FVN18 v Minister for Home Affairs

[2019] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

FVN18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 819

Catchwords:
MIGRATION – Application for extension of time to review Administrative Appeals Tribunal decision – application for judicial review lodged nearly 9 and a half years after date of Tribunal decision – refusal of protection visa – Applicant fear harm in China due to persecution of Catholic secret church gatherings – Tribunal did not accept Applicant’s claims – whether Tribunal denied procedural fairness – Whether Tribunal failed to consider complementary protection criteria – whether Tribunal considered religious knowledge erroneously – whether Tribunal made findings in absence of evidence – whether Tribunal applied inflexible consideration of country information – extension of time refused.

Legislation:

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

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176
MZABP v Minister for Immigration and others [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration (No 2) [2016] FCAFC 138
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZSZW v Minister for Immigration [2017] FCCA 1710
SZTES v Minister for Immigration [2015] FCA 719
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Selvadurai v The Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347

Applicant: FVN18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3126 of 2018

Judgment of: Judge Baird

Hearing date: 22 March 2019

Date of Last Submission: 22 March 2019

Delivered at: Sydney

Delivered on: 22 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms J. Strugnell, MinterEllison

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3126 of 2018

FVN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

1. This is an application pursuant to s.477(2) of the Migration Act 1958 (Cth), seeking an extension of time in which to make an application under s.476 of the Act for the judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) made 29 April 2009 affirming a decision of the Delegate of the First Respondent, the Minister for Immigration and Citizenship (now the Minister for Home Affairs), dated 25 November 2008, refusing the Applicant a protection (class XA) Visa.

2. The Applicant, born in 1968, is a female citizen of China from Fujian province.  The Applicant arrived in Australia on 17 September 2007 on a student guardian visa.  The Applicant applied for the Visa on 25 August 2008.  On 21 November 2008, the Delegate refused to grant the Visa, and the Applicant was notified of the refusal decision by letter dated 25 November 2008. 

3. On 22 December 2008, the Applicant applied to the Tribunal for a review of the Delegate’s decision.  She appeared before the Tribunal on 17 April 2009 to give evidence and present arguments.  She was assisted by an interpreter in the Fujian (Chinese) and English languages.  She was represented by a migration agent.  On 29 April 2009, as I have said, the Tribunal affirmed the decision of the Delegate not to grant the Applicant the Visa. 

4. Pursuant to s.477(1) of the Act, the period in which the Applicant must lodge an application for judicial review by this Court ended on 3 June 2009. The application for extension of time for judicial review was lodged in this Court on 8 November 2018 and accepted for filing on 9 November 2018. That application was filed some 3445 days, or approximately 9 years and 5 months, after the statutory time period in which to apply for judicial review had expired.

Background

1. The Applicant provided a statement annexed to her Visa application setting out her claims for protection as follows, and I summarise:

   (a)she was born into a poor farming family and had never attended school due to hardship;

   (b)she started believing in Catholicism in childhood under the influence of her family;

   (c)she attended a secret church gathering.  The local government did not allow them to attend worship service, and they were under police surveillance at times;

   (d)on 20 May 2007, many police came while she and 10 other people were gathering in an abandoned factory.  The police registered their names before taking them to the local police station.  When they arrived, the police beat them with batons;

   (e)the Applicant was taken to Fuqing detention centre, where she was ordered to sleep by the toilet.  She was forced to renounce her religion.  She did not say anything since she had never been educated and was poor at speaking;

   (f)she had seen some people were incapacitated or become insane after persecution;

   (g)after three days, her husband bribed the director of the detention centre 3000 RMB and she was released;

   (h)just before she was allowed to leave, she was threatened if she caught again, her whole family would be put in jail;

   (i)her belief became much firmer after this persecution, and she did not give up attending worship service at the house church;

   (j)through a friend, she bought a passport since her son was studying in Australia.  She obtained a visa to Australia through the help of an agent in China.  After she arrived in Sydney, her son brought her to a Catholic church at Flemington, and she attended church.

2. As part of her protection Visa application, the Applicant provided a copy of what she said was a baptismal certificate from China with a registered date of 9 September 2007, together with an English translation of the document. 

The Tribunal’s decision

1. The Tribunal assessed the Applicant’s protection claims against s.36(2)(a) of the Act. The form of the Act as at the time of the decision, 29 April 2009, relevantly was as follows:

   (2)   A criterion for a protection visa is that the applicant for the visa is:

   (a)   a non citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (b) a non citizen in Australia who is the spouse or a dependant of a non citizen who:

   (i)    is mentioned in paragraph (a); and

   (ii)   holds a protection visa.

