BZAHN v Minister for Immigration
[2015] FCCA 1927
•17 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAHN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1927 |
| Catchwords: MIGRATION – Application for extension of time – not in the interests of the administration of justice to extend time – application dismissed. |
| Legislation: Judiciary Act 1903, s.39B(1) |
| Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | BZAHN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL) |
| File Number: | BRG 784 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 15 July 2015 |
| Date of Last Submission: | 15 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 17 July 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Nguyen |
| Solicitors for the Applicant: | Essen Lawyers |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The name of the second respondent be substituted with the name “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.
The amended application for an extension of time to bring an application for review of the tribunal’s decision, filed on 7 November, 2014, is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application, including reserved costs, if any fixed in the sum of $5,800.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 784 of 2014
| BZAHN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL) |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 7 November, 2014 the applicant seeks an order extending the time within which he might commence an application for judicial review of a decision of a refugee review tribunal made on 27 March, 2014. By that decision, the tribunal affirmed a decision of a delegate of the first respondent made on 15 August, 2013 to refuse the grant of a Protection (Class XA) visa to the applicant.
The applicant has filed his application outside of the 35 day time period limited for bringing such an application (see s.477(1) of the Migration Act 1958 (Cth)). Accordingly, he needs an extension of time within which to bring his application for review. The Court has power to grant the required extension if it is satisfied that it is necessary in the interests of the administration of justice to make the order.
The first respondent opposes both the application for the extension of time and the substantive application the applicant wishes to prosecute. The second respondent has entered a submitting appearance.
When the proceedings first came before the Court on 14 October, 2014 directions were made that permitted the applicant to file an amended application and which required the applicant and the first respondent to file written submissions prior to this hearing. The applicant has taken the opportunity to file an amended application. Both the applicant and the first respondent (by their respective lawyers) have filed written submissions.
The applicant’s written submissions were not elaborated upon in oral argument.
Background
The Applicant is a national of Vietnam. He was granted a Visitor visa in April, 1992 and arrived in Australia on 6 May, 1992. That visa expired on 28 April, 1993. However, he overstayed his visa and has remained in Australia as an unlawful non-citizen for nearly 23 years.
The applicant applied for a Protection visa 7 August, 2012. The applicant claimed to fear that if he was forced to return to Vietnam the local authorities would harass and threaten him if he did not pay bribes to them. If he was unable to pay bribes, he claimed that the local authorities would imprison him. He claimed that he would be harassed because he had overseas relatives in Australia, who the authorities would think could pay the bribes demanded of him. He also thought he would be harassed because he was a Catholic.
He claimed that he was from a Catholic family in Khanh Hoa province in Vietnam. He was baptized in 1981. He claimed that his family was targeted and discriminated by the authorities for being Catholics for a number of years.
He claimed that his family members had been subjected to persecution by the Vietnamese Communist regime in the past. He claimed that his father was a linguist and interpreter/translator who worked for the “South Vietnam regime” who was imprisoned, tortured and executed by North Vietnamese forces in 1968. He said that his older sister’s husband was a soldier for the South Vietnamese regime and was caught and shot in 1971.
The applicant claimed that he and his family have constantly paid bribes to corrupt police officers to avoid punishments. He claimed to have been mentally traumatized by the past events in his family. He said that his brother and two of his sisters left Vietnam by boat in 1990.
The applicant claimed that he had attempted to leave Vietnam six times. He said that he had attempted to leave Vietnam by boat in 1980, 1982 and 1987. On his third attempt, he was detained for 8 months and he claimed he was severely beaten on numerous occasions. He was interrogated, but eventually allowed to leave. As a failed asylum seeker and as a Catholic, he claims that he was subjected to various levels of harassment and punishments in Vietnam. He said that his property in Vietnam had been confiscated by the Vietnamese authorities. In particular, his home was confiscated as the authorities believed that the applicant was using it for “crimes against the Vietnamese government.”
