DJR16 v Minister for Immigration

[2018] FCCA 1102

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1102

Catchwords:

MIGRATION – Application to extend time for applying for judicial review of decision made by the Refugee Review Tribunal – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476, 477

Cases cited:

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: DJR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3113 of 2016

Judgment of: Judge Manousaridis

Hearing date: 19 April 2018

Date of Last Submission: 19 April 2018

Delivered at: Sydney

Delivered on: 4 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the Respondents: Mr A Fisher of HWL Ebsworth Lawyers

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act in relation to the decision made by the Refugee Review Tribunal on 16 April 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3113 of 2016

DJR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Refugee Review Tribunal (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 16 April 2013, but the applicant did not file his application with this Court until 11 November 2016.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [1] [2013] FCA 1284 at [47]-[48]

   (b)    Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Explanation for Delay

1. In an affidavit sworn on 10 November 2016 accompanying his application, the applicant gave the following explanation for his delay (errors in original):

   I’ve been with a lawyer when i went to the RRT and he didn’t tell me about make an appeal to the Federal Court and they file went to the minister’s office instead of goes to the Federal Court.

2. This explanation must be assessed by reference to the following evidence:

   a)By letter dated 13 May 2013 to the Minister for Immigration and Citizenship, the applicant’s then legal representative requested Ministerial intervention.[6]

   b)By letter dated 7 December 2013 from the Department of Immigration and Border Protection (Department) to the applicant’s legal representative, the legal representative was informed that the Assistant Minister for Immigration and Border Protection had personally considered the applicant’s case and decided it would not be in the public interest to intervene. The letter then noted that the Department’s records indicated that the applicant’s bridging visa was due to expire on 6 January 2014, and the applicant was expected to leave Australia as soon as practicable.

   c)By letter dated 24 October 2016 the Department provided to a different legal representative the applicant had retained a letter dated 24 October 2016 addressed to the applicant from the Department stating that the Minister had decided it would not be in the public interest to intervene. The letter further stated that it was expected the applicant would depart Australia as soon as practicable.

   [6] CB317-318

3. At the hearing before me the applicant, who is not legally represented, said that none of the lawyers he had retained had advised him of his right to apply to this Court for judicial review of the Tribunal’s decision. In answer to my question about how he found out about applying to this Court for judicial review, the applicant said he made inquiries of other persons after he became aware that he was required to leave Australia. The applicant, however, said he did not make any inquiries after he became aware of the Department’s letter of 7 December 2013. He said he had received advice from his lawyer that he could apply twice for Ministerial intervention. The applicant also informed me that he was required to attend a medical examination. He said that indicated to him that his application to the Minister was being favourably received. The applicant was unable to tell me when the examination took place. When I asked the applicant whether he had any documents in relation to the medical examination he attended, he said he had an email which was at his home.

4. The applicant made these statements from the bar table. I informed Mr Fisher, who appeared for the Minister, that I proposed to treat the statements the applicant made as if they were made on oath and give them such weight to which they may be entitled bearing in mind that the applicant was not cross-examined. Even on this assumption, however, I am not bound to accept the truth of the applicant’s statements if what they assert is not credible;[7] and, in my opinion, what the applicant has stated is not credible.

   [7] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586

5. Even if it were true the applicant’s lawyer, who by letter dated 13 May 2013, applied for Ministerial intervention on behalf of the applicant, did not inform the applicant he could to apply to this Court for judicial review, the applicant accepts that he became aware of the letter from the Department dated 7 December 2013 that the Minister had decided not to intervene. That letter stated the applicant was required to leave Australia as soon as practicable. It is inherently improbable that the applicant would not at that stage have made the enquiries which he says he made almost three years later when the applicant’s second application for Ministerial intervention was refused. This inherent improbability is not lessened by the applicant’s statement that he had been advised that he could make two applications for Ministerial intervention. Had the applicant received such advice, it is reasonable to expect he would have again applied for such intervention before the date by which the Department’s letter dated 7 December 2013 informed the applicant he should make arrangements to leave Australia. The letter by which the applicant made a second request for Ministerial intervention is not in evidence; but given the letter by which the applicant was informed the Minister had decided not to intervene was dated 24 October 2016, it cannot but be inferred that the applicant again applied for Ministerial intervention many months, if not years, after the date by which the Department’s letter dated 7 Department informed the applicant he should make arrangements to leave Australia.

