FEDERAL COURT OF AUSTRALIA

AUK15 v Minister for Immigration and Border Protection [2015] FCA 938

THE COURT ORDERS THAT:

1.    The application for extension of time to seek review be refused.

2.    The applicant pay the first respondent’s costs of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    The applicant is a male citizen of Afghanistan who applies for an extension of time to file an application for review of a decision by the then Minister for Immigration, Multicultural Affairs and Citizenship made on 29 August 2013 to refuse to grant the applicant a protection (class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

2    The applicant arrived at Christmas Island by boat without a valid visa on 11 August 2011. He was transferred to Curtin Immigration Detention Centre on 17 October 2011. He was later transferred to Perth Immigration Detention Centre on 21 November 2011, and then to Yongah Hill Immigration Detention Centre on 10 February 2012.

3    On 22 October 2011, the applicant indecently assaulted a female employee working at the Curtin Immigration Detention Centre. The applicant grabbed the breast of the employee, squeezing it twice without her permission.

4    The applicant was convicted in the Magistrates Court of Western Australia of indecent assault and fined $5000 on 7 September 2012. The applicant appealed this decision. On 5 March 2013, the Supreme Court of Western Australia allowed the applicant’s appeal in part, setting aside the sentence imposed and instead fining him $2000.

5    Meanwhile, the applicant had lodged a request for a protection obligations evaluation on 30 November 2011, and on 26 April 2012, the applicant was found to have met the criterion for a protection visa in s 36(2) of the Act, as a refugee to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.

6    On 10 May 2013, former Minister O’Connor agreed to allow the applicant to apply for a protection visa, exercising the Minister’s power under s 46A(2) of the Act. Minister O’Connor also indicated he wished to consider whether or not to use his discretionary power to refuse the applicant’s protection visa application under s 501 of the Act, due to the applicant’s conviction for conduct in immigration detention.

7    On 18 June 2013, a notice of the Minister’s intention to consider refusal of a visa under s 501(1) was emailed to the applicant’s migration agent, BMA Lawyers, setting out grounds for possible refusal and providing an opportunity for the applicant to comment. The applicant’s migration agent responded on 16 July 2013, making submissions and providing character references. The applicant’s migration agent was allowed an extension of time to submit further documentation, but advised on 8 August 2013 no additional information would be submitted.

8    A memorandum or briefing paper outlining the relevant issues for the Minister’s perusal was provided by the Department of Immigration and Citizenship to then Minister Burke on 26 August 2013, along with a draft statement of reasons.

9    The “Key Issues” part of the briefing paper noted that given the applicant had been found to be a refugee, and not to have a right to enter and reside in any safe third country, it would not be possible to remove him from Australia at that time.

10    In the “Issues for Consideration” part of the briefing paper, considerations relevant to the exercise of the Minister’s discretion were noted as follows:

(1)    The applicant had been convicted in the Magistrates Court of indecent assault. The circumstances of the indecent assault and the Supreme Court’s reduced sentence were noted.

(2)    The applicant’s migration agent referred to comments made by Hall J on appeal:

As to the seriousness of the appellant’s conduct, the offence appears to have occurred on the spur of the moment and to have been of very short duration. It involved touching over the clothes and, whilst no doubt unwelcome and distressing, it was not suggested that there was any bruising or long term psychological effects. Whilst an offence of indecent assault is serious, the offence covers a wide range and this offence must be considered to be at the lower end of that range. That was a characterisation accepted by the respondent at the hearing of the appeal.

(3)    Hall J imposed a reduced fine of $2000 which was in his Honour’s view the “lowest fine that could be imposed that would commensurate the seriousness of the offence”. His Honour concluded it was open for the magistrate to exercise her discretion in not granting a spent conviction.

(4)    The unlawful indecent assault involved an overt sexual act which may be characterised as very serious. The Australian community would find the sexual nature of the applicant’s offence repugnant and contrary to societal values.

(5)    The victim of the applicant’s indecent assault refused a personal apology from the applicant and wanted police intervention, and was upset and disturbed about the incident.

(6)    The offence was committed in immigration detention where offensive or harmful acts against staff or public officials threaten the good order and operation of the centre.

(7)    The applicant has no other criminal convictions in Australia and the Department was not aware of any criminal convictions in any other country.

(8)    The applicant’s migration agent expressed the applicant is extremely remorseful and has positively contributed to his community in immigration detention since the offence was committed. However, the applicant maintained a plea of not guilty during the criminal proceedings.

(9)    Hall J was unable to conclude that the appellant is unlikely to commit such an offence again, although the applicant’s migration agent submitted the applicant is highly repentant and has not been involved in any activities which suggest he would be likely to commit any further offences.

(10)    The applicant’s background, education, family and dependants were mentioned.

(11)    The applicant has been in immigration detention since 11 August 2011 and his health and wellbeing may be affected. While the applicant’s migration agent did not raise the issue, Hall J noted in the criminal appeal that defence counsel submitted it was relevant to take into account the stress the applicant experienced from being detained while waiting for a decision on his visa application.

(12)    The applicant is a helpful and diligent member of Yongah Hill Immigration Detention Centre, according to his migration agent. Serco certificates recording accomplishments and contributions were provided, as well as letters of support from his friends and fellow detainees.

(13)    Australia has non-refoulement obligations under various international treaties.

(14)    The protection obligations evaluation on 26 April 2012 determined the applicant met the criterion for a protection visa in s 36(2) of the Act as he is a Hazara and Shi’a from Afghanistan who faces a real chance of persecution by Pashtuns and the Taliban. The evaluator concluded if the applicant was returned to his home province of Uruzgan, there was a definite, real chance he could become the victim of persecution on account of his ethnicity and religion.

(15)    There was no evidence to suggest the applicant had the right to enter and reside in any safe third country.

(16)    The applicant’s migration agent submitted there had been no change in circumstances since the protection obligations evaluation, and given the withdrawal of foreign forces from Afghanistan, it was highly plausible the situation would continue to deteriorate.

11    The Minister’s attention was also drawn to “Direction No. 55 – Visa refusal and cancellation under s 501”, which had effect from 1 September 2012. This was a direction, or policy, released by the then Minister regarding visa refusal and cancellation under s 501, explaining how to exercise the discretion.

