Federal Court of Australia

AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application is allowed.

3.    Time in which to file an application for judicial review of the decision made by the Assistant Minister for Immigration and Border Protection on 28 March 2017 is extended pursuant to s 477A(2) of the Migration Act 1958 (Cth) to the date of this order.

4.    The draft originating application attached to the affidavit of Adrian Phillip Joel affirmed on 2 February 2021 be taken as filed on the date of this order.

5.    The decision of the Assistant Minister for Immigration and Border Protection made under s 501CA(4) of the Migration Act 1958 (Cth) dated 28 March 2017 be set aside.

6.    The applicant’s application for revocation of the decision made on 19 May 2015 under s 501(3A) of the Migration Act 1958 (Cth) be remitted to the respondent for determination according to law.

7.    The respondent pay the applicant’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    This is an application for an extension of time for the applicant to make an application for judicial review of a decision made by the then Assistant Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) on 28 March 2017. The application was made approximately three years and nine months out of time. The application is opposed by the respondent.

2    I will sometimes, and without intending disrespect, refer to the applicant as AHZ21 in these reasons.

Background

3    AHZ21 was born in Iraq and is ethnically Kurdish. Prior to his arrival in Australia in 2003, he was granted a Class XB Subclass 202 Global Special Humanitarian (permanent) visa.

4    On 19 May 2015, a delegate of the responsible Minister made a decision to cancel the applicant’s visa (cancellation decision). The delegate was required to make the cancellation decision under s 501(3A) of the Migration Act because:

(a)    The applicant failed the “character test” (having regard to the terms of s 501(6)(a) and (7)(c) of the Migration Act) because, on 1 May 2009, he was convicted of sexual intercourse without consent and sentenced to a term of imprisonment of nine years and four months; and

(b)    He was then serving a sentence of imprisonment on a full-time basis in a custodial institution for a criminal offence against the law of a State.

5    The Assistant Minister had power to revoke the cancellation decision under s 501CA(4) if:

(a)    A person made representations seeking revocation of the cancellation decision in accordance with an invitation made under s 501CA(3); and

(b)    The Assistant Minister was satisfied that:

(i)    the person passes the character test (as defined in s 501); or

(ii)    there is another reason why the cancellation decision should be revoked.

Applicant’s representations

6    AHZ21 made representations requesting revocation of the cancellation decision as follows:

(a)    On 29 May 2015, AHZ21 completed a form requesting revocation of the cancellation decision and said “Please I cannot go to Iraq, its a war zone and I do not want to be mixed up with war”. In the related “personal details form”, AHZ21 said (as written): “If I return to Iraq, my fears I have no support in that country, there is wars happening, if I go to this country I may be abducted as I am Kurdish/Sunee by the sheaid or Isis or by the PKK”.

(b)    On 4 June 2015, on a further request for revocation form, the applicant said (as written): “It’s absolutly impossible for me to leave Australia and go back to Iraq where I got no options: (1) I have no one to go to (2) no place to live (3) Iraq is in a war zone (4) no income to survive (5) my social life is nil (6) the impact is totaly negative (7) it will destroy my familly and I will end up more then likely dead like the rest of the others in Iraq”. He also said that not one day passed where he did not think about his future in Iraq where there was a bombing war and people were getting killed based on their belief and “I’m not a war person”. He provided a photo, which he said “is a photo of my uncle [name redacted] who lives in US and as you can see he has had previous contacts with President George Bush. If I go back to Iraq it will affect my life due to him having these contacts”.

(c)    On 12 January 2017, the applicant wrote a letter in support of his request for revocation of the cancellation decision in which he stated that if he was deported to Iraq: “I would be targeted and persecuted because of my Kurdish ethnicity” and “I will have no shelter or support whatsoever as I no longer have any family or contacts left in Iraq”.

7    On 28 March 2017, the Assistant Minister refused to revoke the cancellation decision under s 501CA(4) because he was not satisfied that AHZ21 passed the character test (a matter not disputed by AHZ21) and he was not satisfied that there was “another reason” why he should revoke the cancellation decision (Assistant Minister’s decision).

Assistant Minister’s decision

8    The reasons for the Assistant Minister’s decision are set out in a decision record (or DR). In considering whether there was “another reason” to revoke the cancellation decision, the Assistant Minister canvassed:

(a)    A summary of representations made by AHZ21 at DR[13] (see [10] below);

(b)    International non-refoulement obligations at DR[14]-[16] (see [10] below);

(c)    The strength, nature and duration of ties at DR[17]-[23];

(d)    Extent of impediments if removed at DR[24]-[26] (see [10] below);

(e)    Protecting the Australian community at DR[27];

(f)    Criminal conduct at DR[28]-[36]; and

(g)    Risks to the Australian community at DR[37]-[46]

9    The Assistant Minister stated his conclusion at DR[47]-[54]. The Assistant Minister stated that in reaching his decision he concluded that AHZ21 represents an unacceptable risk of harm to the Australian community and protection of the Australian community outweighed any other considerations including his lengthy residence and bonds, international non-refoulement obligations and the hardship AHZ21, his family and social networks would endure if the cancellation decision was not revoked. The Assistant Minister was not satisfied that there was another reason why the cancellation decision should be revoked.

