Federal Court of Australia

EJD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 349

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the ground set out in the draft notice of appeal provided to Justice Farrell’s chambers on 17 December 2020 is refused.

2.    The application for extension of time is dismissed.

3.    The applicant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The application before the Court is an application for an extension of time in which to appeal the judgment of and orders made by a Judge of the Federal Circuit Court of Australia (as that Court was then known) (FCCA): see EJD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1432 (or J).

2    The applicant, to whom I will refer as EJD19, is a Turkish citizen. He first arrived in Australia as the holder of a Temporary Partner (subclass 309) visa granted to him on 5 December 2008. He most recently returned to Australia in 2013 as the holder of a Permanent Partner visa (subclass 100) visa which was granted to him on 6 June 2011. He was granted a Resident Return visa on 29 June 2017, but that visa was cancelled on 23 March 2018 following his conviction and imprisonment in relation to breaches of apprehended domestic violence orders.

3    He applied for a Protection (subclass XA) visa (protection visa) on 7 May 2019 while in immigration detention. A delegate of the responsible Minister refused to grant the protection visa. EJD19 sought review of that decision by the Administrative Appeals Tribunal. He attended a hearing on 8 August 2019 and a resumed hearing on 16 August 2019 to give evidence and make submissions. The Tribunal affirmed the delegate’s decision on 9 October 2019.

4    EJD19’s application for judicial review made to the FCCA relied on eight grounds. Although a lawyer prepared his application to the FCCA, EJD19 appeared at the hearing in person. The proceedings were conducted with the assistance of an interpreter. The Minister was represented by counsel. The FCCA Judge made orders dismissing the application and delivered ex tempore reasons.

5    EJD19 filed an application for extension of time and a supporting affidavit 143 days after the FCCA Judge made the orders from which he seeks to appeal. Rule 36.03(a) of the Federal Court Rules 2011 (Cth) allows a period of 28 days. EJD19 therefore filed his application 115 days after the period to appeal lapsed.

6    EJD19’s supporting affidavit affirmed on 22 June 2020 stated that he was not able to file an appeal because he was in gaol and had limited outside contact. Since he was released from gaol and has been in immigration detention, he has sought legal aid and was informed that they would take on his matter after his application was filed with the Court. The attached draft notice of appeal contained four grounds claiming jurisdictional error, one of which appears to relate to the FCCA Judge’s refusal of an adjournment and it is not clear whether the other three relate to the FCCA Judge’s decision or the Tribunal’s decision.

7    The FCCA Judge’s written reasons were published on the day after the application for an extension of time was filed.

8    EJD19 filed a further affidavit sworn by him on 22 July 2020 in which he said that, to that point, he had not been able to argue his case adequately. He raised a number of factual matters relating to his ex-partner and her new partner which appear to relate to the merits of his protection claims. He claimed that he was not in a mental state to argue his case before the FCCA and explained his circumstances to the lawyers for the Minister, but there was no adjournment.

9    Later, Mr Aleksov of counsel accepted a brief to appear for EJD19 in relation to the appeal on a pro bono basis, for which the Court extends its thanks.

10    Mr Aleksov’s written submissions relied on a ground not raised in the draft notice of appeal attached to EJD19’s supporting affidavit but no amended draft notice of appeal was appended to the submissions. At the hearing, counsel for the Minister was prepared to proceed in the absence of an amended draft notice of appeal. Following the hearing, Mr Aleksov provided to chambers a draft notice of appeal which set out one ground as follows:

The decision of the Tribunal is affected by illogicality, irrationality or legal unreasonableness.

Particulars

a)    At Reasons [95]-[96], in discussing country information relevant to the Gulen movement, the Tribunal found that Turkish authorities “readily imputed” Gulenist motives to persons simply for using a particular bank or messaging service. The Tribunal is thus to be taken as having found that there is a very low threshold for when a person might be imputed to have a pro Gulenist political opinion (whether or not they actually have that opinion).

b)    The Tribunal found that the applicant was resident at a boarding house in Australia associated with the Gulen movement, and that this house might well have been known to Turkish authorities.

c)    The Tribunal found that there was not a real chance that the applicant might be imputed with a “pro-Gulenist political opinion” (Reasons [98]). That conclusion was not open in light of the country information that was accepted as set out at particular (a), and it follows that in making that finding, the decision is affected by illogicality, irrationality or legal unreasonableness.

