CAX16 v Minister for Immigration

[2017] FCCA 257

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 257

Catchwords:
MIGRATION – Protection (Class XA) visa – application for an extension of time under s.477 – inadequate explanation for the delay – not in the interests of the administration of justice to grant an extension of time – whether the Tribunal failed to take into account relevant considerations – adverse findings were open to the Tribunal – no jurisdictional error identified – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477, 486E.

Federal Circuit Court Rules 2001, r.4.02, 44.05(2)(c).

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: CAX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2020 of 2016

Judgment of: Judge Street

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Sydney

Delivered on: 16 February 2017

REPRESENTATION

Solicitors for the Applicant: Mr H Ford
Hugh Ford Solicitor

Solicitors for the Respondents: Mr T Galvin
Minter Ellison Lawyers

ORDERS

1. Refuse leave to amend the application.

2. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2020 of 2016

CAX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 July 2015. Following that decision, the applicant had until 31 August 2015 to file an application for review within the time allowed. The current application was not filed until 26 July 2016.

Application for an extension of time

1. Accordingly, this is a case where the Court has to consider whether there should be an extension of time under s.477 of the Act which relevantly provides as follows:-

   (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 migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

   (c)  in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

   (ca)  in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); 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.

2. In considering whether an order should be made because it is necessary in the interests of the administration of justice under s.477 of the Act, the length of the delay, the reasons for the delay, the merits of the application and any prejudice to the respondent are all relevant considerations.

3. In the present case, it is not suggested that there is any prejudice to the Minister in relation to the extension of time. Accordingly, the relevant considerations are firstly, the explanation for the delay and its length and secondly, the merits of the application.

Consideration of the explanation and length of the delay

1. The length of the delay in the present case is significant, being almost 11 months. No affidavit evidence was adduced to explain the reasons why that delay occurred. Mr Ford, the applicant’s solicitor did not comply with r.44.05(2)(c) of the Federal Circuit Court Rules 2001. From the bar table, the solicitor for the applicant asserted that the applicant was advised by his then migration representative not to pursue an application for review and it was asserted that the applicant followed that advice. It was asserted that it was not until the applicant approached the solicitor acting for the applicant at the present time that the applicant decided to pursue an application. The Court raised with the solicitor for the applicant that this appeared to indicate that there had been a deliberate decision by the applicant not to pursue an application for review. The Court indicated that it would accept what had been said from the bar table.

2. On the material before the Court, I find that the applicant made a deliberate decision not to pursue an application for review. I find that there is no satisfactory explanation for the failure to commence proceedings within the time provided. The length of the delay is significant. Notwithstanding the absence of prejudice, where a deliberate decision has been made not to pursue a review by the applicant, in the context of delay in the present case that of itself would be a proper reason and ground for declining to make an order under s.477 of the Act.

3. Accordingly, the Court rejects the applicant’s application under s.477 of the Act because of the deliberate decision by the applicant not to pursue the application and the completely inadequate explanation for the delay. Clearly the Court finds that an extension of time is not necessary in the interests of the administration of justice.

Consideration of the merits of the application

1. The Court will however, turn to whether there are any merits in the present application. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant was granted a two-year Subclass 573 (Student) visa on 5 July 2013. The applicant arrived in Australia on 11 July 2013. It was not until 9 January 2014 that the applicant applied for a Protection visa.

The Delegate

1. The applicant claimed that his brother was an interpreter for the NATO forces in Afghanistan and that his father and another brother transported logistics from Pakistan to Afghanistan. The applicant claimed that as a result of these matters and his family’s refusal to join the Taliban, the applicant was kidnapped by the Taliban and forced to join them but was later allowed to return to his parents’ home. The applicant claimed that his home was attacked by the Taliban, which resulted in him and his brother being injured. The applicant alleges that his two elder brothers disappeared and that his family have been targeted by the Taliban. The applicant claimed that his family has a political profile as opponents of the Taliban and that the applicant cannot safely live in the particular region of Pakistan or elsewhere in Pakistan.