6. Further, in the absence of evidence of when the applicant was required to permit himself to be examined medically, or the circumstances in which he was required to be examined, I can give no weight to the applicant’s statement that he believed that his application was being favourably received. The examination may have taken place before the applicant applied for Ministerial intervention for a second time, which would mean there was no application that the applicant could have believed was being favourably considered by anyone.

7. For these reasons I am not satisfied the applicant has provided a reasonable explanation for not having applied to this Court within the time prescribed by s.477(1) of the Act.

Merits of claim

1. I next turn to the merits of the grounds of the application for judicial review, assuming an order extending time is granted.

The applicant’s claims for protection

1. The applicant’s claims for protection were first set out in a statutory declaration dated 14 December 2011 that accompanied his Protection visa application. [8] The applicant there claimed as follows:

   [8] CB38-41

   a)The applicant was born in Cairo into a Coptic Christian family.

   b)At secondary school the applicant was forced to attend Islamic religion classes, as a result of which he learnt a lot about Islam. He asked questions of his teacher, but his teacher mocked him, stating the applicant had no right to ask anything.

   c)When the applicant joined the university he decided to study Islam. In one of his subjects the applicant made an inquiry of the course coordinator about the Islamic law of trade and, because the applicant disagreed about what he was told, the co-ordinator failed the applicant in his law subject.[9]

   d)While the applicant was at university he was “reasonable” (by which I assumed the applicant meant “responsible”) for teaching the “church servants” about Islam, and how to answer Muslims in debate, or if they were asked any question about Islam by Sunday school kids.[10]

   e)In early March 2008 the applicant learned that one of the Sunday school boys wanted to convert to Islam. The applicant told the student that “Islam is a violent cult”, warned him about the consequences of converting, and gave him a play called “I was blind and now I see” telling him “don’t let anyone get hold of this or you will get in troubles”.[11] The play “I was blind and now I see” explains how “Muslim trap young people”.[12]

   f)After the applicant finished university he worked at a company as a website developer. One of the workers (Mr A) always spoke about Islam, forcing his views on the applicant and another co-worker (Ms M), and sending emails to the applicant, Ms M and other co-workers. Although the applicant avoided conflict with Mr A, on one day he observed Ms M crying. She told the applicant Mr A was harassing her, stating that her Christian faith was wrong and that she should convert to Islam. The applicant confronted Mr A by answering the questions Mr A had put to Ms M and, after Mr A had no answer, the applicant told Mr A he had to “stop open the matter anymore” and to stop sending emails.[13]

   g)After Mr A “lost the debate”, he falsely alleged to the applicant’s employer that the applicant used the Internet to watch pornography and search about Islam.[14] The applicant received a written warning and was punished by not being paid for ten days’ work.[15]

   h)The applicant “got sick” of the way Copts were treated in Egypt and so he decided to leave Egypt. He obtained a visa to Australia.[16]

   i)In early January 2008 the applicant had another argument with Mr A, and the applicant was dismissed from his employment.[17] On his way out of the building the applicant met Mr A and some of Mr A’s friends “coming out of the afternoon prayers from the mosque next door”. Mr A came close to the applicant and spat in his face, calling him “an infidel and bad names”. One of Mr A’s friends pushed the applicant to the ground, after which Mr A and his friends left.[18] The applicant left Egypt and came to study in Australia to escape persecution. When he arrived he joined the Coptic Church, participated in church services, and did some work for a Coptic news publication (Coptic Magazine).[19] The applicant also joined the Australian Coptic Movement after the Nagahamdemy attack in 2010.[20]

   j)On 12 July 2009 the applicant returned to Egypt to visit his family. Two weeks after he arrived in Egypt the applicant went to church with his family. On his way back from the church, in front of his home, the applicant was stopped by a group of Muslims, one of whom he recognised as a member of the local council who had become part of the Muslim Brotherhood (Mr AI). Mr AI approached the applicant saying “I hated your CD “I was blind and now I see” you think you know more than we know about Islam”. Mr AI was carrying a file containing articles written by the applicant critical of Islam. The applicant was badly assaulted and required a hospital stay of five days.[21]

   k)The applicant returned to Australia. He was depressed and unable to forget the incident, but he began to hope “for the future of Copts after the revolution in Egypt”. The revolution, however, seemed to fuel the hatred Muslims feel towards the Copts. The Muslim Brotherhood and radical Salafists appeared to take the majority of seats in the first round of Egypt’s elections they have the introduction of sharia law on their agenda.[22]

   l)The applicant fears that if he returns to Egypt he will be attacked by the Muslim Brotherhood and radical Salafists because of his views about Islam and his church activities in Egypt and Australia.[23]

