DAH16 v Minister for Immigration

[2019] FCCA 145

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAH16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 145

Catchwords:
MIGRATION – Application for an extension of time within which to make a competent application to the Court – whether it is in the interests of the administration of justice to extend time – no reasonable explanation for the delay – no reasonable prospects of success – application for an extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456
MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
Ahmed v Minister for Immigration and Border Protection [2016] FCA 751
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446
SCAA v Minister for Immigration & Multicultural& Indigenous Affairs[2002] FCA 668

Applicant: DAH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2811 of 2016

Judgment of: Judge Nicholls

Hearing date: 10 July 2018

Date of Last Submission: 10 July 2018

Delivered at: Sydney

Delivered on: 29 January 2019

REPRESENTATION

Solicitor for the Applicant: Byron & Associates

Appearing for the Applicant: Mr B Nazer

Solicitor for the Respondent: DLA Piper Australia

Appearing for the Respondent: Mr L Leerdam

ORDERS

1. The application made on 14 October 2016 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount of $3606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2811 of 2016

DAH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 14 October 2016 seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act. That application seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 18 August 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

The Application for the Extension of Time

1. Section 477(1) of the Act requires that any such application be made within 35 days of the date of the Tribunal’s decision. In the current case, the application was filed outside that time limit by approximately three weeks. The application is therefore not competent.

2. Section 477(2) of the Act provides for an extension of time within which to make a competent application, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time. The applicant has made such an application in writing.

3. The issue for the Court now, is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However there are a large number of authorities which provide direction and guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252), SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [17] – [23]).

4. In the current case, the particular factors arising from the circumstances presented, in considering the exercise of the discretion to extend time, appear to be the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, and whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing, in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.

The Evidence

1. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Before the Court

1. The applicant first appeared before the Court on 16 November 2016. Various orders were made, by consent, for the progress of the matter. This included giving the applicant the opportunity to file any amended (proposed substantive) application, and any further evidence by way of affidavit.

2. The applicant next appeared before a Registrar of the Court on 22 March 2017. The Registrar set the matter down for the hearing of the extension of time on 10 July 2018. At the hearing, both the applicant and first respondent were represented by solicitors.

3. Although the applicant was represented by a solicitor before the Court, it must be said that the state of the applicant’s written submissions to the Court (prepared by a solicitor) gave rise to some concern.  I indicated this to the applicant’s solicitor at the hearing.

4. For example, large parts of the submissions were directed to the delegate’s decision. Pursuant to s.476 of the Act, this Court has no jurisdiction to review the delegate’s decision. Section 476 makes clear that this Court has no jurisdiction to review a “primary decision”. This is defined as a decision which has been, or is reviewable by, relevantly, the Tribunal. In the current case, not only was the delegate’s decision reviewable, it was in fact reviewed by the Tribunal (see s.476 of the Act).

5. Further, the submissions contain a long recitation of the applicant’s claimed circumstances in South Africa.  A feature of the submissions is that no attempt was made to address the question of the delay in making the application, or to explain it.  At best, the applicant’s written submissions seek impermissible merits review. This is clearly demonstrated by [94] and [95] of the written submissions:

   “94. Based on the information provided in this submission and the evidence before the Tribunal is our submission that the Applicant meets the criteria of refugee as required by the Act.

95. If you require any further information regarding the Applicant’s claims, please contact the writer, available at [e-mail] or on 88664810.”

[Errors in the original]

1. Amongst orders made for the progress of this matter was an order giving the applicant the opportunity to file any further evidence by way of affidavit.  The applicant had already filed an affidavit accompanying her application to the Court.

2. The Tribunal’s decision was made on 18 August 2016. Given the requirements of s.477(1) of the Act, any application to this Court pursuant to s.476 of the Act, must have been made on, or before, 22 September 2016. In the circumstances therefore that application is not competent.

