FEDERAL COURT OF AUSTRALIA

BTI15 v Minister for Immigration and Border Protection [2020] FCA 681

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 6 September 2016 be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant is a citizen of Egypt. He arrived in Australia in January 2013 and subsequently applied for a protection visa. That application was refused by a delegate of the Minister for Immigration and Border Protection. That refusal was affirmed on review by the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal, on 28 August 2014. The applicant sought to challenge the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). He did not, however, file his application within the statutory time limit of 35 days prescribed by subs 477(1) of the Act. The applicant applied for an extension of time on 1 September 2015, almost a year after the Tribunal’s decision. That application was refused by a judge in the Circuit Court on 26 July 2016.

2    No appeal lies to this Court from a judgment of the Circuit Court refusing to make an order pursuant to subs 477(2) of the Act: subs 476A(3)(a) of the Act. The applicant, however, applied to this Court for judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth), of the decision of the Circuit Court to refuse his extension application. The Court has jurisdiction to entertain such an application: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; [2013] FCAFC 139 at [2]-[11]. The question for the Court on such an application is whether there was a jurisdictional error by the Circuit Court judge: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [50]; SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456; [2016] FCAFC 77; SZVDC v Minister for Immigration and Border Protection (2018) 259 FCR 154; [2018] FCAFC 16 at [31]-[38].

3    The applicant contended that the Circuit Court judge erred in a jurisdictional sense in two ways. First, it was said that the Circuit Court judge’s decision to refuse an extension of time was unreasonable. Second, it was said that in finding that the applicant had not raised an arguable case of jurisdictional error on the part of the Tribunal, the Circuit Court judge had misinterpreted, misunderstood, or misapplied the “applicable law”.

4    For the reasons that follow, the applicant’s contentions are unmeritorious and have no substance. The primary judge applied the correct law and principles in determining whether the applicant should be granted an extension of time and did not err in any sense, let alone in a jurisdictional sense.

Evidence

5    The application was supported by an affidavit sworn by the applicant which annexed the application which he attempted to file out of time in the Circuit Court and the affidavit sworn by him and filed in the Circuit Court in support of his application for an extension of time. That affidavit annexed the Tribunal’s reasons, gave the applicant’s explanation for not filing his application within time, and annexed a report by El Nozha Hospital in Egypt which recorded that the applicant had been treated at the “resort” between 18 January and 28 January 2012.

The Tribunal’s review and decision

6    The Tribunal’s Statement of Decision and Reasons identified the claims and evidence that the applicant relied on to demonstrate that he met the criteria for the grant of a protection visa (Reasons at [2]-[27]). In short summary, the applicant claimed that he had been denied an education in Egypt because, after twice failing his final school exams, he was required to perform compulsory military service in Egypt. He said that he was severely mistreated during that period of military service. That led him to abscond. When subsequently apprehended, he was prosecuted and found guilty for absconding and sentenced to two years and three months’ imprisonment. He claimed that he was severely mistreated and tortured during his period in prison and required psychiatric care after his release.

7    The applicant also claimed that after his release from prison in May 2011, he was “bombarded” by the Muslim Brotherhood, which by that time was the governing political party in Egypt. He said that, in 2012, he was assaulted by members or supporters of the Muslim Brotherhood and claimed that the Muslim Brotherhood had threatened his religious freedom because, amongst other things, it sought to impose strict religious dress, required men to grow beards, and sought to persuade youth to pursue jihad in Palestine and Afghanistan.

8    The applicant claimed that if he was forced to return to Egypt, he may be called up to serve in the military again because he remained a “reservist”. He claimed that he would be targeted by the Muslim Brotherhood in the future because he will refuse to perform acts of terrorism or jihad.