12    In the Direction, “Primary considerations” for visa applicants were identified as protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and whether Australia has international non-refoulement obligations to the person. With regard to international non-refoulement obligations, the Direction noted as follows:

(1)    In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

(2)    The power to refuse a visa is a fundamental exercise of Australian sovereignty. The existence of a non-refoulement obligation does not preclude refusal of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person’s criminal offending or other serious conduct in deciding whether or not the person’s visa application should be refused.

13    On 29 August 2013, having considered the briefing paper from the Department, Minister Burke refused to grant the applicant a protection visa, exercising his discretion under s 501(1) of the Act.

14    The Minister’s statement of reasons included the following findings:

(1)    The applicant’s conduct was a crime against the person, an overt and sexual act that was to be viewed seriously given the sexual element associated with the criminal conduct. However, the Minister acknowledged Hall J’s findings that the offence must be considered to be at the lower end of the range of indecent assaults.

(2)    Crimes committed against staff in the performance of their duties in immigration detention centres are serious. These workers are entitled to carry out their duties without being subject to abusive or offensive behaviour. The applicant’s conduct was of a type that will not be tolerated while people are in immigration detention. Crimes committed in immigration detention are serious offences in themselves and are the type of offences which the new limb of the character test (referring to s 501(6)(aa) of the Act) was specifically intended to discourage.

(3)    The applicant’s crime was considered sufficiently serious so as not to attract a spent conviction and to attract a $2000 fine.

(4)    The applicant had no other history of offending in Australia or elsewhere. He was a person of previously good character, as found by Hall J.

(5)    Hall J was unable to conclude the applicant was unlikely to commit such an offence again.

(6)    The applicant’s migration agent submitted the applicant’s actions were attributable to lack of judgment rather than a tendency to commit crimes and said he was extremely remorseful for his actions. The migration agent said the applicant would not reoffend.

(7)    Australia has a non-refoulement obligation under the Convention to the applicant in respect of Afghanistan, and there was no evidence to suggest the applicant had the right to enter and reside in any safe third country. However, a decision to refuse a protection visa on character grounds is not, in itself, a decision to remove the applicant from Australia, nor does it necessarily lead to such action.

(8)    The evidence available did not indicate the applicant has any links in Australia, other than the support network of fellow detainees established in detention.

(9)    The applicant’s behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities, and consistent with the introduction of the new limb of the character test in s 501(6)(aa) this behaviour should attract consequences.

15    The Minister therefore decided to exercise his discretion to refuse the applicant’s application for a protection visa.

16    On the front page of the Department’s briefing paper to the Minister, four recommendations were set out which, in each case, provided the Minister with options. In response to the first recommendation, Minister Burke circled the response “consider personally”, indicating he wished to consider the case personally, rather than refer character consideration to another decision-maker. In respect of the second recommendation, Minister Burke indicated that he had personally signed the decision and the accompanying briefing paper. In relation to the third recommendation, the Minister indicated that he had signed the draft statement of reasons and with any amendments that he considered necessary.

17    Then, of present relevance, Minister Burke was asked to indicate, if he decided to refuse to grant a protection visa, whether he was “inclined to consider management strategies under s 197AB (Community Detention) or s 195A for temporary visa consideration”. He circled “s 195A”, that is, he indicated he was inclined to consider a temporary visa consideration, having decided to refuse to grant a protection visa.

18    Subsequently, however, on 28 February 2014, then Minister Morrison declined a departmental recommendation to intervene under s 195A of the Act to grant the applicant a Removal Pending Bridging (subclass 070) visa (a temporary visa which would allow the applicant to remain lawfully in the community with permission to work, access to Medicare and some Centrelink support). A further, handwritten note recorded, “At what point can [the applicant’s] refugee status be reassessed?”.

19    On 13 March 2014, the applicant applied for review of the decision not to grant a protection visa in the Administrative Appeals Tribunal (AAT), but the application was dismissed as he was unable to show the decision was reviewable by the AAT.

20    On 26 March 2014, the Department commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of the applicant’s case engaged Australia’s non-refoulement obligations. The applicant’s migration agent made submissions, including in response to country information put to the applicant. On 11 September 2014, the assessor found that Australia does not have non-refoulement obligations to the applicant, relying particularly on country information suggesting there no longer seems to be a campaign by the insurgency to target Hazaras and the situation in Afghanistan for Hazaras seems to have improved markedly since the fall of the Taliban in 2001. It was noted the applicant was not from an insurgent-controlled area nor an area in which Hazaras are the minority, thus many of the issues faced or exacerbated in Hazara minority areas were considered not applicable or significantly mitigated. Thus, the officer found the applicant is not a refugee within the meaning of the Convention and Australia did not owe him non-refoulement obligations.

21    By letter dated 15 September 2014, the applicant was advised of his negative ITOA and that once all matters relating to his immigration status were finalised, the Department would make arrangements for his removal from Australia.

22    In about October 2014, volunteers with the Coalition for Asylum Seekers, Refugees and Detainees became aware of the applicant’s situation and began to make inquiries on his behalf. The applicant applied to the pro bono scheme, Law Access, but his application for assistance was refused. Subsequently, however, the applicant obtained pro bono legal assistance and representation, resulting in the filing and hearing of the present application in respect of Minister Burke’s decision to refuse a protection visa.

23    Two primary issues arise on the present application:

(1)    whether what amounts to a 19 month delay between the making of Minister Burke’s decision on 29 August 2013, and the filing of the original application for extension of time on 19 May 2015, of itself, should result in the applicant’s application for extension of time to review that decision being refused; and

(2)    whether the substantive application for review lacks merit, so that the application for extension of time should not be granted in any event.

Applicant’s application for extension of time and review

24    The applicant relies on two grounds in his application for extension of time filed 19 May 2015 under s 477A(2) of the Act:

(1)    He has a reasonable explanation for the delay through his continued detention, lack of access to legal advice, lack of English speaking skills, and unfamiliarity with legal and administrative processes.

(2)    The grounds of the proposed substantive application for review have merit.

25    The applicant included in his application for extension of time an initial proposed originating application for review of a migration decision under s 476A(1)(c). The grounds of this application for review were as follows:

1.    The Minister for Immigration, Multicultural Affairs and Citizenship made a jurisdictional error by failing to take into account a relevant consideration, namely the act that if the applicant were refused a protection visa, he would face the prospect of indefinite detention.