2. There was at that stage no complementary protection scheme in s.36 of the Act.

3. The Tribunal set out in its decision the evidence given at the Tribunal hearing from [29] through to [43]. At the Tribunal hearing, the Tribunal asked the Applicant whether she had been hit by the police. The Applicant said that they pushed her. At [40], the Tribunal identified that it also asked the Applicant whether she was interviewed at the detention centre, and she said she was not. Tribunal then put to her that this was inconsistent with her statement that she was forced to renounce her religion. The Applicant said that the authorities at the detention centre told her that church gatherings were against the law.

4. At [42] of its decision, the Tribunal records that it put to the Applicant its concerns that she had arrived in Australia on 17 September 2007 but had not made a protection visa application until 25 August 2008.  At [49], the Tribunal stated that it did not accept that the Applicant was Catholic:

   [49] …Although she was able to explain the significance of Easter in the Christian religion and indicated a general understanding of Christian belief about the after life, she did not demonstrate a knowledge of aspects of Christian faith and belief that one would expect of a person who professes to have been a Catholic since childhood. She was unable to recite the Lord's Prayer, she was unable to indicate that the two parts of the Bible were the Old and New Testaments and she was unable to recount any Bible stories about Jesus. She was also unable to say who the head of the Catholic Church is. The Tribunal accepts that the applicant has had no education and is not literate and the Tribunal makes allowances in her favour on that account. However, her evidence is not consistent with her claim to be a Catholic. On the basis of her lack of knowledge of articles of the Catholic faith, the Tribunal does not accept that she was brought up as a Catholic and that she started believing in Catholicism in her childhood as claimed.

5. At [50], the Tribunal records that it did not accept that the Applicant was baptised in China as claimed, nor did it accept that the copy of the purported baptismal certificate which the Applicant included with her visa protection application is a copy of the genuine document.  The Tribunal rejected its authenticity for reasons that the register date on the document is more than 10 years after the date of the alleged baptism on 21 February 1997, and that this was also at odds with the Applicant’s evidence that she was baptised 2 or 3 years before the date of the Tribunal’s hearing.  The Tribunal also noted that the document had the wrong date of birth for the Applicant.  The Tribunal did not accept her evidence that she lost the original certificate, noting:

   Especially given that she told the Tribunal that she had recently been in touch with friends in China to obtain the certificate to assist the making of her protection visa application.

6. The Tribunal gave no weight to the photo the Applicant supplied to the Tribunal purporting to show her baptism, observing it seemed to show the Applicant was involved in a religious ceremony, but it was unclear in that regard.

7. At [51], the Tribunal did not accept the Applicant’s claim that she was arrested and detained by the Chinese authorities for participating in an underground church gathering.  The Tribunal was of the view that the Applicant did not give a coherent account of central elements of her claim.  The Tribunal said at [51]:

   …Inconsistencies can occur for a variety of reasons unconnected with an applicant’s credibility … In the present case, the applicant was unable to do that. She said in her written statement that, in the police raid on the church gathering, the police had beaten those involved in the gathering with batons, whereas when the Tribunal asked her whether she had had been hit by the police she said that the police had pushed her. The applicant was also unable to give a satisfactory explanation for the inconsistency between the statement in her protection visa application that at the detention centre she was forced to renounce her religion and her statement at the hearing that she was not interviewed during her time at the detention centre. The alleged arrest by the police and subsequent alleged detention are events fundamental to the applicant's claim and the Tribunal considers that a person who had suffered what the applicant claims to have suffered would consistently recount the details.

8. The Tribunal had regard to country information, and considered the Applicant’s story was not generally consistent with independent country information which suggested that local authorities in Fujian province usually tolerate activities of underground Christian groups (see at [52]).

9. At [53], the Tribunal considered that to the extent that the Applicant had attended the Catholic church at Flemington in Australia, she has done so only for the purpose of strengthening her claim to be a refugee.  Accordingly, the Tribunal was required to disregard this conduct in considering her claims, and the Tribunal referred to s.91R(3) of the Act as at that time.

10. The Tribunal noted the Applicant’s concession before the Tribunal that the Applicant had made a protection Visa application to regularise her immigration status and in the hope that it may enable her to stay in Australia to work (at [54]).

11. On the evidence before it, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention, and therefore it concluded that the Applicant does not satisfy the criteria set out in s.36(2)(a) for a protection Visa, and it affirmed the decision of the Delegate.

