MZANW v Minister for Immigration and Border Protection
[2016] FCCA 2639
•13 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZANW v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2639 |
| Catchwords: EXTENSION OF TIME APPLICATION – Review of authorities – application to extend time granted. MERITS OF APPLICATION – On ground 2 favourable – Tribunal reaching a conclusion that was not open – Tribunal reached a mistaken conclusion within the meaning of Craig v State of South Australia – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 477(2) |
| Cases cited: Applicant A2 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 576 Douglas v Allen (1984) 1 FCR 287 Doyle v Chief of General Staff (1982) 42 ALR 283 |
| Applicant: | MZANW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2376 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 13 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Harris |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr W Mosley |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) is granted.
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 12 June 2014.
An order in the nature of a writ of mandamus issue directing the second respondent to hear and determine the application for review according to law.
The Minister pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2376 of 2014
| MZANW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
Two points were raised in this application[1] –
a)
the first was whether s.424A or s.424AA of the
Migration Act 1958(Cth) (“the Act”) required the
Administrative Appeals Tribunal (“the Tribunal”) to give the applicant particulars of certain information the Tribunal regarded as forming part of its reasons to affirm the delegate’s decision; and
b)the second was whether the applicant in fact gave evidence to the Tribunal on a particular matter when the Tribunal found as a fact that no such evidence had been given.
[1] Amended application filed 24 June 2015.
The application was brought out of time. The applicant needed an extension of time within which to bring this application.
Synopsis
In my judgment, ground 2 of the grounds of review succeeded. I make orders for constitutional writs to be issued.
Extension of time
[3] (2015) 231 FCR 243.
Mr W Mosley of counsel who appeared for the Minister for Immigration and Border Protection (“the Minister”) indicated that the delay in bringing the application was four months. He said such a delay was not in the category of being egregious. Yet in written submissions he submitted that it was not in the interests of justice to grant leave to bring the application because the delay was “considerably outside of the time allowed, [Mr Mosley’s words] and the applicant’s grounds lack sufficient merit to warrant an extension”.[2] Mr Mosley’s written submissions referred to the decision of Perry J in
Mohammed v Minister for Immigration and Border Protection[3](“Mohammed”). The learning in relation to the considerations a court will apply on the hearing of an application for an extension of time is much deeper than that one decision.
[2] Minister’s submissions filed 11 April 2016 at [21].
As long ago as 1984, in the context of the review of administrative decisions generally (not specifically those under the Act) Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[4] (“Hunter Valley Developments”) put forward a six-point list of issues to be considered in an application to extend time. Relevantly paraphrased, they amount to the following –
a)it is the prima facie rule that a proceeding commenced outside of the period prescribed by legislation will not be entertained[5] and that it is a precondition to the exercise of the discretion in favour of the grant of an extension of time that the applicant for the extension must show an “acceptable explanation” for the delay and that it is “fair and equitable in the circumstances” to extend time;[6]
b)action taken by the applicant is relevant to the question of whether an acceptable explanation for the delay has been furnished including whether the applicant has continued to make the decision-maker aware that he (the applicant) contests the decision and has not rested on his rights;[7]
c)prejudice to the respondent in defending the proceeding is a material factor militating against the grant of leave;[8]
d)conversely, the absence of prejudice is not sufficient to justify the grant of an extension of time;[9]
e)the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted;[10] and
f)considerations of fairness as between the applicant and other persons are also relevant.[11]
[4] (1984) 3 FCR 344.
[5] Lucic v Nolan (1982) 45 ALR 411, 416.
[6] Duff v Freijah (1982) 62 FLR 280.
[7] Doyle v Chief of General Staff (1982) 42 ALR 283, 287.
[8] Hickey v Australian Telecommunications Commission (1983) 47 ALR 517.
[9] Douglas v Allen (1984) 1 FCR 287.
[10] Lucic v Nolan (1982) 45 ALR 411.
[11] Wedesweiller v Cole (1983) 47 ALR 528.
In the specific context of the Act, the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Sun[12] is relevant but it turned on a different issue than did the facts of this case.
[12] (2005) 146 FCR 498.
The need for the applicant to show “something very persuasive indeed” to justify the grant of leave after a year was considered in
Jess v Scott.[13] In that case the Federal Court said “something much less significant” might be justified where the party was a few days late in meeting the prescribed time.[14]
[13] (1986) 12 FCR 187, 193.