10    Relevantly, the decision record said the following at DR[11]-[16] and DR[24]-[26] (emphasis in original):

MINISTER IS SATISFIED THAT THERE IS ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED – s. 501CA(4)(b)(ii)

11.    As I am not satisfied that [AHZ21] passes the character test, I have considered, in light of [AHZ21’s] representations, whether I am satisfied that there is another reason why the original mandatory visa cancellation decision should be revoked.

12.    In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered [AHZ21’s] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

13.    In the representations/documents submitted by [AHZ21] he has articulated reasons why the [cancellation] decision should be revoked, which include:

-    He has been in Australia since he was 16 years old; he has made a life in Australia.

-    He is ashamed and remorseful for what he has done and he will become a good and responsible person.

-    He has undertaken anger management and other rehabilitative courses in prison.

-    Iraq is a war zone and he would be targeted for his Kurdish ethnicity, and for his associations (through his uncle) with the United States government.

-    He has no family support, accommodation and employment in Iraq.

-    He would like to re-unite with his family in Australia, having missed out on family life during the years of his incarceration.

-    His family will be ‘destroyed’ if he is returned to Iraq.

International non-refoulement obligations

14.    I note that [AHZ21] has made claims that may give rise to international non-refoulement obligations.

15.    [AHZ21] stated his Kurdish ethnicity and his association with an uncle who resides in United States of America and who has been photographed with former president George Bush may make him a target adverse treatment in Iraq.

16.    However [AHZ21] is able to make a valid application for another visa. In particular I note that [AHZ21] is not prevented by s. 501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [AHZ21] for the purposes of this decision.

…

Extent of impediments if removed

24.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that [AHZ21] will face if removed from Australia to his home country of Iraq in establishing himself and maintaining basic living standards.

25.    I recognise that [AHZ21] has not returned to Iraq for 14 years and states that he has no memory of his homeland and no family support there. I acknowledge that his absence from his homeland for this long period, including all of his adult life to date, would mean that he is not fully familiar with current Iraqi society, though I consider that growing up until his teenage years in Iraq and having ongoing contact with other Iraqis in his family and the general community would have kept him broadly familiar with the culture and language.

26.    I also note that [AHZ21] suffers from epilepsy as a result of a motor vehicle accident which requires medication on occasion. I find that [AHZ21] will be able to receive the same level of health care as other citizens of Iraq and that it is likely that appropriate medication for what is not an exceptional condition would be available in Iraq.

Protection visa application process and legal representation

11    On 19 May 2017, AHZ21 applied for a protection (Subclass 866) visa (protection visa) which was refused on 3 August 2017. The delegate was not satisfied that AHZ21 was a refugee as defined in s 5H of the Migration Act so as to attract protection under s 36(2)(a) of the Migration Act or that he met the complementary protection criteria in s 36(2)(aa) of the Migration Act. On 2 November 2017, the Administrative Appeals Tribunal affirmed the delegate’s decision to refuse the protection visa. It appears that AHZ21 was represented by a migration agent in this process: see AHZ21’s submissions in chief at [2(k) to (m)].

12    On 20 February 2018, the Federal Circuit Court of Australia (as that Court was then known) made orders by consent setting aside the Tribunal’s decision. On 21 January 2019, AHZ21 (then represented by a solicitor at the Asylum Seeker Resource Centre) was notified that the Tribunal had remitted the matter to a delegate of the responsible Minister for reconsideration on the basis that AHZ21 has a well-founded fear of persecution if returned to Iraq within the meaning of s 36(2)(a) of the Migration Act.

13    On 8 October 2019, the delegate refused to grant the protection visa under s 36(1C)(b) of the Migration Act on the basis that AHZ21, having been convicted by a final judgment of a particularly serious crime is a danger to the Australian community.

14    On 11 October 2019, AHZ21 (who was then unrepresented) applied to the Tribunal for review of the delegate’s decision made on 8 October 2019.

15    On 23 October 2019, AHZ21 became represented by Adrian Phillip Joel, a solicitor.

Application for extension of time

16    Between 2 and 14 February 2021, the applicant lodged an application for extension of time within which to seek judicial review of the Assistant Minister’s decision and supporting affidavits affirmed by Mr Joel with the dates 21 January, 2 February and 3 February 2021. A draft originating application for review of a migration decision was attached to the affidavit dated 2 February 2021. There was one ground.

Ground

17    The ground of the draft originating application which AHZ21 wishes to pursue is as follows:

The Respondent (then Assistant Minister) made a jurisdictional error in relation to International non-refoulement obligations.