2. The delegate was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations. The delegate made reference to certain material provided by the applicant and the prevalence of fraudulent documents in Pakistan. The delegate made adverse findings in relation to claims of the applicant and specifically was not satisfied that the kidnapping incident or the phone threats occurred. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fear was well-founded.

3. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there was a real risk the applicant would suffer significant harm. The delegate found the applicant failed to meet the criteria under s.36(2) of the Act and refused to grant the applicant a protection visa.

The Tribunal

1. The applicant applied for review on 11 September 2014. By letter dated 17 June 2015, the applicant was invited to attend a hearing on 24 July 2015. The applicant appeared on that date to give evidence and present arguments and was assisted by his migration representative. The Tribunal identified the outcome of the applicant’s application before the delegate and summarised the relevant law in an attachment incorporated expressly in the decision. The Tribunal correctly identified the relevant issues in determining whether Australia owed the applicant a protection obligation. The Tribunal set out the applicant’s claims and evidence.

2. The Tribunal made serious adverse credibility findings in relation to the applicant. The Tribunal provided detailed reasons in support of those adverse credibility findings. Relevantly, the Tribunal did not accept that the applicant was sought by the Taliban for recruitment, or that the Taliban ordered the applicant and his family to attend the Taliban Court, or that the applicant’s father was beaten and that the applicant was kidnapped. The Tribunal did not accept that the injury to the applicant’s brothers occurred when the family home was targeted and bombed by the Taliban. The Tribunal reached the conclusion that the applicant had fabricated those claims in an attempt to provide a basis for Australia’s protection. 

Consideration of the applicant’s psychological and medical condition

1. The Tribunal referred to the applicant’s psychological and medical condition and the submissions put that the applicant sometimes blanks out and that this may be due to his medical condition and not only his trauma. This was advanced in the context of the applicant’s failure to pursue a course in respect of a student visa. The applicant said that he had to stop his studies due to trauma however, the Tribunal records that the applicant could not remember details of his experiences clearly when he arrived in Australia. It was asserted that the applicant’s condition had deteriorated and that he cannot remember clearly due to trauma and stress.

2. The Tribunal accepted that the applicant had suffered stress and trauma and that the medical practitioner had suggested he will need to undergo further testing. The Tribunal accepted that the applicant was undoubtedly anxious and worried about future deterioration of his medical condition. The Tribunal accepted that the applicant’s two brothers are missing and that the applicant and his brother were injured in an explosion at some time.

3. The Tribunal was not satisfied that there is any medical evidence, as suggested by the representative to indicate that the applicant blanks out due to a neurological condition which appears to be in very preliminary investigative stages. The Tribunal made reference to the applicant seeking to rely upon his psychological problems and past trauma frequently during the hearing.

4. The Tribunal noticed that the applicant did say he had difficulty recording details outside of his prepared statement. The Tribunal noted that at other times the applicant presented as intelligent and articulate and his own evidence was that he was a genius student in Pakistan. The Tribunal noted that the applicant was able to recall details which were set out in his statement and spoke at considerable length in relation to the country situation, his views on the Taliban and he appeared able to recall unrelated dates and time frames but struggled when asked to recount details of his claims which were outside of his prepared statement.

5. The Tribunal referred to the assessment by Dr Christine Phillips, the counsellor from Companion House. The Tribunal referred to the fact that the applicant had been assessed as suffering from trauma and stress and memory problems and there had been a determination that these problems must have arisen from the events that he claimed occurred in Pakistan. The Tribunal was not satisfied that there is any evidence indicating the applicant was not unable to competently provide evidence during the hearing. The Tribunal did not accept that the counsellor had any personal knowledge of the applicant’s situation in Pakistan other than what had been told to her by the applicant.

6. In relation to the applicant’s credibility, the Tribunal referred to the details discussed below and the inconsistent and confused nature of the applicant’s evidence in relation to crucial and critical aspects of his claims. In taking into account the applicant’s psychological and medical condition, the Tribunal concluded that it was not satisfied that the problematic nature of some of the applicant’s evidence was due to his confusion, stress, previous trauma or any of the other factors he claimed. 

