FEDERAL COURT OF AUSTRALIA

MZZLD v Minister for Immigration and Border Protection (No 2) [2017] FCA 31

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The injunction granted on 7 October 2016 be discharged.

3.    The applicant pay the first respondent’s costs of the proceeding, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision and orders made by the Federal Circuit Court of Australia on 9 September 2016 in MZZLD v Minister for Immigration and Border Protection [2016] FCCA 2368. The Federal Circuit Court dismissed the applicant’s application for an extension of time in which to seek judicial review of a decision made by the Refugee Review Tribunal on 22 November 2013. In that decision, the Tribunal affirmed the refusal of the applicant’s protection visa application by a delegate of the first respondent, the Minister, on 19 November 2012.

2    The applicant seeks orders quashing the decision and orders of the Federal Circuit Court and directing the Federal Circuit Court to determine the applicant’s application for an extension of time according to law. The applicant also seeks injunctive orders restraining the Minister from taking action in reliance on the Federal Circuit Court’s decision (including removal).

3    The applicant contends that the Federal Circuit Court’s decision was affected by jurisdictional error because:

(1)    the Federal Circuit Court applied an incorrect test in exercising its discretion not to extend time under s 477(2) of the Migration Act 1958 (Cth), namely whether the applicant’s proposed grounds of review had a “serious prospect of success” (ground 1);

(2)    the Federal Circuit Court took into account an irrelevant consideration, namely costs and the use of judicial resources, in circumstances where the underlying judicial review application could have been heard at the same time as the extension of time application with no additional resource implications (ground 2);

(3)    the Federal Circuit Court failed to take into account relevant considerations, namely the applicant’s submissions that (a) the Tribunal failed to deal with the applicant’s claim to fear persecution based on his race or ethnicity and (b) that the Tribunal’s finding in relation to race was irrational (grounds 3 and 4);

(4)    the decision of the Federal Circuit Court was legally unreasonable in the sense that no reasonable decision-maker could have made it, specifically because the Federal Circuit Court found at [36] that the Tribunal had dealt with the applicant’s claims regarding race or ethnicity (ground 5).

4    In his originating application filed 12 September 2016, the applicant also sought an interlocutory injunction restraining the Minister from removing the applicant from Australia pending the determination of his application to this Court. On 7 October 2016, Murphy J made the interlocutory orders sought by the applicant: MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201. The proceeding was subsequently allocated to my docket.

5    For the reasons that follow, the application for judicial review must be dismissed.

Background

6    The history of the applicant’s arrival in Australia, the making of his claims for protection and the fate of these claims are set out in the Federal Circuit Court reasons (at [7]-[13]) and need not be repeated here. The applicant has been in Australia for some time: since May 2012. He fled from Iraq, although he claims to have been born in Kuwait. He claims to have been deported, with his family and extended family, from Kuwait to Iraq in 1993, after the Gulf war.

7    He has always claimed to be a Bedoon (there are various spellings of this word), and to be stateless. As I note below, the accurate description of this attribute is not without significance in the consideration of the applicant’s claims before the Tribunal, and his judicial review application.

8    On each occasion during the decision-making process (delegate level, first merits review – subsequently set aside by consent, second merits review), his claim to statelessness was not accepted and he was found to be a citizen of Iraq. Different approaches have been taken by each decision-maker to the credibility of some of the applicant’s claims, and indeed to his claims themselves. It is fair to say that the second Tribunal took a dim view of the applicant, essentially finding him not credible at all, and appearing to criticise him and his brother for leaving their families behind in Iraq when they left illegally, on a journey that eventually brought them to Australia. One of the Tribunal’s findings, relevant to the judicial review application before the Federal Circuit Court and in this Court was:

I do not accept that the applicant is a stateless Bidoon, but rather find that he was born in Kuwait and was expelled to Iraq and has subsequently been granted Iraqi citizenship. I accept that the applicant was born in Kuwait and served in the Kuwaiti military. Country information indicates that many Bidoons who were expelled from Kuwait from 1991 were granted Iraqi citizenship, although they were not allowed to own property inside the cities. While this process is discriminatory, I note that some were able to purchase houses through tribal connections but that their living conditions are similar to the host community. Regardless, Bidoons who were not granted citizenship do not hold Iraqi ID cards, nationality certificates or PDS (ration) cards, nor do they register their marriages.

