Federal Court of Australia BDXN v Minister for Home Affairs [2023] FCA 951 Appeal from: Application for extension of time for judicial review of Minister's decision File number: QUD 409 of 2021 Judgment of: RANGIAH J Date of judgment: 15 August 2023 Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for extension of time for judicial review of decision made under s 501CA(4) – where application 12 months out of time – whether adequate explanation for delay – where no reasonable prospects of success – application dismissed EVIDENCE – leave sought to adduce further affidavits – leave granted Legislation: Migration Act 1958 (Cth) ss 476A, 477(3)(d), 477A, 501(3A) and 501CA(4) Cases cited: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 Minister for Immigration and Citizenship v Administrative Appeals Tribunal (2013) 214 FCR 10 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 Pohahau v Minister for Home Affairs [2019] FCA 1243 Smith v Minister for Home Affairs [2018] FCA 1594 SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 74 Date of last submissions: 12 September 2022 (Respondent) (suppressed) 26 October 2022 (Applicant) (suppressed) Date of hearing: 29 July 2022 and 27 October 2022 Counsel for the Applicant: Mr M Jones Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Sparke Helmore ORDERS QUD 409 of 2021 BETWEEN: BDXN Applicant AND: MINISTER FOR HOME AFFAIRS Respondent order made by: RANGIAH J DATE OF ORDER: 15 AUGUST 2023 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Background [6] The legislation [26] The grounds of review [29] The submissions [30] Consideration [35] Length of delay [37] Explanation for delay [40] Prejudice to the Minister [45] Merits of the proposed application [46] Ground 1: Whether the Minister's conclusion that the applicant is at risk of repetition of violent offending was irrational and legally unreasonable [49] Ground 2: Whether the Minister's failure to make an enquiry about a critical fact was irrational and legally unreasonable [60] Conclusion [72] RANGIAH J: 1 The applicant seeks an extension of time to apply for judicial review of a decision of the respondent (the Minister), made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), refusing to revoke the cancellation of her visa. The applicant's visa had been cancelled under s 501(3A) of the Act following her conviction and sentencing for two counts of manslaughter. 2 The applicant initially relied on a single ground asserting that the Minister's finding of a risk of repetition of violent criminal conduct was irrational and legally unreasonable in circumstances where she had not been convicted of any offence involving actual violent conduct on her part. In the applicant's representations to the Minister, a suggestion was raised that she would be giving evidence against a co-offender and feared harm at the hand of his relatives if she were removed to her country of origin. At the hearing, I queried whether there might be jurisdictional error arising from the Minister's failure to take into account the public interest in encouraging persons to assist in the prosecution of offenders. 3 The hearing was adjourned and the applicant further amended her application to raise a second ground, namely that the Minister's decision was irrational and legally unreasonable in that he failed to make an obvious inquiry about a critical fact, being the nature of the respondent's cooperation with the criminal justice authorities. 4 I ordered that the applicant be provided with a pseudonym and made suppression orders in respect of the applicant's name and the outlines of submissions and various affidavits. I will not explain the facts of the case in detail to avoid the risk of identifying the applicant. 5 For the reasons that follow, an extension of time will not be granted. Background 6 The applicant was convicted of two counts of manslaughter and sentenced to nine years' imprisonment on each count, the terms to be served concurrently. The applicant was also convicted of 40 summary offences which were taken into account in the applicant's sentences for the manslaughter convictions. 7 On 31 January 2020, the applicant's visa was cancelled by a delegate of the Minister under s 501(3A) of the Act because she did not pass the character test on the basis of having a substantial criminal record and was serving a full-time sentence of imprisonment. 8 On 24 February 2020, the applicant made written representations to the Minister seeking revocation of the s 501(3A) decision. 9 On 26 October 2020, the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act. The Minister provided reasons for his decision. 10 The Minister stated in his reasons that he was not satisfied the applicant passed the character test. The applicant does not challenge this finding. 11 The Minister then considered whether he was satisfied there was another reason why the cancellation decision should be revoked. In doing so, the Minister considered the representations and documents the applicant had submitted. 12 The Minister concluded that it was in the best interests of the applicant's minor children, grandchild and second cousin for the original decision to be revoked. 13 The Minister considered the expectations of the Australian community, concluding that the Australian community would expect that the applicant should not hold a visa. 14 The Minister took into account the impacts of the applicant's removal on her partner and immediate and extended family members. 