, the applicant can nonetheless rely upon its terms as something which the Minister was obliged to take into account from 24 March 2012 onwards. In its original form, s 36(2)(aa) was inserted into the Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the Amendment Act).

39    A very similar argument was considered by the Full Court in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 (MZYPO). At [36]–[43] in the Reasons for Judgment of Lander and Middleton JJ, their Honours said:

36    At the time that the second respondent carried out her review, and gave her recommendation on 4 July 2011, s 36(2)(aa) of the Act, which was contained in the Amendment Act, had not been enacted. It came into force on 24 March 2012. Item 12 of Schedule 1 to the Amendment Act provided that after s 36(2)(a) of the Act would be inserted:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

37    Although s 36(2)(aa) was originally inserted in that form in the Act, Item 7 of Schedule 1 of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) amended s 36(2)(aa), by omitting the words “to whom” and substituting the words “in respect of whom”, which is the form in which that subsection and s 36(2)(a) now appear.

38    There were a number of consequential amendments in the Amendment Act. For example, “significant harm” was the subject of amendments introduced in s 36(2A), (2B) and (2C) of the Act. “Torture”, “cruel or inhumane treatment or punishment”, and “degrading treatment or punishment”, all of which are mentioned in s 36(2A), were new definitions inserted in s 5 of the Act. Subsection 36(4) and (5) of the Act were repealed and substituted by s 36(4), (5) and (5A).

39    The new criterion of s 36(2)(aa) is described as “complementary protection”.

40    Section 36(2)(aa) is only engaged if the person who has applied for a protection visa cannot satisfy the criterion in s 36(2)(a).

41    Although the appellant made no submissions to the Federal Magistrate and, therefore, did not rely upon the second respondent’s failure to have regard to s 36(2)(aa) as a ground for jurisdictional error, the appellant sought in the first sentence of ground 1 of the second proposed amended notice of appeal to raise such an issue.

42    Ground 1 suffered from the problem that the error sought to be relied upon was not an error that could have been committed by the second respondent at the time that the recommendation was made because at that time s 36(2)(aa) had not been enacted. Therefore, the second respondent had no duty to consider that paragraph. The Minister also had no duty to consider s 36(2)(aa) at the time the Minister received the second respondent’s recommendation.

43    It might be, as was contended by the appellant, that the Minister was obliged to have regard to the provisions of s 36(2)(aa) after it was enacted, but it cannot be said that the second respondent, or the Minister, had such an obligation before the paragraph was enacted.

40    As is apparent from the passages which I have quoted from MZYPO, s 36(2)(aa) of the Act was not inserted into the Act until 24 March 2012. It was then subsequently amended in a number of ways.

41    As was the case in MZYPO, the reviewer in the present case could not have had regard to the terms of s 36(2)(aa) of the Act at the time when he made his recommendations because at that time s 36(2)(aa) had not been enacted. Further, at the time at which the reviewer delivered his recommendation to the Minister, the Minister also had no duty to consider that section for the same reason.

42    The additional ground, however, subsumes a contention that, notwithstanding these matters, the Minister was bound to consider the terms of s 36(2)(aa) after 24 March 2012 and that the Minister’s failure to do so constituted reviewable error.

43    The evidence before me does not disclose whether the applicant ever made a request of the Minister at any time let alone after 24 March 2012 to consider the applicant’s application for protection by having regard to s 36(2)(aa). As far as the evidence before me goes, the first time that that suggestion was raised was when the applicant filed and served his affidavit sworn on 14 February 2013. He did not argue the additional ground before the Federal Magistrate.

44    As at 24 March 2012, the proceedings in the Federal Magistrates Court had been heard but not determined. Those proceedings were not determined until 8 November 2012.

45    In MZYPO, Lander and Middleton JJ also looked at the question of whether, in any event, as at the time when that matter was before the Full Court, the Minister could ever have been under a duty to consider the appellant’s claim. The proposition was that s 36(2)(aa) did not apply to the appellant in any event. At [48]–[53], their Honours said:

48    The Minister claims that he is under no duty to consider the appellant’s claim for protection under s 36(2)(aa) because s 36(2)(aa) does not apply to the appellant. In that regard he relies upon Item 35 of Schedule 1 of the Amendment Act.