[14] Ibid.
In Howard v Australian Electoral Commission[15] (“Howard”),
Branson J referred to the three factors relevant to the exercise of the discretion to grant or refuse an extension of time, namely –
a)the importance of the question sought to be raised;
b)the bona fides of the proposed appeal; and
c)the prima facie strength of the proposed ground of appeal.
[15] [2000] FCA 1767.
An illustration of the Federal Court of Australia refusing leave was given in WAJU v Minister for Immigration and Multicultural and Indigenous Affairs[16] especially whether the substantial application was without merit. In SZMNO v Minister for Immigration and Citizenship,[17] (“SZMNO”) Barker J catalogued some of the situations where an acceptable explanation for the delay was not offered.
[16] [2004] FCA 150.
[17] [2009] FCA 797.
In SZTES v Minister for Immigration and Border Protection,[18] the
Full Court of the Federal Court of Australia held that the test applied by a judge of this Court, namely, whether the substantive proceeding had no reasonable prospects of success, was not incorrect. That decision must be read with the observations of Murphy J in MZZLD v Minister for Immigration and Border Protection[19] (“MZZLD”).
[18] [2015] FCAFC 158.
[19] [206] FCA 1201.
In MZABP v Minister for Immigration and Border Protection,[20] (“MZABP”) Justice Mortimer of the Federal Court of Australia expressly countenanced language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or whether it has “reasonable prospects of success” citing SZRIQ v Federal Magistrates Court of Australia & Ors.[21] Mortimer J cautioned against transforming the extension of time application into a de facto full hearing.
[20] [2015] FCA 1391.
[21] [2013] FCA 1284.
In SZTES v Minister for Immigration and Border Protection,[22] (“SZTES”) at first instance Wigney J held that a judge hearing an extension of time application must carefully distinguish between grounds of review that are hopeless and destined to fail as opposed to grounds that are weak. Where grounds are weak, as opposed to those being hopeless, it will rarely be appropriate to refuse to extend time. That said, as French J held in Seiler v Minister for Immigration, Local Government and Ethnic Affairs[23] (“Seiler”), an applicant on the hearing of an extension of time application need not establish that his or her grounds of review will succeed.
[22] [2015] FCA 719.
[23] (1994) 48 FCR 83.
Subsequent to Perry J’s decision in Mohammed, Mortimer J addressed the question of extending time in MZABP. At paragraph 40 of that judgment her Honour pointed to the statutory requirements an applicant must satisfy under s.477(2) of the Act those being “conditions precedent to the exercise of that power”.[24] Her Honour held that the decision of Wilcox J in Hunter Valley Developments, while useful and a decision regularly applied, is not exhaustive of the content of the phrase “in the interests of the administration of justice”.[25] Observations to like effect have been made in Mentink v Minister for Home Affairs[26] and in Seiler.
[24] [2015] FCA 1391.
[25] [2015] FCA 1391 at [43].
[26] (2013) FCAFC 113.
In MZABP, Mortimer J made observations about the need for a judge such as me, hearing the application for an extension of time, not to “travel … beyond an examination of the grounds at what should be a reasonably impressionistic level”.[27] Her Honour held that if the judge enters into a fuller consideration of the arguments for and against each ground of review, then such a course was not function-appropriate to a discretion such as that contained in s.477(2) of the Act. Her Honour said that an application to extend time should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right.[28]
[27] [2015] FCA 1391 at [62].
[28] [2015] FCA 1391 at [63].
In SZTES, at first instance Wigney J referred to the practice of this Court of listing both an application for an extension of time with the final hearing, to be conducted at the same time. Mortimer J also addressed that practice in MZABP.[29]
[29] [2015] FCA 1391 at [66].
Mortimer J and Wigney J in the cases referred to above spoke of the practice of hearing the application for extension of time with the final hearing in terms that such a practice –
may encourage an undue focus on determination of the merits of the proposed grounds of review raised by an application for an extension of time and resulting in an artificial approach to the extension of time application.[30]
[30] [2015] FCA 1391 at [66].
That is not my experience.