15 The Minister took into account the impacts upon the applicant of removal to her country of origin. The Minister noted, relevantly, that the applicant claimed to fear for her safety if removed from Australia, as she was required to give evidence at a murder trial. She claimed that her fear was heightened as the media had portrayed her as a "ground witness", and she was "fearing from his family" the possibility of retribution if removed to her home country. The Minister concluded that without further substantiation of the claims, he was unable to make any finding about the nature and seriousness of the harm or the likelihood of it eventuating. 16 The Minister considered the need for protection of the Australian community. The Minister acknowledged the sentencing judge's findings that the applicant was not involved in the initial detention, the physical assaults and other physical acts that lead to the deaths of the victims. Her involvement was providing certain assistance to others who carried out the killings. 17 The Minister noted that the sentencing judge referred to the applicant's "lengthy criminal history", which largely consisted of drug and property offending. The sentencing judge considered it to be significant that the applicant had no previous offences involving violence. 18 The Minister continued: 97. …[The sentencing judge] found that in [the applicant] providing assistance, she knew that unlawful killing of the victims was a probable consequence of 'joining in the unlawful purpose of detaining those two people in the manner and circumstances in which they were detained'. On the basis of His Honour's description of [the applicant's] involvement, I am satisfied that [the applicant] participated to some degree in the detention of the two victims with the knowledge that they would probably be unlawfully killed as a consequence. 98. I have further regard to His Honour stating [the applicant's] involvement was significant. This included being present while the victims were detained, her knowledge of the severity of the events, and her lack of action to neither contact authorities nor encourage the others to cease their actions. His Honour referred to [the applicant's] actions as 'despicable', in allowing the events to occur that led to the victims' deaths. I am satisfied that [the applicant's] inaction in the midst of such violence was an enabling factor in the victims' deaths. 99. For the above reasons, I find [the applicant's] convictions of manslaughter in the circumstances of the violence involved, are very serious. Overall, I find [the applicant's] criminal history to be very serious. 19 The Minister proceeded to consider whether the applicant posed a risk to the Australian community. In that context, the Minister referred to a decision of the Parole Board to refuse parole: 132. The Parole Board also took into account the following custodial behaviour: a) High Security classification, b) five breaches for assault while in custody, c) continuing propensity for perpetrating violence, d) breaches for drug incidents, offensive behaviour and acting in a way contrary to the security or good order of a corrective services facility, e) cases notes that indicate [the applicant] can become demanding and argumentative when challenged by staff, and f) an inability to maintain acceptable behaviour in a structured environment. … 135. I have had regard to [the applicant's] explanations of her custodial behaviour, in which she suggests she is 'almost forced' to react violently and she resorts to violence when stressed and influenced by other prisoners. [The applicant] indicates she tends to absolve herself of responsibility for her actions and attributes her actions to the influence of other people. I consider this demonstrates that [the applicant] exhibits a very limited capacity for making ethical, law-abiding, and non-violent decisions, and that she continues to demonstrate she is highly susceptible to the negative influences of others. … 141. I find that [the applicant's] custodial behaviour is of significant concern, particularly her continuing perpetration of violence and disregard for the rules. 20 The Minister then made the following finding, which the applicant submits was illogical and unreasonable: 144. I find there is an ongoing risk that [the applicant] will reoffend and that further offending, particularly that involving violence, could result in physical and/or psychological harm to members of the Australian community. 21 The Minister was not satisfied that there was "another reason" why the original decision should be revoked. 22 The Minister provided written notification of his decision and reasons to the applicant on 2 November 2020 while she was in custody. 23 The applicant has since been voluntarily removed to her home country. 24 The applicant's application for an extension of time is dated 28 June 2021, but was not filed in the Court until 19 November 2021. 25 The applicant seeks leave to rely on two affidavits. In one of those affidavits, the applicant explains that when she referred in her representations to the Minister to being a "ground witness" she meant "Crown witness". The applicant also deposes that she gave evidence against her co-offenders. I will admit the applicant's affidavits as evidence of how the applicant would have responded had the Minister enquired about her cooperation with the authorities. This evidence is relevant to the issue described in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (SZIAI) at [26] of whether further inquiry would not have yielded a useful result. The legislation 26 Section 501CA(4) of the Act provides, relevantly: 501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 27 Section 476A provides, relevantly: 476A Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: … (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; … 28 Section 477A provides: 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. … The grounds of review 29 The applicant's Further Amended Originating Application contains the following grounds: 1. The decision of the Respondent made on 20 October 2020 was irrational and legally unreasonable in that it: a. found a risk of repetition of violent offending when such conduct had not occurred previously; b. made conclusion contrary to the findings on which they were based (the findings at paragraphs 39 and 72 of the Decision being contradicted by the findings at paragraphs 90, 91, 94 and 98, such that the salient conclusions at paragraphs 144 and 150 as to the "ongoing risk" of further offending involving violence cannot be sustained), in circumstances where the Applicant's conviction for manslaughter was found to be (as was the case) not related to actual or threatened violence by the Applicant. 2. Further, or in the alternative, the decision of the Respondent made on 20 October 2020 was irrational and legally unreasonable in that the Respondent failed to make an obvious inquiry about a critical fact, namely the nature of the Respondent's cooperation with authorities in connection with her manslaughter conviction, the existence of which fact was: a. easily ascertained; b. centrally relevant to the decision to be made by the Respondent. (Errors in the original.) The submissions 30 The applicant submits that her delay in seeking judicial review is adequately explained and the Minister does not suffer prejudice from the delay. 31 The applicant submits that the Minister's decision was irrational and legally unreasonable by reason of the Minister finding a risk of repetition of violent offending when she had never previously been convicted of any offence involving violent conduct. The applicant also submits that the Minister acted irrationally and unreasonably by failing to make an inquiry into her cooperation with authorities. 32 The Minister submits that the applicant's delay in seeking judicial review is inordinate and extraordinary. 33 The Minister submits there is no merit to the applicant's submission that the Minister illogically or unreasonably concluded that her offending involved her engaging in violent conduct. The Minister also submits that the Minister was under no duty to inquire into the applicant's cooperation, nor was any failure to inquire legally unreasonable or irrational. 34 I will discuss the parties' submissions in more detail in the course of these reasons. Consideration 35 The power of the Federal Court to extend time under s 477A of the Act was considered in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa). The majority held, relevantly: 10 The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction. … 12 On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. (Footnotes omitted.) 36 I will consider the factors relevant to the exercise of the discretion. Length of delay 37 Section 477A(1) of the Act prescribes that an application to seek relief in relation to a migration decision must be made to the Court within 35 days of the migration decision. The date of the migration decision is the date of the written notice of the decision: s 477(3)(d). The written notice was dated 2 November 2020. The applicant had until 7 December 2020 to seek judicial review. 38 The applicant submits that the delay should be considered to have ended in June 2021 when the applicant started preparing her documents. I do not accept this submission. The application for an extension of time was filed on 19 November 2021, a delay of nearly 12 months. 39 In NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21, a delay of 82 days was described at [26] as lengthy. I accept the Minister's submission that the delay of nearly 12 months in the context of the 35-day time limitation is, "both inordinate and extraordinary". However, as the applicant submits, even a lengthy delay is not necessarily fatal. Explanation for delay 40 The applicant submits that the delay was not due to any disregard or lack of care on her part. 41 In November and December 2020, the applicant contacted Prisoners' Legal Service, LawRight and Sisters Inside to receive assistance. A representative from LawRight informed the applicant that she was out of time to file for review but they may be able to assist her if she was granted an extension of time to file. A representative from Sisters Inside told the applicant that overturning a decision of the Minister would be difficult and she should instead focus on trying to get passports for her children so that they could go to the applicant's home country with her. The applicant then believed that filing an application with the Court would be "pointless". 42 After that, the applicant had to attend court to give evidence. She describes being very stressed during that process and she was not thinking about challenging the Minister's decision. It was only when the applicant was informed by another prisoner a number of months later that she should file an application that the applicant prepared the necessary paperwork. 43 The applicant thinks that she must have started work on the documents in late September or early October 2021. That is inconsistent with the date of 28 June 2021 appearing on the extension of time application. Accepting the earlier date as the time the applicant started preparing her documents, there is no explanation of the delay between June 2021 and filing in November 2021. 