Particulars

a)    The then Assistant Minister found at paragraphs 14-15 of his decision that the Applicant had made representations which may give rise to International non-refoulement obligations.

b)    The then Assistant Minister found at paragraph 16 of his decision that it was unnecessary for him to consider those representations, as the Applicant was able to apply for a Protection Visa.

c)    The then Assistant Minister was obliged to consider whether International non-refoulement obligations were a reason to revoke cancellation of the Applicant’s Visa under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (Act) or at least whether harm other than that which would attract international non-refoulement obligations was a reason to revoke cancellation of the Applicant’s visa under s 501CA(4)(b)(ii) of the Act: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [52]-[54]; Ali v Minister for Home Affairs [2020] FCAFC 109 at [101]-[105]; Minister for Immigration v CTB19 [2020] FCAFC 166 at [15].

18    The applicant’s written outline of submissions in chief at [17] advised that the proposed ground was only pressed to the extent that it complains that “harm other than that which would attract international non-refoulement obligations” was excluded from the Assistant Minister’s consideration.

19    The respondent opposes the grant of an extension of time and the relief proposed in the draft originating process.

Legal principles relevant to extension of time

20    Section 477A of the Migration Act relevantly provides as follows:

477A Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) 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 Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

21    This is a case which falls within s 476A(1)(c) of the Migration Act.

22    Section 477A of the Migration Act does not prescribe criteria for the determination which will satisfy the requirement in s 477A(2)(b). As found by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]-[48] (in relation to a decision by a federal magistrate under s 477 of the Migration Act which is relevantly in the same terms as s 477A), the range of matters that may be considered is at large but they must “logically and sensibly relate to the interests of the administration of justice”. While the factors commonly deployed by judges when considering extensions of time provide guidance and have utility in most cases, they are not exhaustive.

23    In BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (BQQ15) at [33], the Court (Yates, Wheelahan and O’Bryan JJ) set out the principles applicable to an application for an extension of time in which to appeal which provide guidance in cases of this kind, subject to the express requirements of s 477A(2) of the Migration Act. Their Honours said:

Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

24    Generally, unexplained lengthy delay will require compelling merit of the substantive application to be demonstrated. It is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension: see Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [13]-[16] (McHugh J) (Ex parte Marks) in relation to the relevantly analogous High Court Rules 2004 (Cth) regarding extension of time. As observed by the Full Court (Black CJ, Sackville and Sundberg JJ) in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 (M211 of 2003) at [19], Ex parte Marks has been followed in many migration cases.

25    The applicant is content to proceed on the basis that the application for an extension of time and review application be heard together. The respondent is neutral as to that course being taken. Both parties accept that the prospects of success of the substantive application should only be considered at a reasonably impressionistic manner in relation to the application for extension of time, and it is only after that question is determined that the substantive application should be considered in more detail.

Extent of delay

26    AHZ21 acknowledged that he could not deny that the period of three years and nine months is a substantial delay.

27    The respondent submitted, and I accept, that “a case would need to be exceptional before the time for commencing proceedings was enlarged by many months”, relying on Ex parte Marks at [13] (McHugh J).

Reason for the delay

28    AHZ21 submitted that, while it may not be enough to excuse the delay, he has not been idle during the period since he was notified of the Assistant Minister’s decision. Rather, in accordance with the terms of the Assistant Minister’s decision at [16], he has pursued a protection visa. Further, he has only briefly or relatively recently been represented by a solicitor as demonstrated in his submissions in chief at [2(k)-(s)].

29    In his affidavit affirmed on 21 January 2021, Mr Joel explained as follows:

1.    I was instructed to act for the Applicant, [AHZ21] on 23rd October 2019.

…

5.    The Applicant applied to the Tribunal for review of [the delegate’s decision dated 8 October 2019] on 11 October 2019.

6.    I discussed the matter with Counsel. Counsel drew my attention to the Issues before the High Court in matter S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 (S270). Judgment was ultimately handed down on 9th September 2020. However, while the matter was pending, I understood that the matter had the potential to produce the result that the Assistant Minister in the present case had been perfectly entitled to postpone consideration of non-refoulement obligations in the way that he had.

7.    Acting upon advice from Counsel, my own appraisal and having discussed the matter with the Applicant, I formed the view we could await resolution of this matter by the Tribunal instead of immediately ventilating overlapping issues in the courts.

8.    Once the High Court delivered judgment, I formed the view that their Honours’ decision did not, as it might have done, dispel paragraphs 14-16 of the Assistant Minister’s decision as a source of complaint for the Applicant. Rather, it strengthened those paragraphs as basis for judicial review of the Assistant Minister’s decision.

9.    The question of whether the Applicant should be refused a protection visa on character grounds remains pending for review by the Tribunal. I was mindful that there was some difference between the character grounds relevant to such a refusal and the character grounds connected with the earlier cancellation of the Applicant’s visa. In other words, in my view, the Applicant had a prospect of success before the Tribunal notwithstanding the Assistant Minister’s decision, particularly considering the Applicant’s mental health issues.