2.    The Minister for Immigration, Multicultural Affairs and Citizenship denied the applicant natural justice by failing to inform him that deterrence to others would be taken into account in deciding whether to refuse the protection visa application.

3.    The Minister for Immigration, Multicultural Affairs and Citizenship made a legally unreasonable decision by failing to genuinely consider whether he should refuse a protection visa to a person found to meet the criteria for a protection visa, and whether that person should be detained indefinitely, because he had committed the offence of indecent assault in circumstances in which the offence was committed.

26    By consent orders made 11 June 2015, the applicant was to file and serve by 7 August 2015 any amended originating application giving particulars of the grounds for review and any further affidavits the applicant intended to rely on at the hearing; and the application for an extension of time was to be listed for hearing together with the applicant’s origination application.

27    On 20 August 2015, the applicant filed an amended application for review of a migration decision. The application provided amended grounds of review and particulars as follows:

1.    The Respondent made a jurisdictional error by failing to take into account a relevant consideration, namely the fact that if the Applicant were refused a protection visa, he would face the prospect of indefinite detention.

Particulars

i.    The Applicant was found on 26 April 2012 to meet the definition of a refugee within the meaning of the Refugees Convention by an officer of the Respondent’s Department and was therefore owed protection obligations by Australia (CB 65);

ii.    On 10 May 2013 the then Minister exercised his non-compellable power under s 46A(2) of the Migration Act 1958 to allow the Applicant to make a valid protection visa application (CB 157);

iii.    The Applicant applied for a protection visa on 13 May 2013 (CB 7; CB 20-54);

iv.    The Respondent accepted that Australia owed protection obligations to the Applicant and met the criterion for a protection visa under s 36(2) of the Act (CB 161, [19]);

v.    The Respondent noted that a decision to refuse the Applicant a protection visa on character grounds was not, in itself, a decision to remove the Applicant from Australia, nor did it necessarily lead to such action (CB 161, [21]);

vi.    The Department’s Issues Paper to the Respondent (CB 6-18) and the Respondent’s Statement of Reasons (CB 159-162) do not refer to the consequence that the Applicant would be detained indefinitely upon the refusal of the protection visa;

vii.    The Respondent failed to take into account the fact that if the Applicant were refused a protection visa, he would face the prospect of indefinite detention, and accordingly the Respondent made a jurisdictional error. [NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, per Allsop CJ and Katzmann J at [17]-18] and Buchanan J at [178].]

2.    This ground is not pressed.

3.    The Respondent failed to genuinely consider the legal and practical merits of the Applicant’s protection visa application in refusing the protection visa to the Applicant.

Particulars

i.    The Applicant was found to meet the definition of a refugee within the meaning of the Refugees Convention and relevant provisions of the Migration Act 1958 by the Protection Obligation Evaluation Officer M. Kouvaros on 26 April 2012 (CB 65);

ii.    The Respondent:

(a)     accepted that Australia owes protection obligations to the applicant and meets the criteria for a protection visa set out ins 36(2) of the Migration Act 1958 (CB 161[19]); and

(b)    accepted that the Applicant has a well-founded fear of being persecuted in the foreseeable future if he was returned to Afghanistan and that Australia has a non-refoulement obligation under the Refugees Convention to him in respect of Afghanistan. The Respondent also noted that there is no evidence to suggest that the Applicant has the right to enter and reside in any safe third country and that relocation within Afghanistan is not a viable option (CB 161[20]).

iii.    The Respondent failed to give proper, genuine and realistic consideration to:

(a)     the legal consequence that the Applicant would be detained indefinitely upon refusal of the visa; and

(b) whether he should refuse a protection visa to the Applicant as a person who was found to be owed protection obligations in light of the circumstances of the offence and the punishment imposed for that offence.

28    No issue is taken about the late filing of the amended application.

Applicant’s submissions

29    With regard to the applicant’s application for extension of time, the applicant notes s 477A(1) of the Act provides that an application to the Federal Court for a remedy to be granted in exercise of the Court’s jurisdiction under s 476A of the Act must be made within 35 days of the date of the decision under review. He also notes subs 477A(2) of the Act provides that the Court may order that the period be extended as the Court sees appropriate, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.

30    The applicant notes he seeks an extension of 593 days (about 19 months) to make the present application for judicial review. He says generally, in cases of an application for an extension of time, the Court has considered the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186, relevantly:

(1)    whether, an acceptable explanation for the delay being offered, it would be fair and equitable in all the circumstances to extend the time;

(2)    any prejudice suffered by the respondent resulting from the delay;

(3)    the merits of the substantial application; and

(4)    consideration of fairness between the applicant and other individuals in like position, taking into account the wider public interest.

31    The applicant submits it is generally accepted by this Court (see for example, MZYYO v Minister for Immigration & Citizenship (2013) 214 FCR 68; [2013] FCA 49) that the non-exhaustive list of factors to be considered in determining whether an extension is in the interests of the administration of justice includes the extent of and reasons for any delay; any prejudice to the respondents; the impact on the applicant should time not be extended; the interests of the public at large; the discretion of the Court; and the merits of the proposed substantive application.

32    While the applicant acknowledges the delay is significant, he submits that in all the circumstances, the interests of the administration of justice warrant an extension of time.

33    He says he had no legal representation or advice in relation to challenging the Minister’s decision prior to May 2015. He notes the government funded scheme for asylum seekers through which he obtained assistance for the protection evaluation, the protection visa application, and the ITOA decision process did not extend to assistance with judicial review and the applicant had no access to any information which apprised him of the process which he might undertake to seek judicial review of the Minister’s decision.

34    The applicant further notes his continuous detention for the past four years and his inability to work to generate funds for legal advice, or develop community links that may have facilitated access to timely pro bono legal advice. He did take the, albeit misconceived, step of initiating the AAT application in 2014. He notes he has minimal English skills.

35    He contends there would be no prejudice to the Minister in granting the extension of time.

36    Further, the applicant submits his grounds of review have merit.

37    With regard to ground 1, that the Minister failed to consider indefinite detention, the applicant submits the possibility of indefinite detention is a relevant consideration when making an overall assessment of whether to refuse a protection visa under s 501(1) of the Act: see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [10], [17] (Allsop CJ and Katzmann J) and at [168]-[179] (Buchanan J); [2014] FCAFC 38. See also NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39.