   [9] CB38, [6]

   [10] CB38, [7]

   [11] CB39, [8]

   [12] CB39, [9]

   [13] CB39, [13]

   [14] CB39, [14]

   [15] CB39, [15]

   [16] CB40, [16]

   [17] CB40, [17]

   [18] CB40, [18]

   [19] CB40, [20]

   [20] CB40, [21]

   [21] CB40-41, [23], [24]

   [22] CB41, [25], [26]

   [23] CB41, [27]

2. On 29 February 2012 the applicant’s migration agent provided the following additional information: [24] 

   a)A letter dated 8 February 2012 from a parish priest of a Coptic Orthodox church stating that the applicant became a member of that congregation three years ago; and that he was a valuable helper of the congregation engaged in many church activities including helping in the Coptic Magazine. The letter also attested to the applicant’s good character.

   b)A letter dated 7 February 2012 written by another parish priest stating that the applicant had worked as a volunteer taking part in the editing of the Coptic Magazine.

   c)A letter from the priest and steward of a church Cairo stating that the applicant served in that church from 1999 until 2008, and various certificates issued by the church attesting to services performed by the applicant.

   d)A psychological evaluation of the applicant in which the applicant was diagnosed as suffering from depression, anxiety, stress, and post-traumatic stress disorder.

   e)A submission dated 11 May 2012 from the applicant’s migration agent stating that the applicant had been the target of selective harassment in Egypt because of his religious activities and his questioning of the Islamic religion.

   [24] CB294, [35]

Before the Tribunal

1. The applicant appeared before the Tribunal on 28 February 2013 to give evidence and present arguments. The applicant’s migration agent was also present at the hearing. Questions the Tribunal asked, and the answers the applicant gave, are recorded in the Tribunal’s reasons for decision. Given the matters the applicant raised at the hearing before me, it would be appropriate I set out here some of the matters the Tribunal put to the applicant and the Tribunal’s observations about the applicant’s responses to its questions:

   a)The Tribunal asked the applicant whether the Coptic Church had banned the play the applicant claimed to have distributed to the student.[25] The Tribunal noted the “applicant avoided answering the question directly several times, finally saying that it was available on the internet, so how could the church stop people from viewing or downloading it”.[26]

   b)The applicant said he gave to the student “a CD rom computer of the play “I was blind and now I see””; that the student to whom the applicant had provided the play was pressured into giving the CD to the Islamists and revealing to them that the applicant had given it to the student; and the Islamists then started pressuring the applicant resulting in their beating the applicant after church.[27] The Tribunal put to the applicant that he did not mention this beating in his statutory declaration, in response to which the applicant said he had written his claims briefly.[28] The Tribunal also put to the applicant that the psychologist’s report did not record the applicant having informed him of this beating.[29]

   c)The Tribunal put to the applicant there appeared to be a contradiction between the psychologist’s report and the applicant’s evidence about the level of his activity with the Coptic Church in Australia as supported by the letters from the church.[30]

   d)The Tribunal asked the applicant why he did not apply for protection as soon as he arrived in Australia in 2008 if he was concerned about his future. The applicant said he thought the incident was over, and it would not occur again.[31]

   e)The Tribunal put to the applicant that the medical certificate on which he relied to support his claim that he was assaulted in 2009 referred to a degenerative disease, and did not mention the existence of any injuries consistent with a beating.[32]

   f)The Tribunal asked the applicant why he had not applied for protection when he returned to Australia in 2009. The applicant said that his psychological condition was “very bad” and he just wanted to continue with his studies, and that if he stayed away it could all be forgotten, or that “they” would go to gaol, but then the revolution happened.[33]

   g)The Tribunal put to the applicant that he did not include in his statutory declaration or in any other document he provided in support of his application for protection a claim that his family had been threatened, yet he made that claim at his interview before the delegate; and that before the Tribunal he gave different dates about when the threats occurred from the dates he gave to the delegate.[34]

   h)The Tribunal put to the applicant that the evidence he gave to the Tribunal about the level of his church activities in Australia – that he was involved with Coptic Magazine to the extent of interpreting articles and choosing topics for debate – was inconsistent with evidence the applicant previously gave which was that he only did data entry.[35]