He said that he was living in a fearful environment and wished to escape. He claimed that he chose to leave the country legally. In 1992 he applied for a visitor visa to visit his sisters in Australia. He claimed that he was only able to obtain the necessary exit permit because he paid money to the local authorities and promised to pay them more upon his return to Vietnam.
He arrived in Australia on 6 May, 1992. He said that one month after his arrival in Australia, police officers came to his family’s house inquiring as to his whereabouts.
A delegate of the first respondent refused the applicant’s claim for a protection visa by a decision notified to the applicant on 15 August, 2013.
The applicant applied for a review of that decision by a refugee review tribunal. The tribunal affirmed the decision of the first respondent’s delegate on 27 March, 2014. The applicant failed before the tribunal for two general reasons. The first concerned the applicant’s credibility. The tribunal did not find most of the applicant’s claims credible. It considered the applicant to be an unconvincing witness. The tribunal considered his evidence to be both confused and inconsistent with the claims he made before the delegate.
However, notwithstanding the tribunal’s concerns about the evidence given by the applicant, it was willing to accept that the applicant would continue to practise his Catholic faith if he returned to Vietnam. The tribunal was also willing to accept the applicant’s claims that he was harassed and extorted by the local police prior to departing Vietnam in 1992.
The second reason for the failure of the applicant’s claims was the tribunal’s finding that the country information before it showed that the situation in Vietnam had markedly improved since the applicant was last there. The information before the tribunal demonstrated that while the persecution of Catholics and the practice of extorting bribes from local citizens with family overseas was not uncommon prior to 1992, the present day situation was much different such that there was no real chance that, if the applicant returned to Vietnam, he would either be persecuted because he was a Catholic, or the subject of extortion from local authorities.
For those reasons, the tribunal rejected the applicant’s refugee and complementary protection claims.
The applicant submits that the following events then occurred:
11. Thereafter the Applicant made a fresh application for protection on 28 April 2014 with new supporting evidence to support his claim.
12. That application was deemed as invalid and considered as a request for Ministerial Intervention.
13. The Ministerial Intervention was refused and the decision was notified to the Applicant on 17 July 2014.
However, those submissions are inaccurate and apt to mislead.
At page 150 of the court book filed on 2 October, 2014 appears a letter written by the applicant’s present lawyers to the first respondent. The letter is dated 18 March, 2014, suggesting that it was sent on or about that date. That is to say, some 9 days before the tribunal had determined the applicant’s protection visa application. That prima facie view is displaced, however, because the body of the letter refers to the tribunal’s decision that was notified to the applicant on 28 March, 2014. Further, the copy of the letter in the court book appears to bear a stamp suggesting that it was received by the first respondent’s department on 1 May, 2014. Nonetheless, the impression remains that the letter was perhaps prepared before the tribunal had given its determination on the applicant’s application.
The letter to the first respondent does not identify clearly what is requested of the Minister. The first paragraph of the letter refers to the applicant’s “ministerial intervention application”. The second paragraph (headed “1.0 Request”) sets out a “request for the Minister to consider exercising your discretion in the public interest.” There is a footnote to the end of paragraph “2.0” that refers to “section 417” and paragraph “5.0” which requests “the Minister to exercise his public discretion to substitute a favourable decision for him.”
It appears from each of those clues that the letter dated 18 March, 2014 is a request for the first respondent to substitute for a decision of the tribunal, another decision, being a decision that is more favourable to the applicant pursuant to s.417(1) of the Act.
Exhibit 1 is a letter from the first respondent’s department to the applicant’s lawyers dated 5 May, 2014. That letter refers to an “application for a Protection (Class XA) visa, which was lodged at Sydney City Office on 02 May 2014.” In that letter, the applicant is advised that his application is invalid because he is prevented by s.48A of the Migration Act from making a further application for a protection visa. The letter points out that the first respondent has the power under s.48B of the Act to allow a person to apply for a protection visa if he decides it is in the public interest to do so. The letter points out that the applicant’s second application for a protection visa will be treated by the Department as a request for the minister to exercise his “public interest power” under s.48B of the Migration Act.