Given the fact that the applicant has admitted to having a ration and ID card, and has provided evidence of an Iraqi marriage certificate (folio 120) I am satisfied that he would not have been able to possess these unless he was an Iraqi citizen and hence the applicant is one of those former Bidoons from Kuwait who were expelled to Iraq and were granted Iraqi citizenship. His claim will therefore be assessed as such.

(Footnote omitted; emphasis added.)

9    After the second Tribunal decision, there appears to be a significant gap in the chronology. There is no evidence of what occurred between a Departmental decision not to refer his application to the Minister for consideration under s 417 of the Migration Act on 29 November 2013, and the applicant’s detention on 30 June 2015. The applicant also remained in immigration detention for a year without anything happening, apparently.

10    Relatively recently, he was transferred to Melbourne Immigration Transit Accommodation (MITA) and “scheduled” for removal on 24 August 2016. He instructed his present solicitors to act on his behalf on 19 August 2016 and, on the same day, filed an application for judicial review, and an extension of time in which to make such an application. The applicant’s solicitors sought an undertaking from the Minister that the applicant not be removed from Australia pending the determination of the proceeding in the Federal Circuit Court. The undertaking was refused, however Judge Hartnett granted an injunction restraining the removal of the applicant and adjourned the application for hearing on the extension of time issue only to 5 September 2016.

11    Her Honour heard the application for extension of time on 5 September 2016, having previously determined that the substantive application for judicial review should not be heard on the same day. On 9 September 2016, her Honour refused the extension of time, and the injunction was discharged. The applicant then sought relief in this Court.

Relevant Legislative Provisions

12    The applicant invoked the Federal Circuit Court’s original jurisdiction under s 476 of the Migration Act. He was out of time by more than two years. Section 477, which imposes time limits, also confers a discretion on the Federal Circuit Court to extend time. It relevantly provides:

Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

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

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

The Federal Circuit Court decision

13    The parties accepted, and I agree, that her Honour correctly approached the task under s 477 by considering whether it would be in the interests of justice to extend time, and by setting out some of the factors usually taken into account in the exercise of that discretion, while also recognising it is a wide discretion. Her Honour did not accept the applicant had provided any reasonable explanation for the delay in bringing the judicial review application of the second Tribunal decision, describing the delay (at [25]) as “inordinate”. Her Honour set out (at [30]) the grounds of review upon which the applicant relied. The sixth (and final) ground of review was:

The Tribunal’s finding that the applicant is “one of those former Bidoons from Kuwait” is irrational, in that it assumes that it is possible for a person to lose or change his or her race or ethnicity.

14    Her Honour then made the following finding (at [31]):

The Court considers the grounds relied upon by the Applicant have little or no prospect of success. The Tribunal’s statement of decision and reasons is a statement of a clearly articulated and logical reasoning process. Matters were put to the Applicant of concern to the Tribunal on the history as provided by the Applicant, which included country information which did not support the Applicant’s claims. The Tribunal’s findings were evidently open on the evidence before it. Natural justice was afforded to the Applicant. Essentially the Tribunal found the Applicant’s claims to lack credibility. The Tribunal did not find the Applicant to be a “reliable, credible or truthful witness” and found him to have fabricated his claims. The Tribunal did not accept that the Applicant was a stateless Bidoon but found that he had been granted Iraqi citizenship.

(Emphasis in original.)

15    This paragraph assumes some importance in the determination of the applicant’s contentions in this proceeding. Having rejected (at [32]) the contention that there had been a failure to examine the Tribunal decision made in respect of the applicant’s brother, at least in part on the basis that the applicant had not made a claim that his family constituted a social group for the purposes of the Refugees Convention, the Federal Circuit Court then continued (at [35]-[36]), making a finding which is central to the applicant’s contentions on this application:

Whether or not the proper test is that the State must provide protection that was not a matter which arose on the Tribunal’s findings. The Tribunal found the Applicant did not require protection at all.