9    The Tribunal was not satisfied that the applicant met the criteria for a protection visa. In short summary, the Tribunal accepted that the applicant had been mistreated during his period of military service and during his period of imprisonment for absconding from military service. The Tribunal found, however, that the mistreatment was not “directed at him for any Convention reason” (Reasons at [33]). It also found that the requirement that the applicant perform military service and the punishment he received for absconding were “both administered under laws of general application” (Reasons at [33]). The Tribunal did not accept the applicant’s claims that he was mistreated because he went to a private school. It also rejected the applicant’s claims that he was subjected to a harsher penalty for absconding for any “discriminatory reason” (Reasons at [35]).

10    As for the applicant’s claims that he may be called up to serve in the military again, the Tribunal found that “any outstanding Reservist obligations are imposed under a non-discriminatory law of general application, and are therefore not Convention persecution” (Reasons at [36]). The Tribunal was also not satisfied that there was a real risk that the applicant would be called upon for Reservist duty and, in those circumstances, was not satisfied that the applicant was “at real risk of suffering any kind of harm as a consequence of being required for military Reserve duty” (Reasons at [37]).

11    As for the applicant’s claims concerning harm, or fear of harm, from the Muslim Brotherhood, the Tribunal found that the political situation in Egypt had changed and “calmed” (Reasons at [37]). The Tribunal accepted that there were still some demonstrations and political violence, but found that the “evidence does not suggest that a person such as the applicant would be targeted in such violence or that there is a real chance that he would be harmed as a consequence of such demonstrations” (Reasons at [37]). The Tribunal also found that “the possibility that the applicant would be harmed by the [Muslim Brotherhood] or extremist Muslims if he returned to Egypt now or in the reasonably foreseeable future, is remote” (Reasons at [37]).

12    Having regard to its factual findings, the Tribunal found that the applicant did not meet the criteria in either subs 36(2)(a) or (aa) of the Act in relation to protection visas (Reasons at [38]-[39]).

The circuit court’s refusal to extend time

13    Subsection 477(2) of the Act provides as follows in relation to the extension of time in which to file an application seeking a remedy under s 476 of the Act:

477 Time limits on applications to the Federal Circuit Court

…

(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.

14    The applicant filed an application in accordance with subs 477(2)(a). The question for the Circuit Court judge was whether it was satisfied that “it is necessary in the interests of the administration of justice to make the order [extending time]”. As to that question, the Circuit Court judge noted that the “matters” to which regard may be had are not expressly confined by the Act, but that the matters which are “usually relevant”, and were relevant to the applicant’s case, included: the extent of the delay and the reasons for it; any prejudice to the Minister; the impact on the applicant if the time is not extended; the interests of the public at large; and the merits of the substantive application: BTI15 v Minister for Immigration [2016] FCCA 2326 at [3] (Judgment).

15    The Circuit Court judge noted that the parties placed the “greatest emphasis” on the first and last of the identified matters; the extent of the delay and the reasons for it, and the substantive merits of the application: Judgment at [4]. His Honour accepted that there was no prejudice to the Minister and treated that as “neutral” to the proceedings: Judgment at [4]. His Honour also accepted that there was a public interest in having applications for protection visas considered according to law, but also noted that there was a public interest in the efficient and timely administration of justice as reflected in the time limit imposed by subs 477(1) of the Act: Judgment at [5]. As for the impact on the applicant if the extension was not granted, the Circuit Court judge accepted that “one possible consequence” was that the decision refusing his application for a protection visa would stand and he would be sent back to his home country where he claimed that he would face persecution or harm: Judgment at [6]-[7].

16    As for delay, the Circuit Court judge noted that the delay was almost 11 months, which was “more than a significant delay”: Judgment at [8]. His Honour reasoned that, given the significant delay, the applicant’s case fell into the category of cases where the Court would only be satisfied that it was necessary in the interests of the administration of justice to grant an extension if the applicant’s case was “exceptional”: Judgment at [9]. His Honour referred, in that context, to the judgment of Gageler J in Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42 and two other judgments that were cited in that judgment.

