Avh15 v Minister for Immigration & Border Protection

[2015] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVH15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1854

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 65, 424, 425, 425A, 426A, 430, 477
Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for immigration and Citizenship [2010] FCA 500
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
SZIQP v Minister for Immigration and Citizenship [2008] FCA 169
SZHFX v Minister for Immigration and Citizenship [2008] FCA 355
MZZBM v Minister for Immigration [2013] FCCA 321
SZTSU v Minister for Immigration & Border Protection [2014] FCCA 1697
SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: AVH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1412 of 2015

Judgment of: Judge Emmett

Hearing date: 6 July 2015

Date of Last Submission: 6 July 2015

Delivered at: Sydney

Delivered on: 6 July 2015

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent: Sharon Burnett
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1412 of 2015

AVH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed on 25 May 2015, was some 150 days from the date of the decision sought to be reviewed.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

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

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3) In this section:

   ‘date of the migration decision’ means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

   (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

3. The decision of the Refugee Review Tribunal is dated 17 December 2014 (“the RRT”). In the circumstances, the applicant’s application for judicial review to this Court, filed on 25 May 2015, is more than 120 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

4. However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.

5. The principles relevant to the consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

6. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).

7. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).

8. On 30 June 2015, the applicant attended a directions hearing before me. At that time, the applicant was unrepresented, though had the assistance of a Tamil interpreter. I explained to the applicant the matters set out above, to which I would have regard in considering his application for an extension of time. At the directions hearing, a copy of the relevant costs schedule of the Court was provided to the applicant and I explained to the applicant the costs consequences that may flow to him if he was unsuccessful in his application. Namely, that whilst any costs order remained unpaid, it becomes a debt owed to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

9. At the directions hearing, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

10. Further, on that occasion, the applicant was directed to file and serve by way of affidavit any further evidence upon which he relied, together with any submissions in support of his application for an extension of time to seek judicial review of the decision of the RRT by midday on 2 July 2015, and the matter was set down for hearing today.

11. Just after midday on 3 July 2015, the applicant filed a document headed ‘Applicant’s Statement’, which stated as follows:

    “My lawyer did not inform me when the RRT will hear my case. Therefore I did not know that the hearing was on the 11/12/2014. If I knew I would have gone to the hearing.

    On the 26 April 2015 I was terminated from the employment. Only then I came to know that my case has been rejected. I tried to contact my lawyer. I came to Sydney. I contacted several lawyers. They asked me a lot of money. I could not give. That is the reason for the delay. Later with the help of a gentleman I applied to the court.

    1. It is a mistake that the RRT did not hear the case with open mind and followed entirely the made by the immigration officer.

    2. The RRT rejected my application based on the country information but did not include that country information in the decision.

    3. RRT described my involvement with the LTTE and then stated that I did not have any involvement.

    4. Even without any involvement with the LTTE movement, RRT did not accept that I was a young Tamil from the north and therefore did not conclude that I will be persecuted for that reason.”

12. The first two paragraphs of the above statement were interpreted for the applicant and he confirmed that that was the extent of his explanation for his delay.

13. The applicant’s explanation, which was not questioned by the first respondent, is brief and, in all the circumstances, does not disclose any reasonable explanation for the applicant’s delay.

14. The applicant appears to have as a crucial plank in his explanation for delay the fact that he had insufficient funds. It is well established that such an explanation is not, of itself, an acceptable explanation (see MZZBM v Minister for Immigration [2013] FCCA 321 at [27] per Whelan J; SZTSU v Minister for Immigration & Border Protection [2014] FCCA 1697 at [23]-[24]; SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060).

15. I accept that there is no prejudice or substantial prejudice that the first respondent would suffer by the granting of an extension of time to the applicant, nor does the first respondent suggest otherwise.

16. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the RRT’s decision, as follows:

    “Background

    4.  The applicant, a citizen of Sri Lanka, arrived in Australia by boat on 12 August 2012.

    5.  On 22 November 2012, the Minister lifted the section 46A(1) bar, allowing the applicant to apply for a protection visa.

    6.  On 2 January 2013, the applicant applied for the protection visa.

    7.  On 2 August 2013, the Delegate refused to grant the protection visa.

    8.  On 6 August 2013, the applicant applied to the Tribunal for review of the Delegate's decision.

    9.  The applicant did not attend his Tribunal hearing which was scheduled for 11 December 2014.

    10.    On 17 December 2014, the Tribunal affirmed the Delegate's decision.

    11.    On 25 May 2015, the applicant commenced judicial review proceedings in the Federal Circuit Court.

    Applicant’s claims

    12.    The applicant’s claims were made in 4 instances: at his entry interview on 24 September 2012, in his protection visa application of 31 December 2012, at his Departmental interview on 8 July 2013 and in submissions dated 23 August 2014.