38    The applicant notes that in NBMZ, Allsop CJ and Katzmann J found at [10] that the Minister was required to take into account the legal consequences of his decision. The consequence of indefinite detention flowed from Australia’s obligation of non-refoulement and the terms of the Act.

39    The applicant was found to be owed protection obligations by Australia on 26 April 2012. He notes the Minister accepted the applicant’s refugee status in his statement of reasons for the decision not to grant the protection visa, at [20].

40    It is submitted that while the Minister considered the circumstances of the applicant’s conviction for indecent assault at [6]­[17], he did not consider the applicant’s refugee claims or the consequences for the applicant if he were to refuse the visa. The applicant says the Minister’s decision said nothing which would reveal an appreciation of the fact that if, despite the obligation that he be removed as soon as reasonably practicable, the applicant did remain in Australia, it could only be in circumstances that he was liable to detention. See NBMZ at [168] (Buchanan J).

41    In the applicant’s submission, in the absence of any discussion of indefinite detention in the Minister’s decision in the present matter, the Minister failed to consider the relevant consideration of indefinite detention and fell into jurisdictional error.

42    As to the applicant’s ground 3 (ground 2 no longer being pressed), the Minister’s failure to give genuine consideration to the merits of the application, the applicant refers to the reasons of Buchanan J in NBNB. At [123], Buchanan J held that it is not permissible to put to one side or fail to address the merits of a particular visa application, referring to the judgment of the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 where the Court said at [26]:

In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to ‘give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.’

43    Buchanan J also stated in NBNB at [125]:

... it is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.

44    In NBMZ, his Honour, at [153], did not consider the judgment of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 to detract from the principles distilled in SZJSS.

45    The applicant further notes that in NBMZ, Allsop CJ and Katzmann J stated, in the context of legal unreasonableness, at [26]:

If the particular circumstances of the applicant were correctly to be seen as mandatory in the present case, not only did the Minister fail to consider the legal consequence of refusal (indefinite detention) but he also failed to give proper consideration ... to the merits of the case before him.

46    Their Honours stated that in order to give proper consideration to the merits the Minister would be required to genuinely consider whether he should refuse a protection visa to a person who feared for his life and whether that person should be detained indefinitely, because he had committed the offence for which he was convicted in the circumstances in which he did.

47    The applicant also points to the reasons of Buchanan J in NBMZ at [189]:

To put it another way, it was not open to refuse a visa merely to give effect to a policy preference, without attention to the merits of the application. And if regard was to be paid to the individual circumstances of the applicant (as it purportedly was when reference was made to his conduct) then it had to extend to the consequences for him as a refugee. Apart from the consequences for the applicant of refoulement or detention some account had also to be paid to the acknowledgement that he was a refugee in respect of whom Australia had voluntarily accepted protection obligations. There is no indication in the Minister’s Reasons that any regard was paid to those matters.

48    The applicant says that while Minister Burke considered the applicant’s criminal behaviour, taking into account the magistrate’s and appeal judge’s comments, the Minister did not turn his mind to the practical consequences of the visa refusal.

49    The applicant submits the absence of any regard to the applicant’s refugee status constituted a failure to properly perform the function upon which the Minister was engaged: NBMZ at [190] (Buchanan J). Further, it is submitted there was no consideration by the Minister as to whether the applicant should be detained indefinitely simply by reason of the offence of which he was convicted in the circumstances of that offence. In this respect, the applicant notes the comments of Hall J – that the offence occurred on the spur of the moment and was of very short duration, but being one of indecent assault was serious, although at the lower end of the range of seriousness.

50    The applicant says the Minister did not make any concluding remarks about the potential consequences the applicant would face following the refusal of his visa. Accordingly, it is submitted that the Minister fell into jurisdictional error by failing to have regard to the consequence of indefinite detention and the appropriateness of refusing the protection visa to the applicant as a person found to be a refugee but guilty of an offence that warranted only a fine.

51    If the Minister’s decision to refuse to grant a protection visa under s 501(1) of the Act is set aside by this Court, the applicant submits that the effect of that will be that the Minister is obliged to deal with the protection visa application in accordance with the Act. See NBMZ at [214] (Buchanan J).

52    It is submitted the Minister will be bound to give full effect to the earlier decision, made after the criminal conviction was brought to Minister O’Connor’s attention on 10 May 2013, to allow the applicant to apply for a protection visa.

53    The applicant further submits the ITOA process is non-statutory. He notes that, as stated by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 at [27]; [2010] HCA 41:

... read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. … the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.

54    The applicant says the officer who conducted the ITOA assessment noted on the first page of the assessment document that the ITOA decision does not form part of the assessment for a protection visa application and is not subject to the operation of the Act.

55    It is submitted the negative ITOA decision, as a non-statutory decision, cannot overtake the statutory decision-making process earlier commenced in which it was found that the applicant is a refugee.

Minister’s submissions

56    The Minister first notes the application before the Court was filed more than 19 months outside of the 35 day period permitted under the Act.

57    The Minister notes s 477A(2) of the Act provides that the Court may, by order, extend the 35 day period if an application for that order has been made in writing specifying why the applicant considers that it is “necessary in the interests of the administration of justice” to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. It is submitted the “interests of the administration of justice” is different to “the interests of justice”. See WZANW v Minister for Immigration [2009] FMCA 1075 at [25]; WZANX v Minister for Immigration [2009] FMCA 1010 at [11].

58    It is submitted the applicant’s affidavit filed 17 August 2015, Ms Felicity Cain’s affidavit filed 19 May 2015 and Ms Rosemary Rosario’s affidavit filed 12 August 2015 do not provide any adequate explanation for the lengthy delay.

59    It is noted that Ms Cain’s affidavit deposes to her efforts to assist the applicant from late October 2014, and Ms Rosario’s affidavit likewise deposes to her contact with the applicant from some unknown date in 2014. The applicant deposes that after he was told that he would not be released from detention in Australia, some detainees told him he could appeal the decision and some told him he could not, one of his case managers told him he could lodge an appeal, at that time he did not know any lawyers or any English or know what to do, and he does not remember if anyone told him that he needed to appeal within a certain time. The applicant also states that he has access to a telephone but did not know who to call, has limited access to the internet, has not known where to look to appeal his case, finds it hard to understand what is going on with his case, and does not understand the Australian system for refugees like him.