11    Mr Aleksov accepted that the Court’s leave was required to raise that ground on appeal and submitted that the ground correlated somewhat, albeit not fully, with the third ground of the application to the FCCA which provided as follows (as written):

The decision was affected by jurisdictional error in that the Administrative Appeals Tribunal, although the review applicant had ample evidence with relation to his ties and connections with the Gulen Movement, the Tribunal acted selective with relations to the witnesses who came forward and witnesses who in fear, that is expressed, remained silent.

12    At the hearing, Mr Aleksov confirmed that EJD19 relied on the proposed ground referred to in his submissions to the exclusion of the draft notice of appeal filed by EJD19 on 22 June 2020. Although Mr Aleksov alluded to the affidavits made by EJD19, they were not read.

13    The Minister filed submissions prepared by his counsel, Ms Hooper, who also appeared at the hearing to oppose the grant of an extension of time and leave for EJD19 to rely on the proposed ground.

Tribunal decision

14    The Tribunal’s decision record (or DR) made frequent references to a house in a particular street in Auburn, a suburb of Sydney in which a large number of the Turkish community resides. I will refer to that house as the Auburn house. The quotations from the decision record below have therefore been redacted accordingly (footnotes omitted):

5.    The applicant is a Turkish national who claims to be an Alevi Kurd, and more recently a practicing Sunni Muslim. He claims to fear persecution or significant harm at the hands of the Turkish authorities, due to his membership of the Gulen movement (actual and perceived). He linked this with his having found emergency accommodation in 2016, provided by a Gulenist charity. More recently, he has suggested that he was involved with the movement's religious and charitable activities in Australia from about 2009 or 2010, through his wife's family. The applicant claims that his former de facto partner informed the Turkish authorities about his involvement during a visit to Turkey in 2017.

6.    He also claims to fear harm from his own family, in part because they are angered by his conversion to Sunni Islam, and also because they will want to ‘clear their names’ (that is, distance themselves from any association with a known or suspected Gulenist).

…

9.    The applicant’s relationships in Australia form essential backdrop to his protection claims.

•    The applicant married an Australian citizen, a woman originally from [Turkey]. He told the Tribunal that they met while she was on holidays in Turkey. They were formally married in [Turkey], and the wedding reception was held later in [a town in Turkey], in the presence of both families. The applicant obtained a partner (subclass 309) visa, and travelled to Australia in [redacted]. At hearing, the applicant said that the couple started experiencing problems about three months after his arrival. Early on, his wife took out an apprehended violence order (AVO) against the applicant, but the couple got together again in 2009. The applicant said that the relationship continued until 2013 or 2014. He spoke of various interpersonal, health and financial issues that affected the couple, which are not relevant to this decision. The couple separated (amicably, he suggested) in 2014, and remain legally married.

•    The applicant told the Tribunal that he met his most recent partner in 2014. He described her as his second wife, or ‘Islamic wife’. For the purpose of this decision, the Tribunal uses the term ‘former de facto [partner]’. He said that he helped his former de facto financially and emotionally, but the relationship soured. He got along well with her mother in Turkey (his de facto mother-in-law), and stays in touch with her. The applicant’s former de facto also had an AVO issued against him. His breaches of the order resulted in his conviction and imprisonment. The couple are no longer in contact with each other. The applicant alleged that she has now informed the Turkish authorities about his religious/political activities in Australia.

10.    The applicant’s parents and his oldest brother were born in [a place in Turkey]. The applicant and two brothers were born in [a different place in Turkey]. The applicant claims to have minimal contact with his family since 2014, when he told them that he had married a Sunni Muslim woman who wears the hijab. The applicant told the Tribunal that he had brief contact with his family around this time, as his mother had been ill and needed money. Meanwhile, his main contact is with his youngest brother, [name]. He last spoke to [his youngest brother] in 2018, after learning about their grandmother's death. The applicant said he was devastated to learn about her death, as she had more or less raised the children while their parents were busy working.

11.    The applicant claims to have worked as a self-employed bricklayer in Sydney [for over nine years]; friends in Australia helped him financially after that.

15    At DR[18]-[35], the Tribunal considered the credibility of EJD19’s claims and evidence and found that it had “significant concerns” about credibility and that he had exaggerated and misconstrued past events, tailored his evidence and some of his statements were untruthful.