17    The Circuit Court judge next considered the applicant’s affidavit evidence explaining the delay. That evidence was, in summary, that the applicant had a history of mental illness and had been hospitalised for 10 days in January 2012 in a “Psychiatric and Addiction Hospital” and on four previous occasions due to his “mental instability”: see Judgment at [10]. The applicant also explained that he did not have a representative during the Tribunal proceedings, did not seek advice, and was not aware that he could lodge an application for judicial review when his Tribunal application was unsuccessful. The applicant’s evidence was that his mental illness contributed to his inability to obtain proper legal advice.

18    The Circuit Court judge found that the applicant had not given a “reasonable excuse for the significant delay”: Judgment at [11]. As for the applicant’s mental illness, the Circuit Court judge noted that the applicant’s evidence in relation to his mental illness related to the period before he arrived in Australia in 2013: Judgment at [11]. His Honour also reasoned that the applicant had not given any evidence of “how that mental illness might have impacted on his ability to appreciate and take action upon the consequences of the Tribunal’s decision and, in particular, what steps he might do in order to address his dissatisfaction with it”: Judgment at [12].

19    It appeared to have been common ground between the applicant and the Minister that the applicant chose to make an application for Ministerial intervention under s 417 of the Act instead of seeking judicial review of the Tribunal’s decision. The Circuit Court judge reasoned that this indicated that the applicant was “able to obtain some advice about steps that can be taken under the Act”, even if that advice may have come from his brother and sister: Judgment at [13]. The Circuit Court judge also considered that it was of “[s]ome importance” that the applicant had given no evidence of what steps he had taken to obtain advice and inferred that the applicant had not taken any such steps until possibly the rejection of the s 417 application which was at a “very late stage”: Judgment at [14].

20    The Circuit Court judge found that the “extreme delay” and the findings made concerning the applicant’s explanation for it weighed “heavily against the applicant” and that it “would require significantly strong grounds of review in order to overcome both of those matters”: Judgment at [15].

21    The Circuit Court judge then addressed the merits of the applicant’s proposed review application.

22    The ground of review relied on by the applicant in his proposed judicial review application was that the Tribunal “committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims”. The applicant provided lengthy discursive particulars of that ground. The Circuit Court judge indicated that, so far as he could discern, the relevant particulars were, in summary, that the Tribunal had failed to examine: the applicant’s claim that his mistreatment was due to his membership of a social group comprised of military deserters or persons with psychological illnesses; the applicant’s claim that his mistreatment as a military deserter or a person with psychological illnesses was not administered under laws of general application; the applicant’s membership of a social group and the real risk of further extra judicial mistreatment not administered under a law of general application; and the applicant’s claim that his membership of the social groups of military deserter and persons with psychological illnesses exposed him to the real risk of serious harm by the Muslim Brotherhood and Islamic extremists. While those particulars do not expressly refer to the applicant being a “conscientious objector”, the Circuit Court judge addressed the applicant’s review grounds on the basis that they included the assertion that the Tribunal had failed to consider his claim that his mistreatment arose because he was a member of that social group.

23    The Circuit Court judge gave fairly detailed consideration to the contentions contained within the particulars to the applicant’s review grounds and to the submissions that were apparently made in support of them. In short summary, the Circuit Court judge reasoned as follows in response to the various contentions that the Tribunal had failed to examine elements or integers of his claim.

24    First, the applicant did not in fact claim to be a conscientious objector, either in his visa application or before the Tribunal. The Circuit Court judge rejected the contention that the applicant’s claim that he was not permitted to study, or that he would have preferred to study, amounted to a claim of being a conscientious objector.

25    Second, the applicant did not claim that he was mistreated because of his psychological illness. The Circuit Court judge held that the material before the Tribunal did not suggest that the applicant’s mental state was said to be the actuating reason for the applicant’s mistreatment.

26    Third, contrary to the applicant’s contention, the Tribunal dealt with the applicant’s claim that he had been mistreated because he was a military deserter.

27    Fourth, the Tribunal’s findings to the effect that the requirement that the applicant perform military service and the subsequent punishment imposed on the applicant for absconding from that service were both the result of laws of general application were not illogical or otherwise erroneous.