The Applicant’s claims that he was a ‘stateless Bidoon’ and ‘returnee from the west’ were clearly dealt with by the Tribunal. Any findings on race or ethnicity were subsumed into the Tribunal’s broader or more general findings.

16    Her Honour then also dealt with other matters she considered relevant to her discretion, stating at [37]:

There is a need for finality in legal processes. This assists the efficient use of public resources and produces a lessening of legal costs to all parties. The impact of progressing a case with significant delay and no satisfactory explanation for that delay upon other litigants in the Court awaiting a hearing is considerable and adverse. When to that is added a case which has no serious prospect of success, the Court must conclude that it is not in the interests of the administration of justice to extend time as sought.

RESOLUTION

17    The applicant had previously been granted leave to rely on an amended statement of claim, which removed some grounds of review and added one other. Five grounds of review were raised.

18    It was common ground the applicant must satisfy the Court that the grounds of review reveal that the Federal Circuit Court exceeded, or failed to exercise (constructively or actually) its jurisdiction. The applicant accepted a legal error within jurisdiction would be insufficient for relief to be granted: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-180; Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [66]-[73].

19    At the hearing, counsel for the applicant indicated ground 1 was no longer pressed. I do not consider it further.

Ground 2: Did the Federal Circuit Court take account of an irrelevant consideration?

20    The applicant submitted that the matters to which the Federal Circuit Court referred to at [37] of its reasons, which I have extracted at [16] above, constituted an irrelevant consideration. He contended that the additional costs and delay of permitting the application to proceed were irrelevant, in circumstances where the Court could have heard and determined the underlying application and the extension of time in the same hearing. In oral submissions, this ground was put as one particular to this case and dependent on the Federal Circuit Court’s own choice to proceed to hear the extension of time application separately from the substantive judicial review application. Having made that decision, it was submitted, the Court had created an “administrative obstacle”, but that did not entitle the Court to take into account the matters set out at [37] as part of the exercise of the discretion under s 477.

21    According to the transcript, which was before me, the Federal Circuit Court hearing took approximately an hour. As I have noted, the matter had initially been listed as a matter of urgency to deal with the injunction application to prevent removal. The Court then heard the extension of time application shortly thereafter. The applicant accepted it was open to the Federal Circuit Court to separate the hearings because of the time it had available, and accepted that it may have been a legitimate choice for the Court’s own case-management. However, the applicant submitted, having made that choice, the fact of a later hearing could not be weighed against the exercise of the discretion in s 477 to extend time.

22    The principal answer to the applicant’s contentions is that [37] of the Federal Circuit Court’s reasons is about more than the consequence of a case-management decision and the existence of a separate, later hearing. In its terms, the paragraph draws in the views her Honour had already expressed about the “inordinate” delay in bringing judicial review proceedings. It is in that context her Honour speaks of “finality”. Having made a decision about the most appropriate use of judicial time and resources, and having decided to hear the two matters separately, her Honour was not precluded from taking into account the additional delays, on top of the already significant delays, which would occur before the judicial review would be finalised. Her Honour did this having already found there were little or no prospects of success, and in my opinion it was open to her Honour to take that approach.

23    In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, I indicated (see [53]-[56]) that such matters are relevant to the exercise of the discretion to extend time. They are relevant in the sense of being permissible considerations under s 477(2). They are not mandatory, but nor are they prohibited: see Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J). Judicial review litigation, like other litigation, does not occur in a vacuum, or in some sort of private space especially reserved for parties in a particular case. It occurs in the ongoing and busy exercise of a Court’s several jurisdictions. Finite amounts of judicial time are available. Other litigants are affected, directly and indirectly, each time an adjournment or extension of time is granted. By themselves these considerations are highly unlikely to be determinative of judicial exercises of procedural discretions. However these factors are capable of being weighed in the balance of determining where the interests of justice lie. Although each case turns on its own facts, where there are reasonable prospects of success, no relevant prejudice to the other party and a material disadvantage to a litigant without the discretion being exercised, it might be expected that the demands on a court’s resources, and effects on other litigants, would not result in an exercise of a procedural discretion in a way unfavourable to the litigant. Nevertheless, these are permissible and important considerations.