16    At DR[26]-[27], under the heading “The Gulen Movement: factors relevant to assessing credibility”, the Tribunal said (footnotes omitted):

26.    The applicant and his representative also stressed that, in assessing the credibility of the applicant’s claims, and his conduct, the Tribunal should take into account the nature of the Gulen Movement. The Department of Foreign Affairs and Trade and other sources mention the following features:

•    The movement has ‘no formal structure, central hierarchy nor visible evidence of membership’. Its critics voice concerns about its ‘highly secretive and undemocratic nature’.

•    The Turkish government accuses the Gulen movement of having orchestrated the 2016 attempted coup, and cracked down on alleged supporters of the Gulen movement. The authorities have not defined what qualifies as support for the movement, but it has extended to those using the Asya Bank (allegedly linked to the Gulen movement) or the encrypted Bylock messaging system.

•    The Turkish authorities’ pursuit of Gulenists extends worldwide, and reputedly includes the collection by diplomats of information about Gulenists in Australia.

27.    The Tribunal takes into account, in the assessment below, the somewhat amorphous nature of the Gulen movement; the severity of the Turkish government’s crackdown, at home and abroad; and the opacity of the Turkish authorities’ actions. It appreciates that these factors could affect the applicant’s ability to provide supporting evidence, or indeed to gauge what if any adverse interest the Turkish authorities may have in him.

17    At DR[88], the Tribunal set out its findings of fact as follows:

•    The applicant adopted Sunni Muslim practices in Australia, following his marriage; and that he has become more devout during his de facto relationship.

•    It accepts that this has caused him some tension with his family in the past, but it does not accept that they threatened, assaulted, detained or otherwise harmed him during his visit to Turkey in 2012/2013. The Tribunal finds that the applicant has an ongoing relationship with his family.

•    The applicant has engaged in various religious activities in Sydney, including at Gallipoli Mosque, and with a Muslim teacher named [XX]. The Tribunal does not accept that any of these activities were linked with the Gulenist movement prior to 2016.

•    The applicant lived in [the Auburn house] from 2016, for about a year. This was emergency accommodation that he obtained following the break-up of his de facto relationship, and the issuance of an AVO against him. The Tribunal accepts, as plausible, that the house is operated by a charity associated with the Gulenist movement. The Tribunal finds that the applicant and other occupants lived there, paid a nominal rent (in the form of a ‘donation’), but did not socialise with each other or have any more than passing involvement in other activities in that place.

•    The Tribunal does not accept that the applicant’s former de facto partner alerted the Turkish authorities on her return visit to Turkey in 2017 that the applicant is linked with the Gulenists.

•    The Turkish authorities are aware of the applicant’s conviction and imprisonment in Australia (after he told them); and they have offered to provide him with a travel certificate for his return to Turkey (rather than a fully-fledged replacement passport for the one that he lost). While the Turkish Consulate-General echoed the representative’s words that there is an ‘investigation’, the Tribunal is of the view that this is unexceptional given their knowledge of the applicant’s imprisonment in Australia. The Tribunal does not accept that the use of that word signals that the Turkish authorities are investigating him for reason of any Gulenist links, or other adverse religious or political profile.

•    The Tribunal considers it possible, though far from certain, that the Turkish authorities suspect that the applicant has applied for protection in Australia, or that they may come to suspect it in the reasonably foreseeable future.

•    The applicant’s primary concerns relate to his wish to remain in Australia, although he has some apprehension about the Turkish authorities’ possible knowledge that he lived in accommodation provided by a charity with Gulenist links.

18    The Tribunal set out its conclusions concerning EJD19’s claims to fear harm because of his claimed association with the Gulenist movement in assessing the refugee criterion at DR[89] and [93]-[99] as follows:

89.    The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information concerning the Turkish authorities’ attitudes to Gulenists, and the applicant’s future conduct - there is a real chance of him experiencing serious harm amounting to persecution if he returns to Turkey, for any one or more of the reasons enumerated in s.5J(1).

…

93.    Gulenist: For the reasons stated above, the Tribunal does not accept that the applicant is a Gulenist, or participated in Gulenist religious or other activities, whether from 2009/2010 (as recently claimed) or from 2016, after the applicant broke up with his former de facto partner.