28    Fifth, it was open to the Tribunal to find that there was no real risk that the applicant would be called on to perform reserve duty and that there was accordingly no real risk that the applicant would be harmed as a result of performing any such duty. The Circuit Court judge held that that finding was not illogical or otherwise in error.

29    Sixth, the Tribunal dealt with the applicant’s claims that he had been, or would be, harmed at the hands of the Muslim Brotherhood. The Tribunal dealt with that claim in a way which did not require it to consider whether any such harm would be as a result of the applicant’s religion or political opinion. The Circuit Court judge held that the applicant’s claim that the Tribunal did not examine this aspect of his case accordingly had little or no merit.

30    The end result of the Circuit Court judge’s analysis of the applicant’s grounds of review was that his Honour found that there was little, if any, merit, in any of the grounds raised by the applicant in respect of the Tribunal’s decision: Judgment at [37]. That finding, together with “all of the other considerations”, led his Honour to conclude that he was not satisfied that it was in the interests of the administration of justice that the applicant be granted an extension of time within which to file his application for judicial review: Judgment at [37].

Grounds of review and submissions

31    As outlined earlier, the applicant relied on two grounds of review of the judgment of the Circuit Court judge.

32    The first ground was that the decision of the Circuit Court judge was unreasonable. It was contended, in that regard, that while the delay was significant, the applicant had raised an arguable case and that consideration should outweigh the delay. It was also contended that there was a reasonable explanation for the delay, there was no prejudice to the Minister, and that it was in the interests of the Australian community that the applicant have his claim for a protection visa reviewed according to law.

33    It was also submitted on the applicant’s behalf that the Circuit Court judge misapplied the relevant law by requiring the applicant’s case to be “exceptional”. The relevant law in that regard was presumably subs 477(2) of the Act. In the applicant’s submission, the decision in Vella, upon which the Circuit Court judge relied, was distinguishable. It was similarly submitted that the Circuit Court judge erred in finding that “significantly strong grounds of review” were required to overcome the extreme delay and the applicant’s failure to give a reasonable excuse for it.

34    Finally, the applicant contended that the Circuit Court judge erred in finding that the applicant had not given any reasonable excuse for the significant delay. It was simply submitted, in that context, that there was a satisfactory explanation for the delay.

35    The applicant’s second ground of review was that the Circuit Court judge misinterpreted, misunderstood, or misapplied the relevant law in finding that the applicant had not raised an arguable case of jurisdictional error on the part of the Tribunal. In short summary, the applicant contended that the Circuit Court judge erred in making the following findings relevant to the Tribunal’s decision: that the applicant had not claimed to be a conscientious objector (at Judgment [21] and [22]); that the Tribunal had not erred in finding that there was no reason for any of the additional physical treatment that the applicant claims to have encountered during his military service (at Judgment [25]); that the Tribunal dealt with the question of the obligation of the applicant to perform reserve duty (at Judgment [30]); and that the Tribunal did not err in the way it dealt with the possibility that the applicant might face harm as a consequence of being called up to reserve duty (at Judgment [31]).

Ground 1: unreasonableness

36    An inferior court such as the Circuit Court may act contrary to, or beyond, its jurisdiction if it misconstrues the relevant statute and thereby misconceives the nature of the function it is performing or the extent of its powers in the circumstances of the particular case: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]. It follows that if, as the applicant contended, the Circuit Court judge misconstrued subs 477(2) of the Act and misconceived the nature of its function in determining whether to grant an extension of time, that would constitute a jurisdictional error. It would not be necessary to consider whether such an error would additionally amount to legal unreasonableness.

37    The difficulty for the applicant, however, is that his contention that the Circuit Court judge misconstrued subs 477(2), or somehow misconceived the nature of his function or jurisdiction, has no merit.