10.    However, on behalf of the Applicant, I reached a different conclusion on whether to continue to refrain from seeking judicial review of the Assistant Minister’s decision. The High Court decision had not insulated the Assistant Minister from judicial review as might have been expected. Further, a decision from the Tribunal no longer seemed imminent, with some contentious procedural difficulties and delay emerging on 9 November 2020. Subsequent to that date I concluded (and received instruction from the Applicant) that the present proceedings should be commenced.

30    Counsel for AHZ21 submitted that:

(a)    By the time AHZ21 secured ongoing representation by Mr Joel, his case for jurisdictional error had the potential to be significantly affected by the proceedings before the High Court culminating in the decision in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 (Applicant S270/2019). Judgment in that case was delivered on 9 September 2020; and

(b)    By that time, AHZ21 had his third proceeding pending before the Tribunal. It is perhaps understandable that, represented by a sole practitioner with limited resources, with a prospect of success before the Tribunal and with the need to brief counsel for any court action, AHZ21 did not move more quickly between 9 September 2020 and 4 February 2021. That represents a relatively short delay.

31    The respondent submitted that this explanation is inadequate in several respects. In relation to Mr Joel’s evidence, counsel for the respondent submitted that:

(a)    It does not provide an adequate explanation for why the applicant did not challenge the Assistant Minister’s decision between the making of that decision and his becoming aware of the pending decision in Applicant S270/2019. The applicant’s case does not now depend on any principle explained in Applicant S270/2019, but instead it relies on the decision of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 (Goundar) which was handed down before the Assistant Minister’s decision. With reasonable diligence, the decision in Goundar could have been identified as relevant in this case;

(b)    It only speaks to the reasons why Mr Joel did not seek review of the Assistant Minister’s decision before judgment in Applicant S270/2019 was delivered and provides no direct evidence of AHZ21’s explanation for the delay in any respect. But that distinction is not an adequate reason for not commencing proceedings in any event: it is not unusual for proceedings in the Federal Court to be put in abeyance pending the outcome of a relevant High Court decision in another matter; and

(c)    It does not offer any explanation for the delay of some four months between judgment delivery in Applicant S270/2019 and the filing of the application for judicial review.

32    The respondent further submitted that:

(a)    There is no evidence that AHZ21 was unaware of his option to seek judicial review of the Assistant Minister’s decision. Rather, the facts indicate that AHZ21 made an informed and forensic election not to challenge the Assistant Minister’s decision and to instead pursue a protection visa. However, pursuit of the protection visa process was not inconsistent with a challenge to the Assistant Minister’s decision. AHZ21 should be taken to have abandoned any challenge to the Assistant Minister’s decision and to have elected to pursue an alternative path to seek to remain in Australia: cf M211 of 2003 at [21]-[24]; and

(b)    AHZ21 had been legally represented by an experienced practitioner in the area of migration law for approximately 13 months by the time he brought the application for extension of time to allow judicial review of the Assistant Minister’s decision. This is a case in which the cautionary remarks of McHugh J in Ex parte Marks at [17] are apt: “… the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice”.

33    In reply, counsel for AHZ21 submitted that:

(a)    The force of the respondent’s argument that AHZ21 made an election not to challenge the Assistant Minister’s decision and to instead pursue a protection visa is diminished by the fact that the Assistant Minister, mistakenly, urged (at DR[16]) that course on AHZ21 when refusing to revoke cancellation of the AHZ21’s visa. It is relevant that AHZ21 was not consistently represented and had, for significant periods, been represented by a migration agent rather than a solicitor as discussed in the applicant’s outline of opening submissions at [2(k)-(s)];

(b)    The respondent is wrong in assuming that steps taken by AHZ21 apart from the present proceeding only undermine his case for an extension of time. The circumstances in which he finds himself also strengthen that case. “Harm” for the purposes of a protection visa has now been established by the decision made by the Tribunal on 18 January 2019 that he satisfies s 36(2)(a) of the Migration Act. The issue of whether he should be refused a protection visa under s 36(1C) of the Migration Act is the subject of the Tribunal’s consideration of the delegate’s decision dated 8 October 2019 to refuse a protection visa on that basis. The only means by which AHZ21 may now have harm in his home country weighed in his favour is if the question of revocation of the cancellation decision is remitted to the Minister. Accordingly, even if the Court finds fault in AHZ21’s explanation for delay, his suit for jurisdictional error ought be heard; and

(c)    The respondent wrongly seeks further to support his argument of election by pointing out that Goundar pre-dated Applicant S270/2019. There was evident overlap between the Assistant Minister’s postponement of international non-refoulement obligations in Applicant S270/2019 and the present case. It was possible that the High Court would address matters at such generality as to affect Goundar. There was not, in the early framing of the applicant’s case, such a clear distinction between Goundar and Applicant S270/2019. In any event, the ambit of Goundar is enlightened by Hernandez v Minister for Home Affairs [2020] FCA 415 (Hernandez) (Charlesworth J) and Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Ali) (Collier, Reeves and Derrington JJ). It is only when the Minister refuses to consider “non-PV harm” (see [38] below) that Hernandez, Ali and general principles in Applicant S270/2019 become relevant.

