Beb17 & Ors v Minister for Immigration & Anor (No.3)

[2019] FCCA 676

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEB17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.3) [2019] FCCA 676

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – Second Application in a Case seeking reinstatement of initiating application for judicial review pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – First Application in a Case for reinstatement dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) – whether explanation for failure to appear at scheduled hearing of First Application in a Case satisfactory – whether applicants should require leave of the Court to file any further document in the proceeding – Second Application in a Case refused.

Legislation:

Migration Act 1958 (Cth), s.36

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Cases cited:

BEB17 and Ors v Minister for Immigration and Anor [2018] FCCA 3281

BEB17 and Ors v Minister for Immigration and Anor (No.2) [2019] FCCA 356

Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

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

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

QAAHMinister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 9

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

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

First Applicant: BEB17

Second Applicant: BEV17

Third Applicant: BEW17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 826 of 2017

Judgment of: Judge Emmett

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Sydney

Delivered on: 18 March 2019

REPRESENTATION

Applicants: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Bernadette Rayment
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 826 of 2017

BEB17

First Applicant

BEV17

Second Applicant

BEW17

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed on 27 February 2019, the applicant sought that orders made by me on 11 February 2019 be set aside. Those orders dismissed the applicant's Application in a Case filed on 10 December 2018 seeking to set aside orders made by me on 13 November 2018, dismissing the substantive application for judicial review, filed on 21 March 2017, by reason of the failure of the applicant to appear at that hearing pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant’s initiating application, filed on 21 March 2017, and Application in a Case, filed on 10 December 2018, were the subject of reasons given by me in BEB17 and Ors v Minister for Immigration and Anor [2018] FCCA 3281 and BEB17 and Ors v Minister for Immigration and Anor (No.2) [2019] FCCA 356 respectively.

3. The first and second applicants, being the father and mother respectively of the third applicant, attended Court today with the assistance of an interpreter. I explained to the applicants that of particular relevance to the Court in its consideration of the application for reinstatement would be the applicants’ explanation for the failure to appear on 11 February 2019 and the prospects of success of the proceeding for judicial review filed on 21 March 2017. 

4. The first applicant confirmed with the Court that the explanation provided by him in an affidavit, affirmed 24 February 2019 and filed on 27 February 2019 in support of the application the subject of this morning's hearing, was correct. That affidavit is as follows:

   “1. I am the applicant.

   2. Annexed and marked "A" is a copy of orders made by Judge Emmett on 11 February 2019.

   3. The immigration agent dealing with my application was charged by the AFP in the end of 2018. I did not know the hearing date was listed on 11 February 2019. I have told it to the officer of Immigration department as well.

   4. I am seeking the matter to be relisted.”

5. The first applicant then told the Court that, in fact, he did know of the hearing date but that he had not been able to contact his migration agent to find out what he should do. As a result of that inconsistency, the first applicant was invited to give evidence under oath and was duly sworn in. The first applicant then proceeded to give evidence that I find to be entirely unreliable. 

6. The first applicant agreed that he had been in Australia for 11 years and originally travelled to Australia on a student visa in 2008, although he studied English for only three months. The first applicant doggedly maintained his position that he did not know of the original listing of the matter for final hearing by the Registrar on 6 July 2017, although he agreed that he had been in Court at the time with the second applicant. The first applicant said that the second applicant had signed the Order.

7. At the directions hearing on 6 July 2017, the matter was set down for final hearing on 13 November 2018. On 13 November 2018, after the applicants failed to appear, the applicants then filed an Application in a Case on 10 December 2018 supported by an affidavit seeking reinstatement of the application for judicial review. 

8. The explanation given by the first applicant for his non-attendance on 13 November 2018 was that he had not received “any notification of the rescheduled court time.”

9. However, the matter was never rescheduled and had always been set down for 13 November 2018. The first applicant’s statement was patently untrue.

10. When it was put to the first applicant in cross-examination that he was present in Court when the matter was set down for hearing and that the matter had not been rescheduled and that he was on notice of that hearing date, the first applicant was asked did he have anything further to say, and he said, “No.”

11. The first applicant was then asked how he became aware of the dismissals on 13 November 2018 and on 11 February 2019, and the first applicant said that his migration agent had told him. 

12. Up until that point, the first applicant, again, had maintained that he could not contact his migration agent. The first applicant’s oral evidence was plainly at odds with his assertion that he could not contact his migration agent.