38    The Circuit Court judge’s finding that he would need to be persuaded that the applicant’s case was “exceptional” given the extensive delay was based on a similar finding by Gageler J in Vella. In that case, Gageler J considered whether the High Court should grant the plaintiff an extension of time in which to file an application for a remedy in the exercise of that court’s original jurisdiction pursuant to subs 486A(2) of the Act. That provision is in relevantly identical terms to subs 477(2) of the Act. The length of the extension sought was 16 months. In that context, his Honour noted that he was required to be satisfied that it was necessary in the interests of justice to make the order extending time and referred to the fact that counsel for the applicant had “properly conceded that, given the length of the extension sought, I would only reach that satisfaction were I to be persuaded that Mr Vella’s case [was] exceptional”.

39    His Honour referred, in that context, to Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 at [13]. In that case, McHugh J referred to his Honour’s earlier decision of Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 where he had said (at ALR 481) that a “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months.

40    The applicant’s case and the operation of subs 477(2) of the Act was not relevantly distinguishable from Vella and the operation of subs 486A(2) of the Act. It is not difficult to see why, in considering whether it was in the interests of the administration of justice to extend time, the Court would need to be satisfied that an applicant’s case was exceptional if an extension of many months was required. The Circuit Court judge accordingly did not misconstrue subs 477(2) of the Act or otherwise misconceive the nature of his function.

41    Exactly the same could be said in relation to the Circuit Court judge’s observations that, in the particular circumstances of the applicant’s case, it would require “significantly strong grounds of review” in order to overcome the extreme delay and the applicant’s failure to adequately explain it. A court, in considering whether it is satisfied that it is necessary in the interests of the administration of justice to make an order extending time, is generally required to weigh a number of different, and often competing, considerations. Some will weigh in favour of an extension and some will weight against. Extreme delay and an inadequate explanation will weigh heavily against granting an extension. If the applicant has strong grounds, that may nevertheless outweigh those other considerations. If, on the other hand, an applicant was only able to demonstrate faintly arguable grounds, that may not outweigh those other considerations. Likewise, if the delay was very short and had been reasonably explained, the balance may tip in favour of an extension even if the applicant is only able to establish faintly arguable grounds of review.

42    That is all that the Circuit Court judge was saying when he said that it would require “strong grounds of review” in order to overcome the “extreme delay” and the absence of any reasonable excuse for it. His Honour was not laying down a concrete rule in relation to the construction or operation of subs 477(2) of the Act. He was simply referring to the particular balancing exercise in the case before him. There is accordingly no basis for the contention that, in referring to the need for the applicant to show “strong grounds”, his Honour misconstrued subs 477(2) of the Act or misconceived the function or power he was exercising.

43    It should also be noted in this context that the submissions advanced on the applicant’s behalf misconceived or misrepresented what the Circuit Court judge said in relation to the need for the applicant’s case to be exceptional. His Honour did not say, as was contended on the applicant’s behalf, that the applicant would need to establish an exceptional jurisdictional error on the part of the Tribunal before an extension of time would be granted.

44    The balance of the arguments advanced by the applicant in support of the contention that the Circuit Court judge’s refusal to extend time was unreasonable amounted to nothing more than arguments about factual findings made by his Honour about the applicant’s explanation for the delay and arguments about the merits of the Circuit Court judge’s decision generally. It was well and truly open to the Circuit Court judge to find, on the basis of the evidence that was before the Circuit Court, that the explanation or excuse proffered by the applicant was not reasonable. The applicant’s strident disagreement with that finding does not establish error on the part of the Circuit Court judge, let alone jurisdictional error. Likewise, strident disagreement with the judge’s balancing of the relevant considerations and the outcome of the decision does not establish legal unreasonableness or jurisdictional error generally.

45    It should perhaps finally be noted in this context that it was argued on the applicant’s behalf that it was not necessary for him to establish jurisdictional error on the part of the Circuit Court judge. It was only necessary for him to establish an error of law. Reliance was placed on the obiter observations of Kirby J in his dissenting judgment in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [86]. Those observations do not, however, provide any support for the proposition advanced on the applicant’s behalf. The issue in Coal and Allied was whether errors made by the Full Bench of the Australian Industrial Relations Commission were jurisdictional errors or errors within jurisdiction. There was no dispute that the Full Court of this Court only had jurisdiction to grant relief in the proceedings before it if the Full Bench made jurisdictional errors.