34    AHZ21 was correct to accept that the explanation for delay of approximately three years and nine months was not sufficient. No adequate explanation for the delay has been offered. While it is true that AHZ21 was not represented by a lawyer at all times and that he did actively pursue a protection visa after the Assistant Minister’s decision was made:

(a)    The fact that someone is not legally represented or lacks resources is generally not a sufficient reason for delay in making an application for judicial review of an administrative decision within the timeframe prescribed by s 477A(1): see BQQ15 at [38]. It is certainly not a sufficient reason for delay of the dimension of three years and nine months;

(b)    The Assistant Minister’s decision at DR[16] did not suggest the course of pursuing a protection visa rather than seeking judicial review of that decision. The Assistant Minister merely noted at DR[16] the availability of an application for a protection visa to deal with non-refoulement claims;

(c)    It is notable that the decision in Goundar, which formed the basis of the application now before the Court, was handed down on 12 October 2016 before the Assistant Minister’s decision was made on 28 March 2017. I accept the respondent’s submission that the proposed ground was discernible from the time the Assistant Minister’s decision was made;

(d)    AHZ21 was represented by a solicitor at the Asylum Seeker Resource Centre on 21 January 2019, although it is not clear when that representation commenced. There is no explanation for why an application for extension of time was not made while AHZ21 was represented by the Centre;

(e)    AHZ21 has offered no explanation for the delay prior to Mr Joel’s appointment;

(f)    The fact that Mr Joel may have contemplated a ground which might have been affected by the pending High Court decision in Applicant S270/2019 is not an acceptable explanation for delay. Nor is it an acceptable explanation that there might have been further development of the principles in Goundar in Ali and Hernandez. To accept that it was appropriate to wait for such developments would be inconsistent with both the legislated period for lodging judicial review applications set out in s 477A(1) of the Migration Act and established authority. In any event, it is possible to amend an application for judicial review in light of developments in the law and that is the appropriate avenue for accommodating such developments. It is common for matters to be held in abeyance after judicial review applications are filed if they raise issues the subject of a pending Full Court or High Court decision in another matter. Further, the delay of four months after the decision in Applicant S270/2019 was delivered by the High Court is, contrary to AHZ21’s submissions in chief at [26], both lengthy (compared to the statutorily mandated period of 35 days to file a judicial review application) and not satisfactorily unexplained (see (h) below);

(g)    Applying for a protection visa and seeking judicial review of the Assistant Minister’s decision are not mutually exclusive courses. The only available conclusion is that AHZ21 elected to pursue the protection visa application course in 2017. While that may be understandable (though not necessarily excusable) in an unrepresented person who is incarcerated or in immigration detention, it is harder to excuse the forensic decision made by Mr Joel for 15 months after his appointment as AHZ21’s solicitor; and

(h)    The facts that Mr Joel is a sole practitioner, the applicant had a third proceeding pending before the Tribunal when Mr Joel was appointed as AHZ21’s solicitor, and there would be a need to brief counsel to appear in Court on an application for an extension of time do not provide a sufficient reason for delay in filing an application for an extension of time.

Any prejudice to the respondent or the administration of justice caused by that delay

35    Counsel for AHZ21 submitted that there was no relevant prejudice to the respondent. The respondent does not assert that he suffers any specific prejudice by the late application for an extension of time. Nevertheless, he correctly notes that the mere absence of prejudice is not sufficient to justify the grant of an extension of time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ) citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J).

36    The respondent submitted, and I accept, that there is a general prejudice to the administration of justice arising from delay. Time limits have a role in promoting the orderly and efficient administration of the legislative scheme. The public interest requires that there be finality in relation to the efficacy of administrative decision-making: Ex parte Marks at [15].

Merit of proposed ground

37    The parties agree that, on the question of an extension of time, the Court should only assess the applicant’s prospects of success on the grounds raised by the draft originating application in a reasonably impressionistic manner.

38    The applicant relied on the decision in Goundar and referred to:

(a)    “PV harm”, which I take to mean harm which does attract non-refoulement obligations; and

(b)    “non-PV harm”, which I take to mean harm other than that which would attract non-refoulement obligations, that is, harm of the type which founded the jurisdictional error identified by Robertson J in Goundar at [53]-[54].