Accordingly, as at 2 May, 2014 it seems that the applicant had two requests before the first respondent for him to exercise his personal discretionary powers. The first was the application pursuant to s.417(1) of the Act and the second the application (so treated by the first respondent’s Department) pursuant to s.48B of the Act.
On 8 May, 2014 the Director (Ministerial Intervention (NSW & VIC)) wrote to the applicant’s present lawyers acknowledging receipt of their letter of 18 March, 2014. Importantly, the letter pointed out:
Your client should also be aware that the Minister is under no obligation to intervene in his case. This means that your client should not discontinue any application for judicial review of the expectation that the Minister will intervene.
(my emphasis)
The letter also pointed out that the Minister will generally only consider requests for Ministerial Intervention where the applicant and anyone else included in the request held a bridging or other visa or had applied for one. The letter pointed out that the applicant did not hold a bridging visa (his most recent bridging visa having ceased on 25 April, 2014) and “that he is currently unlawful”. The letter urged that the applicant obtain a further bridging visa.
On 17 July, 2014 the first respondent (by his delegate) wrote to the applicant. It is plain that the first respondent understood that there were two requests for his intervention from the applicant. The purpose of the letter was to inform the applicant that both requests were refused.
The applicant filed the present application before the Court on 4 September, 2014.
Consideration
Section 477(1) of the Act prescribes 35 days as the time in which an applicant might seek judicial review in this Court of a decision of a refugee review tribunal. That time limit might be extended where, upon application for such an order, the Court determines that it is necessary in the interests of the administration of justice to do so.
The discretion must be exercised judicially. The factors that bear upon the exercise of that discretion include the length of the delay, the explanation for the delay, and the substantive merits of the review application.
In SZNZI v Minister for Immigration [2010] FMCA 57 at [11] Smith FM suggested:
11.The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]- [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
In his written submissions, the applicant directs my attention to Li v Minister for Immigration [2011] FMCA 12. In that case, the Court suggested that the various matters to be considered when determining an application to extend time pursuant to s.477(2)(b) of the Act include:
a)the length of any delay;
b)the reasons for the delay;
c)whether or not the respondent has suffered any prejudice as a result of the delay;
d)the possible impact upon the applicant if the extension is not granted;
e)the interests of the public at large; and
f)a consideration of the merits of the substantive application.
The applicant suggests that the relevant delay is only 49 days. He calculates that from the time that he received notification that his request for Ministerial Intervention had been refused. Whilst that delay of itself is not particularly long, the relevant period commences on the date 35 days after the date of the tribunal’s decision and ends on the date of the filing of the application in this court – a period of 126 days. The lapse of 46 days is not so significant, but a lapse of 126 days is significant.
The delay has a number of curious aspects. First, the letter seeking the s.417 intervention was seemingly prepared before the tribunal had determined the applicant’s review. Secondly, despite the making of that application, the applicant also lodged a second application for a protection visa in circumstances where he must have known that he was precluded from making such an application. At all times he was represented by a lawyer and migration agent. Thirdly, judging by the date on which the s.417 letter of request was stamped as received by the first respondent’s department and the date of the lodgement of the second visa application, it seems that little was done in the month following the notification of the tribunal’s decision. The time limited for bringing an application to this court in respect of the tribunal’s decision had either lapsed or was very close to lapsing when the two steps identified earlier were taken. Fourthly, the applicant was expressly told in the letter from the first respondent dated 8 May, 2014 that he should not discontinue any application for judicial review on the expectation that the first respondent would intervene. Whilst it is true that no proceedings for judicial review had then been instituted, the advice should have served as impetus to commence proceedings for judicial review, rather than await the outcome of the application for Ministerial Intervention.
