Erp17 v Minister for Immigration

[2019] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERP17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2054

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a Protection visa – applicant claimed to be a citizen of the Ivory Coast and to fear harm there and that the Ghanaian passport on which he had arrived in Australia was a false passport – Administrative Appeals Tribunal held that the applicant was a citizen of Ghana and that the passport was the applicant’s true Ghanaian passport correctly identifying him and giving his nationality as Ghanaian – applicant needed an 11 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477, 487ZJ

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
SZFWB v Minister for Immigration & Citizenship [2007] FCA 167
SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243

Applicant: ERP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3254 of 2017

Judgment of: Judge Dowdy

Hearing date: 1 August 2018

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr J. Lambe

Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application for an extension of time filed in this Court on 20 October 2017 under s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3254 of 2017

ERP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding claims to be a male citizen of Cote d’Ivoire (also known as the Ivory Coast) of Dida ethnicity aged 42 years, having been born on 21 January 1977.  

2. By Application filed in this Court on 20 October 2017, he seeks: 

   a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 11 days outside the 35 day time limit prescribed by s.477(1) to make his substantive application to this Court; and

   b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 4 September 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 18 December 2015 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background and Claims to Protection

1. The Applicant arrived in Australia on a Business Visitor visa (Business visa) granted offshore on 24 November 2014 in the name of ‘Mr Charles Basic’ (i.e. a pseudonym) and holding a passport in that name issued by the Republic of Ghana at its capital city of Accra on 11 June 2014 giving a birth date of 2 March 1980.

2. On 11 March 2015 the Applicant applied for the Protection visa and his claims for protection were ultimately set out in:

   a)his Protection visa application form;

   b)his Statutory Declaration declared on 3 July 2015 (Statutory Declaration); and

   c)his solicitor / migration agent’s submission dated 14 August 2015 (solicitor’s submission).

3. First, the Applicant claimed that in truth he was one ‘Richard Kayman’ (i.e. a pseudonym), a citizen of the Ivory Coast, and not ‘Charles Basic’, whose name appeared on the Ghanaian passport and the Business visa, which documents had been provided to him in return for a payment of 2,000 francs. The Applicant claimed that he did not know Mr Charles Basic, nor did he know how the Ghanaian passport or the Business visa had been originally obtained.

4. Second, in short the Applicant claimed to fear harm from the Ivory Coast government because he was a political supporter of Laurent Gbagbo, the former President of the Ivory Coast for whom he had campaigned in the presidential elections in 2010. For present purposes, the Applicant’s claims to protection may be summarised as follows from the solicitor’s submission provided to the Delegate after his interview with the Applicant on 13 July 2015:

   1.Summary of the Applicant's evidence

   The Applicant is citizen of Cote d'Ivoire who arrived in Australia on a Business Visitor visa in the name of [Charles Basic] on 24 November 2014. The Applicant is married and has two children in Cote d'Ivoire.

   During the campaign for the 2010 presidential elections in Cote d'Ivoire, the Applicant was part of the organisational committee of Mr Dogo Djereke Raphael, a candidate for the Ivorian Popular Front (FPI). The Applicant was not a member of the FPI, but knew Mr Raphael well and was part of the same ethnic group. The Applicant's responsibilities included liaising with village chiefs and the presidents of youth groups, door-knocking and organising public meetings. On several occasions, the Applicant was attacked by supporters of Mr Alassane Ouattara in his neighbourhood in Abidjan; he was also attacked everywhere where he was campaigning for the FPI. The Applicant was beaten in the street, including with iron bars and pieces of wood.