In this extension of time application the criteria for the grant of the extension has been separately considered. There has been no conflating of those requirements with the substance of the application. There was no undue focus on determining the merits of the grounds of review as opposed to the criteria for the grant or refusal of the extension of time application when I heard the application for the extension of time in this case along with the merits of the application for review. Naturally, hopeless cases doomed to fail become apparent very soon into the hearing of the extension of time application. In cases where both parties are represented by able counsel, as was the situation in this case and where neither counsel urged me to do otherwise than by hearing the case to the end of all grounds of review, the concerns canvassed by Wigney J and Mortimer J did not materialise.
In Mohammed,[31] Perry J repeated three criteria to be assessed in an application for the extension of time, deduced from the decision of Murphy J in SZQCZ v Minister for Immigration and Citizenship[32] where Murphy J postulated a three-point test involving a consideration of –
(a)whether the applicant had given an acceptable reason for the delay;
(b) whether the respondent was prejudiced by the delay; and
(c) the merits of the application for review.
[31] [2015] FCA 184 at [15].
[32] [2012] FCA 91.
Since I heard argument in this case, at least two other decisions of relevance to the jurisprudence on extension of time applications have added to the learning. The first was the decision of Murphy J in MZZLD and the second was my own decision in BCF15 v Minister for Immigration and Border Protection.[33] In both, an extensive review of the authorities on extension of time applications was set out, admittedly both post-dating argument in this case.
[33] [2016] FCCA 2340.
Five affidavits were filed in support of the application for an extension of time. The applicant himself swore two, one on 24 November 2014 and the other on 16 September 2015. In his affidavit sworn
24 November 2014, the applicant through an interpreter swore that he was illiterate and by reason of his straitened financial circumstances he had been unable to obtain legal assistance up to the date on which his affidavit was sworn. He swore that the Tribunal’s decision lead to depression and a sense of helplessness.
In his affidavit sworn 16 September 2015, the applicant swore –
(a)he had assigned to him Australia Migration Option based in South Australia;
(b)by reason of his illiteracy he was unable to comprehend his options after the Tribunal’s decision;
(c)he sought assistance to lodge an application for ministerial assistance at a cost of $1,000.00 rather than applying to the Court for review at a cost of $3,500.00;
(d)a legal practitioner, Ms Warna, told him he could apply to the Court at a later stage;
(e)he lodged the application for ministerial assistance but it was declined;
(f)prior to 24 November 2014 he contacted a Perth legal practitioner whose name was Ganasan Arujanan who told the applicant he was unwilling to travel to Melbourne to provide assistance to the applicant;
(g)subsequently, after being unable to put the applicant in touch with a pro bono legal practitioner, Ganasan Arujunan told the applicant that if the applicant wanted his assistance, he (Mr Arjununan) needed to review the Tribunal decision; and
(h)the applicant filed the process in this Court himself.
The applicant swore to the following –
my ignorance of the legal process, my legal rights, being an illiterate and being poor in Australia stressed me terribly and disadvantaged me in every sense including obtaining proper advice on application to court (sic) for the review of the RRT decision.[34]
[34] Applicant’s affidavit sworn 16 September 2015 at para.20.
To my way of thinking, the matters to which the applicant deposed as are recorded immediately above reveal an acceptable reason for the delay.
Mr Mosley submitted that an asserted lack of financial resources, in and of itself, will not found a basis for acceptable explanation. Chiefly, Mr Mosley called in aid the decision of Barker J in SZMNO and the authorities considered by his Honour. I agree, lack of financial resources in and of itself will usually be a poor and inadequate explanation for an applicant’s failure to apply to this Court within the prescribed period. But that alone is not the situation in this matter. The applicant relied on his illiteracy. It must be said that he did not remain idle following his unsuccessful appearance before the Tribunal as he sought legal help and encountered responses that were significantly less than helpful. With one legal practitioner, the applicant encountered a requested payment of an upfront fee of $3,500.00 and in another instance, the applicant encountered a practitioner who refused to assist while he would be taken away from Perth. As a result, the applicant filed court process himself.