60    The Minister submits the applicant’s English language difficulties, lack of knowledge of his capacity to seek review of Minister Burke’s decision by the Federal Court and ignorance of the time limits for making such an application do not put the applicant in any different position to other persons in immigration detention who have similar English language difficulties, lack of knowledge and difficulty in obtaining legal advice, the vast majority of whom file their judicial review applications within time. See WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452 at [10] and [11]; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38].

61    It is also noted that prior to the Minister’s decision being made the applicant was represented by BMA Lawyers who provided submissions and documents on behalf of the applicant, about six weeks prior to the decision being made. It is further noted BMA Lawyers advised the applicant of the Minister’s decision on 9 September 2013 but the applicant’s affidavit does not provide any information about that contact or any advice given by BMA Lawyers as to the possibility of seeking review of that decision and the time limits for doing so.

62    The Minister contends that the delay in challenging Minister Burke’s decision is so lengthy and the explanation for it is so unsatisfactory, that the extension of time should be refused irrespective of the merits of the substantive application.

63    The Minister refers to Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67, in which McHugh J discussed the principles governing applications for the enlargement of time under the High Court Rules, and submits those principles are relevantly analogous to those that apply to applications for an extension under s 477A. The Minister summarises those principles as follows:

(1)    The grant of an enlargement of time is not automatic (at [13]).

(2)    A case “would need to be exceptional” before the time for commencing proceedings was enlarged by many months (at [13]).

(3)    An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension (at [15]).

(4)    In deciding whether or not to enlarge time, the Court may take into account the explanation for the delay in commencing proceedings, and the applicant’s prospects of success in the proceedings (at [13]).

(5)    The constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions (at [15]).

(6)    Independently of the merits of the case, it is difficult to see how a person who with knowledge of the decision delays 17 months (in that case) before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay (at [16]).

(7)    The “rules of court must prima facie be obeyed” (at [16]).

(8)    “The periods for applying for mandamus and certiorari give a person affected by an adverse decision of judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of the proceedings in this Court” (at [16]).

64    The Minister also refers to the comments of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553-554; [1996] HCA 25:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in individual case. The purpose of a provision such ass 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

(Emphasis added and footnote omitted.)

65    The Minister submits, in the circumstances, it would require an extraordinary or exceptional case before an extension of time should be granted. The Minister submits it would be a fundamental error if the Court was to put the length of the delay aside, and focus primarily on the merits of the proposed challenge or on questions of prejudice to the respondent. In the Minister’s submission, to approach the issue in that way would ignore the balance of public interest that Parliament has struck in enacting s 477A(1) of the Act.

66    The Minister emphasises the lack of a satisfactory explanation for a long delay in making an application to extend time is a sufficient basis, on its own, for refusing to extend time. The Minister here refers to Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] but acknowledges the view expressed in SZTDM v Minister for Immigration [2013] FCCA 1130 at [20] that the discretionary nature of the decision reposed in the court, namely, whether it is in the interests of the administration of justice to extend time, indicates that in a case where the principal application has merit, justice would require that that consideration be given priority over the question of delay, subject to any prejudice which might be suffered by the Minister were time to be extended. See further, DZAFG v Minister for Immigration [2015] FCCA 168 at [34].

67    The Minister submits that if “merit” or an “arguable case” is sufficient to outweigh very lengthy delay, then limitation periods are deprived of any meaningful effect and they become simply an additional bar to cases that would fail in any event, doing nothing more than producing additional, but ultimately pointless, legal arguments, the only effect of which would be to increase costs. The Minister submits that is not how limitation periods work; as McHugh J recognised in Brisbane South Regional Health, where the period selected by Parliament as the appropriate limitation period is exceeded, the limitation period may often result in a “good cause of action being defeated”. It is contended that a limitation period prevents a respondent from being required to litigate a claim that is brought substantially out of time, irrespective of its merits, at least unless the case is shown to be of an “exceptional” kind.

68    The Minister does not deny that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. But, as was said in Tran at [38] (in refusing a request for an 18 month extension of time to challenge a visa cancellation decision):

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.

69    Therefore the Minister submits a delay of the magnitude of over 19 months, and more than 17 times the statutory period, is so inordinate that it is, by itself, a compelling reason to refuse the application for an extension of time. In Jarosek v Department of Immigration [2006] FMCA 1048 at [27], the Federal Magistrates Court found that the delay of approximately 12 months in that matter was inordinate. In Tran, a delay of 18 months was found to be “excessive”, and the absence of any satisfactory explanation for the delay would “itself be a sufficient basis” to refuse the extension of time. In WZASQ v Minister for Immigration [2013] FCCA 1726 at [14], the Court described a delay of 74 days in filing the application to the Court as “substantial”. In WZANW at [28], it was said that a delay of 54 days after the 35 day time limit prescribed by s 477(1) of the Act is likely to be fatal to an application for an extension of time under s 477(2) where there is no reason for the delay.

70    The Minister says the applicant’s delay of over 19 months in filing the application, in the absence of an extremely powerful explanation, is itself a sufficient basis to refuse the application for an extension of time. It is submitted not only is there no such powerful explanation, there is no satisfactory explanation for this inordinate delay.

71    Ms Cain’s affidavit refers to attempts to obtain legal advice from Case for Refugees in late October 2014, from Law Access in November 2014, and from barrister, Mr David Blades, on 23 April 2015, and states that on 7 May 2015, Mr Blades advised that in his opinion there was merit in judicial review regarding the Minister’s refusal to grant the applicant a protection visa on character grounds. However, the Minister submits that provides no adequate or persuasive, let alone powerful, explanation, for the delay. In Ex parte Marks, McHugh J stated at [17] that:

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.

72    The Minister also refers to Tran at [35] where Wigney J said that lack of legal advice or positive legal advice is not on its own a sufficient reason for failure to lodge an application within time.