   When conflict broke out following the disputed results of the election, supporters of Mr Ouattara, who had gained control of Abidjan, arrested and killed supporters of Mr Gbagbo. Supporters of Mr Ouattara indicted that the Applicant's house belonged to a supporter of Mr Gbagbo, and the Applicant was beaten, taken away and imprisoned at the Maison de Correction d'Abidjan on 6 April 2011, without trial or due process. When the MACA was attacked, on 11 April 2011, the Applicant and other prisoners escaped. The Applicant did not return to his family home, as it was too dangerous to do so, but left Abidjan the following day, travelling to Bingerville, where he boarded a boat and travelled by boat and on foot into Ghana. In Ghana, the Applicant lived in hiding, as supporters of Mr Ouattara were crossing the border to capture Ivorian refugees and harm them or take them prisoner.

   With the assistance of acquaintances in Ghana, the Applicant contacted people who provided him with a Ghanaian passport in the name of [Charles Basic] and a Business Visitor visa to Australia. The Applicant paid 2000 Ghanaian Cedi to those persons and provided them with a photo of himself, but had no involvement in the visa application process.

   The Applicant fears that if he were to return to Cote d'Ivoire, he would be harmed by armed groups supporting Mr Ouattara, and which operate with the support or permission of the government. The Applicant fears this persecution in all parts of Cote d'Ivoire.

   2.Summary of the Applicant's claims

   We submit that if the Applicant is returned to Cote d'Ivoire there is a real chance that he will be seriously harmed on account of his actual or imputed political opinion as a supporter of the former president of Cote d'Ivoire, Laurent Gbagbo, and a former campaign organiser for Dogo Djereke Raphael, a candidate for the Front Populaire Ivoirien.

5. At some time prior to the decision of the Delegate the Applicant submitted a document claiming to be an Ivory Coast identity card, in the name of Richard Kayman (identity card).

6. By letter dated 29 June 2015 the Department of the Minister (Department) gave a Notice of Seizure to the Applicant, notifying him that the Ghanaian passport had been seized under s.487ZJ(1) of the Act because it was reasonably suspected of being a “bogus document” and was forfeited to the Commonwealth.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 13 July 2015.

2. In his Decision Record the Delegate summarised the Applicant’s claims to protection and then recorded discussion at the interview concerning the identity of the Applicant. The Delegate noted that the Applicant had said “that he did not know the identity of [the] person in the passport…”, “he did not know how either the passport or the visa was obtained…” and “that friends put him in contact with a person in Ghana and he informed that person that he wanted to leave Ghana…” and “…that people came with the passport and he gave them some money and they provided him with the passport”. The Applicant told the Delegate that he had not done anything in support of the process of obtaining the Ghanaian passport and the Business visa.

3. Within [5] of his Decision Record the Delegate recorded  putting to the Applicant that the signature on the identity card was significantly different  to the signature on his Protection visa application form. The Delegate further recorded at [7] putting to the Applicant at interview that the Ghanaian passport and the identity card had been “examined by the Department’s forensic document examiner and both were considered to be legitimately manufactured documents, issued in an acceptable manner with no fraudulent alteration”.

4. At [13] of his Decision Record the Delegate noted that the Ghanaian passport in the name of Charles Basic bore a photograph which was clearly that of the Applicant.

5. Further, at [14] of his Decision Record the Delegate noted that the Australian High Commission in Kenya had made contact with Charles Basic prior to the grant of his Business visa and had confirmed his position with an engineering firm, and that the High Commission had spoken to Charles Basic personally and were able to confirm his employment.

6. In the result, the Delegate at [8] and [28] of his Decision Record found that the identity card was a bogus document and that the Applicant was Charles Basic, who had been born on 2 March 1980, was a Ghanaian national and was the true holder the of the Ghanaian passport.

7. Therefore, as the Applicant did not make any claims to fear harm in Ghana, the Delegate found that he was not a person to whom Australia had protection obligations under the Refugees Convention criterion or the complementary protection criterion pursuant to s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 6 January 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time.

2. The Applicant appeared before the Tribunal on 25 August 2017 to give evidence and present arguments with the assistance of an interpreter in the French and English languages. The hearing lasted almost three hours and the Applicant was given a further opportunity by the Tribunal to provide a bank statement(s) from his claimed bank account in the Ivory Coast. However, by email dated 1 September 2017 the Applicant advised the Tribunal that he could not obtain any such bank statements.