44 I am not satisfied that the applicant has provided a reasonable explanation for her lengthy delay. Prejudice to the Minister 45 The Minister accepts he would not suffer prejudice if the applicant were granted an extension of time. Merits of the proposed application 46 In determining whether an extension of time should be granted, it is relevant to take into account the merits of the proposed grounds of review. It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35], citing MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6], [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]. 47 In Katoa, the majority observed at [18]–[19] that there will be circumstances where a detailed assessment, rather than an impressionistic evaluation, of the proposed grounds of review is required. The majority explained at [18]: However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time. (Footnotes omitted.) 48 I will consider the proposed grounds of review below. Ground 1: Whether the Minister's conclusion that the applicant is at risk of repetition of violent offending was irrational and legally unreasonable 49 The first proposed ground alleges that the Minister made a decision that was irrational and legally unreasonable in finding there was a risk of repetition of violent offending when such conduct had not occurred previously. 50 The Minister made the following finding at paragraph 144 of his reasons: I find there is an ongoing risk that [the applicant] will reoffend and that further offending, particularly that involving violence, could result in physical and/or psychological harm to members of the Australian community. 51 The applicant submits that the material demonstrated that she had not engaged in any violent offending in the past. Her convictions for manslaughter were on the basis that she had provided assistance to those who carried out the unlawful killings, not that she had herself engaged in any acts of violence. She submits that the finding that there was a risk that she would reoffend in a way "involving violence" was irrational and unreasonable. 52 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ held at [135]: … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. … 53 To succeed, the applicant needs to demonstrate, "extreme" illogicality or irrationality, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions": ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30(5)]. 54 The applicant submits that the Minister should have distinguished between the applicant's conduct and the violent outcome it contributed to. However, it is clear that the Minister understood the role played by the applicant in the unlawful killings of the victims. The Minister acknowledged that the applicant had not herself physically harmed the victims, but was satisfied that the applicant had participated in the detention of the victims with knowledge that they would probably be unlawfully killed. The Minister was also satisfied that the applicant's failure to contact authorities or encourage the others to cease their actions was an "enabling factor" in the victims' deaths. 55 The Minister made several references to the applicant's offending as "violent". I do not understand the Minister to have been suggesting that the applicant herself perpetrated physical violence. These references simply recognise that manslaughter inherently involves violence and that the applicant's conduct had contributed to or enabled the violence. 56 The essence of the applicant's argument is that it was illogical for the Minister to conclude that the applicant posed an ongoing risk of reoffending and further offending "involving violence" when her involvement in the unlawful killings was not violent and she had no other offences of violence in her criminal history. The Minister was satisfied that, while the applicant did not perpetrate the violence herself, she encouraged the violence by participating in the detention of the victims, assisting the offenders who perpetrated the violence and enabling the violence by not discouraging her co-offenders. It was open to the Minister to conclude that the applicant's offending did "involve violence". 57 In addition, the Minister placed significant weight on the applicant's violent conduct in prison. The Minister found that "she continues to poses [sic] a risk of reoffending due to displaying violent and other non-compliant behaviour in prison". The Minister adopted the Parole Board's finding that the applicant's risk level to the community was unacceptably high because of matters including her five breaches for assault while in custody and her continuing propensity for perpetrating violence. 58 In these circumstances, it was entirely rational and reasonable for the Minister to conclude that the applicant presented an ongoing risk of reoffending, including of committing offences involving violence. 59 The applicant's first proposed ground does not have any reasonable prospect of success. Ground 2: Whether the Minister's failure to make an enquiry about a critical fact was irrational and legally unreasonable 60 The applicant's second proposed ground argues that the Minister's decision was irrational and legally unreasonable in that the Minister failed to make an obvious inquiry about a critical fact, namely the nature of the applicant's cooperation with authorities in connection with her manslaughter convictions. 61 This ground arises from the applicant's claim of fear of violence if she were returned to her home country as follows: … The Prosecution summond me to give evidence in a double murder trial, I really fear for my safety especially the media portrayed me as a ground witness and now I am fearing from his family. (Errors in the original.) 