49    The Minister argues that if he is wrong about the application of s 36(2)(aa) that in any event he has caused the appellant’s claims to be assessed against that criterion. The Minister says that on 14 May 2012, a departmental officer assessed the appellant’s claims against the Post Review Protection Claims guidelines and found that the appellant did not satisfy the criterion.

50    Whether the appellant is entitled to make a claim for protection relying upon s 36(2)(aa) is not without difficulty because of the provisions of Item 35 of Schedule 1 to the Amendment Act, which provides:

The amendments made by this Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):

(a)    that is made on or after the day on which this item commences; or

(b)    that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.

51    The appellant had not made an application for a protection visa before 24 March 2012 so, apparently, paragraph (b) would not apply. The appellant has not made, and has not been able to make, a valid application for a protection visa since 24 March 2012, because during the period between 24 March 2012 and 12 April 2012 he was an offshore entry person who was in Australia and an unlawful non-citizen (s 46A); and, since 12 April 2012, because he is a non-citizen who has held a Temporary Safe Haven visa and has not left Australia since ceasing to hold a Temporary Safe Haven visa (ss 91J, 91K).

52    Unless the Minister exercises the non-compellable personal power in s 91L of the Act, the appellant cannot make a valid application for a protection visa. The Minister argues that Item 35 of Schedule 1 of the Amendment Act provides that s 36(2)(aa) of the Act does not apply to the appellant.

53    The appellant may argue that the Minister has to have the appellant’s claim for a protection visa under s 36(2)(aa) assessed in the same manner as his claim for a protection visa under s 36(2)(a) because of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia, but that is not a matter that we have to consider now because during the hearing the appellant abandoned the application to amend the notice of appeal to include ground 1. In those circumstances, no more needs to be said about that ground.

46    Theoretically, after 24 March 2012, the applicant might have requested the Minister to consider his claims against the requirements of s 36(2)(aa). But this was never done. In this case, the only grounds ever advanced by the applicant as justifying the exercise of any discretion in his favour by the Minister were his need for protection based upon imputed political opinion and his Tamil ethnicity. Complementary protection was never relied upon by the applicant. That ground was introduced into the case for the first time when the applicant filed his affidavit sworn on 14 February 2013. In my judgment, the applicant cannot rely upon this ground (see SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [37]–[38]).

47    As I have already mentioned, the applicant did not make an application for a protection visa before 24 March 2012. Because of his immigration status, he could not have done so in any event. He did not make nor was he able to make a valid application for a protection visa at any time after 24 March 2012. At all relevant times, the applicant has been an offshore entry person in Australia and an unlawful non-citizen within the meaning of s 46A of the Act. In those circumstances, he has been unable to make a valid application for a protection visa. For those reasons, Item 35 of Sch 1 to the Amendment Act does not apply to the applicant.

48    The Minister also submitted that, whatever else was the case, the additional ground should not be entertained by the Court on the present application because it would not be allowed to be included in any Notice of Appeal. The proposition was that, the ground not having been raised before the Federal Magistrate, the Minister would suffer prejudice if it were allowed to be raised in any future appeal in this Court. The alleged prejudice is that the Minister would have wished to meet the contention embedded in the ground by evidence had the ground been raised before the reviewer or before the Federal Magistrate. That evidence would most likely have comprised evidence that, in the particular circumstances of this case, the applicant’s case and claims were, in any event, assessed against the Minister’s post-review protection claims guidelines and found to be wanting as against those guidelines. I think that, while the identified prejudice is real, it could easily be remedied by allowing the Minister to prove by evidence tendered in the appeal that the applicant’s claims had been considered against the post-review protection claims guidelines and found wanting, as submitted by the Minister.

49    The real difficulty for the applicant is the fact that, in my judgment, the Minister was never obliged to consider his claims against the requirements of s 36(2)(aa) of the Act. That would be fatal to the additional ground.

50    For the above reasons, I have come to the conclusion that the proposed grounds of appeal including the additional ground have no prospect of success.

51    The application for an extension of time must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    15 March 2013