BKY16 v Minister for Immigration

[2016] FCCA 2719

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKY16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2719

CATCHWORDS:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – 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, 91R, 477

Case 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
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
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
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant: BKY16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1484 of 2016

Judgment of: Judge Emmett

Hearing date: 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1484 of 2016

BKY16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal dated 29 October 2015 (“the Tribunal”) pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”).

2. Under s.477(1) Act, the applicant was required to file his application for judicial review within 35 days of the Tribunal’s decision. The applicant’s application was not, in fact, filed until 10 June 2016, some six months after the expiration of the time provided in s.477(1) of the Act.

3. 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.

4. 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.”

5. The principles relevant to 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] per Lindgren J; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] per Lee, Nicholson and Finkelstein JJ).

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 (“Vu”); 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] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J).

8. The first respondent, in written submissions filed on 17 October 2016, accurately summarised the background and the Tribunal’s decision, as follows:

   “Background

   2. The applicant is a male citizen of China born on 10 October 1968. He arrived in Australia on 26 June 2011 as the holder of a Student Guardian (Subclass 580) visa.

   3. The applicant applied for a Protection (Subclass 866) visa on 19 December 2013. His claims were set out in a statement accompanying the application.

   4. The applicant was interviewed by a delegate of the Minister on 16 June 2014 where he made further claims.

   5. The application was subsequently refused by the delegate on 23 June 2014.

   6. The applicant applied to the AAT for review of the delegate's decision on 21 July 2014.

   7. By letter dated 11 May 2015, the applicant was invited to and attended a hearing before the AAT on 7 July 2015. In the same letter, the applicant was invited to provide a written submission and/or witness statement to the AAT by 30 June 2015.

   8. The applicant's agent, on behalf of the applicant, provided the AAT with written submissions on 29 June 2015, including a personal statement of the applicant dated 3 June 2015.

   9. By emails dated 20 and 31 July 2015, the applicant's agent provided the AAT with further written submissions including a written statement of the applicant dated 16 July 2015.

   10. By letter dated 15 September 2015, the applicant was invited to and attended a hearing before the AAT on 14 October 2015.

   11. By emails dated 30 September 2015, 7 October 2015 and 20 October 2015 the applicant's agent provided the AAT with further written submissions.

   The decision of the Tribunal

   12. The AAT was not satisfied that the applicant was a credible witness and found the applicant's evidence to be inconsistent, vague and not persuasive.

   13. In particular, the AAT did not accept that the applicant's nervousness would cause the substantial discrepancies in the applicant's evidence about his adoption of Falun Gong.

   14. The AAT noted that the applicant's evidence regarding when he adopted and believed in Falun Gong was not supported by his wife’s evidence.

   15. The AAT did not accept that the applicant is a genuine Falun Gong practitioner or that he has any genuine commitment to Falun Gong and its practice.

   16. The AAT was not satisfied that the applicant engaged in Falun Gong activities other than to strengthen his claim to be a refugee and as such, disregarded his Falun Gong activities in Australia in considering his claims under the Refugees Convention.

   17. Further, having found that the applicant was not a genuine Falun Gong practitioner, the AAT was not satisfied that there was a real risk that the applicant would suffer significant harm if he was to return to China.

   18. The AAT ultimately found that the applicant did not satisfy section 36(2) of the Act and affirmed the delegate's decision on this basis.”

9. The applicant was unrepresented this morning, although had the assistance of a Mandarin interpreter. His application for an extension of time was opposed by the first respondent. 

10. At the outset of the hearing this morning, I explained to the applicant that, in considering whether time should be extended to him, the significant matters for consideration by the Court would be his explanation for delay and the prospects of success of his application for judicial review.  

11. The applicant’s claims are largely summarised by him in his initiating application, filed on 10 June 2016, under the heading ‘Grounds of the Application’, as follows:

    “The Grounds of the Application are:

    1. I am a Falun Gong practitioner and pursuing my faith and maintain practice in Australia. I have my entire family here. my wife and my son. My wife is also Falungong practitioner and we stick to our faith after arrived in Australia. I have strong fear to return to China where the situation against Falungong remains no change, persecution against activists and practitioners still going on, and relatives adversely implicated. I have no future and carrier development if go back to origin and will be the target by police living in danger and risk.