73    It is submitted that in this matter, there is a further powerful factor why it is not in the interests of the administration of justice to allow the extension of time sought. This is that since the Minister’s decision, the ITOA on 11 September 2014 determined that Australia does not have non-refoulement obligations to the applicant. It would therefore not be in the interests of the administration of justice to grant an extension of time to review the Minister’s decision when an underlying premise for that decision, namely the assessment of 26 April 2012 that Australia had protection obligations (and therefore non-refoulement obligations) to the applicant, no longer applies.

74    With regard to ground 1 of the applicant’s amended application for review, that the Minister failed to consider the relevant consideration of indefinite detention, the Minister submits this ground is based on the incorrect premise that the applicant would face the prospect of indefinite detention if the Minister refused his application for a protection visa.

75    The Minister says the premise is false for the reason that there were potential options available for the release of the applicant from immigration detention, notwithstanding a decision to refuse him a protection visa. It is noted those options were put before the Minister as part of the “Key Issues” identified in the departmental briefing paper, and he indicated that he wished to consider one of those options. Those options included the grant of a visa to a person who is in detention under s 189 of the Act, by the Minister personally under s 195A(2) of that Act. Another option was the making of a residence determination pursuant to s 197AB of the Act.

76    In his decision record, Minister Burke indicated he was inclined to consider the grant of a s 195A visa. Accordingly, in the Minister’s submission, the consequences of the making of a decision to refuse a protection visa under s 501 of the Act were brought to the attention of and taken into account by the then Minister.

77    The Minister submits the fact that Minister Morrison subsequently declined to grant a temporary visa under s 195A of the Migration Act does not materially alter the fact that this option was under consideration at the time of then Minister Burke’s decision. The Minister contends that, in the circumstances, Minister Burke was not required to take into account, as a relevant consideration, that the applicant would face the prospect of indefinite detention if refused a protection visa.

78    The Minister contends that this case is distinguishable from NBMZ relied upon by the applicant, submitting that in NBMZ, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. See NBMZ at [4] (Allsop CJ and Katzmann JJ) and [128]-[131] (Buchanan J). The Minister submits that in this case, however, Minister Burke clearly indicated that he was inclined to consider exercising his power under s 195A of the Act to grant a temporary visa to the applicant, as noted above.

79    The Minister states the applicant’s reliance on NBMZ for the proposition that the Minister is required to take into account, as a relevant consideration, “the possibility of indefinite detention” is, with respect, incorrect. The decision of the Court in NBMZ was based on their Honours deciding that, in the circumstances of that case, the legal consequence of a decision to refuse the protection visa would be indefinite detention. It is submitted that is different from this case where the Minister, by his decision record, indicated that the granting of a temporary visa was a real prospect.

80    The Minister notes the decision of the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83. Flick, Griffiths and Perry JJ commented on NBMZ as follows, at [19]-[20]:

NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to ‘indefinite detention’ at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise.

…

On no view of the facts of the present case could it be said that the ‘consequence’ of the cancellation of Mr Ayoub’s visa pursuant to s 501 was ‘indefinite detention’. The ‘consequence’ of the cancellation decision may well be his detention pursuant to s 189 of the Migration Act – but that ‘consequence’ falls well short of ‘indefinite detention’. A comparable conclusion was reached by White J in Jaffarie v Director-General of Security [2014] FCAFC 102 at [126] to [133], (2014) 226 FCR 505 at 538 to 539.’

81    The Minister contends that the above comments are apposite to the facts of this case. It is submitted that where, as here, the Minister’s attention is drawn to the possible exercise of powers under s 195A, the exercise of which would result in the person ceasing to be in immigration detention, and the Minister has indicated he wishes to consider the grant of a temporary visa under s 195A, the Minister is not required to consider as a fact that his visa refusal will result in the person’s indefinite detention. By reference to Ayoub, the Minister submits on no view of those facts “could it be said that the ‘consequence’ of the cancellation of [the applicant’s] visa pursuant to s 501 was ‘indefinite detention’”.

82    Therefore, the Minister submits the prospect that the applicant may face lengthy or indefinite detention was not a mandatory consideration which Minister Burke was required to take into account in the sense described in cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40. See Huynh at [71]-[76].

83    As to the applicant’s third ground of review, the Minister failed to genuinely consider the legal and practical merits of the applicant’s protection visa application, the Minister observes the Court should be mindful of the observation by Pagone J in Cotterill v Minister for Immigration and Border Protection [2015] FCA 802 at [19]:

In considering these matters it is useful to bear in mind the cautionary observation made by Basten JA in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450, adopted by Perram J in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22], that formulations of what the test for judicial review requires ‘such as ‘proper, genuine and realistic’ or consideration ‘in a real or conscientious way’ may be apt to cause a slide into impermissible merits review.

84    The Minister notes particular (iii) of ground 3 states the Minister failed to give proper, genuine and realistic consideration to the legal consequence that the applicant would be detained indefinitely upon refusal of the visa, and whether the Minister should refuse a protection visa to the applicant as a person who was found to be owed protection obligations in light of the circumstances of the offence and the punishment imposed for that offence.

85    It is further noted that particular (iii)(a) of ground 3 is also based on the premise that the applicant would be detained indefinitely if refused a protection visa. For the reasons set out in relation to ground 1, the Minister submits this premise is incorrect and was not a matter which Minister Burke was bound to take into account.

86    In relation to particular (iii)(b) of ground 3, it is submitted Minister Burke clearly did take into account Australia’s non-refoulement obligations in relation to the applicant, as a result of his having a well-founded fear of persecution if he was returned to Afghanistan, in considering whether he should refuse to grant the visa having regard to the circumstances of the applicant’s offence and the sentence imposed for that offence. The Minister refers to [19], [20] and [25] of Minister Burke’s statement of reasons.

87    Further, the Minister submits there is nothing to suggest that Minister Burke failed to genuinely consider whether he should refuse a protection visa to a person found to meet the criteria for a protection visa, and Minister Burke correctly noted at [21] of his statement of reasons that a decision to refuse a protection visa on character grounds was not, in itself, a decision to remove the applicant from Australia, nor did it necessarily lead to such action.

88    The Minister contends the Minister’s decision did not lack “an evident and intelligible justification”, and the decision to refuse to grant a protection visa to the applicant was rationally open to Minister Burke and was not arbitrary. See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ) and [76] (Hayne, Kiefel and Bell JJ); [2013] HCA 18.