3. The applicant attempted to make her application on 14 October 2016.  That is, three weeks and one day after that date. That is of sufficient length to require some explanation, or even some attempt at a satisfactory explanation.

4. The grounds of the application to extend time are in the following terms:

   “1. I endured financial hardship

2. It took time to find a suitable Solicitor because I did not have any money to pay for further applications.”

1. Before the Court, when asked if he sought to rely on any evidence by way of affidavit, the applicant’s solicitor advised that he did not.

2. Notwithstanding the lack of evidence, he then proceeded to make the following submissions.  The applicant “endured financial hardship”, her applications to the Department and the Tribunal “cost a lot of money”, she went to “several…solicitors” but could “not afford” their services, given “the prices they gave her”.

3. In any event, the applicant’s affidavit accompanying her application to the Court (which the applicant’s solicitor did not seek to read into evidence) made no reference to any of these assertions.

4. The applicant’s affidavit of 18 January 2017, filed in the Court’s Registry on that date, was also not the subject of any application to be read into evidence. In any event, it also makes no attempt to explain the delay. It is, in fact, for the most part, the applicant’s recitation of her claims before the Tribunal, and for the remainder, references to the dates on which she applied for the protection visa, and subsequent review to the Tribunal.

5. When the Court pointed out that submissions, without any evidentiary basis, could not assist the applicant, that is, the difference between submissions and evidence, the applicant’s solicitor asked that the Court: “… adjourn this matter … to give us time to file an affidavit and your Honour make a decision in Chambers as to the grant of a late application.”

6. I refused the application for the adjournment. The applicant was legally represented from the time of making her application for the extension of time. That is, for a period of about 21 months. The solicitor would, or should, have known that the Court can only proceed on the evidence presented.

7. There was no attempt by the applicant’s solicitor to explain why no evidence by way of affidavit had been filed to address the question of the delay in making the application.  I note that orders were made by the Court on 16 November 2016, that is, almost 20 months earlier, for the filing of evidence by way of affidavit.

8. Even further, it is difficult to see how the Court could proceed to consider “in Chambers”, any affidavit the applicant said she would provide, without giving the Minister the opportunity to make objections, cross-examine the applicant, or any other deponent, and be heard on any matters raised. In short, such matters need to be conducted in open Court.

9. The applicant’s solicitor, contrary to his earlier statement, then stated that he did have an affidavit made by the applicant on 24 June 2018.  The submission was that while the affidavit dealt with the “whole application” (presumably a reference to the proposed substantive application), it also touched “on aspects of her late application”.

10. The affidavit had not been filed with the Court’s Registry.  Nor had a copy been provided to the Minister prior to the hearing of the application to extend time.

11. Having been given the opportunity to read the document, the Minister’s solicitor had no objections to its being filed in Court. However, the Minister objected to its being read into evidence on the basis of a lack of relevance to either the matter of delay, or to a fact in issue arising from the grounds of the proposed substantive application.

12. Any plain reading of the affidavit reveals that the Minister’s objection was well-founded.  The affidavit, as with the affidavit of 18 January 2017, is no more than a recitation of the applicant’s circumstances, and claims to protection.

13. The applicant’s solicitor ultimately agreed that it “appeared” that the affidavit did not “touch on” the matter of delay.  The affidavit was not read into evidence.

Consideration

1. What remains therefore is as follows.  The “delay” in this case is about three weeks. That is not an overly lengthy period.  Nonetheless, it is reasonable to expect that an applicant, with legal representation, would make some realistic effort to provide evidence to address the delay, and the reasons for it.

2. As set out above, in the current case the applicant has provided no evidence in this regard. On that basis, it cannot be said that a satisfactory, or reasonable, explanation has been provided for the failure to comply with s.477(1) of the Act.

The Proposed Substantive Application

1. In any event, of even greater weight, is that the grounds of the proposed substantive application lack such merit as to call for the exercise of discretion, pursuant to s.477(2) of the Act, in the applicant’s favour.