7. The Tribunal instead considered that the applicant was able to alter his evidence in response to concerns expressed by the Tribunal. The Tribunal was of the view that the applicant struggled to place the events that he claimed within a basic timeline or timeframe consistent with the documentation he provided and the dates where he claimed to have lived at different times because the Tribunal found that his claims to have suffered harm by the Taliban had been manufactured.

8. The Tribunal was not satisfied having considered all the evidence, that the applicant had a well-founded fear of harm in a particular region.  The Tribunal gave detailed reasons based on the evidence for the conclusions drawn by the Tribunal. 

Consideration of the applicant’s claims regarding the attacks and bomb blasts

1. The Tribunal did not accept that the applicant had given consistent evidence in relation to the bomb blast, when it occurred and where the applicant was at that time. The Tribunal noted the applicant altered his evidence when he was advised of the inconsistencies in relation to dates. The Tribunal considered that the applicant’s problematic nature of his evidence as to when the applicant moved to a particular region, how long he lived there and when his family moved to that region was not because of the applicant’s psychological and medical condition, but because his claims to have been targeted by the Taliban are fabricated. 

2. The Tribunal did not accept that the applicant would be unable to recall an approximate time frame of the two main events which he claimed resulted in him deciding to flee his home region to other parts of Pakistan and then to Australia. The Tribunal considered the applicant would have been able to recall when the bomb blast injuring his brother occurred, how many years ago and whether his family immediately moved with him or whether he moved alone. The Tribunal expressed doubts in relation to the genuineness of the hospital and medical documentation, suggesting that the applicant and his brother were injured in September 2012.

3. The Tribunal did not accept that the applicant and his family were specifically targeted by the Taliban or that the bomb was placed outside the applicant’s family home. For reasons identified in respect of the applicant’s evidence, the Tribunal did not accept that the alleged incidents by the applicant were credible. The Tribunal provided cogent and logical reasons in support of those adverse credibility findings.

Consideration of the applicant’s brothers’ disappearance

1. The Tribunal made reference to the claims concerning the applicant’s brothers’ disappearance and did not accept that the applicant had been truthful in relation to the bomb blast or the attacks by the Taliban and did not accept that those incidents occurred in the circumstances claimed or that the factors resulted in the family leaving the particular area.

2. The Tribunal found it was likely the applicant had fabricated the claims that his brothers are missing and that the applicant had done so in an attempt to establish that male members of the family, apart from his disabled brother and his elderly father, cannot live in Pakistan. The Tribunal made reference to the proposition that even if the two brothers had no contact with the family, the Tribunal did not accept that this was due to any attack on the applicant or his father, demands that they attend the Taliban Court and the applicant’s alleged kidnapping or alleged bomb blast at the family home. The Tribunal did not accept that any of those incidents occurred. The Tribunal did not accept that the absence of contact by the brothers with the family established that they are deceased. 

3. The Tribunal did not accept having considered all of the evidence, that the Taliban had any interest in the applicant or his father and brothers in Pakistan or that they required the applicant’s family to attend Court, or that they beat the applicant and his brother and kidnapped the applicant, or that he escaped, or that they bombed the family home, or that they have continued to threaten the applicant’s father since the applicant departed Pakistan. The Tribunal did not accept that the documents purporting to be threatening letters to the applicant’s father from the Taliban were genuine. The Tribunal made reference to such letters being easily fabricated and drew the conclusion that the letters had been fabricated to assist the applicant to establish protection claims in Australia.

Consideration of the applicant’s return to Pakistan

1. The Tribunal was not satisfied that the evidence establishes that the applicant will be targeted by the Taliban on return to Pakistan.  The Tribunal made reference to accepting that the applicant suffers from psychological problems and that his medical practitioner indicated that he will require further testing to ascertain whether he suffers from a potentially serious medical condition.

2. The Tribunal made express reference to having regard to Dr Phillips’ comments regarding medical standards in Pakistan. The Tribunal accepts that the medical facilities in the particular region and elsewhere may not be of the same standard that the applicant could potentially receive in Australia. The Tribunal, however, found that the applicant’s condition at this point and the potential deterioration is uncertain and a diagnosis has not been made by a specialist and noted that the medical practitioner referred him for further testing. 