   [25] CB296, [50]

   [26] CB296, 50]

   [27] CB296-297, [50]-[52]

   [28] CB297, [53]

   [29] CB297, [53]

   [30] CB297, [54]

   [31] CB297, [55]

   [32] CB298, [57]

   [33] CB299, [61]

   [34] CB300, [64]

   [35] CB300, [65]

1. Towards the end of the hearing the Tribunal summarised “the various credibility concerns that had been identified and put to [the applicant] throughout the hearing”. The Tribunal gave the applicant time to consult with his adviser; and when the hearing resumed the applicant said he would like the adviser to respond in writing. The Tribunal gave the applicant two weeks to do so.[36] The applicant’s adviser provided submissions by letter dated 14 March 2013 in which he made the following submissions:[37]

   a)In relation to the apparent inconsistency between the applicant’s symptoms as described in the psychologist’s report and his claimed activities in the church, it was submitted that his activities were reduced and his role was less significant, but the applicant maintained his connection with the church because of its importance in his life despite his psychological state.

   b)In relation to the omission of details of the claimed 2008 assault, it was stated that the applicant was unable to include all relevant information in his statement because of its length and complexity.

   c)In relation to the concerns about the genuineness of the applicant’s claimed fear of persecution as a result of his decision to return to Egypt in 2009 and his delay applying for protection, it was submitted that the applicant felt obliged to return because of his father’s illness, he hoped the situation would have improved, but his fear intensified after the revolution. He delayed his protection application as he hoped to obtain residence through a different avenue as he feared the authorities would become aware of an application for protection and this would cause problems for his family.

   [36] CB300, [66]

   [37] CB300, [67]-[69]

The Tribunal’s Reasons

1. The Tribunal considered the applicant’s evidence to be “most unsatisfactory in a number of respects”.

   a)The applicant omitted important details and major claims from his protection visa application,[38] and it did not accept the applicant’s explanations for the omissions.[39]

   b)The Tribunal found the applicant gave the impression that he was prepared to tailor his evidence from time to time if he felt that served his interest. The Tribunal referred to the applicant’s response to the Tribunal putting to the applicant an inconsistency between the applicant’s claimed psychological state and his evidence about his activities. The Tribunal found “the applicant sought to minimise his activities in the context of his psychological condition, yet later, when arguing that he would have problems on return to Egypt because of his activities in Australia, he sought to portray a higher level of activity”.[40]

   c)The applicant did not apply for protection in 2008 when he first arrived in Australia claiming that he feared persecution in Egypt; he returned to Egypt in June 2009; and again failed to apply for protection when he returned to Australia in 2009 despite claiming to have experienced further persecution during that 2009 visit. The Tribunal concluded the applicant’s applying for protection only in January 2012 was inconsistent with the applicant having a genuine fear of persecution.[41]

   [38] CB307, [79

   [39] CB308, [80], [81]

   [40] CB308, [83]

   [41] CB308-310, [83]-[90]

2. The Tribunal did not accept the applicant was targeted by a particular group of Islamists because of any activities in which he had been engaged which had given him an anti-Islamic profile.[42]

   a)The applicant did not have any ongoing difficulties or consequences from the events he claimed to have experienced as his workplace, and there was no reason to suppose the applicant would return to his previous employment if returned to Egypt, and therefore that he would encounter ongoing difficulties amounting to persecution as a result of those events.[43]

   b)The Tribunal did not accept the claimed 2008 and 2009 assaults occurred. Had the events occurred, the applicant would have applied for protection in 2008 or 2009 and would not have delayed until 2012 to apply for protection.[44] Further, the applicant did not mention the 2008 assault in his protection visa application;[45] and the applicant’s evidence in support of the 2009 assault was unsatisfactory because it contained significant inconsistencies, and was implausible in important respects.[46]  The Tribunal referred, among other things, to the applicant’s not having mentioned while giving evidence before the Tribunal that when he confronted the applicant Mr AI had with him papers written by the applicant one year previously and when that omission was put to the applicant the applicant said that he did not mean to say Mr AI had the papers with him, but that they were at Mr AI’s home.[47] The Tribunal also found that the medical certificate submitted by the applicant as evidence of the claimed assault in 2009 refers to a degenerative disease as the reason for the applicant’s medical treatment.[48]