46    The decisions of the Full Court in SZTES, SZUWX, and SZVDC authoritatively establish that in proceedings challenging a refusal by the Circuit Court to extend time under subs 477(2) of the Act, it is necessary for an applicant to establish jurisdictional error on the part of the Circuit Court. It may be accepted that in some cases it may be difficult to determine whether an error is a jurisdictional error, or an error within jurisdiction, but that is another issue.

47    The Circuit Court judge did not misconstrue subs 477(2) of the Act and did not misconceive the nature of its jurisdiction. Nor did his Honour err, let alone err in a jurisdictional sense, in determining that the applicant had not provided a reasonable excuse for the delay. None of the other arguments advanced on the applicant’s behalf were capable of establishing that the Circuit Court judge’s decision not to grant the applicant an extension of time was in any relevant sense unreasonable. It plainly was not. Ground 1 of the applicant’s application in this proceeding accordingly fails.

Ground 2: errors in addressing the merits of the proposed review application

48    The applicant’s submissions in support of ground 2 of his application appeared to misconceive the nature of the Court’s jurisdiction in this proceeding. For the most part, the submissions appeared to be directed towards establishing that the Tribunal made jurisdictional errors in determining his review application. To the extent that the submissions addressed the judgment of the Circuit Court judge, it was simply asserted that his Honour had erred in finding, contrary to the applicant’s submissions, that the Tribunal had not made the jurisdictional errors particularised in his proposed judicial review application. In that regard, the applicant’s submissions essentially proceeded as if this was simply an appeal from a judgment of the Circuit Court dismissing his review application.

49    There are a number of difficulties with that approach.

50    First, this is not an appeal from the judgment of the Circuit Court. As already indicated, it is an application for relief pursuant to s 39B of the Judiciary Act. To obtain that relief, it is necessary for the applicant to demonstrate that the Circuit Court acted beyond its jurisdiction, or failed to exercise its jurisdiction, in considering whether to extend time under subs 477(2) of the Act.

51    Second, the Circuit Court judge did not, and did not purport to, conclusively determine whether the Tribunal had in fact made any jurisdictional error or errors in determining the applicant’s review case. Rather, in considering whether it was in the interests of the administration of justice to grant the applicant an extension of time, the Circuit Court judge considered whether the applicant’s proposed grounds of review had any apparent merit. His Honour did not finally determine that the grounds had no merit. Rather, he found that they had “little, if any, merit”.

52    Third, given the nature of this proceeding, it was incumbent on the applicant to establish that, in considering the applicant’s review grounds and in finding that they had little, if any, merit, the Circuit Court judge erred in a jurisdictional sense. The applicant failed to articulate how the errors that he contended were made by the Circuit Court judge in considering his review grounds constituted jurisdictional errors. In some cases the “line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”: Craig v The State of South Australia (1995) 184 CLR 163 at 178. That does not, however, alleviate the requirement to establish jurisdictional error in the case at hand.

53    Even putting those difficulties to one side, the applicant failed to demonstrate that the Circuit Court judge made any errors in his consideration of the merits of the applicant’s grounds of review in relation to the Tribunal’s decision.

54    The applicant appeared to contend that the Circuit Court judge made four errors.

55    First, the applicant appeared to contend that the Tribunal failed to consider his claim to be a conscientious objector. He contended that his claim to be a conscientious objector arose from the fact that he had claimed that he was not given the opportunity to study because of his military service. The Circuit Court judge found, in effect, that that did not amount to a claim that he was a conscientious objector: “[t]he applicant did not refuse to undertake military service and, if he objected to it, it was not for any reason of his conscience, which is an essential element of being a conscientious objector”: Judgment [21]. The applicant contended that that finding was “a nonsense” and that “the simple fact that he [the applicant] would have preferred to study than go to the army” made him a conscientious objector. That highly doubtful proposition, however, was and is unsupported by authority. The Circuit Court judge’s finding that the material before the Tribunal did not amount to a claim by the applicant that he was a conscientious objector and that “there was no error in the Tribunal failing, if indeed it did fail, to consider that claim” (Judgment at [22]) was correct.