Mr Mosley submitted that an array of decisions in the Federal Court have held that the election of pursuing ministerial intervention will not amount to a satisfactory explanation for the delay in coming to this Court. It may not matter but the test is “acceptable reason” and not “satisfactory explanation”. At all events, Mr Mosley cited in support several decisions including Vu v Minister for Immigration and Citizenship,[35] Applicant A2 of 2002 v Minister for Immigration and Indigenous Affairs,[36] Daniel v Minister for Immigration and Indigenous Affairs[37] and M 211 of 2003 v Refugee Review Tribunal.[38]
[35] [2008] FCAFC 59.
[36] [2003] FCA 576.
[37] (2004) 205 ALR 198.
[38] (2004) 212 ALR 520.
Taken in isolation, I accept that the applicant in this case, faced with the weight of those authorities, would be hard-pressed to argue that he could successfully show acceptable reason for delay based on his electing to pursue ministerial intervention. But as I have endeavoured to explain already, his explanation was not premised only on his unsuccessful attempt to obtain ministerial intervention.
Taken as a whole, it seemed to me that the applicant did provide an acceptable reason for his failure to apply to this Court within the
35-day period prescribed by s.477 of the Act. In view of the applicant’s illiteracy, the Minister’s submission was not well-aimed when
Mr Mosley submitted that the applicant was told in writing that he had 35 days within which to apply to this Court. By definition, the applicant was unable to read any such information.
Let me now turn to any prejudice to the Minister if I were to grant the extension of time. In my view there is none. The Minister prepared for and conducted the hearing before me in the same manner as would have been done on the final hearing of the application for judicial review. The only additional component in the extension of time application was the Minister’s submission about why the applicant’s application for an extension of time should be refused.
I am satisfied the application is made for a bona fide purpose.
Let me now turn to the merits.
Ground 1
As with most extension of time applications, in this case the lion’s share of attention was devoted to the merits of the applicant’s proposed application. The applicant raised two grounds of review in his amended application. Each was very detailed with a large number of particulars subjoined to each ground. Under ground 1, the applicant contended, in essence, that in breach of ss.424A or 424AA of the Act, the Tribunal failed to put to the applicant an inconsistency said to have been contained in the information given in the applicant’s protection visa application and in the oral evidence he gave to the Tribunal. Specifically, the inconsistency the applicant contended was not put to him related to his involvement in a movement to establish a
three-wheeler drivers association. The applicant submitted that the Tribunal used that inconsistency in deciding to affirm the decision of the delegate.
The applicant relied on a transcript of proceedings before the Tribunal. No dispute was raised about the accuracy of the transcript. In fact, in the Minister’s written submissions Mr Mosley referred to passages from the Tribunal transcript.
The relevant Tribunal finding was at paragraph 49 of its reasons.[39] There, the Tribunal accepted that the applicant had been involved in the movement to establish a three-wheeler drivers association but the Tribunal did not accept, based on the evidence before it and the applicant’s failure to mention it in his protection visa application, that any ill-treatment he received related to his activities associated with the establishment of the three-wheeler drivers association.
[39] Court Book filed 5 February 2015 at p.204.
Ms Harris of counsel for the applicant, in written submissions[40] and in submissions before me, contended that the applicant told the Tribunal, recorded on page 16 of the Tribunal’s transcript, that “because of those things they were not happy with us”.[41] Leaving to one side for the moment that the phrases “they were not happy with us” and “because of those things” were highly imprecise and equivocal, Ms Harris submitted that the Tribunal made no further comment upon being told of those items of evidence and instead, the Tribunal proceeded to a different line of questioning in relation to the applicant’s travel to Singapore.
[40] Applicant’s Outline of Submissions filed 4 April 2016.
[41] Affidavit of Michael Fitzpatrick sworn 3 June 2015, Annexure A at p.16.
Ms Harris submitted that there was inconsistency in the information recorded in the visa application and in the applicant’s evidence to the Tribunal. She contended that after the applicant gave evidence that “because of those things they were not happy with us”, an inconsistency arose because, so Ms Harris contended, that point was not mentioned in the applicant’s visa application. Yet, so Ms Harris argued, the Tribunal stated in paragraph 49 of its reasons that the Tribunal did not accept “based on the evidence before it and his failure [sic] mention it in his protection visa application, that any ill-treatment he received related to these activities”.[42] So far as the words at paragraph 49 were concerned, Ms Harris said that “based on the evidence before it” must be understood to include the words from the Tribunal’s transcript of proceedings at page 16 including the applicant’s evidence “because of those things they were not happy with us”. In other words, she contended that the Tribunal in fact had evidence before it about ill-treatment related to the three-wheeler drivers association.