    2. I have been practicing Falun Gong after arrived in Australia and take part actively in various campaigns of protesting and telling truth activities against Chinese Communist Regime in persecuting Falun Gong. I firmly believe my family will be ruined and socially biased if we insist not to denounce our faith.

    3. I have fear to the fact that Falun Gong is still outlawed in China, and people who pursue it have been targeted and tortured by Chinese government as evil cult, allegation against Chinese Communist Regime for arrest and persecution and even organ harvesting prevails worldwide. Falun Gong family members are also adversely affected and socially discriminated in every aspect of life including educational, and carrier development and human right.

    4. I truly believed my risk and danger is imminent and unavoidable if I was driven back to China and my child will be fallen into a vulnerable victim as Falun Gong relative.

    5.  For sake of my freedom, and my family as a whole, I wish I to be protected by Australian government and my family situation as a whole can be well reconsidered.”

    (Errors in original).

12. The applicant confirmed that he relied on the seven paragraphs under the heading ‘Orders Sought by Applicant’ in his initiating application as the grounds upon which he relied in seeking judicial review. Those grounds are as follows:

    “Orders sought by Applicant

    1. I am unable to accept the decision made by DIBP and AAT to refuse my application on my Falun Gong grounds as my real risk and danger in returning China have not been carefully, comprehensively and prudently considered, especially my family’s Falun Gong background and its adverse impact on my child has been ignored as a whole. I don't think AAT’s decision is fair enough and member practiced bias attitude in hearing in which I lost a fair-go. I don't  think the member has identified the virtue of my faith in Falun Gong as well as my commitment in pursuing it.

    2. AAT has lacked of consideration in my actual practice of my faith and suspicious with no good reason on my explanation given in hearing and bias in my history described at request. AAT’s doubt about my credibility is unacceptable and made me a real stressful.

    3. I have a fear to return to my origin country as Chinese government still remain high political pressure on Falun Gong practitioners and persecution against those with commitment of Falun Gong have never terminated. The situation against Falun Gong in China remained unchanged a better off till present.

    4. AAT gave non-convictive reason for my credibility and that is totally under the bias and predudice [sic]. I have provided with true reason on my situation and I don't think my explanation produced an inconsistent result.

    5. I don't think AAT gave me a good understanding through the hearing. AAT’s poor attitude and inadequate quires made me stressed throughout the hearing.

    6. RRT failed to properly consider our commitments to my faith and ignored the massive evidence provided, casting doubts without appropriate investigation, giving a wrong interpretation of my accounts.

    7. RRT failed to give no good and responsible consideration to any of my evidence, comments and response on the questions asked in the hearing and made decision to breach the necessary procedure in processing my case.”

    (Errors in original).

Explanation for delay

1. In the applicant’s application for judicial review, the applicant provided an explanation for his delay in seeking judicial review. He confirmed that explanation under oath before me. The applicant’s explanation is as follows:

   “1. I have been suffering from financial hardship, I could not afford the court application fee until today.

   2. I could not afford the professional people or lawyer fee to complete my application and I borrowed the money.

   3. Additionally, I applied for ministerial intervention request after AAT failed and I just got the refusal outcome from the minister.

   4. I wish the court to accept my application to give me a fair decision.”

   (Errors in original).

2. The applicant was cross-examined in relation to his explanation for the delay. The applicant’s evidence was largely that he had been suffering from financial hardship and could not afford the fees to engage a lawyer to complete his application for judicial review. The applicant said that he did not have money at the time of the Tribunal’s decision. The applicant also said that he made many calls and spoke to many lawyers, all of whom asked for a lot of money. The applicant said that he applied for ministerial intervention as he was able to find a representative who charged only hundreds of dollars for that application, as opposed to those that charged thousands of dollars to seek judicial review of the Tribunal’s decision.