39    Mr Goundar’s visa had been mandatorily cancelled under s 501(3A) of the Migration Act and he had been invited to make and had made representations to the Minister for revocation of the cancellation decision under s 501CA(4). I note that:

(a)    The evidence of both Mr Goundar’s brother and mother stated that they believed that there was a risk of retribution against Mr Goundar from Mr Goundar’s victim’s family and his ex-wife’s family (relatives) if he was returned to Fiji and it was submitted that the existence of the risk to his safety was a strong factor against the cancellation of Mr Goundar’s visa;

(b)    The relevant representation was that there was a risk of retribution and a risk to Mr Goundar’s safety as a matter of fact. There was no claim made that this engaged Australia’s non-refoulement obligations;

(c)    Both the Department’s submissions to the Minister and the Minister’s reasons noted that Mr Goundar’s claims may give rise to international non-refoulement obligations. The Minister found that he did not need to consider non-refoulement claims arising from the risk from the relatives because Mr Goundar was free to apply for a protection visa. The Minister did not otherwise consider Mr Goundar’s risk from relatives in his reasons. The Minister found that there was not another reason to revoke the cancellation decision; and

(d)    Mr Goundar claimed that the Minister thereby made an error of law, because the possibility that Mr Goundar could apply for a protection visa did not protect him from all forms of harm from the relatives, including harm motivated for reasons of revenge (and not persecution) or harm short of significant harm as defined in s 36(2A) of the Migration Act.

40    In Goundar at [47], Robertson J observed that the Minister did not consider the applicant’s retribution claim except in the context of international non-refoulement obligations, and in so doing, assumed that the risk of retribution, and the consequent risk to Mr Goundar’s safety claimed in his representation, was coterminous with the risk relevant to the issue of a protection visa. At [53]-[54], Robertson J found as follows (case citations inserted):

53    The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant’s representations referred. The Minister did not presently consider the applicant’s representation as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made. The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4).

54    The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in [Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56] at [41]–[65]. That error had a material effect on the Minister’s decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant’s safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see [Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22] at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error.

41    Counsel for AHZ21 accepted that a decision-maker pursuant to s 501CA(4) is entitled to defer consideration of PV harm to be addressed on consideration of an application for a protection visa. However, counsel submitted that AHZ21’s claims were all claims to both PV harm and non-PV harm and the non-PV harm should have been considered by the Assistant Minister. When pressed to identify AHZ21’s claims concerning non-PV harm, counsel submitted that the Assistant Minister was obliged but failed to consider as non-PV harm AHZ21’s claim to fear harm in Iraq as a war zone.

42    Counsel for the respondent submitted that AHZ21’s difficulty in this case is that there was no clearly articulated claim to fear harm, other than harm capable of falling with within Australia’s non-refoulement obligations, which was not considered by the Assistant Minister. Specifically:

(a)    AHZ21’s claims to fear harm on account of his Sunni religion and Kurdish ethnicity were clearly capable of falling within the scope of the refugee criterion in s 36(2)(a) of the Migration Act. Further, his claims to fear harm based on his uncle’s photograph with a former President of the United States are referable to a fear of harm that is based on imputed political opinion or actual or imputed membership of a particular social group. Therefore, they are claims available under s 36(2)(a) of the Migration Act. In any event, claims to fear abduction or targeted killing would come within the scope of significant harm that is protected under s 36(2)(aa) of the Migration Act;

(b)    The claim that AHZ21 could not return to Iraq as it was a war zone and he did not want to get mixed up with war, in isolation, would not engage the refugee criterion in s 36(2)(a) of the Migration Act. However:

(i)    in context, the war zone claim appears to be connected to AHZ21’s claims based on race, religion, political opinion or membership of a particular social group;

(ii)    even if the refugee claim under s 36(2)(a) of the Migration Act was not engaged, the risk of harm in Iraq by reason of the country’s war situation was extremely unlikely to be uniform across all areas of the country. In those circumstances, the risk of significant harm was capable of coming within the complementary protection criterion in s 36(2)(aa). The claim would not necessarily be excluded by s 36(2B)(c) which excludes risks “faced by the population of the country generally and … not faced by the non-citizen personally”: see BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 (BCX16) at [37] (Charlesworth J); ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 (ADH17) at [39]-[42] (O’Bryan J); and

(iii)    in any event, AHZ21’s claim was so vague and lacking in detail that it could not be said that the Assistant Minister had an obligation to consider the claim. The respondent relied on AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] in which the Court (Flick, Griffiths and Moshinsky JJ) said:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

(c)    The claims that AHZ21 would have no support in Iraq, that he would have no place to live or income to survive and that he suffered from epilepsy were considered by the Assistant Minister at DR[24]-[26], even though those claims were also vague and non-specific. Given the level of generality at which these claims were expressed, the Assistant Minister’s consideration of them was more than adequate; and

(d)    No error of the type identified in Goundar is made out on the facts.

43    In reply, counsel for AHZ21 submitted that the Minister fails in his attempt to distinguish Goundar. Counsel submitted that there is no bright line between PV harm and non-PV harm. He submitted that AHZ21’s claims clearly extend to non-PV harm. Claims to PV harm are tested by reference to technical requirements of international non-refoulement obligations as incorporated by the Migration Act. Claims to non-PV harm are simply assessed for their factual veracity, as occurred in Hernandez and Ali. The Court should be slow to conclude that AHZ21 was restricting himself to fears which satisfied non-refoulement. He should readily be understood to have been seeking any available consideration of his claims.

44    Before rendering this decision I invited the parties to provide written submissions as to the impact of the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1/2021) on this application. Both parties provided those submissions and I have taken them into account in what follows.