Grounds of review

1. The Applicant in her application to this Court under the heading “grounds of application for extension of time” set out two paragraphs:

   1. I did not know I have a right to apply for judicial review after the Tribunal decision until I was detained in Villawood Immigration Detention Centre.

   2. The Tribunal failed to provide procedural fairness.

2. She then continued with 5 further paragraphs (7 in total).  Paragraphs [3] to [7] duplicate the substantive grounds that the Applicant also sets out in her application.  As her substantive grounds, the Applicant relies on the following 6 grounds of review (without alteration):

   2. The Tribunal failed to consider the applicant claim according to the law or failed to assess the applicant's claims for complementary protection.

   3. The Tribunal failed to consider the applicant has no education at all so that the applicant could adversely affect articulation of her claims.

   4. The Tribunal erred in considering that the Catholic knowledge was determinative of her true Catholic adherent or not.

   5. The Tribunal made a finding without supporting evidence, namely, the Tribunal provided no evidence in support of its findings that baptismal certificate was not a genuine.

   6. The Tribunal inflexibly applied country information in the applicant's case.

   7. The Tribunal inflexibly applied country information in the applicant's case.

3. The Applicant also relied on an affidavit sworn 8 November 2018 which annexed a copy of the decision of the Tribunal, in which affidavit the Applicant said the following (without alteration):

   1. I am the applicant and currently detained in Villawood Immigration Detention Centre by the Immigration Department.

   2. I did not know I was eligible to apply for judicial review until I was detained 25 October 2018

Extension of time – legal principles

1. Section 477(2) of the Act provides that the Federal Circuit Court of Australia may, by order, extend the 35 day period in which an application for judicial review may be made as the Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. The factors that the Court will take into account when considering whether an extension of time should be granted include:

   (a)the extent of the delay and the explanation for the delay;

   (b)any prejudice the Minister might suffer because of the delay;  and

   (c)the merits of the proposed application, or as it may otherwise be put, the prospects of success on the substantive application.

3. It has been said on many occasions that these principles are not to be taken as exhaustive: Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]-[23]. The principles were considered by Mortimer J in the Federal Court in MZABP v Minister for Immigration and others [2015] FCA 1391; (2015) 242 FCR 585, see at [45] to [58]. In particular, at [62], her Honour adverts to the interests of the administration of justice, and cautions that it is not for the Court, when exercising its discretion in an extension of time application, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic” level into a full consideration of the arguments for and against each ground of review.  Her Honour’s consideration at [58]-[63] was approved by the Full Court of the Federal Court in MZABPvMinister for Immigration (No.2) [2016] FCAFC 138.

4. In the present case, the Minister has not said that he suffers prejudice by the grant of an extension of time, save, however, it may be inferred, in relation to costs.  The Minister has submitted, however, that the delay in seeking judicial review is extremely significant (given the application was filed nearly 9 and a half years out of time), and the magnitude of the delay in this case is so inordinate that it is, by itself, a compelling reason to refuse the application to extend time. 

5. The Minister refers to the observations of Wigney J in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]. In general, the longer the delay, the more persuasive the explanation needs to be. In that case, Wigney J considered a delay of 18 months to be excessive, and there found that “the absence of any satisfactory, let alone persuasive explanation for the delay would itself be a sufficient basis to refuse the application for an extension of time in that case”.

Proceeding before the Court

1. Before me today, the Applicant has appeared unrepresented, but with the benefit of an interpreter in the Fujian Chinese dialect.  The Applicant is in immigration detention at Villawood Immigration Detention Centre, and she comes here from that centre.  Ms Strugnell, solicitor, appears for the Minister, and has provided the Applicant with a copy of the submissions, a copy of the Applicant’s application, and a copy also of the ‘Court book’ of relevant documents.  Before I came on the bench this morning, Ms Strugnell arranged for the interpreter to translate the written submissions to the Applicant, and during the hearing I confirmed that the Applicant has had the Minister’s submissions read to her.

2. I informed the Applicant at the beginning of the hearing that the role of this Court was not generally to review the facts of the Tribunal decision, but to consider any arguments about whether the Tribunal decision had any “legal problems”, that is whether it was affected by jurisdictional error.  I informed her that, first, the matter of the delay in filing her application for judicial review needed to be addressed.  I informed the Applicant of the cost consequences of proceeding with the application if she was unsuccessful.  I invited the Applicant to provide any additional documents, and she handed up a small note, which only had an address on it, and which, on review, was not relevant.  I did not receive the note in evidence.  I handed that note back to her.  The Applicant described the contents as “the friend gave me a name”.