3. However, the applicant provided no detail of his attempts to find a lawyer, other than stating that one lawyer he found had said that the fee for judicial review would be $8,000.  In any event, the applicant was, ultimately, able to find money both for his application for ministerial intervention and for his application for judicial review to this Court.

4. It is well established that seeking ministerial intervention demonstrates that the applicant accepted the legal validity of the Tribunal’s decision (see Vu at [29] per Jessup J, with whom Gyles and Besanko JJ agreed).

5. In the circumstances, I find the applicant’s explanation in relation to the six month delay in seeking judicial review entirely unsatisfactory. 

Prospects of success of substantive application

1. I now turn to consider the prospects of success of the applicant’s substantive grounds of review. 

2. In the Tribunal’s decision record, the Tribunal summarised both the applicant’s claims for protection and the information provided by the applicant at the interview with a delegate of the first respondent (“the Delegate”). The Tribunal also noted that the applicant provided material in support of his review application, and summarised that material. Further, the Tribunal noted that the applicant appeared before it on 7 July 2015 to give evidence and present arguments, and that the Tribunal received oral evidence from a witness called by the applicant. The Tribunal then went on to summarise that evidence. The Tribunal also identified various further documents sent to it following the conclusion of the hearing.

3. The applicant appeared again before the Tribunal on 14 October 2015. At that hearing, the applicant, his wife, and his witness gave further evidence. The Tribunal noted various concerns that it had had about the applicant’s claims and noted the applicant’s responses.

4. In particular, the Tribunal noted that the applicant’s witnesses had not provided much evidence regarding the genuineness of the applicant’s Falun Gong practice. Nevertheless, the Tribunal accepted that the applicant had practised Falun Gong in Australia. However, the Tribunal was not satisfied that that the applicant had engaged in Falun Gong activities other than for the purpose of strengthening his claims to be a refugee. For that reasons, pursuant to s.91R(3) of the Act, the Tribunal disregarded the applicant’s Falun Gong activities in Australia in considering his claims under the Refugee Convention.

5. Ultimately, the Tribunal found that the applicant was not a credible witness and that his evidence was inconsistent, vague and non-persuasive. The Tribunal noted the applicant’s explanation that he was nervous at the hearing. However, the Tribunal was not satisfied that that explanation was sufficient to explain what it found to be substantial discrepancies in the applicant’s evidence about his adoption of Falun Gong. Accordingly, the Tribunal did not accept that the applicant was a genuine Falun Gong practitioner, or that he had any genuine commitment to the practice of Falun Gong.

6. The Tribunal found that the applicant had not practised Falun Gong in China, or suffered any harm in China, as claimed.  The Tribunal found that, if the applicant returned to China, he would not practise Falun Gong or have any involvement with Falun Gong practitioners. 

7. The Tribunal then considered whether the applicant met the complementary protection criterion and whether he was at risk of significant harm in China. In doing so, the Tribunal identified with particularity the independent country information to which it had regard. The Tribunal noted that it is likely that persons such as Falun Gong activists, who have participated in Falun Gong activities in Australia, would be monitored and questioned on return to China. However, the Tribunal found that the applicant’s recent, brief and simple participation in Falun Gong activities in Australia would not result in him being seen as having had an active role in Falun Gong activities in Australia. In the circumstances, the Tribunal found that it was highly doubtful that the applicant would be identified by the Chinese authorities as either a Falun Gong practitioner, or a potential subversive element.

1. The Tribunal went on to consider the implications if it was wrong in relation to those findings and the Chinese authorities were aware that the applicant had participated in Falun Gong activities in Australia. The Tribunal accepted that, in this scenario, the applicant may be monitored by the Chinees authorities on return to China. However, having found that the applicant did not have any genuine belief or interest in practising Falun Gong, the Tribunal found that there was no real chance of him participating in Falun Gong activities on return to China. For that reason, the Tribunal found that there was no reason why the authorities in China would arrest him, or otherwise interfere with his life, if he returned to China.