2. The applicant’s proposed substantive application, as amended, is in the following terms:

   “Ground 1:

The Administrative Appeals Tribunal claims that because of minor differences in my statements that I am not telling the truth.

Particulars:

I told the Tribunal that I believe my husband ceased his involvement with the Rhodesian army in 1982. The Tribunal then advised me that Rhodesia gained independence in 1980 and conscripts were no longer required as the war had ceased. Because of this the Tribunal believes I am not truthful.

I want to remind the Tribunal that I experienced the interview to be very stressful and I just made a mistake in recalling the dates. It was an honest mistake and I never had the intention of not being truthful. Throughout the application, I stated the facts as I believe it to have occurred.

The Administrative Appeals Tribunal claims that my claims to have been tied up, tortured, sexualised and verbally assaulted has been fabricated to establish that I have a profile in South Africa because of my marriage to Judge Masuku.

Our family is being torn apart, I am in Australia, my husband is in South Africa and my children in England. There is no reason anyone would split up their family like that just to fabricate a story when we can be together in South Africa if not for these problems, we are facing. We are educated and can maintain a good standard of living in South Africa but for these threats on our lives.

We are targets in South Africa because my husband fought in the Rhodesian white army. By doing this He is seen to have betrayed his own people and this is not something that is viewed lightly in Zimbabwe. When Robert Mugabe came into power all his political enemies had to flee from the country, those who did not get away in time were brutally killed. The white farmers were dispossessed of their land and many of them were killed. Thirty years later the dictator still rules the country because any opposition is met with force.

Although we fled to South Africa it does not mean we are safe because there are Robert Mugabe supporters living in South Africa and Judge Masuku is branded as a traitor and a criminal in their eyes and the onslaught on him and his family will only stop when he is killed.

Ground 2:

The Administrative Appeals Tribunal claims that despite documentary evidence that I am not a genuine refugee.

Particulars:

The Tribunal can accept that my husband joined the Rhodesian white army in 1979 when he was approximately 18 or 19 years old and ceased his involvement in 1980 when the war ceased. The Tribunal Accepts that my husband’s evidence is consistent with country information indicating that young black men were forcibly recruited to the army from about 1978 to 1980 when the war ceased but the Tribunal cannot conceive that our lives are threatened in South Africa and that we genuinely need protection.

Ground 3:

I have been deprived of natural justice because of the negative inferences made by the Administrative Appeals Tribunal.

Particulars:

The Tribunal refuses to look at the situation from my perspective and experiences. The Tribunal has made up its mind that I am not a truthful witness and no matter what I say or whatever evidence I present, it will not make a difference about the view held by the Tribunal.

The fact is that my husband was recruited to the Rhodesian army, he fought in the army against his own people, his own people sees him as a traitor, Robert Mugabe is still in power because of this we will never be safe in South Africa.

Ground 4

The Administrative Appeals Tribunal made an Administrative error in not taking my documentary evidence into account.

Particulars:

The Tribunal stated that in the absence of supporting medical or police documentation establishing the personal and targeted attacks is further indicative of the fact that my claims have been fabricated.  

I acknowledge the fact that I don’t have supporting documentation for all the events but I submitted a police report for 21 October 2010, I submitted various Psychological, Counselling and Medical reports. I also submitted newspaper articles on xenophobic attacks in South Africa. It is clear that these documents have not been taken into account.”

[Errors in the original]

1. The applicant has filed lengthy written submissions in this matter, prepared by her solicitor.  The submissions make no attempt to refer to, let alone explain, the grounds of the proposed substantive application.

2. The written submissions do no more than restate the applicant’s claims to protection. Notwithstanding that they were drafted by a legal practitioner, the written submissions misunderstand the nature of these proceedings.  It is trite to say that this Court can only be concerned, in matters of this type, with judicial, and not merits, review.

3. The written submissions do nothing to indicate jurisdictional error on the part of the Tribunal.  They therefore lacked relevant merit to argue for the extension of time.