56    Second, the applicant contended that the Circuit Court judge erred in finding (Judgment at [25]) that there was nothing wrong with the Tribunal’s finding that there was no “Convention reason” for the mistreatment he suffered during his military service. The applicant did not, however, explain why that finding was said to be in error, let alone advance any persuasive submissions in that regard. While the applicant did appear to assert that the “Convention reason” was that he was a member of a social group comprising people with mental illness, as the Circuit Court judge found (Judgment at [23]), there was no evidence that the applicant was mistreated because of his mental illness.

57    Third, the applicant contended that the Circuit Court judge erred in finding (Judgment at [30]) that the Tribunal found that there was no real risk that the applicant would be called upon to perform reserve duty and that the logical consequence of that finding was that there was no real risk that the applicant would be harmed as a result of him being a reservist. There is no basis for concluding that his Honour’s finding in that regard was erroneous and none was suggested.

58    Fourth, and finally, the applicant contended that the Circuit Court judge erred in finding (Judgment at [31]) that the Tribunal’s finding that there was no real risk that the applicant would be called upon to perform reserve duty was illogical. The applicant did not, however, put forward any basis for finding that the Tribunal’s findings in that regard were illogical or irrational. Nor is there any basis for such a finding.

59    The applicant was unable to demonstrate that the Circuit Court judge erred in finding that the applicant’s proposed grounds of review of the Tribunal’s decision had little, if any, merit. In any event, even if any of the applicant’s arguments concerning the alleged errors had any merit, the applicant failed to demonstrate that any of the errors were jurisdictional errors, as opposed to errors within jurisdiction. Ground 2 of the applicant’s application in this proceeding accordingly fails.

Conclusion and disposition

60    The applicant failed to demonstrate that the Circuit Court judge erred, let alone erred in a jurisdictional sense, in dismissing his application pursuant to subs 477(2) of the Act to extend time for him to file an application for review of the Tribunal’s decision. His judicial review challenge to the decision of the Circuit Court judge must accordingly be dismissed with costs.

61    Three final matters should be noted.

62    First, it would appear that the applicant did not serve the Circuit Court, despite the Circuit Court being named as the third respondent to the proceeding. That was not apparent until the date of the hearing. The hearing nonetheless proceeded, by consent, on the basis that the Circuit Court would, had it been served, have filed a submitting appearance. The applicant, through his counsel, nonetheless undertook to ensure that the Circuit Court would be served within seven days. This is, in any event, largely immaterial given that the application is to be dismissed.

63    Second, in his originating application, the applicant claimed relief, including writs in the nature of certiorari and mandamus, against the Tribunal. At the hearing, the applicant, through his counsel, conceded that such relief was not available in this proceeding. The Tribunal should not have been joined. That again is largely immaterial given that the Tribunal filed a submitting appearance and the application is to be dismissed. In those circumstances, it is unnecessary to make an order removing the Tribunal as a party.

64    Third, this application was filed on 6 September 2016. The delay in hearing and determining it was occasioned by the fact that there was a potential issue arising from the fact that the Minister had issued a certificate purportedly pursuant to s 438 of the Act. The parties requested the Court to defer the hearing of the matter until the Full Court, and subsequently the High Court, had decided a matter which involved an invalid s 438 certificate and the implications of that invalid certificate in relation to the validity of the Tribunal’s exercise of jurisdiction. As events transpired, the applicant did not raise any issue in this proceeding concerning the validity of the s 438 certificate and did not contend that the Tribunal’s decision was in some way invalidated by reason of the issue of the certificate.

Associate:

Dated:    20 May 2020