The applicant also argues that another reason for the delay in commencing his proceedings was that his legal representatives needed time to prepare his application. I accept the first respondent’s submissions that having regard to the content of the application and affidavit filed on 4 September, 2014 the preparation of those documents could not have been as onerous or complex as the applicant’s submissions would have me infer.
The delay between the tribunal’s decision and the commencement of these proceedings was lengthy. The reasons advanced by the applicant for that delay are inadequate. The applicant’s claim that the delay in commencing the present proceedings was “beyond his control” is simply not correct or made out on the evidence. There was nothing that prevented him from commencing judicial review proceedings in respect of the tribunal’s decision within the time limited by s.477(1) of the Act should he have chosen to do so. That an application for Ministerial Intervention (either pursuant to ss.48B or 417(1) of the Act) might have been proposed was no bar to the first applicant seeking to review the tribunal’s decision, or seeking an extension of time within which to bring such an application. I say “proposed” because as I have attempted to indicate above, the time for the making of a judicial review application expired at about the time that the first respondent’s department received the letter dated 18 March, 2014 and the second protection visa application. He could have prosecuted both an application for Ministerial Intervention pursuant to s.417 of the Act and a judicial review application simultaneously.
There is no evidence that suggests oversight by the applicant’s representative after the tribunal’s decision was given, or any attempt to seek judicial review before the date the application was filed. There is no explanation from his lawyer (who has represented him throughout) as to why the course undertaken was followed in preference to the making of a judicial review application within time. It might be inferred that the time limit was allowed to pass intentionally.
The applicant’s written submissions provide: “The Applicant deposes, in his Affidavit that he was waiting to receive the outcome of the ministerial intervention until 17 July 2014. Once he was notified of the decision he inquired about the legal avenues available for him to review the tribunal’s decision. His lawyers advised him to apply to this court for judicial review.” In my view, those submissions are disingenuous in circumstances where the same lawyers were acting for the applicant throughout the tribunal proceedings and thereafter.
The first respondent does not submit that there will be any prejudice to him if the application for an extension of time is granted.
If the extension of time is not granted, the applicant will have no further avenue by which he could seek protection in Australia. Moreover, I take into account that my decision on his application for an extension of time is not able to be the subject of an appeal to the Federal Court of Australia (s.476A(3) of the Act) although it can be challenged pursuant to s.39B(1) of the Judiciary Act 1903: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; BZAHM v Minister for Immigration and Border Protection [2015] FCA 675.
The applicant submits that his substantive application “establishes a clear jurisdictional error on the part of the tribunal.
The ground of review sought to be prosecuted by the applicant is set out in the amended application as follows:
The Tribunal is in breach of its statutory obligation under s 36(2) (AA) of the Migration Act 1958. It failed to analyse and or examine the relevant information or facts in this regard.
Particulars
The Tribunal failed to consider the applicant’ s claim to fear from the Vietnamese police and local authorities as upon return after living in Australia for 20 years, because it was raised by the evidence and material before it. The Tribunal had country information to support the applicant’s claim that Catholics continue to face problems in Vietnam.1. The Applicant arrived in Australia on 06/05/1992 and has been living in Australia as an unlawful citizen for more than 22 years. He has four siblings in Australia who successfully claimed asylum for genuine reasons. The Applicant had six failed attempts to escape Vietnam and on one occasion he was imprisoned and tortured for 8 months.
2. The Applicant is a Catholic and was baptised in 1981. He has faced harassment by the police and local authorities in Vietnam because of his religion and as a failed asylum seeker. The Tribunal accepted this in para 42 of its decision record. He has been practising Catholicism in Australia for more than 22 years.
3. The Tribunal failed to fully investigate and make findings on these claims raised by evidence in assessing the matter considering the Applicant’s fear of harm of returning to Vietnam for the following reasons:
a.The Tribunal did not adequately consider the relevant country information, particularly the 2013 Report of the US Commission on International Religious Freedom. Only selected extracts demonstrating positive aspects were extracted, resulting in a failure to consider the impact of the report as a whole.
b.An undue burden was placed on the applicant in requiring him to produce independent material to support his view of the behaviour of Khanh Hoa province local authorities. Furthermore, too heavy a weight was placed on this fact in reaching their conclusion that he would not be subject to harm.
c.In considering the fact that Vietnamese nationals returning are entitled to have their household registration reinstated, the Tribunal inadequately considered the impact of the applicant’s history on his re-registration upon his retum to Vietnam.