89    The Minister further refers to the decision of Barker J in WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292; [2013] FCA 1016, in which his Honour at [56] rejected a claim of unreasonableness in relation to the Minister’s decision to refuse a protection visa to a detainee who had committed minor damage to Commonwealth property in the Perth Immigration Detention Centre. His Honour also held at [57]-[58] that the Minister’s decision was not a disproportionate exercise of his power under s 501(1) of the Act.

90    For similar reasons, it is submitted, Minister Burke’s decision to refuse to grant the applicant a protection visa because of his conviction was not unreasonable, nor did it involve any failure to give proper, genuine and realistic consideration to whether a protection visa should be refused because of the applicant’s conviction in light of the protection obligations owed to him.

91    The Minister thus submits the Court should refuse to make an order extending the time for making the originating application until 19 May 2015, and order that the applicant pay the Minister’s costs of the application for extension of time and the costs of the originating application.

92    In the event that the Court does grant the applicant an extension of time, the Minister submits neither of the remaining grounds of the amended application for review are made out and the application should be dismissed with costs. The Minister further presses for an order that the applicant pay the Minister’s costs of the extension of time application.

Consideration

93    In Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, a stateless person who arrived in Australia without a visa was taken into immigration detention. He applied for a protection visa, but his application was refused. He wrote to the Minister asking to be removed from Australia. Removal did not take place because the attempts to obtain the necessary international cooperation were unsuccessful. The Federal Court found there was no real likelihood or prospect of removal in the reasonably foreseeable future, but that the Act nevertheless required that he remain in detention.

94    A majority of the High Court found that ss 189, 196 and 198 of the Act authorised and required the detention of an unlawful non-citizen even if his removal from Australia was not reasonably practicable in the foreseeable future.

95    In NBMZ, a Full Court of this Court (Allsop CJ, Buchanan and Katzmann JJ) had to deal with a different type of case, but one in which the question of indefinite detention also arose. The applicant was a refugee in immigration detention. Australia owed him protection obligations, but he was refused a visa after he failed the character test in s 501 of the Act – not dissimilar from the circumstances of the applicant in this case. As an unlawful non-citizen with no visa prospects, he was subject to mandatory detention and removal from Australia as soon as reasonably practicable under ss 189, 196 and 198 of the Act. The problem was that there was no country to which he could be removed. Article 33 of the Convention prevented the return of the applicant, a refugee, to his home country where he faced persecution and there was no other country that would take him. The Court held that when the Minister decided to refuse the visa application under s 501, he did not consider the legal consequences of the decision. That is, the Minister did not consider the fact that the applicant would face indefinite detention arising from the interaction of ss 189, 196 and 198 of the Act with Art 33 of the Convention. The Minister was motivated by a desire to deter people in immigration detention from committing criminal offences.

96    All members of the Court (Allsop CJ and Katzmann J in a joint judgment at [17] and Buchanan J at [177]-[179]) held that the Minister was required to take into account the legal consequences of his decision and that the failure to do so resulted in jurisdictional error.

97    In essence, the applicant in this proceeding contends that his case is, as lawyers put it, “on all fours” with that of the appellant in NBMZ. The applicant contends that Minister Burke did not consider that the applicant would face indefinite detention as a result of his decision refusing him a protection visa after he was considered to fail the character test in s 501 of the Act.

98    The Minister rejects that contention, principally on the basis that at the time Minister Burke made his decision, he also considered the question whether he was inclined to consider management strategies of community detention under s 197AB or a temporary visa under s 195A of the Act, and circled the s 195A option.

99    In NBMZ, Allsop CJ and Katzmann J, at [3], noted that the practical realities of individual circumstances mean that some people may face detention for years, with no end in sight. They added that it may be that the harshness of indefinite detention in a particular case is relieved by the making of a “residence determination” under s 197AB of the Act, a provision which might be employed by the Minister to ameliorate what might otherwise be the physical and psychological burdens on a detainee faced with indefinite detention. Indeed, in that case, after the incident giving rise to the applicant’s conviction, s 197AB was employed. Nevertheless, their Honours said, the applicant remained in indefinite detention.

100    Their Honours added, at [4], that it was true, as well, that the Minister may grant a detainee a visa in the circumstances described in s 195A of the Act. But their Honours said that, as Buchanan J had pointed out in his separate reasons, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons.

101    Thus, their Honours agreed with Buchanan J, that the applicant was entitled to have his application before the Court determined on the hypothesis that he would be indefinitely detained and that any question of a visa under s 195A was, at best, a matter of speculation. There was no foundation for any assumption that the Minister would grant any relevant visa.

102    It was in those circumstances that their Honours, at [17], ultimately said it was to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the protection visa was refused, the applicant would face the prospect of indefinite detention.

103    Buchanan J, at [123] and [132] to [139], made a similar analysis.

104    In my view, the circumstances of the applicant in the present case are materially different from those of NBMZ in that the briefing paper before Minister Burke expressly inquired of the Minister whether, in the event he decided to refuse to grant a protection visa, he was inclined to consider community detention under s 197AB or a temporary visa under s 195A of the Act, and the Minister explicitly agreed that he was so inclined and by inference identified a s 195A visa as a possibility.

105    In those circumstances, it seems to me that it is not open to argue, as it was in NBMZ, that the Minister did not consider or take into account the fact that, if the visa was refused, the applicant would face the prospect of indefinite detention. By reasonable inference, the Minister recognised that the legal and practical consequences of his refusal decision, if not ameliorated by a favourable decision under either s 197AB or s 195A, could be the indefinite detention of the applicant.

106    Further, the Minister expressly indicated the s 195A possibility.

107    And in a discussion in the briefing paper of the “Key Issues”, the Minister was advised, and it may be inferred understood, that as the applicant had earlier been found to be a refugee, and a protection obligations evaluation had found that he did not currently have a right to enter and reside in safe third country, “it will not be possible to remove [the applicant] from Australia at this time”. The Minister was advised that he may, therefore, “wish to consider alternative management strategies such as community detention or the grant of a temporary visa”. The Minister was expressly advised that if he wished to consider those options, a further submission would be prepared for his decision under the relevant power.