45    The plurality in Plaintiff M1/2021 (Kiefel CJ, Keane, Gordon and Steward JJ) found as follows at [22]-[24], [30] and [39] (citations omitted except in [39]):

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

…

30    Where the representations do include, or the circumstances do suggest, a claim of non refoulement under domestic law, again the claim may be considered by the decision maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

…

39    Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked (74).

46    Footnote 74 to Plaintiff M1/2021 at [39] cited: DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (DOB18) at 681 [185]; Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at 607 [39]; GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at 223 [45]; DCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 395 at [38], citing Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 at 147 [36]; AFD21 v Minister for Home Affairs (2021) 393 ALR 398 (AFD21) at 413 [55].

47    The applicant submitted that what the Full Court said in AFD21 at [55]-[56] (Kenny, Kerr and Wheelahan JJ) is representative of what was said in the cases referred to in Footnote 74:

55.    The starting point in our analysis is to accept, as we must, that there is a distinction between underlying claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations on the other hand: see DOB18 at [185] (Robertson J). That distinction led the Full Court in Omar to accept the arguments in support of the notice of contention, where, without deciding whether non-refoulement obligations were a mandatory relevant consideration, it was held that the Assistant Minister had failed to engage with the underlying representations concerning risk of harm should the respondent in that case be returned to Somalia.

56.    Accepting the distinction to which Robertson J referred in DOB18, it does not follow that the underlying claims and their characterisation as giving rise to non-refoulement obligations are necessarily disconnected or otherwise unrelated. Much depends on the particular claims made in the case at hand. In some cases, the underlying claims are liable to be closely connected, because the claimed fear of harm as represented by the claimant will be of a kind that is typically (and clearly) the foundation for a claim that Australia’s non-refoulement obligations are engaged. Such were the fears of harm as represented by the appellant to the Minister in this case.

48    Counsel for AHZ21 acknowledged that the decision-maker in relation to the exercise of power conferred by s 501CA(4) is entitled to defer consideration of PV harm to the protection visa stage. He submitted, however, that the decision-maker should also consider the facts underlying the claim of PV harm (and any qualifying matters independent of the claim of PV harm) as non-PV harm in determining whether there is “another reason” for revocation of the cancellation decision. Counsel noted that, in contrast to the present case, in Plaintiff M1/2021, the delegate stated that they had considered Plaintiff M1/2021’s claims of harm in South Sudan and accepted that he would “face hardship” from tribal conflicts if he did return before weighing that matter with other factors in making the determination whether there was “another reason” to revoke the cancellation decision. Accordingly, the facts of Plaintiff M1/2021 are distinguishable. Counsel submitted that the Assistant Minister’s failure to consider, as a reason to revoke the cancellation decision, AHZ21’s claims to fear non-PV harm in Iraq as a war zone was a jurisdictional error of the Goundar kind as illuminated in Plaintiff M1/2021 at [39].

49    In Omar at [39], the Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said (emphasis in the respondent’s submissions):

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139 (Ezegbe) at [32]-[36] per Perram J).

50    I agree with the respondent’s submission that AHZ21’s counsel’s submission that claimed PV harm also requires consideration as non-PV harm exceeds the proposed ground, which relies on the Assistant Minister’s failure to consider “harm other than that which would attract international non-refoulement obligations”. Counsel did not seek to amend the proposed ground to address his broader assertion and I will accordingly not address it any further.

51    Ultimately, each case turns on its own particular facts and circumstances: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 (McKerracher, Kerr and Wigney JJ) at [15(11)]. It is necessary to consider the claims made in this case. The representations made by AHZ21 (set out at [6] above) included (as written):

(a)    “If I return to Iraq, my fears I have no support in that country, there is wars happening, if I go to this country I may be abducted as I am Kurdish/Sunee by the sheaid or Isis or by the PKK”; and

(b)    “It’s absolutly impossible for me to … go back to Iraq where I got no options: (1) I have no one to go to (2) no place to live (3) Iraq is in a war zone (4) no income to survive (5) my social life is nil (6) the impact is totaly negative (7) it will destroy my familly and I will end up more then likely dead like the rest of the others in Iraq.”

52    At DR[13] (see [10] above), the Assistant Minister summarised AHZ21’s representations. Relevantly, the Assistant Minister said that AHZ21’s representations included:

(a)    “Iraq is a war zone and [AHZ21] would be targeted for his Kurdish ethnicity, and for his associations (through his uncle) with the United States government”. The Assistant Minister addressed those claims under the heading “International non-refoulement obligations” at DR[15], that is, as a claim to PV harm; and

(b)    “He has no family support, accommodation and employment in Iraq”. The Assistant Minister addressed those claims at DR[25]. The Assistant Minister also noted that AHZ21 suffers from epilepsy as a result of a motor vehicle accident for which he requires medication on occasion: DR[26]. The Assistant Minister addressed those claims under the heading “Extent of impediments if removed”. In effect, the Assistant Minister treated the claims as relating to non-PV harm.