4. Before the Court, the applicant’s solicitor “conceded” that proposed grounds two and four did not reveal jurisdictional error in the Tribunal’s decision.  In that sense, and relevantly, I understood the submission to be that they did not raise an arguable case in support of the proposition that time should be extended.  Given the evidence before the Court, I cannot see any reason not to accept this submission. These grounds therefore lack requisite merit, such as to argue for the extension of time.

5. Ground one asserts that the Tribunal found adversely to the applicant’s credit because of: “… minor differences in my statements.” The particulars, again, seek to repeat some of the applicant’s claims to fear harm.

6. The oral submissions in relation to ground one lacked a specific focus on the exact legal error which the applicant sought to press.

7. Various statements by the applicant’s solicitor that the Tribunal “assumed” the applicant was not telling the truth, that her “character” was not taken into account, in that it was “assumed she wasn’t telling the truth”, that “she wasn’t given the benefit of the doubt”, or that she was not given the opportunity to “state her side of the” case, could indicate any number of assertions of jurisdictional error, including bias, or a failure to accord procedural fairness.

8. However, these general, and formulaic, submissions from a legal practitioner, without actual reference to the Tribunal’s analysis and findings, do nothing to indicate any reasonably arguable legal ground of review.  It is not for the Court to take unexplained general assertions from a legal practitioner, and to seek to discern whether they may, possibly, reveal some arguable case.

1. When pressed to explain the grounds, and submissions, the applicant’s solicitor submitted that the legal error asserted in ground one was that the Tribunal “failed to accept” the applicant’s evidence of events in South Africa.

2. The immediate response to this submission is that the Tribunal is not bound to uncritically accept an applicant’s evidence (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1). The Tribunal is required to consider an applicant’s claims, evaluate the evidence, and make findings of fact, including findings on credibility reasonably open to it, and probative of what is before it, and to provide cogent and intelligible reasons for its findings.

3. The Tribunal’s decision record reveals that it has complied with these requirements.  No legal error is indicated by this submission.

4. However, what is also immediately apparent, is that the submissions did not satisfactorily explain what appears, on its face, to be the central complaint in ground one.

5. That is, taken at its highest, that the Tribunal acted unreasonably in making its adverse credibility finding because it relied on “minor differences” in the applicant’s evidence to arrive at this finding.

6. The Minister submitted that the Tribunal did not reject the applicant’s claims solely based on inconsistencies, nor “minor” inconsistencies, in her evidence, as asserted. The Minister referred to the Tribunal’s decision record at [48] to [51] (CB 388 to CB 389).

7. In relation to these paragraphs, the Minister’s written submissions at [49] (also see CB 388 – CB 389 “AAT” decision) note the following findings of the Tribunal:

   “49.1    It was implausible that the applicant and her family would be targeted in South Africa 30 years after the applicant’s husband was involved in the Rhodesian Army.

49.2 The AAT did not accept that 20 years after the applicant’s husband left Zimbabwe he would be considered to be affiliated with white farmers or associate with the MDC or that Mugabe’s associates would pursue him in South Africa.

49.3 The AAT did not accept that the applicant’s husband held a senior position that would attract a profile when he left the army in 1980.

49.4 The AAT found that the applicant’s husband was not of any interest to Mugabe or his associates by the time he left Zimbabwe.”

1. Further, the Minister made reference to the Tribunal’s decision record at [52] to [54] (CB 389 to CB 391). In relation to these paragraphs, the Minister’s written submissions (at [50]) note the following:

   “Further the AAT did not accept that the applicant was subject to xenophobic violence because he was a foreigner. This finding was based on the applicant’s husband having had South African citizenship for over 23 years, being employed in South Africa and owning land (see [52] to [54]).”

2. Finally, the Minister made reference to the Tribunal’s decision record at [55] to [59] (CB 391 to 393), which noted that aspects of the applicant’s claims were inconsistent.