24    In the present case, her Honour did no more than weigh those factors, and it was open to see them as significant in a case where judicial review was sought more than two years after the Tribunal decision.

Grounds 3 and 4: Did the Federal Circuit Court fail to take account of relevant considerations?

25    The applicant is correct that, in submissions before the delegate, and before the Tribunal, there are statements to the effect that the applicant makes a claim based on race. It is also true the applicant said this to the second Tribunal during the hearing. However, nowhere in any of the material was a separate race claim developed by reference to the applicant’s evidence, nor to any country information or other material. In contrast, in the submissions made on behalf of the applicant, being Bedoon was linked to being stateless. Indeed, the descriptor of the claim in the submissions was often expressed as “race/nationality”, itself an unusual combination, but reflecting what I set out below about the meaning of “Bedoon” in some of the material put to the Tribunal on behalf of the applicant.

26    In submissions to the delegate, the applicant’s advisor relied on country information which contained the following explanations of what the descriptor “Bedoon” meant.

The Arabic word “bidoon,” meaning “without” and short for “bidoon jinsiya” (without citizenship), refers to the Stateless residents of Kuwait. The Kuwaiti Bidoons are part of a larger Bidoon demographic that resides in Saudi Arabia and the United Arab Emirates.

The legal status for Kuwaiti Bidoons has progressively worsened over time.

“In 1959, Kuwait passed a Nationality Law that defined Kuwaiti nationals as persons settled in Kuwait prior to 1920 who maintained normal residence thereafter until the Nationality Law’s passage. Upon the law’s passage, one third of Kuwait’s residents were recognized as citizens, a second third were naturalized and granted partial citizenship rights, and the remaining third were classified as Bidoon Jinsiya .... After 1985, the path to citizenship upon which more than a few Bidoon had relied became murkier, when many were dismissed from jobs, their children barred from public schools, drivers’ licenses revoked, and the carrying of passports by Bidoon severely restricted. Despite Bidoon participation on the Kuwaiti side in the first Gulf War, post-war the Kuwaiti government continued to remove Bidoon from military and police positions, rehiring only fractions of those previously employed.”

Figures for the number of Bidoons in Kuwait vary, but are estimated to be between 80,000 to 120,000. Of this number, most are not Kuwaiti citizens. According to the 2009 US Department of State Report, “More than 80,000 Bidoon citizenship requests were pending at year’s end.”

(Footnotes omitted.)

27    Then, in submissions to both the first and second Tribunals:

There are over two million displaced Iraqis. And some of the most unfortunate are the Bidun. Border disputes and messy bureaucracy sees them stateless in their own country. As a result, they can’t even buy a mobile phone.

In Ninawa, they call them “bidun”- a word which, in both Arabic and Persian, means “without”. As many as 14,000 Bidun - Iraqis of ethnic Arab origin - live in the state of Ninarwa as displaced or stateless persons, with no claim on Iraqi nationality or the identifying documents that go with that. In the whole of Iraq, in 2010, there were as many as 2.8 million internally displaced people, according to the Geneva-based organisation, the Internal Displacement Monitoring Centre.

(Emphasis in original.)

28    Finally, the applicant’s statutory declaration was in the following form:

... My ethnicity is Arabic and my religion is Muslim Sunni. I am married and have 7 children. My parents are deceased and siblings remain in Iraq.

Why I left my home country:

Although I was born in Kuwait I and my wife, my children were deported in 1991 to Iraq. I have never returned since that time. I am a stateless person because I am Bedon. Bedons born in Kuwait are all Stateless because the Government does not recognize them. Although I was allowed to join the Army, I will never be allowed to be a citizen and I am persecuted because of that. I can never obtain a passport of Kuwait or of any other country.