   c)The Tribunal did not accept the applicant’s parents have been threatened. The applicant did not mention any threats in his application for protection that he lodged in December 2011, even though the applicant claimed the threats occurred in February 2008 or 2009. Further, if the applicant’s parents had been threatened, that would have contradicted his evidence that he was not worried about returning to Egypt in 2009.[49]

   [42] CB310, [91]

   [43] CB310, [92]

   [44] CB310, [94]

   [45] CB310, [95]

   [46] CB310, [96]

   [47] CB310-311, [97]

   [48] CB311, [99]

   [49] CB311, [100]

3. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution as a result of his activities in Australia. That is so even though the Tribunal accepted the applicant had a role in the production of the Coptic Magazine and that he was involved in editing articles. Because the applicant provided no evidence, even though he was invited to do so, that his involvement with the newsletter would be known to Egyptian authorities, and because the Tribunal found the Coptic Church takes a conservative approach to sectarian issues and tries to avoid conflict with the Muslim community, the Tribunal did not accept that the applicant is at risk of persecution as a consequence of his involvement with the Coptic Magazine.[50] The Tribunal did not find, and the applicant did not claim, that he would face persecution on return to Egypt because of any activities in which he engaged as a member of the Australian Coptic Movement.[51]

   [50] CB312, [102]

   [51] CB312, [103]

4. The Tribunal finally considered country information concerning Copts in Egypt. The Tribunal accepted that, particularly in rural areas, local disputes from time to time result in sectarian violence in which Christians may be attacked and killed, and the evidence indicates they may be unable to obtain effective protection from the authorities. The Tribunal noted, however, that although there can be no guarantee the applicant will not be involved in an incident of sectarian violence, the Refugees Convention does not protect an applicant for refugee status against any prospect of harm, however small or remote. The Tribunal was satisfied the attacks on Christians in Egypt occur sufficiently infrequently that the possibility of the applicant being the victim of one is remote.[52]

   [52] CB314, [109]

5. Based on these findings, the Tribunal concluded it did not accept there are any particular circumstances relating to the applicant that would put him at risk of experiencing harm amounting to persecution if he returned to Egypt,[53] and thus the criteria prescribed by s.36(2)(a) of the Act are not satisfied.[54] The Tribunal also concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk the applicant will suffer significant harm and, for that reason, the applicant did not satisfy the criteria prescribed by s.36(2)(aa) of the Act.

   [53] CB315, [110]

   [54] CB315, [111]

Grounds of Application

1. The grounds of application are as follows (errors in original):

   1. My Case has Valid Points, Which needs to be reviewed and examined.

   2. a numbers of other Critical Points and evedinces Which i wish to submit to the Court.

   3. The minister’s decision was in error in law.

2. Considered alone, these grounds disclose no arguable case of jurisdictional error. At the hearing before me, however, the applicant made a number of submissions.

3. First, the applicant submitted the Tribunal’s decision was based on the Tribunal member’s personal opinion. By that I take the applicant to submit that the Tribunal arrived at its decision without regard or proper regard to the material before it, and without sufficient reasoning to justify the conclusions the Tribunal reached. There is no merit in this submission. From my rather extensive summary of the applicant’s claims, and the Tribunal’s consideration of those claims, there is no doubt the Tribunal considered the applicant’s claims and, for reasons that were reasonably open to it, the Tribunal affirmed the delegate’s decision.