13. The first applicant also agreed in cross-examination that the affidavit sworn by him on 24 February 2019, deposing that he did not know that the matter was listed for hearing on 11 February 2019, was not true. Again, he said he could not get in touch with his migration agent.

14. The first applicant appeared to have some ability to both read and understand English in the witness box, although throughout the proceeding he has had the assistance of an interpreter.  

15. It was also put to the first applicant that he had sworn several affidavits without the assistance of an interpreter. When it was put to him that what was written in his affidavit of 27 February 2019, insofar as it stated that he did not know that the hearing date was listed on 11 February 2019, the first applicant said that he did know but that perhaps the interpreter had got it wrong. There was nothing in the affidavit to suggest that an interpreter was present or that the first applicant was assisted by an interpreter. Nor was the first applicant able to identify who the interpreter was. The affidavit was deposed to by the first applicant before a Chang Liu. The first applicant provided the card of Chang Liu from Cathay Lawyers, marked Exhibit 1R. The first applicant said he did not know whether Mr Liu was a lawyer but that he asked Mr Liu to submit the affidavit for him.

16. I place no weight on any evidence given by the first applicant in relation to his explanation for his failure to appear on either 13 November 2018 or 11 February 2019. The first applicant has not provided an acceptable or satisfactory explanation for his failure to appear. He has sworn an affidavit that he acknowledged today not to be true, and I have found the evidence that he has given this morning to be inconsistent, unfrank and wholly unreliable.

17. I accept that there is no prejudice to the Minister if the Court was to reinstate the applicants’ application for judicial review of the decision of the Administrative Appeals Tribunal dated 21 February 2017 (“the Tribunal”) affirming a decision of a delegate of the first respondent made on 26 June 2015 refusing the applicants a Protection (Class XA) visa. However, there is a significant public interest in the finality of administrative decisions. The relevant principles are referred to in Re Commonwealth of Australia;  Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:

    “15. 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. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those 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. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

    16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months 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. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or 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 proceedings in this Court.

    17. 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. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”

    (Emphasis added)

18. The applicants failed to appear at the scheduled time of hearing on 13 November 2018 without a satisfactory explanation. The applicants’ application, filed on 10 December 2018, which was set down for hearing on 11 February 2019, was also unsupported by any satisfactory explanation. 

19. The relevant procedural history of the matter is set out in the first respondent's submissions, filed on 4 February 2019, as follows:

    “11. Before addressing these explanations, it is convenient to recount the relevant procedural history of this matter:

    (a) The matter came before the Court for a First Court Date on 6 July 2017. On that occasion, the first applicant, assisted by a Mandarin interpreter, agreed to and signed Short Minutes of Order. Those Short Minutes of Order included an order that the “matter is set down for final hearing on 13 November 2018 at 10:15am, at Court 9.3, Level 9 80 William St, Sydney, before Judge Emmett”. A Registrar of the Court proceeded to make the orders as agreed by the parties.

    (b) On 3 August 2017, the Minister’s solicitors sent a letter to the first applicant enclosing a copy of the Court Book, to the address for service listed in the application for judicial review (see affidavit of Kirby Alexandra Dunlop, annexure KAD-1). That letter indicated that the matter was listed for a hearing on 13 November 2018 at 10:15am before Judge Emmett.

    (c) On 5 November 2018, the Minister’s solicitors sent a letter by express post and an email to the first applicant enclosing a copy of the Minister’s submissions and list of authorities. That letter and email also advised of the date, time and place of the listed hearing (see affidavit of Kirby Alexandra Dunlop, annexure KAD-2 and KAD-3).”

20. I also have regard to the relevant factors as correctly identified in the first respondent’s submissions, filed on 4 February 2019, as follows:

    “6. Pursuant to r.16.05(2)(a) of the Rules, the Court may set aside orders made in the absence of a party. It is a discretionary matter for the Court.

    7. In circumstances where a proceeding has been dismissed for a party’s non-attendance and reinstatement is sought, the matters that the Court would consider in deciding whether to exercise its discretion to allow reinstatement include:

    (a) the existence and nature of any prejudice to the Minister;

    (b) whether the applicants have provided a reasonable excuse for their non-attendance at the hearing at which their application was dismissed; and

    (c) whether the applicants’ substantive proceeding would have reasonable prospects of success if the proceedings were reinstated. Even where a reasonable excuse for a failure to appear exists, the Court will not exercise its discretion in the defaulting party’s favour if there is little or no prospect of that party succeeding on the substantive proceeding.”