    13.    At his entry interview on 24 September 2012, the applicant claimed that:

    (a) he is a Tamil Christian born in the Jaffna district. From 2007 he worked as a fisherman;

    (b) Tamil fishermen were harassed by the navy when they cross boundaries and are beaten and questioned, whereas Sinhalese who cross boundaries are just taken back and released;

    (c) 4 months prior to his entry interview, he was taken to court, his father signed something, he apologised and was released without a fine;

    (d) on 3 occasions he was detained by the navy while fishing but was released that day and not taken to court;

    (e) he had not been involved with any political group or organisation and had never received training for conflict; and

    (f) he will be tortured and put in jail for 5 years because he left Sri Lanka illegally.

    14.    In his protection visa application, the applicant claimed that:

    (a) he was forced to undergo 15 days of self-defence training by the LTTE;

    (b) two months later he was forced to participate in a public event in Jaffna called Pongu Thamil, a Tamil drama organised by the LTTE;

    (c) a week later, the CID and Sri Lankan navy took the applicant to a navy camp where he was questioned about participating at the event. He was beaten and released but had to report to the navy camp three days a week from 2005 until July 2012. When he could not report to the camp as required he was beaten;

    (d) Tamil fisherman are often treated badly by the navy. For example, they are beaten when heavy wind blows their boats close to the navy camp;

    (e) since leaving Sri Lanka, the CID have gone to his home looking for him and said they would "take care of him" when he returns from Australia;

    (f) he will be harmed by Sri Lankan authorities for being a Tamil, for leaving Sri Lanka illegally and for claiming asylum in Australia;

    (g) he cannot relocate to a Sinhala area as he does not speak Sinhala and would need to register at a local police station wherever he moves.

    15. At his protection visa interview on 8 July 2013, the applicant claimed that:

    (a) the authorities hassled him because he "underwent training";

    (b) he feared harm from the government and the LTTE; and

    (c) he had to report to authorities after being detained (he provided conflicting information about the frequency and duration of the reporting).

    16.    In his submission of 23 August 2014, the applicant claimed that:

    (a) he will be persecuted for his imputed political opinion (as a Tamil from the North of Sri Lanka who had received LTTE training and would be suspected of being affiliated with the LTTE);

    (b) he would be persecuted on the basis of membership of a particular social group of "returned failed asylum seekers from the west";

    (c) he would be targeted as he had failed to report weekly at the local CID office in breach of a condition of his release; and

    (d) his national identity card was confiscated for approximately one month.

    Tribunal decision

    17. The Tribunal outlined the various procedural steps leading up to the hearing, including that:

    (a) by letter dated 13 November 2014 (hearing invitation letter), the Tribunal advised the applicant that it was unable to make a favourable decision on the information before it and invited the applicant to attend a hearing via videoconference on 11 December 2014 (with the applicant attending Rockhampton Supreme and District Court, and the Tribunal sitting in Sydney). The Tribunal also informed the applicant of the effect of section 426A;

    (b) on 18 November 2014, the applicant's representative completed and returned the response to the hearing invitation form, stating that the applicant and his representative would attend;

    (c) on 4 December 2014 and 10 December 2014, the Tribunal sent to the applicant's last advised mobile telephone number SMS reminders about the scheduled hearing;

    (d) on 11 December 2014, the applicant's representative advised the Tribunal that they had been unable to contact the applicant by telephone or post and were unsure if he would attend the hearing.

    18. The applicant did not attend his scheduled hearing before the Tribunal on 11 December 2014. The Tribunal considered it likely that the applicant had changed his contact details without informing his representative or the Tribunal. The Tribunal proceeded to make a decision on review without taking any further action to allow the applicant to appear before it pursuant to section 426A of the Migration Act 1958 (Act).  

    19. The Tribunal noted that the applicant's claims and their credibility could not be tested. In particular, it noted the following:

    (a) the applicant's claims regarding the Pongu Thamil event were inconsistent with publicly available reports about the event; and

    (b) the applicant's claims about being stopped by the navy and forced to report to the police changed over time.

    20. The Tribunal did not accept that the applicant was suspected of having LTTE connections, undertook LTTE training, participated in the Pongu Thamil event or was detained and questioned.