94.    The Tribunal has carefully considered whether the applicant’s residence in the [Auburn] house, for about a year, may give the Turkish authorities cause to perceive of him as a Gulenist. On the basis of the above analysis, the Tribunal finds that the applicant stayed in that house, together with other occupants (three Turkish nationals and some other people), because it offered him emergency accommodation. It has found that he had minimal contact with the persons responsible for the house, or other occupants, except for a nominal donation and possibly attendance at some of other activities.

95.    The Tribunal takes into account country information including that in the submissions provided by the applicant, that the Turkish authorities have acted aggressively against persons considered to be Gulenist activists, both high-level politicians and low level activists, and that, in Turkey, they have readily imputed persons with Gulenist motives for actions such as using the Asya Bank or the Bylock messaging system.

96.    The Tribunal also accepts that the Turkish government’s campaign has extended abroad, showing its intention and some capacity to monitor Gulenist groups in Australia and other countries. For instance, in March 2017, the German newspaper Spiegel Online reported that documents produced by overseas Turkish embassies revealed that Turkish diplomats were collecting information on suspected Gulenist supporters in several countries including Australia. In a similar vein, in April 2018, President Erdogan vowed to continue to pursue and repatriate Turkish nationals linked to the Gulen movement, stating ‘no matter where they run or how much they run, we will go after them’. News reports refer to state confidential documents leaked by an Austrian politician revealing that the Directorate of Religious Affairs (Diyanet) had asked Turkish consulates in 35 countries, including Australia, to gather information about Gulen supporters. Turkish embassies in these countries, including in Australia, reported on schools they believed are affiliated with the Gulen movement, as well as documenting the organisations Gulen supporters are active in, the media they write for and relationships between alleged Gulen supporters and the country’s government.

97.    The Tribunal accepts as plausible that the applicant is concerned that the Turkish authorities may have gathered some intelligence about the [named] charity; the [Auburn house]; and even the activities or comings-and-goings at that property. For obvious reasons, the Tribunal is unable to determine or reach any firm view on whether the Turkish authorities have conducted surveillance on that house or its occupants. However, based on the above findings of fact, the Tribunal finds that there is no real chance that the Turkish authorities – even if they are aware of that house, and the applicant’s past residence there – forming the view that the applicant is a Gulenist. The Tribunal reaches this conclusion having regard to the applicant’s own evidence that there were both Turkish and non-Turkish residents there. It also takes into account his statements that he lived there, but did not interact with or get to know the organisers or other residents, or participate in activities other than making nominal donations (as a kind of de facto rent). It prefers these statements to his later claims that he was involved in various religious/political activities while living there, and that he associated with Gulenists and participated in their activities from as early as 2009/2010.

98.    The Tribunal infers that, in the event that the Turkish authorities have intelligence about the applicant’s residence in the [Auburn] house, for about a year, they will also be aware that he had no broader engagement with the Gulenist movement, whether through the charity’s own religious/political activities, or through other activities. The Tribunal finds there is no real chance of the Turkish authorities perceiving of the applicant as a Gulenist activist (including as a low key activist), or imputing to him a pro-Gulenist political opinion. Having rejected the applicant’s claim that his former de facto partner alleged to the Turkish authorities that he is a Gulenist, the Tribunal also does not accept that the Turkish authorities have an adverse interest in him arising from such an allegation.

99.    The Tribunal accepts, in light of the applicant’s advice that he told the Turkish Consulate-General that he had been in prison, the questions surrounding his immigration status, and also taking into account his representative’s emails and telephone conversation, that the Turkish authorities may suspect or come to suspect that he has applied for protection in Australia. As discussed at hearing, DFAT understands that it is not a crime for Turkish citizens to apply for asylum and there is no significant stigma attached to this group. The Tribunal also notes DFAT’s advice that ‘Turkey’s sophisticated information databases mean that failed asylum seekers are likely to come to the attention of the government if they have a criminal record or are a member of a group of particular interest, including the Gulen movement, Kurdish or opposition political activist, a human rights activist, or a draft evader or deserter.’ In the present case, the Tribunal is satisfied that the Turkish authorities already know about the applicant’s criminal record in Australia but, for the reasons stated above, it does not accept that they have an adverse interest in him as a person involved in the Gulen movement (actual or perceived), or for any related reasons, such as political activism. The Tribunal therefore finds there is no real chance of the Turkish authorities taking an adverse interest in the applicant for reason of his having applied for protection in Australia.