3. In relation to her submissions today, the Applicant in summary said that she does not remember much.  She indicated, so I apprehend, that she has epilepsy, and takes medications.  She was married to an Australian man for about 6 years, and it is 5 months or so since he died.  She did not have a visa, and she has been in detention centre since her Australian husband died.  She then continued to say she did not know the procedure, and asked whether she could come back for a holiday, and asked for the Court’s help. 

4. Despite a number of invitations, the Applicant did not provide any better explanation about her delay, or the substantive grounds of review she pressed in her application, save to say that she was a good person both in China and in Australia, and she hopes she can come back to Australia.  The Applicant sought to show the Court a picture of her husband’s grave, and was visibly quite upset. 

5. The explanation for delay that the Applicant gives in her application and repeats in her affidavit, is that she did not know she was eligible to apply for judicial review until she was detained.  It is not clear from her affidavit whether 25 October 2018 was when she became aware that she might be able to bring an application for judicial review, or whether that was the date of her detention.  I infer that it was on or about when she was detained that she became aware that she might be able to apply for judicial review.  She has provided no other evidence or documents in support of her explanation.

Consideration

1. The Court book that I have accepted into evidence reveals that the Applicant was assisted in her Visa application by a registered migration agent, a Ms Chan from a company called “Good Fortune Co”, and that all correspondence from the Department and the Tribunal was sent to Ms Chan, her migration agent.  This included a notification of decision letter attaching the Tribunal’s decision.  That letter is dated 30 April 2009. 

2. As well as the Tribunal decision, a factsheet titled “Information about Tribunal Decisions” was sent to the Applicant via her agent.  The factsheet stated:

   If you think that the decision of the Tribunal is wrong in law, you may consider seeking judicial review in the Federal Magistrates Court of Australia.

   I note that the factsheet did not otherwise state that the Applicant must lodge an application for judicial review within 35 days of the Tribunal decision, as specified in s.477(1) of the Act.

Explanation for delay

1. Taking into account the fact that the Applicant was represented by a migration agent, I do not find the Applicant’s explanation that she did not know about her right to apply for judicial review convincing.  I appreciate that the Applicant says that she was illiterate, which the Tribunal accepted, but this does not prevent the Applicant from speaking with her migration agent, or from her migration agent communicating the result of the decision and the information in the factsheet to her.

2. The delay in the Applicant lodging an application is significant indeed.  There is much to be said for the Minister’s submission that the delay was extraordinary.  Whilst I am cognisant of Wigney J’s observations in Tran, even where there is an extraordinary delay, if the merits of the application warrant, it may be appropriate to extend time.  In this case, however, for the reasons I explain below, I am of the view that the merits of the substantive application do not warrant an extension of time.  I consider that the merits of the substantive application are so lacking that the substantive application grounds would not succeed. 

3. The merits have been well summarised by the Minister in the Minister’s submissions under headings corresponding with the grounds, and I propose to follow that outline in my consideration of whether the grounds have reasonable prospects of success.

Merits of the substantive application

Ground 1:  alleged denial of procedural fairness

1. It is apparent on the evidence that is before the Court, and I find, that the Tribunal complied with its procedural fairness obligations pursuant to Division 4 of Part 7 of the Act. 

2. I accept the Minister’s submissions that this is not a matter in which the Tribunal’s s.424A obligations arose.  I note that by letter dated 23 February 2009, the Tribunal invited the Applicant to a hearing to give evidence and to present arguments, and it is apparent from the Tribunal’s reasons that inconsistencies in the Applicant’s evidence were discussed at the hearing – see (as I have said) at [29] to [43].  In those circumstances, the Applicant was properly on notice of the determinative issues on the review, and was provided with a real and meaningful opportunity to present evidence and give arguments:  see SZBEL v Ministerfor Immigration (2006) 228 CLR 152; [2006] HCA 63, and s.425 of the Act. That ground, in my view, would fail.

Ground 2:  alleged failure to consider complementary protection criteria

1. The Applicant has not identified any claim the Tribunal failed to consider, and nor is one apparent when I review the evidence before the Court. The Tribunal did not consider complementary protection criteria in s.36(2)(aa), as the decision predated the introduction of that criteria which came into effect on 24 March 2012, pursuant to the Migration Amendment (Complementary Protection) Act 2011 (Cth). There was no complementary criteria against which any claim could be considered. It follows, thus, that ground 2 has no prospects of success, and would fail.

Ground 3:  alleged failure to consider a lack of education

1. This ground must fail.  It is contradicted by the Tribunal’s decision at [49], where the Tribunal expressly noted, and accepted, that the Applicant had no education, was not literate, and the Tribunal considered whether this affected her ability to give evidence about her religion.  I have set out [49] above.  It is apparent from the Tribunal’s consideration as set out in that paragraph, that ground 3 must fail.