3. The Tribunal found inconsistencies in the applicant’s evidence itself, as between her evidence and that of her husband, and inconsistencies as between her evidence with independent evidence which brought the credibility of her evidence into question ([37] at CB 385).

4. For example, the applicant claimed that she and her family were targeted in South Africa because of her husband’s background. The Tribunal found inconsistencies as between her evidence and her husband’s evidence as to some aspects of his background, including his involvement in the “Rhodesian white army” ([41] at CB 386 – CB 387). This plainly was part of the background that the applicant otherwise said made him (and therefore his family) a target. This cannot be described as “minor”, given its relationship to the harm feared. (See also [45] at CB 387).

5. Further, the applicant claimed that she, her husband and son had been subject to attacks in South Africa and suffered harm. The applicant’s initial claim was that one such attack occurred in July 2008. Yet she later changed this evidence to say that this “attack” was in fact a “break in” (see [55] at CB 391). (See also [56] at CB 391 – CB 392).

6. None of this evidence could be said to be “minor”. Whether she was the subject of a targeted attack or the subject of a random “break in” is relevant to her claim to fear harm.

7. The Minister argued, therefore, that the applicant’s claims were not rejected solely on the basis of “minor inconsistencies” in her claims and evidence. The Minister also submitted that the findings were open to the Tribunal on the evidence and material before it.

8. I agree with the Minister that, contrary to the applicant’s assertions now, it cannot be said that the rejection of the truthfulness of some of the applicant’s claims was based on “minor inconsistencies.” 

9. The Tribunal relied on a range of factors, which went beyond inconsistencies in the applicant’s evidence. Nor did the applicant satisfactorily explain before the Court how the inconsistencies in her evidence could simply be described as “minor”. In all, the applicant’s ground lacks relevant merit to argue for extension of time.

10. Ground three of the proposed substantive application asserts that the Tribunal “deprived” the applicant of natural justice because of “negative inferences”. These are explained in particulars to be that the Tribunal refused “to look at the situation from [the applicant’s] perspective and experiences.” Possibly ground three may also be an attempt to allege bias.

11. The Minister submitted that the “allegations” made by this ground were unclear. The Minister understood ground three to either allege that the Tribunal did not consider the evidence, or that the Tribunal was biased.

12. In relation to the Tribunal’s consideration of the evidence, the Minister submitted that all relevant evidence was considered.

13. In particular, the Minister highlighted the Tribunal’s decision record at [18] to [21] (CB 382), which noted the documents provided to the delegate. Of these documents, the Tribunal had regard to the police report ([66] at CB 395), the medical assessment and psychological assessment ([71] CB 396), and the newspaper reports ([53] of CB 390 to CB 391). The Tribunal also had regard to the applicant’s representative’s detailed submission ([25] to [32] of CB 383 to CB 384), and noted a further two psychologists’ reports, and a text message submitted to the Tribunal ([33] to [34] of CB 384 to CB 385).

14. In relation to other documents before the Tribunal, the Minister’s written submissions at [59] makes the following point:

    “The documents otherwise referred to the applicant’s employment, education, identity and house ownership, broadly speaking. There is no suggestion that these were in any way relevant to her claims, such that they needed to be specifically considered by the AAT.”

15. In relation to the issue of bias, the Minister argued in written submissions that nothing in the Tribunal’s decision record exhibits actual, or apprehended bias, and therefore, the allegation in the ground has no merit.

16. At the conclusion of the applicant’s submissions before the Court, the applicant’s solicitor embarked on a lengthy discourse which, in essence, was a mixture of grievance with the Tribunal’s findings, and submissions, and/or “evidence” from the bar table about “racial vilification” of “foreigners” in South Africa.

17. It is to be noted that one of the applicant’s claims before the Tribunal, was that she suffered, and would suffer harm, because her husband, and by extension her son, were regarded as Zimbabweans in South Africa.