3. The Tribunal was not satisfied that the applicant would be unable to access medical treatment in Pakistan if required and was satisfied that he will have the support of his family which includes his wife, two children, mother and father, who will assist him with his medical and psychological needs. The applicant’s own evidence was that his father had been willing to provide him with support and assistance in the past and the Tribunal was satisfied that the father would continue to do so if required.

4. The Tribunal did not accept that the applicant would attract adverse attention of the Taliban upon his return because he has views opposed to the Taliban. The Tribunal did not accept the applicant’s claims that he had been specifically targeted or that he has any profile as opposed to the Taliban as a result of his brothers’ or father’s employment, or that there is a real chance he will be targeted in a particular region, his alternative home region, if he returns to Pakistan now or in the reasonably foreseeable future.

Refugees Convention Assessment

1. The Tribunal was not satisfied having considered all of the evidence, that there was a real chance that the applicant would suffer serious harm for reasons of his actual or imputed political opinion or for any Convention reason if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution in Pakistan.

Complementary Protection Assessment

1. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Pakistan there is a real risk the applicant would suffer significant harm. The Tribunal found that the applicant failed to satisfy the criterion under s.36(2)(a) of the Act and s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. This Court made orders on 12 October 2016 providing the applicant with leave to amend his application, file further affidavit evidence and submissions. The solicitor on the record, Mr Ford, provided no submissions to the Court in support of the applicant’s application in accordance with the orders made by the Court. Mr Ford explained that the substance of his argument was identified in the grounds of the application. No satisfactory explanation for the failure to comply with the Court’s orders was proffered by Mr Ford.

2. The grounds of the application are as follows:-

   1. The applicant reserves the right to amend and/or provide further grounds of review at a latter point in time.

   2. The Second respondent made a jurisdictional error by not taking into account the relevant considerations. The applicant produced all the material evidence in support of his case including medical reports, photos, doctor's reports, employment history of his brother with the NATO force as an interpreter in Afghanistan and documentary evidence proving that the applicant's father and brother deliver goods to the NA TO forces in Afghanistan under logistic transport agreements.

   3. The applicant during the interview gave the narrative of the events about his abduction and how the Taliban forced him and his family to attend their court to answer the allegations that the applicant and his family members “father and brothers” have working engagement with the NATO forces in Afghanistan which were ignored by the Second respondent.

   4. The Second respondent made jurisdictional error by not taking into account the relevant evidence of the attack by Taliban on the applicant's family house and by accepting partial evidence that the applicant and his brother were injured in a bomb blast or similar incident in paragraph 22. There was no evidence for the finding that it happened somewhere else.

   5. The applicant provided evidence of his medical history including mental health which clearly indicated that the applicant is suffering from psychological problems and that the applicant is extremely traumatised. The Second respondent in paragraph 24 agreed that the applicant was undoubtedly anxious and worried about deterioration of his medical condition and concerned about his young family and other family members in Pakistan. However, the member failed to give any weight to this fact.

   6. Again in paragraph 25 the Second respondent agreed that the counsellor from Companion House has assessed the applicant as suffering from trauma and stress and memory problems and has determined that these problems arose because of the events occurred to the applicant in Pakistan. However, the second respondent engaged in a process of self-assessment of the applicant's credibility and made a jurisdictional error by failing to take the relevant consideration into account which was the medical reports and doctor's advises from Companion house.

   7. The member in paragraph 26 made a jurisdictional error by failing to take into account the relevant consideration and punished the applicant for making inconsistent statements about the timeframe of bomb blast, his attending of the Taliban's court and how and when the applicant and his brother sustained injuries. In the same paragraph, the Second respondent accepted that the applicant has provided all the documentary evidence regarding his claim and occurrence of the events.

   8. There is no evidence for the finding by the member that the applicant has made an inconsistent statement and did not accord the applicant with procedural fairness. In paragraph 29 the member accepted that the applicant suffers from psychological problems and also the genuineness of the hospital medical documentation about the applicant and his brother's admission in hospital and their injuries because of bomb explosion.

   However, once again, the Second respondent gave a greater weight to the inconsistent statements of the applicant and ignored the relevant evidence about the applicant and his brother's admission in hospital after receiving injuries from bomb blast outside of their house and about the timings of his family's migration from the area.