Why I cannot relocate:

If I was able to enter Kuwait I would be stateless no matter where in that country I lived.

What I fear might happen if I go back to my home country:

I do not believe I will be allowed to enter. I have no passport or travel document and have no right of entry to any country, including Kuwait.

Who I think will harm or mistreat me if I go back:

The Government authorities will mistreat me if I was able to enter, and I would be deported again.

Why I believe they will harm or mistreat me if I go back:

Because I am Stateless I believe I the Authorities will never give me minimum human rights.

Why I believe the authorities in my home country and/or my country of former habitual residence will not protect me if I go back:

No, the Government will not allow me to enter legally. If I managed to enter illegally I would be deported as soon as I was found. I cannot expect protection from the Authorities because they do not want us to live in Kuwait.

Why I think I will suffer significant harm:

I am Bedon and I will have no civil or civic rights in Kuwait if I was able to return there., There is no country in the world where I can enter legally.

Other matters that I would like the Department to take into account (if applicable):

As I am a stateless person I will suffer hardship if I was returned to Kuwait. I am not recognised in the country of my birth and no rights to live there, or to live in any country.

29    It can be seen he identified his ethnicity as Arab, which is consistent with the country information, but otherwise connected his status or description as Bedoon with the characteristic of statelessness.

30    This material was before the Federal Circuit Court and some of it was referred to in the Minister’s submissions before that Court. Obviously, it raised a social group claim. However, that claim was dealt with by the Tribunal and no ground of judicial review addressed this.

31    It is clear that the Tribunal proceeded on the basis of this kind of country information. It seems to me this was apparent to her Honour as well, given what is said in [31] and [36] of the reasons.

32    Relying on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ), the applicant contends the Federal Circuit Court was bound to take into account all substantial, clearly articulated arguments relying upon established facts that were put to it, and failed to do so. He contends the Federal Circuit Court did not grapple with his arguments about the Tribunal’s failure to deal with his claim to fear persecution based on his race or ethnicity. These were contained, he contends, in grounds 5 and 6 of the application for judicial review before the Federal Circuit Court (ground 4 having been deleted), and submissions were made on those grounds. Both grounds concerned the way the Tribunal had dealt with the applicant’s claim to be Bedoon. Ground 5 alleged the Tribunal had not dealt with his claim to fear persecution based on race: namely being Bedoon. Ground 6 alleged that, if it had been dealt with, the finding on that ground was irrational because the Tribunal described the applicant as a “former Bidoon”, and had thus proceeded as if he could change his race, which the applicant contended before the Federal Circuit Court was clearly irrational. The Minister did not dispute these grounds were raised, nor that submissions were made about them.

33    I do not accept this argument raises considerations grounds. Different judges in Dranichnikov characterised the error differently: cf. Gummow and Callinan JJ at [24], [32] (with whom Hayne J agreed) and Kirby J at [88]-[89]. The majority view in Dranichnikov was that the error was a denial of procedural fairness. None of the judges in the majority characterised the error as a considerations error.

34    In the present case, I do not consider (and it was not contended) the Federal Circuit Court denied the applicant procedural fairness. The Court was required to look at the prospects of success of the applicant’s grounds of review only in the context of deciding whether it was in the interests of justice to extend time. The Court was not determining those grounds of review in an exercise of judicial power and did not need to deal with each ground in the manner or detail it would have needed to if it were determining, finally, the rights and interests of the parties. It was entitled – and indeed, as I said in MZABP, required – to look at the grounds in a more impressionistic way, and not to apply a standard involving asking whether they would succeed.

35    In my opinion, the Federal Circuit Court took this approach. The submission that it did not consider all the grounds cannot be sustained on a fair reading of the reasons.