Applicant’s submissions as to the merit of the proposed ground

19    Counsel for EJD19 concedes that, on the facts found by the Tribunal, it acted lawfully in concluding that EJD19 is neither a Gulenist activist nor likely to be imputed to be an activist. The issue is whether Turkish authorities might perceive him as a Gulenist by reason of his residence for about a year at the Auburn house.

20    EJD19 says that the Tribunal’s finding that there was not a “real chance” that EJD19 would be perceived that way was not open to it because:

(a)    The threshold for the “real chance” test (in s 5J(1) of the Migration Act 1958 (Cth)) is low, as low as 10%;

(b)    The Tribunal took into account country information, which appears to accept, that:

(i)    Turkish authorities act aggressively against persons considered to be Gulen activists, even low-level activists: DR[95];

(ii)    In Turkey, authorities have readily imputed people with Gulenist motives for actions such as using a particular bank or a particular messaging system: DR[95]. Apparently, the threshold for being imputed with Gulenist motives is very low and one wonders how much else would be needed before there is a real chance of the person being imputed with such motives; and

(iii)    The Turkish government’s campaign extends abroad, showing its intention and some capacity to monitor Gulenist groups in Australia and other countries: DR[96]. That is an official Turkish government campaign that includes the President of Turkey engaging in strong rhetoric about what might happen to Gulenists or those perceived to be so.

21    Counsel submitted that: After discussing EJD19’s connections with the Auburn house, in the first sentence of DR[97], the Tribunal accepts that the Turkish authorities may have gathered intelligence about it, the charity that runs it and the comings-and-goings from that property. In the second sentence, the Tribunal notes that it does not know what has happened but it is prepared to accept the possibility.

22    Counsel submitted that the Tribunal then, in DR[97], goes on to say that there is no real chance of the Turkish authorities forming the view that he is a Gulenist, even if they are aware of the Auburn house and EJD19’s past residence there. That is because of EJD19’s “own evidence” that there were both Turkish and non-Turkish residents there and he did not interact with or get to know the organisers or other residents or participate in activities other than making nominal donations as a kind of de facto rent. Counsel submitted that those matters are not probative of whether or not EJD19 might be imputed with Gulenist sympathies. He submitted that any surveillance is “apparently” from outside the property, not inside it, and one might readily conclude that both Gulenist and non-Gulenists used the bank and messaging facilities referred to at DR[95] on the basis of which they were imputed with Gulenist sympathies.

23    Counsel submitted that the Tribunal’s finding at DR[97] was not based on probative evidence and is therefore illogical, irrational or legally unreasonable. He says that it is untenable to suggest that there is not a real chance that EJD19 might be imputed to have a pro-Gulenist political opinion and materiality is established by simple cross-reference to the facts found by the Tribunal at DR[95]-[96]. Anyone suspected of Gulenist sympathy, let alone a person that would be returning to Turkey in EJD19’s circumstances (without a passport, having been imprisoned in Australia and having sought asylum), might realistically be found to face a real chance of adverse treatment.

24    Counsel’s written submissions record the following formal submissions (footnote inserted):

9.    The judgment of Crennan and Bell JJ in [Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611] is usually cited as the lead authority on “illogicality” and “irrationality” in the lower Courts (and appears to have been applied by the Federal Court), given that their Honours were joined with Heydon J to form the majority in SZMDS. However, Crennan and Bell JJ assumed, without deciding, that illogicality and irrationality were stand-alone grounds attracting constitutional writs (at [130]). To the extent that these grounds of review were mentioned in SGLB (2004) 78 ALJR 992, [37]-[38] and Applicant S20/2002 (2003) 77 ALJR 1165, [9], [52], [173], that discussion also assumes without deciding that such errors as stand-alone grounds of review.

10.    Although the applicant accepts that the designation of reasoning as “illogical”, “irrational”, or “legally unreasonable” continues to find expression in judgments of this Court, the applicant formally submits that it should not matter whether reasoning is classified as illogical, irrational, or unreasonable (or similar).