3. From [8] – [11] of its Decision Record the Tribunal recorded the Applicant’s claims largely as made in his Statutory Declaration. From [12] – [35] it then recorded the claims and evidence put forward by the Applicant at the Tribunal hearing. I note in particular that at [31] of its Decision Record the Tribunal recorded putting to the Applicant that a copy of his photograph and fingerprints had been taken in Ghana at the Australian High Commission, which were a match for those he gave as part of his Protection visa application, although he had claimed to have had nothing to do with the Australian Embassy in Ghana. At [32] the Tribunal recorded that it put to the Applicant that as his photograph and fingerprints had been taken by the Australian High Commission in Accra, this must mean that he was physically present there, but the Applicant responded “that he didn’t know” and that other people had provided the Ghanaian passport to him.

4. From [36] – [52] of its Decision Record the Tribunal recorded its consideration of the claims and evidence of the Applicant under the headings of:

   a)      Making false claims in a statutory declaration; and

   b)          Identity and Nationality.

5. At [36] of its Decision Record the Tribunal recorded that it was of the view that the Ghanaian passport was genuine and that Ghana was the Applicant’s country of nationality. At [40] it stated as follows:

   [40] I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness. I find that he fabricated his claims and consistently lied under oath and in a statutory declaration in order to be granted a protection visa.

6. At [41] of its Decision Record the Tribunal found with respect to the Statutory Declaration as follows:

   [41]The applicant’s completed a statutory declaration (folio 67/68) on 3 July 2015. As will be outlined below, the document makes many deliberately false claims that relate to his identity and nationality, participation in a political party and assaults, and imprisonment that he claimed to have experienced.

7. At [43] of its Decision Record the Tribunal found that the signature of the Applicant on the identity card was “demonstrably different” from the signature used by the Applicant in relation to his Business visa and Protection visa applications, and rejected his explanation for the difference.

8. At [46] of its Decision Record the Tribunal recorded that it placed little weight on documents provided by the Applicant because they were photocopies that could have been produced on any home computer. At [49] it recorded that it took into account that the Applicant had failed to provide copies of his claimed Ivorian bank account, and rejected his explanation for being unable to do so.

9. At [50] of its Decision Record the Tribunal noted that the Applicant had claimed that he had paid a person to get him his Ghanaian passport, Business visa and airline ticket to Australia, and that he had never been present at any interaction with the Australian High Commission in Ghana, but at [51] the Tribunal found that his biometric details (i.e. photo and fingerprint) were taken at the time of his application in Ghana and these could only have been obtained if he were physically present there. At [53] the Tribunal recorded that it did not accept that the Applicant was a national of the Ivory Coast, that he was ever involved politically in that country, that he was ever assaulted or imprisoned there because of his claimed Ivorian nationality or that he had to flee to Ghana, leaving his family behind. The Tribunal noted that the Applicant did not claim to fear harm in Ghana and was satisfied that he was free to return to Ghana.

10. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Grounds of Extension Application

1. The Grounds of the extension application are verbatim as follows:

   1. The Applicant seeks extension of time on the basis that he is a person of a culturally and linguistically diverse background; therefore, he could not speak or write English and at the same time, he could not understand the nature of the document (the Tribunal’s Reasons for Decision) and his right to appeal to the Federal Circuit Court of Australia under the Migration Act 1958; and

   2. That the Applicant believes that the grounds to be argued for the basis of this application amount to the interests of justice grounds and the Court should allow extension of time to serve the interests of the administration of justice. The Reasons for Decision by the Member of the Tribunal has in it errors which amount to jurisdictional errors.

Consideration of Extension Application

1. In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.  Those factors include: 

   a) whether there has been a reasonable and adequate explanation for an applicant’s delay and the extent of the delay; 

   b) whether there is any prejudice to the Minister; and

   c) whether an applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.