The first respondent submits that the ground of review is misconceived. I agree. The ground suggests that the tribunal “is in breach of its statutory obligation under s 36(2) (AA) of the Migration Act 1958”. I take the reference to s.36(2)(AA) to be a reference to s.36(2)(aa) of the Migration Act. That section imposes no obligation upon the tribunal. Rather, that section sets out a criterion for a protection visa. In particular s.36(2)(aa) requires that the visa applicant is a non-citizen in Australia in respect of whom the first respondent is satisfied Australia has protection obligations because the first respondent has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
It is likely, however, that the ground of review attempts to suggest that the tribunal did not conduct a review of the first respondent’s decision at all, or alternatively did not give proper, genuine and realistic consideration to the application, but neither of those alternative formulations of the ground are made out. The tribunal’s reasons indicate that it clearly understood the claims made by the applicant and it considered each one of them. It accepted some of the claims that he made.
Little assistance is gained from the particulars given to support the ground of review. The first two paragraphs are nothing more than a recitation of the facts found by the tribunal.
In his written submissions, the applicant argues:
37.The reasoning of the tribunal suggests that it failed to consider the separate elements raised by s 36(2)(aa) and its related definitional provisions in s 36(2A) of the Act. At para [50] of the Decision Record, the tribunal held that the Applicant would not face a real risk of significant harm as per s 36(2)(aa) for the same reasons it had found that there was no real risk that the applicant will suffer significant harm under s 36(2)(a). This clearly shows the tribunal’s failure to assess the Applicant under the separate criteria in complementary protection provisions of s36 (2)(aa) of the Act.
38.The tribunal did not assess the Applicant’s fear of significant harm upon possible deportation. It did not consider the effect of his significant absence from Vietnam for more than 23 years. The Applicant had suffered torture and imprisonment for his six failed escape attempts he has a genuine fear that he would be subjected to significant harm upon return. The tribunal should have considered his past harassment, extortion and imprisonment in Vietnam together with his Catholic religious practice during his 23 years presence in Australia to assess whether the Applicant was at greater risk of significant harm than the population of Vietnam generally. The tribunal did not make that assessment.
39.It failed to assess the Applicant’s fear in this regard as it was unable to find “specific information” in relation to the incidents in Khanh Hoa. It failed to assess the Applicant’s fear in relation to the overall country information. It was unable to locate any reports of problems for Catholics in Khanh Hoa in the last decade. It states that that “the situation has greatly improved since the 1980s and early 1992, as stated out in paras 30-35 of the Decision, the tribunal has only considered country information that supported its proposition that there were no reports of persecution of Catholics in Vietnam and “situation have been improving since the applicant’s departure”.
40.The tribunal considered 2013 United States Commission on International Religious Freedom in arriving at the above finding. However, the following extract in the same report suggests otherwise. According to that report:
“In June and July 2012, local authorities sought to prevent Catholic worship at private homes in Con Cuong and Quy Chau districts in Nghe An province. Unidentified groups of young men regularly gather to throw stones at worshipers and block roads to the sites, and officials reportedly have visited homes asking people to sign pledges not to “illegally celebrate Mass.” On July 3, 2012, a mob beat several of those worshipping in Con Cuong, at least one severely. Catholics in Con Cuong have been frequent targets of abuse and intimidation in recent years. In November of 2011, a pipe bomb explosion caused heavy damage to the site used for worship. In both areas, local Catholics have filed multiple requests to register as legal sites for religious activity without success. “
41.The tribunal failed to consider the whole of that report in arriving at its findings. It suggested that Vietnam should be designated as a “Country of Particular Concern.” (CPC). In 2013, arrests and confrontations with the Catholic Church have escalated tensions.