62 That claim was addressed by the Minister as follows: 69. In February 2020 [the applicant] claimed she fears for her safety if removed from Australia, as she is required to give evidence in a "double murder trial'. Her fear is heightened as the media have portrayed her as a "ground witness', so she is "fearing from his family'. While [the applicant] does not specify who 'he' is, nor where his family live, the context in which [the applicant] made her comments appears to suggest she fears retribution from this person's family members in [redacted]. 70. I have considered [the applicant's] claim about the possibility of retribution from the person's family, who appear to live in [redacted]. However, without further substantiation of the claims I am unable to make any finding about the nature and seriousness of the harm or the likelihood of it eventuating should [the applicant] return to [redacted]. 63 When the applicant provided her written representations to the Minister, she referred to herself as a "ground witness". The applicant submits that this was an "obvious linguistic error", and that she meant "Crown witness". The applicant submits that there was enough material before the Minister to raise the issue of the applicant's cooperation with authorities as a Crown witness. The applicant argues that the Minister made no inquiry as to what that cooperation was or what "ground witness" meant. 64 The applicant contends that the nature of her cooperation with authorities was an obvious matter for inquiry about a critical fact, the existence of which would be easily ascertained. The applicant relies on SZIAI where the High Court held at [25]: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (Footnote omitted.) 65 The applicant submits that had the Minister made the inquiry, the Minister would have realised that a relevant factor was what was described by Collier J in Minister for Immigration and Citizenship v Administrative Appeals Tribunal (2013) 214 FCR 10 at [36] as, "a clear and legally recognised public interest in the encouragement of persons to assist in the exposure and prosecution of offenders." 66 The Minister submits that the reasoning in SZIAI is not applicable to this case. In SZIAI, the High Court was dealing with the question of whether there could be a constructive failure to exercise jurisdiction in respect of a tribunal which had a duty to review and which was inquisitorial in nature. 67 In Smith v Minister for Home Affairs [2018] FCA 1594 (Smith), a case concerning s 501CA(4) of the Act, Robertson J held: 56 In my opinion, in the present case neither the terms of the statute nor what was done in the course of decision-making nor the representations which were made establish that the Minister was obliged to make any further inquiry. … 58 It is for the applicant to make the representations to the Minister which he wishes to make… There was no submission put to the Minister showing that any further inquiry was needed or required. In my opinion, there was nothing giving rise to a legal duty to inquire as a matter going to the jurisdiction of the Minister. 59 In relation to the line of authority and the considerations in SZIAI, I note that this is not a tribunal case such that the process is not inquisitorial; the facts were well known to the applicant and were relevantly within his power to adduce; there was no basis for the Minister to think that the position as contained in the representations had changed. I accept for present purposes that the material that could have been discovered if there was a duty to discover it was important in the relevant sense. In short in my opinion without the benefit of hindsight there was not a factual basis for concluding that the Minister's failure to inquire constituted a failure to undertake his statutory duty or is otherwise so unreasonable as to vitiate his decision: see SZIAI at [26]. 68 In Smith, Robertson J considered that it is for an applicant to make any representations they wish to make and that the terms of s 501CA(4) of the Act do not impose any general obligation on the Minister to make inquiries. That reasoning is supported by more recent High Court authority. In Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194, the High Court held at [36] that, "although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant". In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417, the High Court stated at [22] that, "the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations". 69 Further, as in Smith, the relevant facts were within the knowledge of the applicant and there was no submission put to the Minister showing that any further inquiry was required. In the circumstances, the Minister's failure to inquire cannot be described as irrational or unreasonable. 70 It may be noted that no submission was made that the Minister fell into jurisdictional error by failing to take into account any clearly articulated submission that the applicant's intention was to give evidence against her co-offenders. 71 The applicant's second proposed ground does not have any reasonable prospect of success. Conclusion 72 The length and inadequacy of the applicant's reasons for the delay weigh against her application for an extension of time to seek judicial review of the Minister's decision. In addition, the proposed grounds of review do not enjoy reasonable prospects of success. 73 I am not satisfied that it is necessary in the interests of the administration of justice to make an order for an extension of time under s 477(2) of the Act. 74 The application will be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate: Dated: 15 August 2023