    (Footnotes omitted)

21. In considering the prospects of success of the application for judicial review, I explained to the applicants that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider the applicants’ claims and reach different findings or conclusions. I also explained to the applicants that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicants that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicants that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

22. The first applicant confirmed that the applicants continued to rely on the grounds identified in the initiating application filed on 21 March 2017.  Those grounds are as follows:

    “1. It is impenetrable that AAT doubts the reliability of what I said. AAT asked me the reason that I came to Sydney in 2008, but applied for the protection visa in 2014. I replied that I wanted to apply for the protection visa when everything seemed stable, since the underground Christians have been persecuted in China and my family has suffered from serious harm from it. I also met the language barrier when I came to Australia at first and the problems in my family were not resolved. Also, I did not know the development trend of underground Christianity in China. That is why it took so long to apply for the protection. However, AAT doubts what I said and states that I applied for protection just for a visa. It is unexpectedly that AAT understood this problem and did not give me a specified reason.

    2. AAT asked my wife whether I am a real Christian or not and the rituals that I believe in Christianity everyday. But my wife is not a Christian and she only knows that I read bible and pray. Since I do not want to make her worry about me, so I have never talked with her that my family and I join in the underground Christianity. It is unreasonable that the AAT considered me not a real Christian according to my wife's words. They did not consider what happened to me and regarded my explanation is frivolous. I think it goes to far to judge my explanation, then doubts the reliability of my words, it is out of all reason.

    3. Officer's judgment on my statement is even more unreasonable. They stated that my statement is vague and the evidence is inconsistent. They also said the persecution that my parents and brothers and sisters in the church is not true and proofless. In fact, I have explained clearly about these questions and the evidence in interview, so there is no reason to state that my evidence is ambiguous. These are their subjective perceptions and cannot provide any convincing evidence. I can not accept their judgment.

    4. AAT doubts what I said and the evidence I provided from beginning to end, they also suspects that my family and I are not real Christian and we have never suffered from persecution. In addition, they thought I would not be harmed when I return to China and I should go back to China because I am a Chinese citizen. What reason is it? What is the meaning of refugee protection of Australia? It is irresponsible to give me the decision without valid reasons.”

    (Errors in original)

23. Each of the grounds was interpreted for the applicants and the applicants were invited to say whatever they wished in support of the application. The first applicant confirmed that he spoke on behalf of all the applicants.

24. The first applicant confirmed that each of the grounds was a disagreement with the findings made by the Tribunal rejecting his claims and finding his evidence to be unreliable, vague and inconsistent.

25. The background, the applicants’ claims and the Tribunal’s decision are accurately summarised in the first respondent's written submissions, filed on 5 November 2018, as follows:

    “Background

    2. The applicants are citizens of China. The first applicant (applicant) arrived in Australia on 20 April 2008 as the holder of a student visa. The second and third applicants are the partner and daughter of the applicant. The second and third applicants do not advance specific protection claims of their own.

    3. On 15 July 2014, the applicants applied for a protection visa (Court Book (CB) 1 – 33). On 26 June 2015, a delegate of the Minister refused the application (CB 68).

    4. On 26 July 2015, the applicants applied to the Tribunal for review of the delegate’s decision (CB 87). On 11 January 2017, the first and second applicants appeared before the Tribunal to give evidence and present arguments (CB 105). On 21 February 2017, the Tribunal affirmed the decision to refuse to grant the visas (CB 122).

    The applicant’s claims

    5. The applicant’s claims for protection were set out in a statement dated 13 July 2014, provided with his visa application (CB 41), and developed in an interview before the delegate (CB 125, [12]) and at the hearing before the Tribunal (CB 125, [13]). Those claims may be summarised as follows:

    (a) The applicant and his family were Christians. In December 2006, his family hosted a Christian gathering. Police attended and took everyone to the police station. They said Christianity was a cult and family gatherings were illegal. They told the applicant that if he attended further family gatherings he would be sent to a reformatory. The applicant was detained for 24 hours and his parents were detained for one month and tortured whilst in detention.

    (b) He had actively participated in church activities in Australia.

    (c) His parents had told him that Christians had been persecuted in China.

    (d) If the applicants were returned to China, it would be difficult to register the birth of the third applicant as she was born out of wedlock. They would have to pay a fine of RMB 100,000, which would be difficult.