2. In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive Grounds beyond “a reasonably impressionistic level”.

3. In MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 Mortimer J said with respect to applications for an extension of time under s.477(2) of the Act at 597 – 598 [62] – [63] as follows:

   [62]As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) 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).

   [63]The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ (2013) 236 FCR 442; at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

1. I note that the delay of 11 days is not great in terms of this area of litigation and there is no real or actual prejudice to the Minister resulting from it, although that does not in itself militate in favour of an extension.

2. In my view the Applicant has not provided a reasonable or adequate explanation for the 11 day delay.  Very many applicants for Protection visas have limited or no ability in the English language but manage to make their applications for judicial review to this Court in time.

3. At all material times from the lodging of his Protection visa application up to 8 January 2016 the Refugee Advice and Casework Service was the Applicant’s migration agent. He has not explained why he could not have sought advice from that organisation, or some other refugee adviser, as to the time limit for making an application to this Court.  He has not explained in any relevant detail how any inability with the English language causally led to the 11 day delay.

4. However, I now turn to the most important issue, being whether or not there is any arguable basis for the Applicant’s proposed substantive Grounds.

Proposed Substantive Grounds

1. The proposed substantive Grounds relied upon by the Applicant are verbatim as follows:

   1. IGNORING RELEVANT CONSIDERATIONS AND TAKING INTO ACCOUNT IRRELVANT CONSIDERATIONS: the Member of the Tribunal claims that he believes the applicant is a Ghanaian solely on the basis of the Ghanaian passport. The issue before the court will BE whether the applicant is an Ivorian or a Ghanaian. The Member ignored the applicant's Ivorian National ID card, marriage certificates and his and children's birth certificates. The Member's refusal of the applicant's claim is on the basis that he is not an Ivorian and as a natural consequence of the finding the applicant's protection claims could not have happened since he is not an Ivorian but a Ghanaian national.

   2. AN IMPLIED REQUIREMENT TO ACT REASONABLY: the Republic of Ghana is an English speaking country and a member of the English Commonwealth of Nations. Ivory Coast (or Cote d'Ivoire) is a French speaking country and a member of the Francophone countries.  The applicant speaks and writes fluent French and speaks and writes little English. The Member failed to exercise his implied duty to act reasonably by assessing the applicant’s language skills and abilities.

   3. UNREASONABLNESS AND THE DUTY OF INQUIRY: By virtue of the fact that the  applicant communicated during the hearing through a French language interpreter, the Member failed to be reasonable and was unable to exercise his duty of inquiry about those countries' language profile and applicant's fluency in French and then in English.

   4. NO EVIDENCE: The Member placed no weight on the applicant's personal identity documents such as his marriage certificate and his and children's birth certificates and suggested that those documents could have been produced by any home computer  which the Member  has no evidence to such finding. The Member has no evidence to prove the basis of this suggestion and it was irrelevant to the issue before the Tribunal.

Consideration

Proposed Substantive Ground 1

1. This Ground in substance invokes a merits review of the decision of the Tribunal which is not available in this Court. There is no issue before the Court as to whether the Applicant is an Ivorian or a Ghanaian, but only whether the decision of the Tribunal is affected by jurisdictional error.

2. In its Decision Record the Tribunal extensively considered and made findings concerning the identity of the Applicant. The marriage and birth certificates are expressly referred to at [15] and considered at [46].

3. In my view, the Tribunal did not ignore relevant considerations or take into account irrelevant considerations, and this Ground would fail to establish jurisdictional error.

Proposed Substantive Ground 2

1. It was part of the Applicant’s case that his fluency in French should conduce to a finding that he was indeed a national of the Ivory Coast, and not of Ghana. In the solicitor’s submission it had been submitted that “The Applicant’s knowledge of the political events and history of Cote d’Ivoire is consistent with his being a national of that country. Further we submit that significant weight should be given to the fact that the Applicant is fluent in French, the official language of Cote d’Ivoire. French is not a language widely spoken in Ghana, a former British colony which has retained English as its official language. We note that the Applicant’s English is very limited.”

