Minister's submissions
56 The Minister first notes the application before the Court was filed more than 19 months outside of the 35 day period permitted under the Act.
57 The Minister notes s 477A(2) of the Act provides that the Court may, by order, extend the 35 day period if an application for that order has been made in writing specifying why the applicant considers that it is "necessary in the interests of the administration of justice" to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. It is submitted the "interests of the administration of justice" is different to "the interests of justice". See WZANW v Minister for Immigration [2009] FMCA 1075 at [25]; WZANX v Minister for Immigration [2009] FMCA 1010 at [11].
58 It is submitted the applicant's affidavit filed 17 August 2015, Ms Felicity Cain's affidavit filed 19 May 2015 and Ms Rosemary Rosario's affidavit filed 12 August 2015 do not provide any adequate explanation for the lengthy delay.
59 It is noted that Ms Cain's affidavit deposes to her efforts to assist the applicant from late October 2014, and Ms Rosario's affidavit likewise deposes to her contact with the applicant from some unknown date in 2014. The applicant deposes that after he was told that he would not be released from detention in Australia, some detainees told him he could appeal the decision and some told him he could not, one of his case managers told him he could lodge an appeal, at that time he did not know any lawyers or any English or know what to do, and he does not remember if anyone told him that he needed to appeal within a certain time. The applicant also states that he has access to a telephone but did not know who to call, has limited access to the internet, has not known where to look to appeal his case, finds it hard to understand what is going on with his case, and does not understand the Australian system for refugees like him.
60 The Minister submits the applicant's English language difficulties, lack of knowledge of his capacity to seek review of Minister Burke's decision by the Federal Court and ignorance of the time limits for making such an application do not put the applicant in any different position to other persons in immigration detention who have similar English language difficulties, lack of knowledge and difficulty in obtaining legal advice, the vast majority of whom file their judicial review applications within time. See WZASC v Minister for Immigration and Border Protection [2013] FCCA 1452 at [10] and [11]; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38].
61 It is also noted that prior to the Minister's decision being made the applicant was represented by BMA Lawyers who provided submissions and documents on behalf of the applicant, about six weeks prior to the decision being made. It is further noted BMA Lawyers advised the applicant of the Minister's decision on 9 September 2013 but the applicant's affidavit does not provide any information about that contact or any advice given by BMA Lawyers as to the possibility of seeking review of that decision and the time limits for doing so.
62 The Minister contends that the delay in challenging Minister Burke's decision is so lengthy and the explanation for it is so unsatisfactory, that the extension of time should be refused irrespective of the merits of the substantive application.
63 The Minister refers to Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67, in which McHugh J discussed the principles governing applications for the enlargement of time under the High Court Rules, and submits those principles are relevantly analogous to those that apply to applications for an extension under s 477A. The Minister summarises those principles as follows:
(1) The grant of an enlargement of time is not automatic (at [13]).
(2) A case "would need to be exceptional" before the time for commencing proceedings was enlarged by many months (at [13]).
(3) An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension (at [15]).
(4) In deciding whether or not to enlarge time, the Court may take into account the explanation for the delay in commencing proceedings, and the applicant's prospects of success in the proceedings (at [13]).
(5) The constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions (at [15]).
(6) Independently of the merits of the case, it is difficult to see how a person who with knowledge of the decision delays 17 months (in that case) before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay (at [16]).
(7) The "rules of court must prima facie be obeyed" (at [16]).
(8) "The periods for applying for mandamus and certiorari give a person affected by an adverse decision of judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of the proceedings in this Court" (at [16]).
64 The Minister also refers to the comments of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553-554; [1996] HCA 25:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in individual case. The purpose of a provision such ass 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
(Emphasis added and footnote omitted.)
65 The Minister submits, in the circumstances, it would require an extraordinary or exceptional case before an extension of time should be granted. The Minister submits it would be a fundamental error if the Court was to put the length of the delay aside, and focus primarily on the merits of the proposed challenge or on questions of prejudice to the respondent. In the Minister's submission, to approach the issue in that way would ignore the balance of public interest that Parliament has struck in enacting s 477A(1) of the Act.
66 The Minister emphasises the lack of a satisfactory explanation for a long delay in making an application to extend time is a sufficient basis, on its own, for refusing to extend time. The Minister here refers to Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] but acknowledges the view expressed in SZTDM v Minister for Immigration [2013] FCCA 1130 at [20] that the discretionary nature of the decision reposed in the court, namely, whether it is in the interests of the administration of justice to extend time, indicates that in a case where the principal application has merit, justice would require that that consideration be given priority over the question of delay, subject to any prejudice which might be suffered by the Minister were time to be extended. See further, DZAFG v Minister for Immigration [2015] FCCA 168 at [34].