   9. The member in paragraph 29 cited DFAT report as an independent report confirming that there have been series of incidents in various parts of Khyber Pakhtoon Kaktunkwa province resulting in deaths of thousands and displacement of millions of people especially from Pashtun majority areas because of various factors including Taliban and other militants. But the member in its decision in the same paragraph ignored the fact the applicant and his family was specifically targeted by Taliban for their working relationship with the NATO forces.

   10. The second respondent in paragraph 30 and 31 made a jurisdictional error by not taking into account the relevant consideration. The member ignored the relevant evidence that the applicant was kidnapped and held by Taliban for a certain period. Contrary to the evidence the member engaged in the process of credibility assessment which was unlawful practice as was decided in Minister for Immigration and Citizenship v Li 2013 HCA 18.

   11. The applicant made a number of claims in support of his application for protection visa and the member had the independent evidence that confirmed the displacement of people from the area due to factors including Taliban’s attack.

   The member however did not investigate/assess those claims. In paragraph 32 the member mere on the basis of inconsistent statements by the applicant concluded that the applicant had not been kidnapped and bomb blast did not occur. The member never attempted to determine if the applicant was in fact the subject of kidnapping which purports that the member was acting for an improper purpose.

   12. In paragraph 33 and 34 the member accepted that there were factors including the Tail ban factor for people to flee the area to avoid persecution, still the member indulged in the process of self-assessment of the applicant's claim and failed to take the relevant facts into account. The member had no independent source to counter the claims of the applicant's brother's disappearance. The member had no evidence to counter the claim of the applicant.

   13. The applicant supported its claim with material evidence and gave the threatening letters from Taliban to the member to consider. The member in paragraph 35 refused to take into account the relevant evidentiary proofs and contrarily declared the applicants evidence as fabricated which was again an unlawful practice.

   14. In paragraph 37 the member accepted the genuineness of the documents produced by the applicant in relation to the employment of his brother as an interpreter with the NATO forces in Afghanistan and the applicant's father and second brother contracts for delivering of fuel to the NATO force in Afghanistan. And also, that there is evidence that people having an association with American interest can be attacked in the area. However, in the same paragraph, the member failed to take· into account the relevant consideration and refused to accept the applicant's evidence that he and his family were targeted and there is real comprehension that they may get attacked again and risk to their lives.

   15. In paragraphs 39 and 40 the member accepted that the applicant is suffering from psychological problems and requires further medical testing. The member also gave weigh to the independent evidence provided regarding the general security situation in Peshawar and Khyber Pakhtunkhwa province and Taliban's power and influence in the region. But the member could only see remote chances of the applicant and his family being subject to terrorist attacks which was again amounts to failure to take the relevant consideration into account and jurisdictional error.

   16. It is well founded that people associated with American forces or with views opposed to Taliban are at high risk of being targeted by the Taliban. The member in paragraph 41 completely ignored the well-established fact of persecution of people who hold western views or are opposing the Taliban.

   17. The member again accepted that there are risks for innocent people to be killed by terrorists in Peshawar. Despite evidentiary proofs by the applicant that he has genuine risks of life upon his return to his home country, the member refused to accept the evidence and failed to take into account the relevant evidence and made jurisdictional error.

   18. During the proceeding the member engaged in the process of credibility assessment of the applicant which was irrelevant consideration. To engage in a process of credibility assessment is unreasonable.

   19. The member punished the applicant for making inconsistent statements. The member made a number of findings where he had no evidence upon which to base such findings and took into account a number of irrelevant considerations.

Consideration

Ground 2

1. In relation to Ground 2, it is apparent that the Tribunal took into account the applicant’s claims and evidence. In relation to the medical reports, it was a matter for the Tribunal to give such weight to those documents as it saw fit and to determine the applicant’s credit.  There is no failure to take into account a relevant consideration that is arguable identified by Ground 2.  Ground 2 fails to identify any arguable ground of jurisdictional error. 

Ground 3

1. In relation to Ground 3, it is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s claims and evidence in relation to his father and brothers and the proposition the Tribunal ignored the evidence is without substance. Ground 3 fails to identify any arguable jurisdictional error. 