[42] Court Book filed 5 February 2015 at p.204.
Mr Mosley submitted on behalf the Minister that the absence of any reference to the three-wheeler drivers association in the applicant’s visa application was not “information” for the purposes of ss.424A or 424AA of the Act. And so, according to Mr Mosley, neither section of the Act was enlivened. Alternatively, Mr Mosley submitted that at no stage had the applicant claimed he had been harmed by reason of his involvement in the formation of the three-wheeler drivers association.
To my mind, the resolution of ground 1 turned on the proper construction of the applicant’s evidence before the Tribunal. It was safe to say (for that matter, the point was common cause) that the applicant’s visa application contained no reference to activities in establishing the three-wheeler drivers association and to his having been assaulted after the election. In the Tribunal, the applicant stated “because of those things they were not happy with us”. Whether that phrase amounted to inconsistency, whether it bore the meaning attributed to it by the applicant and whether it enlivened
ss.424A or 424AA of the Act, it seemed to me that all were to be answered in the negative.
It struck me as being unrealistic to have expected the Tribunal to have pressed the applicant upon his having uttered “because of those things they were not happy with us”. A plain reading of those words did not amount to the applicant asserting that any ill treatment he received related to his past activities in having established the three-wheeler drivers association. The Tribunal was entitled to have read from the applicant’s visa application that it was silent on the subject of the applicant’s involvement in the three-wheeler drivers association. Nothing given in evidence altered that. It seemed to me that the finding in paragraph 49 of the Tribunal’s decision was correct.
In my view, ground 1 failed.
Ground 2
Under ground 2, the applicant contended that the Tribunal fell into jurisdictional error because it made an erroneous finding of fact and, in reliance upon that erroneous finding, rejected what came to be known as the applicant’s “Negombo claim”. The relevant finding appeared at paragraph 51 of the Tribunal’s reasons. It was in the following terms –
When the applicant returned to Sri Lanka he went to live with a friend in Negombo. His friend was a building contractor and the applicant did some work assisting him. On one occasion people came looking for him in Negombo. It was put to him that this was not in his written statement. He said that he was living in fear in Negombo. Due to applicant’s [sic] failure to mention that people came looking for him in Negombo in his protection visa application the Tribunal does not accept that this is the case and that the applicant has sought to embellish his claims after he was rejected by the delegate.[43]
[43] Court Book filed 5 February 2015 at p.204.
Two important matters arose from that paragraph of the Tribunal’s reasons. The first was a reference to the Negombo claim not having been mentioned in the applicant’s visa application. The second was a finding that the applicant had sought to embellish this portion of his claim consequent upon the delegate deciding to refuse to grant the applicant a protection visa.
Several things must be said about the Negombo claim.
First, in the protection visa application the applicant did not mention that people had been looking for the applicant in Negombo. The Minister, rather theatrically, put the position in paragraph 35 of his submissions in the following terms –
The applicant’s ground of review suggests that the applicant raised the claim in a statement in is protection visa application. He patently did not.[44]
[44] Minister’s submissions filed 11 April 2016.
Ms Harris did not suggest otherwise. For that matter, she submitted that the statutory declaration that accompanied the visa application stated in terms that the information in the visa application was not exhaustive, that it was only a summary of the applicant’s claims and that further information would be supplied.[45]
[45] Court Book filed 5 February 2015 at p.37.
Second, in the interview between the delegate and the applicant held on 12 March 2013, the applicant did in fact give direct evidence about persons looking for him when he lived in Negombo. A transcript of the interview with the delegate was put in evidence in this proceeding without objection. The relevant passage appeared on page 20 of the transcript and it was in the following terms –
DELEGATE: Why could you not relocate to Colombo? It is your capital city there [sic] are a lot of Singhalese people that live there.
…
APPLICANT: They can easily find us as we have been working in the village and they know about us and they are kept inform [sic] about us and they are easily [inaudible] and they can look at me in another part of the country. Even when living with my friend they had come looking for me to my friend’s house as well. Now they kept me with so much fear in them.
DELEGATE: Sorry when you were living with your friend? Where do you mean?
APPLICANT: Because I went and lived in Negombo with my friend they have come to that house also looking for me.