    6. At the delegate interview, the applicant claimed that:

    (a) he attended a state-registered church monthly with his family in 2007;

    (b) his parents were arrested for religious reasons in 2014;

    (c) he feared persecution by Chinese authorities due to his attendance at church in Australia and because he had attended four family gatherings in Australia; and

    (d) he owned a bible and read it every week.

    7. At the hearing before the Tribunal, the applicant claimed that he would be arrested if returned to China. He claimed that when the Police attended the family gathering in December 2006, they scolded and beat all of the people in the house (CB 126, [22]). He further claimed that the Police visited his parents’ house every 2-3 months, but since December 2006, the Police had not attended a gathering (CB 127, [24]-[25])

    Tribunal decision

    8. The Tribunal found that the applicant was not a witness of truth due to inconsistencies, omissions and vagueness in his oral evidence (CB 125, [17]). In reaching this conclusion, the Tribunal pointed to the following:

    (a) The applicant’s confusing evidence about family gatherings (CB 127, 25]);

    (b) Inconsistencies between the applicant’s written statement and oral evidence regarding which siblings attended the December 2006 gathering and whether his parents were arrested (CB 127, [26] and [27]);

    (c) The applicant’s oral evidence as to his practice of Christianity in Australia, including that he had not attended church for years, had practised his faith in private, and had not yet been baptised (CB 128, [30]-[32]); The Tribunal also considered the applicant’s oral evidence that he did not own a bible to be inconsistent with his evidence before the delegate that he had a bible and read it every week (CB 128, [33]);

    (d) The second applicant’s evidence that the applicant did not attend church often, said grace before dinner, and that he had two bibles he sometimes read (CB 129, [36] – [39]); and

    (e) The applicant’s six-year delay in applying for protection (CB 126, [18]-[20]).

    9. The Tribunal found that the applicant’s knowledge of Christianity was “barely existent”, that he had not made an effort to develop his beliefs in private or in a congregation, and he did not show a serious intent to be baptised. Noting the inconsistent and unconvincing accounts of his beliefs and practice, the Tribunal was not satisfied that the applicant was a practising Christian (CB, 129, [38]). Nor was the Tribunal satisfied that the applicant came from a Christian family, that he attended gatherings, or that he had been arrested (CB 127, [28]).

    10. The Tribunal accepted that the applicant might have to pay a fee on return to China to register the birth of the third applicant, but found that such fee did not amount to serious or significant harm (CB 130, [45] – 131, [47]).

    11. Based on the lack of credible evidence before it, the Tribunal was not satisfied that Australia owed protection obligations to the applicant for a Convention reason or under the complementary protection criterion (CB 131, [48]-[49]).”

1. All the complaints made by the first applicant in the grounds cavil with findings made by the Tribunal and accordingly seek merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; 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). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

2. The first respondent has addressed the grounds in greater detail in the written submissions filed on 5 November 2018. I agree with those submissions in their entirety and rather than paraphrase them I propose simply to record my agreement with them. They are as follows:

   “13. By Ground One, the applicants take issue with the Tribunal’s questioning regarding the delay in applying for a protection visa and its adverse credibility findings. The applicants further contend that the Tribunal did not give a ‘specified reason’. Insofar as the Tribunal put questions to the applicant concerning the delay, no jurisdictional error can arise from this. The Tribunal was plainly entitled to test the applicant’s evidence. Further, the Tribunal’s adverse credibility findings were open to it on the material before it, were based on rational grounds and arrived at upon consideration of matters that were logically probative to the issue of credibility. Moreover, the Tribunal was entitled to take delay into account when assessing the applicants’ claimed fear of persecution and their credibility. Ground One discloses no jurisdictional error on the part of the Tribunal.

   14. By Ground Two, the applicants take issue with the Tribunal’s questioning of the second applicant regarding the applicant’s religious practice. This ground may also be construed as a complaint that the Tribunal undertook the role of arbiter of religion. The Tribunal’s decision record indicates that when questioning the second applicant, the Tribunal asked broad questions as to what she knew about the applicant’s religious practice and faith (CB 129, [36] – [39]). This was a legitimate exploration of the veracity of the claims with respect to the applicant’s religious practice. The same can be said of the Tribunal’s questioning of the applicant himself.