Ground 4

1. In relation to Ground 4, it is apparent that the Tribunal took into account the applicant’s claims and evidence. In relation to Ground 4, there is no arguable case that the Tribunal failed to take into account relevant evidence, as identified in that ground. It is clear on the face of the Tribunal’s reasons that the Tribunal referred to the applicant’s evidence. The adverse findings made by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The proposition that there is no evidence in support of the adverse findings as identified in Ground 4 is misconceived. The Tribunal was entitled to make adverse findings in relation to the applicant’s credit. Ground 4 fails to identify any arguable ground of jurisdictional error. 

Ground 5

1. In relation to Ground 5, it is clear the Tribunal took into account the applicant’s alleged psychological problems and medical history.  It was a matter for the Tribunal to determine what weight to give that material.  No arguable jurisdictional error is identified by Ground 5.

Ground 6

1. In relation to Ground 6, it is apparent the Tribunal did refer to the medical evidence and it was appropriate for the Tribunal to take into account that medical evidence in considering the applicant’s credibility.  There was no failure to take into account a relevant consideration by the Tribunal as identified in Ground 6. Ground 6 fails to identify any arguable jurisdictional error. 

Ground 7

1. In relation to Ground 7, the proposition that the Tribunal punished the applicant for making inconsistent statements is without foundation. It was a proper matter for the Tribunal to make an assessment of the applicant’s credit. The inconsistencies identified by the Tribunal in its reasons in support of the adverse credibility findings were open. There is no arguable failure to take into account a relevant consideration as identified in Ground 7. Ground 7 fails to identify any arguable ground of jurisdictional error. 

Ground 8

1. In relation to Ground 8, the proposition that there was no evidence in support of inconsistent statements as identified by the Tribunal is without substance. The Tribunal identified inconsistencies in relation to the applicant’s evidence. Those inconsistencies were logical and reasonable and open on the material before the Tribunal. There is no identified aspect in respect of which the Tribunal failed to comply with procedural fairness. It was a matter for the Tribunal to what weight was to be given to the evidence and there was no relevant evidence identified that was ignored by the Tribunal. Ground 8 fails to identify any arguable ground of jurisdictional error.

Ground 9

1. Ground 9 is in substance a disagreement with the adverse findings of fact made by the Tribunal. The adverse findings by the Tribunal were open and cannot be said to lack and evident and intelligible justification. Ground 9 fails to identify any arguable jurisdictional error. 

Ground 10

1. Ground 10 is in substance a challenge to the adverse findings of fact made by the Tribunal that were open to the Tribunal. Ground 10 fails to identify any arguable case of jurisdictional error. 

Ground 11

1. In relation to Ground 11, this is in substance an invitation to this Court to engage in an impermissible merits review. The adverse findings by the Tribunal in relation to the applicant’s credit were open. There is no easily identifiable fact advanced in respect of a critical claim that could support any duty by the Tribunal to investigate. The proposition that the Tribunal did not assess the applicant’s claim is without substance. It is apparent that the Tribunal addressed essentially integers of the claims advanced by the applicant. Ground 11 fails to identify any arguable ground of jurisdictional error.  The proposition in Ground 11 that the Member was acting for an improper purpose is wholly unsupported. The making of adverse findings are not a ground upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits. Ground 11 fails to identify any arguable case of jurisdictional error. 

Ground 12

1. In relation to Ground 12, it is apparent that the Tribunal took into account the applicant’s claims and evidence. The proposition that the Tribunal engaged in a process of self-assessment is entirely without substance. It was a matter for the Tribunal to determine what evidence to accept including the evidence from Dr Phillips. There is no substance in the proposition identified in paragraph 12 that the Tribunal failed to take into account any relevant consideration. The proposition that there was no evidence in support of the adverse findings made by the Tribunal is equally misconceived. It was a matter for the Tribunal to determine whether or not to accept the applicant’s evidence.  Ground 12 fails to identify any arguable jurisdictional error. 

Ground 13

1. Ground 13 is in substance a disagreement with the adverse findings of fact by the Tribunal. It was a matter for the Tribunal to determine whether to accept documents advanced by the applicant.  It was open to the Tribunal to make the adverse findings made. Ground 13 fails to identify any arguable case of jurisdictional error.