4. Second, the applicant submitted the Tribunal was trying to get the applicant to make mistakes. The applicant has not put into evidence the transcript of the hearing before the Tribunal, or the audio recording of the hearing before the Tribunal. The only evidence that is before me about what occurred at the hearing before the Tribunal is the Tribunal’s reasons for decision. I have set out some of the matters the Tribunal in its reasons for decision records occurred at the hearing. This reveals that the Tribunal did put to the applicant matters which the Tribunal considered were relevant to the Tribunal’s assessment of the applicant’s credibility. There is nothing in that material that could conceivably suggest an intention by the Tribunal to induce mistakes by the applicant. As I have already noted, towards the end of the hearing before it the Tribunal informed the applicant “the various credibility concerns that had been identified and put to [the applicant] throughout the hearing”. The applicant was given an opportunity to respond to those concerns, and he elected to take advantage of that opportunity by asking that he do so in a written submission to be prepared by the applicant’s agent. The Tribunal agreed to that request, and the applicant’s agent did provide additional submissions. This part of the applicant’s submission, therefore, also lacks merit.

5. In the course of submitting the Tribunal was trying to get the applicant to make mistakes, the applicant said that he told the Tribunal member he could not concentrate very well. That is not reflected in the Tribunal’s reasons; and is not mentioned in the submissions the applicant’s migration agent provided to the Tribunal after the hearing. This part of the applicant’s submissions to me discloses no arguable case of jurisdictional error.

6. Third, the applicant said the Tribunal had doubts about the facts. I take that to be a reference both to the Tribunal asking questions of the applicant during the hearing which may have manifested doubt in the mind of the Tribunal, and to the Tribunal’s not accepting the factual assertions underpinning the applicant’s claims. It may be accepted that the Tribunal’s putting matters to the applicant which to the Tribunal suggested inconsistencies, and the Tribunal’s putting to the applicant that it had concerns about the applicant’s credibility, would manifest doubt in the mind of the Tribunal. That, however, discloses no arguable case of jurisdictional error. The Tribunal was not obliged to accept uncritically the applicant’s claims. Further, by manifesting its doubts to the applicant the Tribunal gave the applicant an opportunity to address those doubts by argument and evidence. This part of the applicant’s submissions also discloses no arguable case of jurisdictional error.

7. In the course of the applicant submitting the Tribunal had doubts about his claims, the applicant specifically referred to the psychological evidence the applicant produced to the Tribunal. The applicant submitted to me he could not understand how the Tribunal could have doubted that evidence. That, too, discloses no arguable case of jurisdictional error. The basis of the doubt the Tribunal expressed was what the Tribunal considered to be inconsistencies between what was recorded in the psychologist report and the applicant’s claimed level of activities. There is no arguable case to suggest it was not reasonably open to the Tribunal to find that there were inconsistencies and that those inconsistencies were relevant to the assessment of at least that part of the applicant’s claims that relied on his claimed activities in the Coptic Church in Australia.

8. Fourth, the applicant relied on his having undergone a medical examination. There is no doubt that whatever medical examination the applicant undertook occurred after the Tribunal’s decision and, for that reason alone, cannot be regarded as relevant to whether the Tribunal made any jurisdictional error.

9. Fifth, the applicant said that after the case had finished he felt from the Tribunal member’s expression that she did not believe the applicant, and he was unable to concentrate. I take this to be a submission to the effect that during the hearing the applicant was unable to concentrate because the Tribunal member made facial expressions that indicated to the applicant that the Tribunal member doubted the applicant, and the applicant was unable to concentrate. This, too, discloses no arguable case of jurisdictional error. That the Tribunal expressed doubt does not by itself manifest jurisdictional error. And there is nothing to suggest the applicant stated to the Tribunal he had any difficulty concentrating.

10. Finally, the applicant said his case should be reconsidered from a compassionate point of view. The applicant referred to his having been in Australia for ten years, and that this gave rise to compassionate reasons why he should not be compelled to return to Egypt. The applicant also referred to the time that passed between the first and second Ministerial decisions not to intervene. That the applicant has been in Australia for ten years, and that he may face difficulties if he is required to return to Egypt, are not relevant to whether the Tribunal made a jurisdictional error. Nor is it reasonably arguable that any compassion that may arise out of the applicant’s particular circumstances was relevant to the task the Tribunal was required to perform when reviewing the delegate’s decision not to grant the applicant a protection visa.

Conclusion and disposition

1. Given the length of the applicant’s delay, the absence of any reasonable explanation for the delay, and the absence of any merit in the grounds stated in the application and in the matters submitted to me by the applicant, I am not satisfied it is necessary in the interests of justice that I should make an order under s.477(2) of the Act that the time prescribed by s.477(1) of the Act be extended. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 May 2018