…
43.The tribunal’s Decision states that it accepts the Applicant was baptized in 1981 and that he suffered harassment for that reason prior to leaving Vietnam in 1992. It accepted that he would practice Catholicism upon return. It also accepted that it is likely that the Applicant’s claims as to the harassment and extortion that he suffered prior to his departure from Vietnam are true. The tribunal’s own findings then left alive a very significant claim that the Applicant would face serious and significant harm which might be covered by the ‘complementary protection’ provision.
44.The tribunal at para [46] said, according to country information, the Applicant will be able to have his household registration reinstated upon his return. This finding was also based on its erroneous finding that the situation has greatly improved since the Applicant’s departure. The tribunal was placing a heavy burden of proving his claims by expecting the Applicant to contradict its findings by providing “independent information” .
45.Therefore, by not properly analysing the available information and materials in relation to the Applicant’s claim under the s 36(2)(aa) of the Act, the tribunal has made a jurisdictional error. In MZYTS [2013]24 the Full Court of the Federal Court observed that descriptions such as failure to consider evidence may explain a path of legal analysis leading to jurisdictional error. However, the error itself is a failure to perform the statutory task imposed on the tribunal by the relevant provision of the Act.
The structure of the tribunal’s reasons for decision is such that it considered the applicant’s claims and the evidence about those claims. It made findings about his claims. It recorded and considered the country information to which it had regard. Then, in light of those findings and the other information available to the tribunal upon which it chose to place significance, the tribunal determined the applicant’s application for the visa, first against the criteria specified in s.36(2)(a) of the Act and then against s.36(2)(aa) of the Act.
It is not surprising that the expression of the tribunals’ conclusions about its lack of satisfaction of the s.36(2)(aa) criterion was briefly stated. The same factual substratum informed its consideration of that criterion as informed the rest of its decision. The tribunal was alive to the requirements of s.36(2)(aa) and expressly addressed them. It did so in the context of the factual and other findings made by it earlier in its reasons for decision.
The applicant’s case, as illuminated by the above extracted written submissions, is a challenge to the merits of the tribunal’s decision based principally, but not only, upon the tribunal’s selection and use of country information. It is not a permissible challenge in these proceedings.
To the extent that the applicant’s proposed grounds of review suggest that the tribunal had a duty to “fully investigate ... the claims raised by the evidence”, it is clear from the tribunal’s reasons that, within the bounds of its obligation to conduct a review, it did just that. The tribunal does not have a general duty to make inquiries about the applicant’s claims. I accept the first respondent’s submission that, subject to the duty explained in Minister for Immigration v SZIAI (2009) 259 ALR 429, the tribunal was entitled to investigate whatever matters it thought fit to whatever extent it thought fit.
The first particular of ground three relied upon by the applicant suggests that the tribunal did not adequately consider the relevant country information, and in particular the 2013 report of the US Commission on International Religious Freedom. The applicant complains that only selected “positive” extracts were considered and not the report as a whole.
However, I accept the first respondent’s submission that there is no basis to reasonably infer that the tribunal did not consider the entirety of the relevant report merely because certain aspects of it were extracted in the tribunal’s decision. The tribunal referred to the report in its reasons and extracted what it considered to be a pertinent extract. That does not indicate that the tribunal failed to “adequately consider” the entirety of the report.
Further, I accept the first respondent’s argument that even if the tribunal did overlook certain parts of the report, that would not constitute jurisdictional error because:
a)a failure to take into account a matter can only constitute jurisdictional error if the decision-maker was bound to take that matter into account in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
b)ordinarily evidence will not constitute a mandatory consideration; and
c)the matters which the tribunal regarded as relevant was entirely a matter for it.
I accept the first respondent’s submission that the applicant’s assertion that evidence had not been given adequate consideration is a complaint about the merits of the tribunal’s decision.