    21. It had regard to country information provided by DFAT and was not satisfied that the applicant would face a real chance of serious harm as a Tamil or as a returned failed asylum seeker who had left Sri Lanka illegally.

    22. Therefore the Tribunal affirmed the decision under review.”

    (References omitted.)

17. In relation to the Court’s consideration of the prospects of success of the applicant’s grounds for judicial review, the applicant confirmed that he relied on the grounds identified in his initiating application, filed 25 May 2015, as follows:

    “1. The RRT erred in law, and the error is a jurisdictional error, in that it failed to make rely on its own inquiries but blindly followed the concerns of the delegate of the First Respondent.

    Particulars

    In paragraph 56 of the decision on the Tribunal (TB) states that: Having Considered the evidence provided in the Applicant’s statements and at interview with the delegate the tribunal shares these concerns.

    The tribunal did not come to the hearing with an open mind.

    2.  The Second Respondent made a jurisdictional error of natural justice in that it did not included the country information it relied on in full in the decision record.

    Particulars

    The Second respondent referred to country information by mentioning it rather than fully quoting it. (TB paragraph 60 and 62)

    If the Tribunal contemplated the DFAT information was authoritative and current, it ought to have referred to it in full in the decision.

    3.  The Second Respondent erred and made a jurisdictional error in that it misapplied the well-founded fear test.

    Particulars

    The Tribunal characterised the involvement of the Applicant with the LTTE and concluded that Applicant was not involved in the LTTE

    4.  The Second Respondent erred in law with the error being a jurisdictional error in that it failed to discern a convention nexus.

    Particulars

    Applicant feared persecution as a young Tamil male from the north of Sri Lanka. Even if there was no real involvement with the LTTE he will be harmed by the authorities as young Tamil Males from north were suspected of LTTE involvement.”

18. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in respect of each of those grounds.

19. The applicant stated that he had nothing to say further in relation to Grounds 1, 2 and 4.

20. In relation to Ground 3, the applicant asked how the RRT could conclude that he was not involved in the Liberation Tigers of Tamil Eelam (“the LTTE”) and that the LTTE was a crucial point in his case, and that he did not have any association with the army.

21. The first respondent read the affidavit of Ella Squire Alexander, affirmed on 2 July 2015, and filed on that date. That affidavit annexed various documents relating to a letter, dated 13 November 2014, from the RRT to the applicant inviting the applicant to attend a hearing before the RRT.

22. In light of the evidence in the affidavit of Ms Alexander, I accept that the RRT complied with the requirements of ss.425 and 425A of the Act in inviting the applicant to come to a hearing to give evidence and put forth arguments in support of his application for review of a decision of a delegate of the first respondent refusing the applicant’s application for a protection visa (“the Delegate”).

1. The RRT referred in detail to the steps taken to invite the applicant to a hearing and noted that the letter advised the applicant that if he did not attend the hearing, the RRT may make a decision without taking any further action to enable him to appear before it.

2. The RRT summarised various steps that it took to contact the applicant. Ultimately, the RRT exercised the discretion open to it under s.426A of the Act to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.

3. In such circumstances, it would appear that the exercise of the RRT’s discretion under s.426A of the Act was proper.

4. The RRT went on to consider the information and material that it did have before it in respect of the applicant’s claims. The RRT ultimately concluded that the applicant was not a person to whom Australia owed protection obligations.

5. A summary of those findings and reasons is referred to above. In particular, the RRT’s letter inviting the applicant to a hearing informed the applicant that the RRT had been unable to make a favourable decision on the evidence and material before it and, for that reason, was inviting the applicant to attend a hearing. I accept as accurate the submissions of the first respondent, which state as follows:

   “It is apt to refer to NAVX v MIMIA [2004] FCAFC 287, in which the Full Court of the Federal Court (French, Emmett and Dowsett JJ) made the following remarks concerning circumstances where an applicant had failed to appear before the Tribunal (at [5]):

   "…it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application."

   The applicant was forewarned by the Tribunal that it was not able to make a favourable decision on the evidence he had previously provided. The applicant nonetheless failed to attend the hearing, with the "inevitable consequence" that the Delegate's decision was affirmed.”

6. In relation to the grounds of the applicant’s application for judicial review, Ground 1 asserts that the RRT failed to rely on its own inquiries but instead blindly followed the concerns of the Delegate and did not come to the hearing with an open mind.

7. As the RRT made clear in its decision record, it would have wished to seek clarification and explanations about a number of issues with the applicant at a hearing, including what it found to be the applicant’s shifting evidence, the timing of various events and the nature and significance of the applicant’s claimed participation in the “Pongu Thamil” event.

8. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Under the Act, it is for the applicant to satisfy the RRT that he meets the criteria for a protection visa. In the event that the applicant is unable to do so, s.65(1) the Act mandates that a visa application must be refused.

9. To the extent that Ground 1 appears to assert bias on the part of the RRT, such an allegation is serious and requires evidence. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. The mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

10. There would appear to be nothing on the face of the RRT’s decision record to suggest that the RRT approached its task other than with a mind open to persuasion. As stated above, it was for the applicant to satisfy the RRT that he met the criteria for the visa for which he had applied.

11. In the circumstances, Ground 1 would appear to have no prospects of success.

12. In Ground 2, the applicant asserts an error of natural justice on the part of the RRT because it did not include country information that it relied on in full in its decision record. Such an assertion does not demonstrate any jurisdictional error on the part of the RRT.

13. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). Moreover, there is no obligation on the RRT to put independent country information to an applicant for comment, as is clear from s.424(3)(a) of the Act, where that information is not about the applicant in particular, but is about a class of persons, of which the applicant may be one.

14. I accept the first respondent’s submission that s.430 of the Act does no more than require the Tribunal to set out its findings and refer to evidence or any other material on which its findings of fact were based. There is no further obligation upon it to fully quote country information to which it refers in full in its decision record.

15. Accordingly, Ground 2 would appear to have no prospect of success.

16. In Ground 3, the applicant complains that the RRT erred in that it misapplied the well-founded fear test. In support of that assertion, the particulars state that the RRT characterised the involvement of the applicant with the LTTE and concluded that the applicant was not involved in the LTTE.

17. The applicant provided no further particulars or written submissions in support of that claim or, indeed, any of those claims. In oral submissions, the applicant simply posed the question of how the RRT could conclude that he was not involved in the LTTE. That does not identify any jurisdictional error on the part of the RRT where it would appear to have been open to the RRT not to be satisfied, on the evidence and material before it and for the reasons it gave, that the applicant was involved with the LTTE; or otherwise met the necessary criteria for the visa for which he had applied.

18. There is nothing in the decision record to suggest that the RRT misapplied the well-founded fear test, or failed to apply the correct law to the facts that it found. The RRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, and to which it applied the correct law. The RRT attached to its decision record an accurate summary of the relevant law.

19. Accordingly, Ground 3 would appear to have no prospect of success.

20. In Ground 4, the applicant asserts that the RRT erred by failing to discern a “convention nexus”.  

21. However, the RRT decision record makes it clear that the RRT did consider whether the applicant satisfied the refugee criteria under ss.36(2)(a) or 36(2)(aa) of the Act in considering whether the applicant was eligible for a protection visa.

22. The RRT noted that the applicant had claimed to fear harm in Sri Lanka by reason of:

    i)his imputed political opinion as a LTTE supporter;

    ii)his ethnicity as a Tamil from the North;

    iii)his membership of a particular social group, being failed asylum seekers from the West who left Sri Lanka illegally;

    iv)being a Tamil fisherman;

    v)being a person who took part in the Pongu Thamil event; and

    vi)a person who was trained by the LTTE.

23. As stated above in these Reasons, ultimately the RRT considered those claims and was not satisfied on the evidence and material before it that those claims were made out.

24. The RRT noted that it had carefully considered whether the applicant’s circumstances amounted to or gave rise to substantial grounds for believing that he would face a real risk of significant harm should he return to Sri Lanka. The RRT concluded that it was not satisfied that on return to Sri Lanka the applicant faced any real chance of serious or significant harm for a convention reason, or any other reason, and was satisfied that any punishment that the applicant would face would be under a law of general application and did not amount to persecution for a convention reason.

25. In the circumstances, Ground 4 has no prospect of success.

26. The applicant’s grounds otherwise appear to be more in the nature of a disagreement with the findings and conclusions of the RRT. Such a complaint invites a merits review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)

27. In the circumstances, if time was extended to the applicant to seek judicial review of the RRT’s decision, such an extension would be futile based on the grounds of the application and would be likely to be dismissed, either at a final hearing or in a show cause hearing held pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

28. In all the circumstances, I am not satisfied that the applicant’s substantive application for judicial review of the RRT’s decision has sufficient prospects of success such that, coupled with the unsatisfactory explanation for his delay, it would be in the interests of justice to extend time to the applicant.

29. Accordingly, the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  22 July 2015