2. Further, the Tribunal had serious doubts about the applicant’s claim that the Chinese authorities had approached his elder brother on two occasions to warn against the applicant participating in Falun Gong activities. However, the Tribunal noted that, even if it was to accept that claim, it did not alter its finding that the applicant would not be at risk of significant harm in China because he would not participate in Falun Gong activities in China.

3. For those reasons, the Tribunal concluded that the applicant did not meet the criterion either under s.36(2)(a) or s.36(2)(aa) of the Act and, accordingly, affirmed the decision under review.

Grounds of application

1. The applicant was invited to say whatever he wished in support of each of the grounds and in support of his application generally.  He had nothing to say in respect of any of the grounds, other than that his wife did not give evidence before the Tribunal. However, the Tribunal’s decision record makes it apparent that the applicant’s wife did give evidence. Ultimately, the Tribunal found that his wife’s evidence was not supportive of his claims.

2. The applicant also said that the Tribunal’s finding that he had participated in Falun Gong activities to some degree, and its ultimate conclusion that he was not a Falun Gong practitioner, was inconsistent.  However, that complaint is a misunderstanding of the Tribunal’s findings.  It was open to the Tribunal, as it did, to accept the applicant’s evidence that he had practised Falun Gong in Australia, but to ultimately find that he did not do so as a genuine Falun Gong practitioner.

3. The applicant’s allegation of bias in Grounds 1, 2 and 4 of his application for judicial review are bare assertions unsupported by evidence. The applicant was directed on 28 July 2016 by a Registrar of this Court to file and serve any affidavit containing additional evidence to be relied upon in support of his application. The applicant did, in fact, file an affidavit annexing material that had not been put by him before the Tribunal. That affidavit was objected to by the first respondent and rejected by the Court on the grounds of relevance.

4. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal 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]).

5. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

6. In the circumstances, there is no arguable basis for the applicant’s allegations of bias in Grounds 1, 2 and 4 of his application for judicial review.

7. The applicant’s grounds otherwise disagree with the Tribunal’s adverse credibility findings, particularly in Grounds 2, 4, 5 and 6. Ground 3 is no more than a restatement of his claims.

8. In the circumstances, the applicant’s complaints about the Tribunal’s adverse credibility findings appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite 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). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by 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.”

9. The Tribunal’s findings appear to have been open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

10. The applicant also asserted in Ground 6 that the Tribunal ignored his evidence and cast doubt on his claims without appropriate investigation. However, there is nothing in the Tribunal’s decision record to suggest that it ignored the applicant’s evidence. Additionally, the applicant has not particularised any of the evidence that he alleged was ignored, despite being invited by me to do so. 

11. In relation to the applicant’s assertion that the Tribunal did not conduct an appropriate investigation, it is well established that there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

12. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Moreover, there is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (see SZIAI [2009] at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

13. To the extent that Ground 7 asserts that the Tribunal failed to give “good and responsible consideration” to the applicant’s evidence, a fair reading of the Tribunal’s decision record does not support such a complaint. The Tribunal identified with particularity the nature of all the evidence before it, including the evidence of the applicant’s witnesses; the concerns it had about the evidence before it; matters it put to the applicant for comment and the applicant’s responses; and, the findings that it ultimately made based on that evidence. The Tribunal then applied the correct law to those findings. The Tribunal’s conclusiong that the applicant did not meet the criterion in either s.36(2)(a) or s.36(2)(aa) of the Act was open to it on the evidence and material before it, and for the reasons it gave.

Conclusion

1. In the circumstances, the applicant’s complaints in the grounds of his application do not raise an arguable case for establishing jurisdictional error on the part of the Tribunal, and none is apparent on the face of the Tribunal’s decision record. Accordingly, the applicant’s application for judicial review has insufficient prospects of success and, in the circumstances, an extension of time would be an exercise in futility.

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

3. Whilst I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision, in balancing the interests of both parties and the overall interests of justice, there is a significant public interest in the finality of administrative decisions, particularly those in respect of which there would appear to be little or no prospect of success (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491).

4. In light of the unsatisfactory explanation for the applicant’s delay and the lack of prospects of success (which I find at best to be negligible) of the applicant’s application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

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

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 8 November 2016