11.    The real question should be whether reasoning is intelligible, upon the supposition that the decision maker addressed the right question, correctly applied the rules of law and took into account all the relevant facts and circumstances and no irrelevant facts or circumstances. If it is not intelligible upon that supposition, the conclusion should be made that the decision maker has breached the condition of reasonableness implied by the statute (which implication is assumed unless specifically excluded). The applicant contends that the jurisprudence on irrational and illogical reasoning should be understood through the prism of legal reasonableness, with irrational, illogical reasoning (and like adjectives) being understood as examples of a breach of the implied condition of reasonableness. These are, essentially, examples of where a court “cannot be sure of the precise particular” in which the decision maker has done wrong, but where the court can nonetheless see that the decision maker “must have failed in the discharge of [their] function”. In that situation, Dixon CJ held that there would be “an inference of unreasonableness”. [Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360]

12.    This is consistent with the observation of French CJ in Minister for Immigration v Li (2013) 249 CLR 332 at [30], that rationality is probably a subset of legal reasonableness. And this analysis would also avoid, as observed by Crennan and Bell JJ in SZMDS at [124], three complications affecting the acceptance of illogicality or irrationality as a free-standing common law grounds of judicial review.

13.    If this is accepted, the real question is whether the implication of reasonableness has been breached by the Tribunal. A standard of reasonableness would see some decisions quashed even if formal illogicality or irrationality cannot be shown. That may affect the outcome in this case.

Principles

25    The matters to be taken into account on an application for an extension of time within which to appeal are, without limitation, the length of the delay and whether there is a satisfactory explanation for the delay in seeking to appeal, whether there is prejudice to any other party, and whether the applicant has a reasonable prospect of success on the appeal.

26    The principles relevant to consideration of whether leave to advance new grounds of appeal should be granted in cases such as this were usefully summarised by Murphy J in AFZ17 v Minister for Immigration and Border Protection [2019] FCA 1035 at [17]-[21]:

17.    An appeal court has a discretion to allow an appellant to raise new grounds on appeal where the court considers that it is expedient and in the interests of justice to entertain the issue and where the proposed new ground could not possibly have been met by calling evidence in the hearing below: Water Board v Moustakas (1988) 180 CLR 491 at 497. The court is more likely to permit a new ground to be advanced on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

18.    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out the following non-exhaustive list of the considerations relevant to a grant of leave:

(a)    Do the new legal arguments have a reasonable prospect of success?

(b)    Is there an acceptable explanation of why they were not raised below?

(c)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

(d)    What is at stake in the case for the appellant?

(e)    Will the resolution of the issues raised have any importance beyond the case at hand?

(f)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

(g)    If so, can it be justly and practicably cured?

(h)    If not, where, in all the circumstances, do the interests of justice lie?

19.    As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25], the prospects of success of a proposed new ground is an important consideration in deciding whether to grant leave:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

20.    Cases involving an asylum seeker often have a particular sensitivity in relation to whether the interests of justice favour a grant of leave, since an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [35]-[38] (Murphy, Mortimer and O’Callaghan JJ).

21.    The fact that the appellant had legal representation in the hearing below weighs against a grant of leave, but leave may be granted even when that is the case and the only explanation for the failure to raise the new ground was that its significance may not have been apparent to the lawyers. What is at stake in a public law case is the lawfulness of the exercise of public power affecting the interests of an individual, and the considerations that inform whether leave should be granted to advance a new ground of appeal in a public law case are not necessarily the same as in a case between private parties: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J), endorsed by the Full Court in CGA15 at [37]. It is relevant too that the new grounds do not involve much dislocation to the Court or the efficient use of judicial sitting time. The necessary hearing will be short.

27    As discussed in Han v Minister for Home Affairs [2019] FCA 331 (Bromwich J), merit alone is generally not enough for the grant of leave to rely on a new ground The weaker the point raised by the ground, the greater the need for other aspects to be favourable, such as the explanation for not raising the ground before the primary judge and prejudice to the opposing party. That will help to ensure that the ends do not justify the means driven by merit alone.

28    I accept that it is necessary to be mindful of the fact that s 476 of the Migration Act vests original jurisdiction in matters of this kind in the FCCA. Having said that, in a clearly meritorious case, I am persuaded that the fact that the Minister might only have recourse to a special leave application to the High Court should not be a barrier to the grant of leave to rely on a ground of judicial review first raised on appeal.