108    Additionally, in [9] of this discussion of key issues, the Minister was advised that in light of the above, if he was minded to refuse the grant of a protection visa, and was also minded to consider alternative management options, the Department recommended that it liaise further with his office “to better align the timing of the notification of refusal and your subsequent intervention” so that the applicant did not “need to be subject to further time in immigration detention”.

109    In the accompanying “Issues for Consideration” part of the briefing paper, at [52] and following, the question of Australia’s non-refoulement obligations was discussed. At [53], the Minister was advised that the existence of the non-refoulement obligation does not preclude refusal of a person’s visa application, “because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists”.

110    In [54], the Minister was advised that the protection obligations evaluation determined that the applicant met the criterion for a protection visa under the Act and recommended that he be recognised as a person to whom Australia has protection obligations under the Convention.

111    At [56], the Minister was advised that the evaluator (in the protection obligation evaluation), had earlier found there was a “definite, real chance he could become the victim of persecution on account of his Hazara ethnicity and his Shi’a religion”.

112    The question of the health of the applicant was also dealt with at [61]. The Minister was advised that he “may wish to consider” that the applicant “had been in immigration detention since 11 August 2011, and that his health and wellbeing may be affected”.

113    In the Minister’s statement of reasons for decision, he formally noted the non-refoulement obligations of Australia and that the applicant met the criterion for a protection visa under the Act, at [19], and, at [20], that the applicant had a well-founded fear of being persecuted if he was to return to Afghanistan, and that there was a finding that there was no evidence to suggest he had the right to enter and reside in any safe third country.

114    At [21] of his reasons, the Minister noted that a decision to refuse the applicant a protection visa on character grounds is not, in itself, a decision to remove him from Australia, nor does it necessarily lead to such action.

115    In my view, the reasons for decision should not be read in an isolated way, but together with the briefing paper and the issues identified in it. When that is done it is apparent, in my view, that the Minister, in refusing the protection visa application of the applicant, took into account, as he was required to do, the legal consequence of his decision, being indefinite detention if it was not subsequently ameliorated in some way either under ss 197AB or 195A.

116    While the Minister also appears to argue that at the time Minister Burke made his decision there was no prospect of immediate indefinite detention, because the ameliorating possibilities had not been the subject of decision at that point I do not accept that submission. At the time the Minister made the decision to refuse a protection visa, there was a real prospect that the applicant would find himself in the same position as the applicant in NBMZ, if ameliorating decisions were not later made. The fact that the Minister is shown to have considered the availability of those ameliorating possibilities, amongst the other matters mentioned above, has satisfied me that the Minister did have regard to the requirement to take into account the legal consequence of indefinite detention when he made his decision.

117    Thus, this first proposed ground of judicial review of the applicant lacks merit.

118    A further proposed ground of review is stated in the following terms:

The respondent failed to genuinely consider the legal and practical merits of the Applicant’s protection visa application in refusing the protection visa to the Applicant.

119    Particular (iii) of this proposed ground states:

The Respondent failed to give proper, genuine and realistic consideration to:

(a)    the legal consequence that the Applicant would be detained indefinitely upon refusal of the visa; and

(b)    whether he should refuse a protection visa to the Applicant as a person who was found to be owed protection obligations in light of circumstances of the offence and the punishment imposed for that offence.

120    In my view, (a) of the particulars lacks merit for the same reason that the first ground lacks merit. Once it is appreciated that the question of indefinite detention was regarded by the Minister, on a proper reading and construction of the briefing paper and issues placed before him and the reason for decision given, then it cannot be said that the Minister failed to genuinely consider the legal and practical merits of the protection visa application on that basis.

121    The further particular way that it is said the Minister failed to give appropriate consideration to the legal and practical merits of the protection visa application is in essence that the Minister should not have considered that the applicant failed the character test under s 501 and failed to apply the correct legal test.

122    When regard is had to the Minister’s reasons for decision, however, this argument falters. The Minister provided a detailed account of the offending conduct involved which led him to consider that the applicant had failed the character test, which is defined in s 501(6) and includes the circumstance where the person “has been convicted of an offence that was committed … while the person was in immigration detention”.

123    As to the seriousness, to which the Direction drew attention, the Minister noted, at [2] to [4], that the applicant had been convicted of committing an indecent assault and fined, had lodged an appeal where the original sentence was reduced so that only a fine of $2,000 was payable, and that the offence was committed while the applicant was held at an immigration detention centre.

124    The Minister, at [6] and following, detailed the criminal conduct in question. He said, at [7], that the indecent assault, involving grabbing the breast of a female staff member at an immigration detention centre, was “serious”.

125    The Minister explained, at [11] and [12], that this is the type of conduct that will not be tolerated while people are in an immigration detention centre and that the penalty imposed was reflective of the seriousness of the offence. He noted that it did not attract a spent conviction order.

126    Ultimately, the Minister said, at [25], that in reaching his decision, he considered that notwithstanding the applicant was a person to whom Australia has protection obligations, “his behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities” and, consistent with the introduction of the new limb of the character test in s 501(6)(a)(a), “that behaviour should attract consequences” under the Act.

127    In my view, it cannot reasonably be argued that the Minister failed to give genuine and realistic consideration to the question whether the applicant failed the character test by reason of his conviction for the indecent assault or had applied an incorrect test in the course of doing so.

128    In the circumstances, this proposed further ground of judicial review lacks merit.

129    I should note that the applicant no longer pressed an earlier ground that the Minister’s decision was legally unreasonable.

130    In all the circumstances, taking into account the lack of or limited merit of the proposed grounds of review and the considerable period of delay, of some 19 months, between Minister Burke’s decision and the applicant’s application to extend the time for seeking judicial review, the extension application must be refused.

131    While the Minister submitted that the length of the delay of itself should lead to the application for the extension of time being refused, I would not so rule. In a case which involves the administration of the Act and Australia’s obligations to a person who, at material times, had been found to be the subject of Australia’s protection obligations, it seems to me important, in determining the application to extend time, to have regard not only to the explanation for delay given by the applicant but also to the substance of the grounds of judicial review that he would propose to agitate if an extension of time to seek review was granted.

Conclusion and orders

132    For these reasons, the following orders will be made:

(1)    The application for extension of time to seek review be refused.

(2)    The applicant pay the first respondent’s costs of the application, to be taxed if not agreed.

Associate:

Dated:    28 August 2015