Ground 14

1. Ground 14 is in substance a disagreement with the adverse findings made by the Tribunal. Those adverse findings were open on the material before the Tribunal. Ground 14 fails to identify any arguable jurisdictional error.

Ground 15

1. In relation to Ground 15, it was a matter for the Tribunal to determine what weight to give the relevant evidence. It was a matter for the Tribunal to assess the applicant’s claims. There is no substance in the proposition that the Tribunal failed to take into account a relevant consideration as asserted in paragraph 15. The adverse findings by the Tribunal referred to in that paragraph were open.  Ground 15 fails to identify any arguable jurisdictional error. 

Ground 16

1. Ground 16 is in substance a disagreement with the adverse findings of fact made by the Tribunal. Ground 16 fails to identify any arguable jurisdictional error. 

Ground 17

1. Ground 17 is in substance a disagreement with the adverse findings made by the Tribunal. Ground 17 fails to identify any arguable jurisdictional error.

Ground 18

1. Ground 18 is entirely misconceived. The proposition that it was not appropriate for the Tribunal to assess the applicant’s credibility is without substance. The proposition that the adverse findings were unreasonable is without substance. Ground 18 fails to identify any arguable jurisdiction error. 

Ground 19

1. The proposition in Ground 19 that the Member punished the applicant for making inconsistent statements is entirely without substance. It was a matter for the Tribunal to make adverse findings in order to assess the applicant’s credit.  It was open to the Tribunal to make adverse findings in relation to the applicant’s credit. Providing reasons in respect of inconsistence in support of these adverse findings was logical and reasonable for the Tribunal. Ground 19 fails to identify any arguable jurisdictional error. 

2. None of the grounds in the application have any reasonable prospects of success. The Court takes into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. This is a matter where the 19 grounds advanced in the application do not identify any ground of sufficient merit to warrant an extension of time under s.477 of the Act in the interests of the administration of justice.

Proposed amended grounds raised at the hearing

1. From the bar table, solicitor for the applicant, Mr Ford asserted an entitlement to wander outside the grounds identified in the application because it was suggested this was a Court that was not a Court of strict pleading. That proposition is entirely misconceived. Pursuant to r.4.02 of the Federal Circuit Court Rules 2001, an application must precisely and briefly state the orders sought and the basis on which the orders are sought. The reasons why the Court granted an opportunity for the applicant to amend the grounds is so that the applicant has a fair chance and opportunity to properly identify any alleged jurisdictional error in the particular respect identified. It is not the case that practitioners can go outside the grounds identified. No proper explanation was advanced by the applicant’s solicitor as to why he had not complied with the Court orders in seeking to raise three further grounds. No satisfactory explanation was given for the failure to put on written submissions.

2. The three further grounds were advanced, firstly, that there was no evidence in respect of the findings made by the Tribunal in paragraphs 22, 25, 26, 27, 29, 30, 31, 32, 34, 36, 37, 38, 39, 40 and 41. In the course of his submissions, Mr Ford sought to include paragraph 24 and withdrew paragraphs 37 and 40. Mr Ford also submitted that there was no logical probative basis for the adverse findings by the Tribunal in respect of those paragraphs. Mr Ford also submitted that the findings in those respective paragraphs were ones in respect of which the findings were unreasonable.

3. Notwithstanding that there was no satisfactory explanation of a failure to comply with the Court’s orders in respect of the filing of an amended application, the Court heard Mr Ford in relation to each of those grounds in respect of the merits of the application for leave to amend. The application for leave was opposed. Having heard Mr Ford, each of those grounds was entirely without substance. None of the grounds identified in the proposed amendments identify any arguable jurisdictional error. The proposed amendments did not identify any ground of sufficient merit to warrant an extension of time in the interests of the administration of justice under s.477 of the Act. This is a case where the Court finds under s.486E of the Act, that the grounds in the application have no reasonable prospect of success.

Conclusion

1. The application for an extension of time is dismissed.

I certify that the preceding fifty-nine (58) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 February 2017