67 The Minister submits that if "merit" or an "arguable case" is sufficient to outweigh very lengthy delay, then limitation periods are deprived of any meaningful effect and they become simply an additional bar to cases that would fail in any event, doing nothing more than producing additional, but ultimately pointless, legal arguments, the only effect of which would be to increase costs. The Minister submits that is not how limitation periods work; as McHugh J recognised in Brisbane South Regional Health, where the period selected by Parliament as the appropriate limitation period is exceeded, the limitation period may often result in a "good cause of action being defeated". It is contended that a limitation period prevents a respondent from being required to litigate a claim that is brought substantially out of time, irrespective of its merits, at least unless the case is shown to be of an "exceptional" kind.
68 The Minister does not deny that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. But, as was said in Tran at [38] (in refusing a request for an 18 month extension of time to challenge a visa cancellation decision):
The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran's application for an extension of time.
69 Therefore the Minister submits a delay of the magnitude of over 19 months, and more than 17 times the statutory period, is so inordinate that it is, by itself, a compelling reason to refuse the application for an extension of time. In Jarosek v Department of Immigration [2006] FMCA 1048 at [27], the Federal Magistrates Court found that the delay of approximately 12 months in that matter was inordinate. In Tran, a delay of 18 months was found to be "excessive", and the absence of any satisfactory explanation for the delay would "itself be a sufficient basis" to refuse the extension of time. In WZASQ v Minister for Immigration [2013] FCCA 1726 at [14], the Court described a delay of 74 days in filing the application to the Court as "substantial". In WZANW at [28], it was said that a delay of 54 days after the 35 day time limit prescribed by s 477(1) of the Act is likely to be fatal to an application for an extension of time under s 477(2) where there is no reason for the delay.
70 The Minister says the applicant's delay of over 19 months in filing the application, in the absence of an extremely powerful explanation, is itself a sufficient basis to refuse the application for an extension of time. It is submitted not only is there no such powerful explanation, there is no satisfactory explanation for this inordinate delay.
71 Ms Cain's affidavit refers to attempts to obtain legal advice from Case for Refugees in late October 2014, from Law Access in November 2014, and from barrister, Mr David Blades, on 23 April 2015, and states that on 7 May 2015, Mr Blades advised that in his opinion there was merit in judicial review regarding the Minister's refusal to grant the applicant a protection visa on character grounds. However, the Minister submits that provides no adequate or persuasive, let alone powerful, explanation, for the delay. In Ex parte Marks, McHugh J stated at [17] that:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.
72 The Minister also refers to Tran at [35] where Wigney J said that lack of legal advice or positive legal advice is not on its own a sufficient reason for failure to lodge an application within time.
73 It is submitted that in this matter, there is a further powerful factor why it is not in the interests of the administration of justice to allow the extension of time sought. This is that since the Minister's decision, the ITOA on 11 September 2014 determined that Australia does not have non-refoulement obligations to the applicant. It would therefore not be in the interests of the administration of justice to grant an extension of time to review the Minister's decision when an underlying premise for that decision, namely the assessment of 26 April 2012 that Australia had protection obligations (and therefore non-refoulement obligations) to the applicant, no longer applies.
74 With regard to ground 1 of the applicant's amended application for review, that the Minister failed to consider the relevant consideration of indefinite detention, the Minister submits this ground is based on the incorrect premise that the applicant would face the prospect of indefinite detention if the Minister refused his application for a protection visa.
75 The Minister says the premise is false for the reason that there were potential options available for the release of the applicant from immigration detention, notwithstanding a decision to refuse him a protection visa. It is noted those options were put before the Minister as part of the "Key Issues" identified in the departmental briefing paper, and he indicated that he wished to consider one of those options. Those options included the grant of a visa to a person who is in detention under s 189 of the Act, by the Minister personally under s 195A(2) of that Act. Another option was the making of a residence determination pursuant to s 197AB of the Act.
76 In his decision record, Minister Burke indicated he was inclined to consider the grant of a s 195A visa. Accordingly, in the Minister's submission, the consequences of the making of a decision to refuse a protection visa under s 501 of the Act were brought to the attention of and taken into account by the then Minister.
77 The Minister submits the fact that Minister Morrison subsequently declined to grant a temporary visa under s 195A of the Migration Act does not materially alter the fact that this option was under consideration at the time of then Minister Burke's decision. The Minister contends that, in the circumstances, Minister Burke was not required to take into account, as a relevant consideration, that the applicant would face the prospect of indefinite detention if refused a protection visa.
78 The Minister contends that this case is distinguishable from NBMZ relied upon by the applicant, submitting that in NBMZ, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. See NBMZ at [4] (Allsop CJ and Katzmann JJ) and [128]-[131] (Buchanan J). The Minister submits that in this case, however, Minister Burke clearly indicated that he was inclined to consider exercising his power under s 195A of the Act to grant a temporary visa to the applicant, as noted above.
79 The Minister states the applicant's reliance on NBMZ for the proposition that the Minister is required to take into account, as a relevant consideration, "the possibility of indefinite detention" is, with respect, incorrect. The decision of the Court in NBMZ was based on their Honours deciding that, in the circumstances of that case, the legal consequence of a decision to refuse the protection visa would be indefinite detention. It is submitted that is different from this case where the Minister, by his decision record, indicated that the granting of a temporary visa was a real prospect.