   15. It was open to the Tribunal to take into account the applicant’s inability to adequately answer the questions put to him regarding his religious practice, despite his claim to have practised Christianity since childhood. The quality of his evidence on this issue provided a logical basis for the Tribunal’s conclusion that he was not a genuine Christian. Moreover, the Tribunal’s other adverse credibility findings further indicate that it conducted a legitimate exploration of the applicant’s claimed faith.

   16. To the extent that the applicants take issue with the Tribunal’s reliance on the evidence of the second applicant when determining the credibility of the applicant’s claims, they fail to establish any error.

   17. The contention in Ground Two that the Tribunal did not consider “what happened” to the applicant does not rise above an invitation to conduct impermissible merits review. The Tribunal considered the applicant’s claims and evidence, but rejected his claims on the basis of adverse credibility findings (CB 125 [17]). It was plainly not necessary for the Tribunal to refer to every piece of evidence and contention made by the applicant in its written reasons.

   18. By Ground Three, the applicants contend that the Tribunal was unreasonable in finding that the applicant’s statement was vague and inconsistent. The Tribunal’s credibility findings were not based solely on the ambiguity of the statement. Rather, they were based on the cumulative effect of the applicant’s six-year delay in applying for protection (CB 126 [18] – [20]), the inconsistencies in the evidence (CB 125, [17]), the applicant’s lack of knowledge of Christianity (CB 128 - 129), and his lack of effort to maintain his practice (CB 128 - 129). The Tribunal’s credibility findings were open to it for the reasons it gave.

   19. The applicants also contend that the Tribunal did not provide “convincing evidence” for doubting his claims. Adverse credibility findings do not require positive evidence; it is simply a matter of disbelief of evidence because of surrounding circumstances.

   20 By Ground Four, the applicants convey dismay with the Tribunal’s findings. Ground Four cavils with the merits of the Tribunal’s findings and is not a proper ground of judicial review.”

   (Footnotes omitted)

3. The Tribunal's decision record makes clear that the Tribunal correctly identified the relevant law in considering the applicants’ claims before it summarised the first applicant's claims and identified the various exchanges it had had with the first applicant about his evidence. The Tribunal noted matters of concern that it had put to the first applicant and noted the first applicant's responses. 

4. In particular, the Tribunal noted that it discussed with the first applicant the fact that he had been in Australia illegally for three years and put to him that Australian Courts had found that a delay of even three months raises doubts about the genuineness of an applicant's claims to fear harm (see QAAHMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9).

5. The Tribunal put to the first applicant its concerns that he was willing to remain unlawfully in Australia for three years and not lodge a protection visa application prior to being told by the Department that he would have to return to China.

6. The Tribunal found the first applicant's explanation wholly unsatisfactory and found the very long delay in seeking protection to be a strong indication that the first applicant did not fear serious harm in China when he arrived in Australia and that he had, therefore, not provided an honest account of his reasons for leaving China and seeking protection. 

7. The Tribunal then considered in some detail the first applicant's claims regarding his Christianity and arrest in China, ultimately finding that the first applicant's evidence was vague and inconsistent resulting in the Tribunal not being satisfied that the first applicant came from a Christian family, attended family gatherings or that his family were arrested.

8. The Tribunal also had regard to the first applicant's assertions of attendance and practice at church in Australia. The Tribunal noted that the first applicant was unable to name any of the churches that he had attended and said that it was years ago that he had attended a church because it is inconvenient to go and therefore he does not attend. 

9. The Tribunal summarised the evidence of the second applicant and ultimately was not satisfied that the first applicant was a practising Christian. The Tribunal found the first applicant’s knowledge was barely existent and that he had made no effort to maintain or develop his beliefs. The Tribunal found the first applicant provided unconvincing and, in part, inconsistent evidence regarding his practices and belief. 

10. As a result, the Tribunal comprehensively rejected the first applicant's claims to have suffered past harm in China for the reasons claimed and, ultimately, found that the applicants were not persons to whom Australia had protection obligations either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth).

11. It is well established that the Tribunal 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 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

12. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

13. Whilst I make no final finding as to whether or not the decision of the Tribunal is affected by jurisdictional error, none is apparent on the face of the Tribunal's decision record and none has been identified by the first applicant this morning.

14. In the circumstances, the application for judicial review has insufficient prospects of success such that the interests of justice would demand that the applicants have the opportunity to have the application filed on 21 March 2017 reinstated. 

15. For all the reasons above, the applicants’ second Application in a Case, filed on 27 February 2019, seeking that the orders made by me on 11 February be set aside should be refused with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 27 March 2019