DELEGATE: When was that?
APPLICANT: When I had left the house but they never told me at the time because they thought I would get afraid.
DELEGATE: Why are you telling me this now? Why is this not in the statement?
APPLICANT: Because I heard about this news only recently when I spoke to the people in the house. They thought I would get afraid.[46]
[46] Affidavit of Michael Kiernan Sinclair Fitzpatrick sworn 23 June 2015 at Annexure “A”.
Third, in the Tribunal’s interview between the member and the applicant, the member announced that she had listened to the interview between the delegate and the applicant and stated “I have a fair idea … about what your claims are about before coming into this hearing…”.[47]
[47] Affidavit of Michael Kiernan Sinclair Fitzpatrick sworn 3 June 2015, Annexure “A” at p.1.
Fourth, the Tribunal found that by reason of the applicant’s failure to mention the Negombo claim in his visa application, any reference to it was an embellishment consequent upon his protection visa having been refused by the delegate. But the delegate did in fact hear about the Negombo claim. In the Tribunal, the applicant referred to the Negombo claim. He did so several times, one illustration of which appeared at page 17 of the Tribunal’s transcript. The exchange was as follows –
TRIBUNAL: Once you were sent back to Colombo where did you go then?
APPLICANT: I went to Negombo instead.
TRIBUNAL: How did you earn a living in Negombo?
APPLICANT: The person I stayed with in Negombo was a building contractor I [sic] helped him with things like putting up tyres and bricks.
TRIBUNAL: Where was your three wheeler?
APPLICANT: It was at home.
TRIBUNAL: Why didn’t you bring it to Negombo?
APPLICANT: I was so scared to bring it to Negombo and there was not [sic] three wheeler park to put my three wheeler but I was living in fear.
TRUBUNAL: Did anything happen to you in Negombo?
APPLICANT: Some people have come in search of me but I was not at home at the time.
TRIBUNAL: When did that happen?
APPLICANT: It happened once I [sic] cannot remember the specific time period.
TRIBUNAL: You never mentioned that in your statement.
APPLICANT: I have stated that.[48]
[48] Affidavit of Michael Kiernan Sinclair Fitzpatrick sworn 3 June 2015, Annexure “A” at pp.17-18.
For some inexplicable reason, the Tribunal found that the mere fact of the Negombo claim not having been mentioned in the visa application, meant no such claim was in fact made and therefore the Tribunal found that the applicant had embellished his claim following the rejection of his protection visa application by the delegate.
A significant error of reasoning pervaded the final sentence of paragraph 51 of the Tribunal’s reasons.[49] I disagree with the Minister’s submission that the final sentence in paragraph 51 of the Tribunal’s reasons was open. It was no mere credibility finding. It represented a jurisdictional error. Before the Tribunal the applicant informed the Tribunal member of the Negombo claim. The Tribunal engaged in a logically impermissible chain of reasoning in reaching the conclusion that the applicant had embellished his claim. To bring the error within the category of error prescribed in Craig v State of South Australia[50] and Minister for Immigration and Multicultural Affairs v Yusuf[51] the Tribunal made an erroneous finding or reached a mistaken conclusion. In determining to refuse the protection visa on the footing of such an erroneous finding, the Tribunal fell into jurisdictional error that must be corrected by this Court. The applicant’s case on ground 2 has succeeded. It is appropriate to grant the applicant’s application for an extension of time within which to bring the amended application.
[49] Court Book filed 5 February 2015 at p.204.
[50] (1995) 184 CLR 163, 179.
[51] (2001) 206 CLR 323 at [82].
Conclusion
In the circumstances, I make an order extending time to bring this application. The second ground for the application for review to this Court has succeeded. Constitutional writs must be issued to quash the determination of the Tribunal. The Minister must pay the applicant’s costs.
This was a hard-fought case. Ms Harris for the applicant and
Mr Mosley for the Minister conducted themselves impeccably. I found that their advocacy was of the highest standard and I was very much assisted by their co-operation, research, economy of presentation and diligence. The Victorian Bar is very well-represented by counsel of their quality.
I certify that the preceding fifty-two (53) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 13 October 2016
CORRECTIONS
In paragraphs 16 and 18, Whitney J is corrected to Wigney J.
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