29    Noting the formal submission made by Mr Aleksov in relation to the decision in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, I accept the statement of principles summarised in Fattah v Minister for Home Affairs [2019] FCAFC 31; 268 FCR 33 at [45]-[46] (Perram, Farrell, Thawley JJ) as follows:

45    The Appellant invoked both irrationality and unreasonableness as grounds of review. To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649 at [135] per Crennan and Bell JJ; Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 (‘Gupta’) at [34] per Gilmour and Mortimer JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ. As to unreasonableness, this may appear in the decision-making process or merely from the outcome and one may ask whether the decision lacks an evident or intelligible justification: Gupta at [36] per Gilmour and Mortimer JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8] and [21] per Allsop CJ.

46    The Appellant must therefore show as part of his rationality challenge that the Tribunal’s conclusion that he posed a risk to the community was not open on the evidence or that the conclusion was not logically connected to the evidence. As to unreasonableness, the Appellant needed to show that the conclusion that the exercise of power lacked an evident or intelligible basis.

30    I also accept the relevance of the statements in Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 at [43] (Derrington, Banks-Smith, Colvin JJ) as follows (citation inserted):

Where a complaint is made that there has been jurisdictional error by the Tribunal by reason of a breach of the implied standard of reasonableness in decision-making and the complaint is concerned with factual findings then the following matters pertain:

(1)    the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];

(2)    where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47];

(3)    unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]-[5];

(4)    it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant's evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];

(5)    generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;

(6)    … ;

(7)    … ;

(8)    mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];

(9)    a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];

(10)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and

(11)    there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain [v Minister for Immigration and Border Protection [2018] HCA 34] at [25], [30] [31].

Consideration

31    Mr Aleksov conceded that there was no satisfactory explanation (in the sense the authorities describe the word “satisfactory”) for the delay in filing a notice of appeal. Counsel submitted that the Court should take into account the obvious difficulties EJD19 faced in his limited access to legal representation and the fact that the FCCA Judge’s reasons were not published until after the application for extension of time was filed. Mr Aleksov nonetheless fairly conceded that EJD19 had the orders made by the FCCA Judge and therefore knew what the outcome was so that it was possible to file a notice of appeal within the time required by r 36.03 of the Federal Court Rules.

32    Mr Aleksov sought the extension of time and leave to rely on the proposed ground on the following bases. He says that EJD19 was self-represented in the FCCA proceedings (which is said to wholly explain his failure to raise the proposed ground in the FCCA proceedings), there is no relevant prejudice suffered by the Minister, consideration of the proposed ground involves no additional consumption of judicial resources, and the merit of the ground. Mr Aleksov submitted that the last basis is the dominant consideration.

33    Mr Aleksov accepted that there is a general public interest in the finality of administrative decisions and of litigation and that counts against the grant of leave. Counsel nonetheless submitted that that did not count for very much because there is a countervailing public interest in the lawful making and execution of administrative decisions which is the issue in this case. He submitted that submissions made by the Minister concerning the prejudice to the Minister of loss of a layer of appeal rights if a new ground is raised on appeal are misconceived because the Federal Court is the superior court in the federal jurisdiction and its judgments are assumed to be right, subject to special leave being given by the High Court on disputed questions of law. He says that there are no disputed questions of law in this case.

34    I am not satisfied that EJD19 has satisfactorily explained the long delay of 143 days from the date judgment was pronounced by the FCCA Judge in filing either a notice of appeal or application for extension of time. As submitted by the Minister, the fact that he was in gaol or detention is not a satisfactory reason for such a long delay: see SZUVX v Minister for Immigration and Border Protection [2016] FCA 301 at [37] (Wigney J). The fact that the FCCA Judge’s reasons were not published until 144 days after orders were made and ex tempore reasons were given and received by EJD19 through a translator would make it difficult to formulate grounds accurately. However, it is not an adequate reason for the delay beyond the 28 days period for filing a notice of appeal allowed by the Federal Court Rules. As submitted by the Minister, EJD19 knew the outcome. Grounds were formulated in the draft notice of appeal attached to EJD19’s affidavit made on 22 June 2020. Further, Courts regularly permit amendment of notices of appeal where written reasons are not published within the appeal period.