53    As can be seen, contrary to the respondent’s written submissions at [10], the Assistant Minister did not accurately summarise AHZ21’s claims set out at [51(b)] above in his summary of his claims at DR[13]. It appears that, as a result, he did not recognise that “Iraq is a war zone” was a central element of AHZ21’s claims discussed at DR[25] and [26] as well as the PV claim mentioned at DR[15]. I do not accept that the “Iraq is a war zone” claim only applied to his claims to fear harm because of his Kurdish ethnicity and Sunni religion (the latter of which was also not recognised in the Assistant Minister’s decision record).

54    Counsel for the respondent made an argument for why the “Iraq is a war zone” claim set out at [51(b)] above might be addressed under the complementary protection criteria in s 36(2)(aa) of the Migration Act and therefore why it may legitimately be deferred for consideration on an application for a protection visa. I do not accept that argument for two reasons:

(a)    It is not apparent that, in reasoning the way that he did, the Assistant Minister understood the harms addressed in DR[24]-[26] to be encompassed by non-refoulement claims and therefore able to be deferred so the argument put forward by counsel is not the basis of the Assistant Minister’s decision; and

(b)    As noted by O’Bryan J in ADH17 at [42], the application of s 36(2B)(c) to various circumstances is not straightforward. AHZ21’s “Iraq is a war zone” claim recorded at [51(b)] bears more similarity to the circumstances considered in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J) (SZSPT) than the circumstances in BCX16. SZSPT related to the statutory liability of persons who left Sri Lanka illegally upon their return and Rares J found that s 36(2B)(c) applied to the risk created in those circumstances. In BCX16, the appellant relied on personal risk as a resident of the city of Kabul and Charlesworth J found that s 36(2B)(c) did not apply. As noted by Buchanan J in BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 at [32], the reference to risks “faced by the population of the country generally” in s 36(2B)(c) is a reference to risks faced by the general population as that concept is generally understood, not to risks faced by all members of the population or by each citizen of a country.

55    Further, and importantly, the consideration given at DR[24]-[26] does not address the claim actually made by AHZ21 as set out at [51(b)] that he would not have family support, accommodation or employment in Iraq as a war zone.

56    As to the respondent’s submission that the claims are too vague to warrant consideration, I note Charlesworth J’s finding in Hernandez at [26]: While the absence of corroborative evidence may legitimately bear on the manner in which claims are considered and determined, that does not justify the issue raised in the claim being ignored. The circumstance that the claims were not supported by objective country information does not render them insignificant so as to relieve the Assistant Minister of the obligation to consider them.

57    I consider that there is a meritorious case that the Assistant Minister failed to consider an articulated claim to non-PV harm raised by the proposed ground.

Disposition

58    I am mindful that the power to extend time is conditioned under s 477A(2)(b) on the extension being necessary in the interests of the administration of justice to make the order. Administration of justice involves both:

(a)    The Court’s processes which are for the benefit of all litigants. Those processes are compromised by departure from legislated time limits for invoking the Court’s jurisdiction, particularly where departure from the legislated time limits is a deliberate forensic choice involving delay of over three years and nine months; and

(b)    The public and private purposes of judicial review which are to identify jurisdictional error in administrative decisions so that those decisions are made efficiently and according to law.

59    The lack of an acceptable explanation for the delay in bringing the application and the very long length of the delay in seeking judicial review of the Assistant Minister’s decision, together with my satisfaction that the delay results from a forensic decision to pursue a protection visa, weighs heavily against the grant of an extension of time.

60    The respondent claims no specific prejudice by the grant of an extension, so that is a neutral factor.

61    The factors that weigh in favour of the grant of an extension of time are:

(a)    I find that the proposed ground is meritorious; and

(b)    The consequences for AHZ21 of a jurisdictional error in the Assistant Minister’s decision-making are very serious. That is because the Tribunal has found him to be a refugee and a delegate of the Minister has found that he is not owed protection by reason of s 36(1C) of the Migration Act, a decision which remains subject to review by the Tribunal.

62    Despite the weight to be attributed to the length of delay and the failure to provide an adequate explanation for it, the matters discussed at [61] weigh more heavily in the balance in this case. I have formed the view that s 477A(2) is satisfied, the extension of time should be granted and the draft originating application should be accepted as filed.

63    For the reasons discussed previously, the Assistant’s Minister’s consideration (at DR[24]-[26]) of impediments faced by AHZ21 if he were removed to Iraq was insufficient. That failure was capable of affecting the outcome of the decision-making process. A decision-maker might more readily rationalise returning an adult in AHZ21’s claimed circumstances to a country in which there is political and economic stability and social security than the decision-maker might where that adult has made a claim that the country is a war zone such as Iraq. The Assistant Minister’s error was therefore jurisdictional in nature.

64    The Assistant Minister’s decision should be set aside; the applicant’s application to revoke the cancellation decision should be remitted for decision according to law; and the respondent should pay the applicant’s costs as agreed or taxed.

Associate:

Dated:    29 July 2022