Ground 4:  alleged erroneous consideration of religious knowledge 

1. This ground takes issue with the Tribunal’s consideration of the Applicant’s knowledge of Catholicism.  In considering this ground, I have considered and adopt what the Minister says at [27], [28] and [29] of the Minister’s submissions, as follows:

   (a)In matters in which a protection visa applicant claims to be a member of a particular religious group, the Tribunal may consider whether the visa applicant is credible in respect of their claims. The Tribunal is entitled to assess the credibility of the visa applicant in deciding whether or not a protection visa should be granted: Re Minister for Immigration and Multicultural Affairs;Ex parte Durairajasingham (2000) 168 ALR 407.

   (b)In MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80, the Full Court (North, Bromberg and Mortimer JJ) explained the position in relation to 'testing belief' as follows (at [47], citations omitted):

   The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge.

   (c)Earlier, in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108, Kenny J held, at [39]:

   Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims.

   (d)A decision-maker may legitimately explore what the applicant knows about their claimed religion in order to assess the veracity of their claims, see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129, per French, Lander and Besanko JJ at [47].

2. The present is not a case in which the Tribunal evaluated answers to questions and assessed them against some standardised or assumed level of knowledge.  It is apparent from the Tribunal’s reasons for decision that rather than setting a threshold level of knowledge which an Applicant needed to demonstrate, the Tribunal sought carefully to elicit from the Applicant information of relevance to its assessment of her religious adherence.

3. In particular, the Tribunal sought to explore what knowledge the Applicant had by asking questions, both of a general and more specific nature, including, as set out at the Tribunal decision at [37], the significance of Easter, what the two parts of the Bible were, whether she could recite the Lord’s Prayer, and what her favourite Bible story was.

4. I accept the Minister’s submissions that these are matters sufficiently fundamental to Catholic belief, and that it is reasonable for the Tribunal to expect the Applicant to be familiar with them, particularly given that she claimed to be a Catholic since childhood.  And it is apparent that the Tribunal gave weight to the existence of significant and basic gaps in several areas of knowledge of faith that one would reasonably expect to be fundamental to Catholic faith, and that an applicant claiming to be Catholic from childhood would have known.

5. The Tribunal did not rely solely on the Applicant’s lack of knowledge of her claimed religion in reaching its conclusions.  Typically, as noted in SZLSP per Kenny J at [38], a Tribunal’s reliance on other factors than its evaluation of an Applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration, rather than making a determination by reference to a preconceived minimum standard of knowledge. The Tribunal made such an exploration, I find, in the present case.

6. The Tribunal noted country information and particularly information specific to the Fujian province, as I have referred to above in the Tribunal’s decision at [51]. It also rejected the Applicant’s claimed arrest and detention on an alternative factual basis, also at [51], because of the inconsistent evidence provided in the Applicant’s statement and by her at the Tribunal hearing. In relation to the Applicant’s claim to be baptised, the Tribunal rejected that claim on the basis of clearly articulated problems with the documentary evidence. I have referred to those above. I find that no sufficiently arguable case of jurisdictional error is demonstrated by ground 4.

Ground 5:  alleged finding made in the absence of evidence

1. The Applicant, in ground 5, contends also that it was not open to the Tribunal to find that the Applicant’s baptismal certificate was not genuine.  However, it is apparent at [50] that the Tribunal rejected the genuineness of the Applicant’s baptismal certificate on matters the Tribunal identified on the face of the baptismal certificate itself, and based on the Applicant’s inconsistent evidence.

2. As the Minister submitted, and I accept, the Tribunal does not require rebutting evidence in order to find that the document was not genuine: Selvadurai v The Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at [7]. Ground 5 does not have any reasonable prospects.

Ground 6:  alleged inflexible application of country information

1. The Minister submits that the Tribunal did not err in its placing of weight on country information.  The choice and the assessment of the weight of country information is a matter for the Tribunal.  I accept the Minister’s submission that the Tribunal did not err in this regard, noting the Minister’s reference to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]. Ground 6 does not have any reasonable prospects.

Conclusion

1. In conclusion, I find there is no sufficiently arguable case of jurisdictional error demonstrated by any of grounds 1 to 6, and I am not persuaded that the explanation for the delay is made out, or is sufficient.  As I have indicated, the application for extension of time is refused, and I order the Applicant to pay the First Respondent’s costs in the fixed amount.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date:       3 April 2019