36    I have noted above the fact that her Honour listed the grounds of review at [30] of her reasons, including grounds 5 and 6. At [31], in the first sentence she concluded they all had little or no prospects of success. That included ground 6. The rest of that paragraph consists of some of the reasons for that conclusion. Those reasons apply to all the grounds. Her Honour’s (correct) observation that the Tribunal did not find the applicant credible applied to all grounds. The last sentence in [31] was applicable to ground 6:

The Tribunal did not accept that the Applicant was a stateless Bidoon but found that he had been granted Iraqi citizenship.

37    Read with the material which was before the Tribunal and the Federal Circuit Court, and with the Tribunal’s reasons, this was accurate and dealt with ground 6. Part of the difficulty with the applicant’s arguments in this proceeding is that they misunderstand, or seek to reinterpret, the Tribunal’s reasons. The delegate and the first Tribunal appear to have treated the applicant’s description of himself as “Bedoon” as a possible description of a race or ethnicity, although the applicant described his ethnicity as “Arab” as I have extracted above. However, the second Tribunal did not do so. There was a real basis in the material before the second Tribunal, including in the applicant’s own submissions, for it to treat the descriptor “Bedoon” differently. As the extracts I have set out above demonstrate, and as the Minister submitted, the second Tribunal treated the history of the description “Bedoon”, when applied to people living in Kuwait and Iraq, as equivalent to the Arabic word for “without”, or “without citizenship” and therefore as a descriptor of an identifiable group of Arab people without citizenship. In that sense the phrase “stateless Bedoon” is something of a tautology.

38    Thus, when the second Tribunal did not accept the applicant was a stateless Bedoon, it plainly meant it did not accept he was a “Bedoon” at all, according to the understanding of that term put forward in the applicant’s submissions. That is why, later in its reasons at [44], it states “[g]iven I have found the applicant is not a bidoon …” The material before the Tribunal meant it was open to the Tribunal to consider there was an inextricable link between a person in the applicant’s position being stateless and being Bedoon, indeed that they are in substance the same attribute. Therefore, when the Tribunal refers to “former Bedoons” it is doing so in the sense of referring to people who were formerly stateless, but are now citizens, which is the category into which it found the applicant fell. When read in that way, there is nothing irrational in the Tribunal’s findings.

39    While it is true, as the applicant submits, that there is no specific reference to ground 6 and the rationality argument in the Federal Circuit Court reasons, in my opinion there did not need to be. As I have set out above, the Federal Circuit Court considered that ground had little or no prospects of success in the same way it considered the other grounds also lacked prospects. It was not obliged to set out reasons in any more detail than it did in the whole of [31]. Her Honour chose to set out more detail on some of the grounds and should not be criticised for doing so. However, she was not obliged to in the course of considering an exercise of the s 477 discretion. Her task was to conscientiously form an opinion on where the interests of justice lay, including conscientiously considering the material and arguments about grounds of review, but it was not part of the Court’s task to do that exhaustively, as if it were finally determining the judicial review application.

40    I accept the Minister’s submissions that her Honour was also likely referring to ground 6 in [36] where she refers to findings of race or ethnicity being “subsumed” in the broader or more general findings. While “subsumed” might not be the most appropriate description, there is certainly no jurisdictional error apparent in the reasoning in [36]. Prospects of success were but one factor in the exercise of the s 477 discretion and the Federal Circuit Court clearly took the view the prospects, on all grounds, were minimal. It cannot be said that was an unreasonable view, on the evidence before the Court in this proceeding.

Ground 5: Was the Federal Circuit Court’s decision legally unreasonable?

41    This ground of review relied on what was said by the Federal Circuit Court at [36] of its reasons, which I have extracted at [15] above. The applicant submitted the Federal Circuit Court had not appreciated the distinction between the applicant’s claim regarding his status as a stateless person and a returning failed asylum seeker, and his claim based on race as a Bedoon. The applicant submitted:

The finding of the Federal Circuit Court on that point was irrational, in that it was a finding that was so plainly wrong that no decision maker could properly reach it, as distinct from a finding on which reasonable minds could differ.