35    As indicated above, Mr Aleksov did not read EJD19’s July 2020 affidavit. In any event, I am not satisfied that any of the matters raised in it satisfactorily explain the delay either, particularly since no medical evidence supporting some of the assertions in it was provided to the Court. I note that, by email sent to the Court on 24 February 2022, EJD19 has provided some incident reports and medical records to the Court. The email was sent without leave or notice to the Minister and since the earliest medical records that he provided relate to the period from 16 November to 18 December 2020, they should not be accepted as evidence and are not relevant to the issues now before the Court.

36    I accept the Minister’s submissions that:

(a)    The third ground of EJD19’s judicial review application to the FCCA is not “somewhat similar” to the proposed ground on which EJD19 now seeks to rely. The proposed ground is a new argument; and

(b)    While EJD19 was not represented at the hearing in the FCCA, he was legally represented in formulating the grounds of his judicial review application to the FCCA and no explanation has been offered for why the proposed ground was not included in that application.

37    I am not satisfied that the proposed new ground has sufficient merit to warrant the grant of leave to rely upon it on appeal or to grant an extension of time to allow a notice of appeal relying on the ground to be filed. Whether or not illogicality or irrationality are subsets of legal unreasonableness, I am not satisfied that EJD19 has a reasonable prospect of establishing that any irrationality, illogicality or legal unreasonableness is present in the Tribunal’s reasoning or that the outcome lacks an intelligible justification for the following reasons:

(a)    The Tribunal took into account that the Turkish government acted aggressively against persons considered to be even low-level Gulenist activists and that campaign has extended abroad, with a demonstrated intention and some capacity to monitor Gulenist groups outside Turkey, including in Australia. The nature of the groups monitored is discussed at DR[96];

(b)    The Tribunal found that EJD19 was not a Gulenist activist of any kind and his former de facto partner did not report him to Turkish authorities. The Tribunal considered it unexceptional that the Turkish authorities had offered to supply EJD19 with a travel certificate rather than a full Turkish passport given that he had told those authorities that he been convicted and imprisoned in Australia due to criminal offences. The authorities were willing to issue him with a travel document: DR[86] and [99]. There was no evidence that the Turkish authorities in fact conducted surveillance on the Auburn house or that they knew of EJD19’s residence in the Auburn house or (if it be the case) that it was operated by a charity associated with Gulenists;

(c)    Insofar as EJD19 relies on the use of a named bank or messaging system as demonstrating that the Turkish authorities use a very low measure of involvement as being sufficient to impute Gulenist motives, the Minister correctly points out that the significance of using that bank or messaging system and how either might cause someone to be imputed “readily” with Gulenist motives is simply unknown;

(d)    The Tribunal accepted that it was “plausible” that the Auburn house was operated by a charity associated with the Gulenist movement: DR[88]. Contrary to Mr Aleksov’s submission set out at [21] above, at DR[97], the Tribunal accepted as plausible that EJD19 was concerned that the Turkish authorities may have gathered some intelligence about the [named] charity; the Auburn house; and even the activities or comings-and-goings at that property. What the Tribunal stated was that, for obvious reasons, it did not know whether Turkish authorities had conducted surveillance of the Auburn house or its occupants;

(e)    At DR[97]-[98], the Tribunal considered what the position would be if the Turkish authorities were aware that EJD19 had, for about a year, stayed in the Auburn house which was a boarding house. There is no basis for assuming (as EJD19 would have the Court do) that any surveillance by Turkish authorities (if it was conducted) would be conducted only externally. That is simply argumentative concerning the merits; and

(f)    There is no lack of logic or rationality in:

(i)    The Tribunal’s findings based on EJD19’s evidence that the Auburn house accommodated both Turkish and non-Turkish residents, he did not mix with those who operated the house or the residents and “donations” were a form of nominal rent; and

(ii)    The Tribunal’s inference based on that evidence that if the authorities conducted surveillance they would know that EJD19 had no broader engagement with the Gulenist movement through the charity’s religious/political activities or through other action;

(g)    It therefore appears to have been open to the Tribunal to find (at DR[103]) that there was not a real chance that EJD19 would suffer serious harm amounting to persecution if he returns to Turkey by reason of his actual or imputed political opinion or any other reason set out in s 5J(1) of the Migration Act.

Disposition

38    Leave to rely on a new ground on appeal should be refused. The application for an extension of time should be refused and the application should be dismissed with costs.

Associate:

Dated:    6 April 2022