18. The applicant’s solicitor was unable to explain how his submissions in relation to this claim revealed, or relevantly could reveal, jurisdictional error in the Tribunal’s decision.  Again, these submissions were a poorly concealed attempt at seeking impermissible merits review.  They did not indicate jurisdictional error in the Tribunal’s decision.

19. Ultimately the applicant’s solicitor sought to draw attention to the Tribunal’s decision record at [37] (CB 385).  That paragraph is in the following terms:

    “Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of her experiences in South Africa. The applicant was advised at the commencement of the hearing and throughout the hearing that the Tribunal is separate and independent from the Department. The applicant was also advised that although the delegate accepted many of her claims, the Tribunal may reach a different conclusion on the evidence before it. As discussed with the applicant during the hearing, the Tribunal considers that despite comments to the delegate to the contrary, there are inconsistencies in her claims and evidence, and various aspects of her claims are not credible and inconsistent with independent evidence. The Tribunal has reached the conclusion that although some aspects of the applicant’s claims are truthful, including that her husband was in the Rhodesian white army for a short period of time in the late 1970s and she has been the victim of possibly two or three random crimes, her claims to have been targeted, sought and harmed during various specific incidents which resulted in her being tied up, tortured, sexualised and verbally assaulted have been fabricated in an attempt to establish that she has a profile in South Africa as a result of her marriage to Judge Masuku. The Tribunal’s reasons for reaching these conclusions and its consideration of the evidence, including a discussion of the applicant’s oral evidence to the Department and the Tribunal, the written submissions and relevant country information, are discussed below.”

20. At best the submission appeared to be: “…we question the reasonableness of the Tribunal there.”

21. In submissions at the hearing, the Minister noted that [37] (CB 385) of the Tribunal’s decision record is merely a summary of the Tribunal’s findings, and therefore ought not to be read in isolation. The Minister referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, for the proposition that the Tribunal must ensure that the dispositive issues for review are made clear to the applicant. Paragraph 37 of the Tribunal’s decision record satisfied this requirement, and did not indicate that a negative inference was drawn by the Tribunal as contended by the applicant’s submissions before the Court.

22. The Minister also argued in submissions, that the Tribunal did not deny that xenophobic attacks occurred in South Africa, but rather, simply, did not accept that the applicant’s husband fell within a category of Zimbabweans who have been harmed in xenophobic violence ([53] at CB 390 to CB 391). This finding was made with extensive, and comprehensive, regard to the country information. Therefore, there was no indication that a negative inference was drawn by the Tribunal in the way suggested by the applicant now.

23. In short, at [37] (CB 385) the Tribunal sought to make clear that it had raised (“discussed”) with the applicant at the Tribunal hearing, that contrary to the delegate (who accepted the credibility of the applicant’s claims), the Tribunal may come to a different view.  Particularly in relation to the issue of the applicant’s husband, and xenophobic violence in South Africa. This was, as the Tribunal noted, because of inconsistencies in her evidence. Ground three as stated does not provide any reasonable argument to support the extension of time.

24. In relation to bias, it is by now trite to say that bias is a very serious allegation to make against an administrative decision maker. For this reason, it must be clearly made and distinctly proven (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1, Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446). It is rare that such an allegation can be made out with reference to the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 668, at [38]).

25. In the current case, the applicant’s ground, and submissions, do not clearly assert bias. Nor is there any indication of bias on the part of the Tribunal apparent on the evidence before the Court. This possible suggestion in the applicant’s ground therefore lacks merit such as to argue for the extension of time.

26. In all, therefore, this complaint, as expressed in submissions, also does not rise above an expression of grievance with the Tribunal’s findings.  In short, it, again, seeks impermissible merits review.

Conclusion

1. The applicant, who was legally represented, has not provided any satisfactory explanation, based on any evidence, for the delay in making her substantive application before the Court.  Even further, there is no merit in the grounds of the proposed substantive application, or her submissions, both written and oral, such as to argue for an extension of time.  Therefore, the application to extend time should be refused.  I will make the appropriate order. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  29 January 2019