2. Then at [17] of his Decision Record the Delegate noted that:

   [17]… It was submitted that the identity card is of greater probative value when considered in conjunction with the applicant's knowledge of the political situation in Cote d'Ivoire and his fluency in French. I accept that the applicant is fluent in the French language and that he has knowledge of politics in Cote d'Ivoire.

   However, such did not outweigh the Delegate’s concerns, as outlined at [17].

3. In the Decision Record of the Tribunal it was recorded at [35] that at the Tribunal hearing it was put to the Applicant that “he spoke good French but there were great concerns about his credibility and truthfulness and it was entirely possible that he could have been from West Africa and gained citizenship or a Ghanaian who spoke good French".

4. Then at [42] of its Decision Record the Tribunal recorded that the Applicant claimed in support of his Ivorian nationality “the fact that he speaks French to a sufficient standard to conduct the hearing in”. However, this claim was considered and dealt with by the Tribunal at [44] and [45], as follows:

   [44] Regarding his French language proficiency, I note that in Ghana French is taught to junior high school as a compulsory subject and then as an elective in senior high school. Ghana is bordered by French-speaking states and the West African economic body (ECOWAS) has eight of its 15 members as French-speaking countries so it is plausible that a Ghanaian adult (particularly a businessman who travelled) would be conversant in French.

   [45]It is also possible to become a naturalised Ghanaian citizen and this could also account for his French proficiency if he had been born in a French-speaking West African country. Although he claimed that he only spoke a little English, he was able to work with colleagues who only spoke English, and was able to present to and conduct his medical appointment with a doctor who only spoke English. I am not satisfied that the small amount of English he had received since being in Australia and his experience after would have made him this functional in English.

5. In other words, the Tribunal gave meaningful consideration to the claim of the Applicant that his proficiency in the French language indicated that he was a national of the Ivory Coast, but rejected that claim. The Tribunal’s finding in this regard was not legally unreasonable or lacking in an intelligible justification and this Ground would not be made out.

Proposed Substantive Ground 3

1. I agree with the Minister’ submission that it is difficult to understand the essence or substance of this Ground. The Applicant was fluent in French and had very limited English but was provided with an interpreter at the Tribunal hearing who was accredited to NAATI level 3, which at that time represented the most common level of competence for professional translation and interpretation.

2. There is not a shred of evidence before me to indicate that there was any problem with the interpretation at the Tribunal hearing or that the Tribunal misunderstood the Applicant’s claims by reason of the fact that the Applicant spoke through a French language interpreter. The Applicant had accepted the onus of obtaining a transcript of the Tribunal hearing by consent order 3 of 2 February 2018, but did not tender any such transcript at the hearing.

3. Ground 3 would fail to establish jurisdictional error.

Proposed Substantive Ground 4

1. It is well-established that the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:

   [13]The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.

2. It was at [46] of its Decision Record that the Tribunal recorded that it placed “little weight” on the documents provided by the Applicant, including the marriage and birth certificates. There is nothing legally unreasonable about the findings of the Tribunal recorded at [46] and in any event there was a whole body of other evidence that the Tribunal relied upon, apart from the marriage and birth certificates, in reaching its finding that the Applicant was a citizen of Ghana, rather than the Ivory Coast.

3. Ground 4 would not establish jurisdictional error.

Conclusion

1. In my view the proposed substantive Grounds which would be relied upon by the Applicant are not reasonably arguable and do not have reasonable prospects of success and would not provide a basis for a finding of jurisdictional error on the part of the Tribunal.

2. Accordingly, whilst the required 11 day extension period is short, I nonetheless cannot reasonably find that it would be in the interests of the administration of justice to grant an extension.

3. I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding, and accordingly the application for an extension of time within which to do so will be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  30 July 2019