80 The Minister notes the decision of the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83. Flick, Griffiths and Perry JJ commented on NBMZ as follows, at [19]-[20]:
NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to 'indefinite detention' at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise.
…
On no view of the facts of the present case could it be said that the 'consequence' of the cancellation of Mr Ayoub's visa pursuant to s 501 was 'indefinite detention'. The 'consequence' of the cancellation decision may well be his detention pursuant to s 189 of the Migration Act - but that 'consequence' falls well short of 'indefinite detention'. A comparable conclusion was reached by White J in Jaffarie v Director-General of Security [2014] FCAFC 102 at [126] to [133], (2014) 226 FCR 505 at 538 to 539.'
81 The Minister contends that the above comments are apposite to the facts of this case. It is submitted that where, as here, the Minister's attention is drawn to the possible exercise of powers under s 195A, the exercise of which would result in the person ceasing to be in immigration detention, and the Minister has indicated he wishes to consider the grant of a temporary visa under s 195A, the Minister is not required to consider as a fact that his visa refusal will result in the person's indefinite detention. By reference to Ayoub, the Minister submits on no view of those facts "could it be said that the 'consequence' of the cancellation of [the applicant's] visa pursuant to s 501 was 'indefinite detention'".
82 Therefore, the Minister submits the prospect that the applicant may face lengthy or indefinite detention was not a mandatory consideration which Minister Burke was required to take into account in the sense described in cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40. See Huynh at [71]-[76].
83 As to the applicant's third ground of review, the Minister failed to genuinely consider the legal and practical merits of the applicant's protection visa application, the Minister observes the Court should be mindful of the observation by Pagone J in Cotterill v Minister for Immigration and Border Protection [2015] FCA 802 at [19]:
In considering these matters it is useful to bear in mind the cautionary observation made by Basten JA in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450, adopted by Perram J in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22], that formulations of what the test for judicial review requires 'such as 'proper, genuine and realistic' or consideration 'in a real or conscientious way' may be apt to cause a slide into impermissible merits review.
84 The Minister notes particular (iii) of ground 3 states the Minister failed to give proper, genuine and realistic consideration to the legal consequence that the applicant would be detained indefinitely upon refusal of the visa, and whether the Minister should refuse a protection visa to the applicant as a person who was found to be owed protection obligations in light of the circumstances of the offence and the punishment imposed for that offence.
85 It is further noted that particular (iii)(a) of ground 3 is also based on the premise that the applicant would be detained indefinitely if refused a protection visa. For the reasons set out in relation to ground 1, the Minister submits this premise is incorrect and was not a matter which Minister Burke was bound to take into account.
86 In relation to particular (iii)(b) of ground 3, it is submitted Minister Burke clearly did take into account Australia's non-refoulement obligations in relation to the applicant, as a result of his having a well-founded fear of persecution if he was returned to Afghanistan, in considering whether he should refuse to grant the visa having regard to the circumstances of the applicant's offence and the sentence imposed for that offence. The Minister refers to [19], [20] and [25] of Minister Burke's statement of reasons.
87 Further, the Minister submits there is nothing to suggest that Minister Burke failed to genuinely consider whether he should refuse a protection visa to a person found to meet the criteria for a protection visa, and Minister Burke correctly noted at [21] of his statement of reasons that a decision to refuse a protection visa on character grounds was not, in itself, a decision to remove the applicant from Australia, nor did it necessarily lead to such action.
88 The Minister contends the Minister's decision did not lack "an evident and intelligible justification", and the decision to refuse to grant a protection visa to the applicant was rationally open to Minister Burke and was not arbitrary. See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ) and [76] (Hayne, Kiefel and Bell JJ); [2013] HCA 18.
89 The Minister further refers to the decision of Barker J in WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292; [2013] FCA 1016, in which his Honour at [56] rejected a claim of unreasonableness in relation to the Minister's decision to refuse a protection visa to a detainee who had committed minor damage to Commonwealth property in the Perth Immigration Detention Centre. His Honour also held at [57]-[58] that the Minister's decision was not a disproportionate exercise of his power under s 501(1) of the Act.
90 For similar reasons, it is submitted, Minister Burke's decision to refuse to grant the applicant a protection visa because of his conviction was not unreasonable, nor did it involve any failure to give proper, genuine and realistic consideration to whether a protection visa should be refused because of the applicant's conviction in light of the protection obligations owed to him.
91 The Minister thus submits the Court should refuse to make an order extending the time for making the originating application until 19 May 2015, and order that the applicant pay the Minister's costs of the application for extension of time and the costs of the originating application.
92 In the event that the Court does grant the applicant an extension of time, the Minister submits neither of the remaining grounds of the amended application for review are made out and the application should be dismissed with costs. The Minister further presses for an order that the applicant pay the Minister's costs of the extension of time application.