Particular (b) to ground 3 of the proposed grounds of review suggests that an “undue burden” was placed upon the applicant by requiring him to produce independent material to support his view of the behaviour of the authorities in the Khanh Hoa province.
In its reasons for decision, the tribunal said:
45.... taking into account the count1y information referred to above, the tribunal is satisfied that there is no real chance that the applicant would face persecution in Vietnam because of his religion.
46.It is clear from the country information that the situation in Vietnam has changed considerably since the applicant’s departure in 1992. While the applicant claimed that the local authorities in his area [that is, the Khanh Hoa province] were continuing to behave in a much more harsh way than the picture painted by this country information, he was unable to produce any independent information to support this claim, and the tribunal does not accept that it is true.
47.The tribunal notes that the applicant made no claim in his evidence that his family have been harassed in any way by the local authorities since his departure apart from one visit to his mother’s home in 1992.
48.The tribunal is satisfied, therefore, that there is no real chance that the applicant would face persecution upon his return whether because of his religion or indeed for any other reason.
Contrary to the applicant’s submissions, the tribunal placed no burden upon the applicant. What the tribunal did was to assess the evidence and information before it. On the one hand, it had the assertions from the applicant about the situation in his home province. On the other, it had independent information about the situation more generally in Vietnam and nothing in that material which pointed to the existence of the types of difficulties claimed by the applicant in his home province. The tribunal did nothing more than to prefer the independent information over the applicant’s assertions where there was no other evidence to support his assertions.
As the first respondent puts in his submissions, the tribunal preferred the independent evidence to the applicant’s subjective, unsupported, bare assertion that the present situation in Vietnam (and Khanh Hoa) was still the same as it was in 1992. I accept that all the tribunal did was weigh up the evidence before it and make a finding of fact which was open to it on that evidence.
To the extent that this ground complains that the tribunal placed “too heavy a weight” on the inability of the applicant to produce evidence of what he claimed to be the situation in his home province, the applicant’s ground is an argument with the fact finding process of the tribunal. Matters of weight are matters within the exclusive province of the tribunal.
Particular © of ground 3 argues that in considering the fact that Vietnamese nationals returning are entitled to have their household registration reinstated, the tribunal inadequately considered the impact of the applicant’s history on his re-registration upon his return to Vietnam. However, this ground as articulated by the applicant is not capable of leading to a finding of jurisdictional error by the tribunal.
The tribunal considered the applicant’s history in the context of assessing his claims to fear persecution or harm upon his return to Vietnam. The tribunal accepted the truth of some of the assertions of persecution and harm the applicant claimed to have suffered at the hands of the local authorities prior to him leaving Vietnam. However, because the situation in Vietnam had improved since 1992 such that the applicant would be entitled to have his household registration re-instated, the tribunal did not consider that the applicant faced a real chance of being subjected to such persecution or harm if he returned to Vietnam in 2014.
In my view, this ground too, seeks merits review of the tribunal’s decision.
Conclusion
The delay that has passed between when the time limited for commencing judicial review proceedings in respect of the tribunal decision the applicant seeks to challenge and the commencement of these proceedings is over 120 days. Such a lengthy delay requires an explanation. Whilst the applicant has provided an explanation, it cannot, in my view, be said to be adequate or satisfactory. At best it seems that the applicant made a decision to pursue other avenues of redress when knowing that a judicial review application was subject to strict time limits. Nonetheless, those matters are not conclusive against the applicant.
He has set out his proposed grounds of review and his arguments in respect of those grounds. For the reasons I have given above, none have any merit. His grounds seek impermissible merits review. In my view, he has no prospects of success if an extension of time were granted so as to permit a judicial review application on the grounds foreshadowed by him.
Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the time within which the applicant might commence a judicial review application in respect of the second respondents decision given on 27 March, 2014. The application for an extension of time must be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 July, 2015.
Associate:
Date: 17 July 2015
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