42    It was not clear whether this ground was being put as one of legal unreasonableness (as to outcome) or irrationality (in terms of lack of logic and rationality in a reasoning process). They are distinct grounds: cf. Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.

43    In oral argument, counsel for the applicant clarified that he intended to put this argument as an irrationality ground. He relied also on Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [9] (Gleeson CJ). He submitted this paragraph in S20 supported the proposition that any exercise of judicial power must be undertaken on a rational basis.

44    At a general level, that last proposition is unremarkable. What kind of irrationality could lead to an exercise of judicial power being found to have exceeded jurisdiction, or to be an actual or constructive failure to exercise jurisdiction, is quite a different question and one I do not propose to answer in this proceeding. Similarly, as the Minister’s submissions noted, in MZABP at [72]-[76], I expressed the view that the role of legal unreasonableness in the context of judicial review of an exercise of judicial power was yet to be fully explored. This case is no more the occasion to engage in that analysis than was MZABP.

45    That is because there is plainly no irrationality attending the Federal Circuit Court’s reasons. Given that the Minister put his submissions to her Honour in the same way they were put to this Court – that is, by reference to the material before the Tribunal about what Bedoon meant – it seems to me clear enough that her Honour did not accept the irrationality attack on the Tribunal’s reasons, just as I have also not accepted it in working through the applicant’s arguments in this proceeding. Her Honour expressed herself more briefly, but that is not inappropriate on an extension of time application where the merits of the grounds are but one consideration.

46    Although, as I have noted, “subsumed” might not be the most appropriate description of why the Tribunal did not deal separately with any claim of race or ethnicity, it would be correct to describe what happened before the Tribunal as the Tribunal considering the applicant’s claim to be “Bedoon” to mean a claim that he was without nationality. That is, after all, how the applicant’s own submissions described what it was to be Bedoon. This was the claim the Tribunal rejected, finding the applicant was an Iraqi citizen. In that context, for the Federal Circuit Court to conclude that any race claim was “subsumed” in the claim about being a stateless Bedoon was, in the way the Tribunal approached its task, not wholly inaccurate.

A final matter

47    At [22]-[23] of her Honour’s reasons for judgment, the Federal Circuit Court Judge stated:

After receiving the Tribunal decision in late November 2013, the Applicant sought legal assistance from three sources prior to the expiration of the statutory time limit to seek judicial review of the Tribunal decision. None of the organisations approached by the Applicant were able to provide him with assistance.

The Applicant claims that he did not know he was an unlawful non-citizen, as he has very limited English and no understanding of the Australian legal system. The Applicant was granted a number of Bridging visa’s E during his, in excess of, four years in Australia and participated in two Tribunal hearings. He was also ultimately returned to a detention centre. Placed in context it is not possible to accept that the Applicant had no knowledge of immigration matters as claimed by him.

48    Although the way her Honour dealt with the delay issue is not challenged in this application, these reasons should not be seen as an endorsement of any general application of her Honour’s observations in these two paragraphs. In my respectful opinion, for individuals such as the applicant who are in immigration detention in this country, or in the community, the situation is far more nuanced, in terms of their capacity to interact with the Australian legal system, and to know how to interact. The sense of powerlessness and helplessness that can attend individual experiences of immigration detention, or of living with uncertainty and isolation on bridging visas, especially where a person has little English, should not be underestimated. Even a very long delay in accessing advice and support sufficient to lodge a formal legal document by way of an application with a Court can in some circumstances be explained by these factors. No generalisations can, or should, be made, and the circumstances of each person must be carefully considered, recognising that judges are unlikely fully to appreciate what it is like to be such a position.

Conclusion

49    The applicant has not made out any jurisdictional errors attending the orders and decision of the Federal Circuit Court. The application must be dismissed. The Minister sought the usual order for costs and, on the material before the Court, there is no basis for anything other than the usual order.

50    The injunction granted by Murphy J will be discharged. Due to the likely imminent removal of the applicant where no injunction prevents his removal, the parties were given five working days’ notice that the Court’s orders and reasons were to be pronounced.

Associate:

Dated:    17 January 2017