MZZEX v Minister for Immigration

[2013] FCCA 801

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 801

Catchwords:
MIGRATION – Review of Migration Review Tribunal – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36,(2)(a)-(c), 65(1), 447(1), 447(2)
Migration Regulations 1994 (Cth), Pt 866, Sch 2

Selvadurai v The Minister for Immigration & Ethnic Affairs [1994] FCA 1105
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) HCA 1
Minister for Immigration & Citizenship v MZYZA [2013] FCA 572
WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
SXRB v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222

Applicant: MZZEX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 10 of 2013

Judgment of: Judge Jones

Hearing date: 9 July 2013

Date of Last Submission: 9 July 2013

Delivered at: Melbourne

Delivered on: 9 July 2013

REPRESENTATION

The Applicant: Appeared in person

Counsel for the First and Second Respondents: Mr Wood

Solicitors for the First and Second Respondents: Clayton Utz

ORDERS

1. The application for extension of time be refused pursuant s.477(2) of the Migration Act 1958 (“the Act”).

2. The application filed on 8 January 2013 be dismissed pursuant to s.477(1) of the Act.

3. Costs be fixed at $6,646.00 against the Applicant.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 10 of 2013

MZZEX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 November 2012 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa. As the decision of the Tribunal was dated 29 November 2012 and the application for judicial review was not lodged until 8 January 2013, the provisions of s.477 of the Migration Act 1958 (Cth) (“the Act”) require that the applicant be granted an extension of time if he is to proceed with his application. As observed by the Minister, in written submissions, s.477(2) provide the Court with a discretion to extend the period within which a review may be made, provided the Court is satisfied that it would be in the interests of the administration of justice to make such an order.

2. The Minister opposes the making of such an order and the applicant has asked for the Court to make such an order. The applicant applied for a Protection (Class XA) visa under s.65 of the Act and in summary the relevant provisions are as follows. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a Protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (“the Rules”). An applicant for the visa must meet one of the alternative criteria in ss.36(2)(a) or 36(2)(aa), (b) or (c).

3. That is, the applicant is either a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees or on other complementary protection grounds or as a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.

Background

1. By way of background, the applicant is a citizen of Pakistan.[1] He arrived in Australia around February or April 2006[2] on a visa which is unknown. He was placed in detention on 8 May 2012 on the basis it was reasonably suspected that he was an unlawful citizen.[3] A record of the detaining officer at the time records as follows:[4]

   “Question:If you are not located by us today, what is your intention?

   Answer:I intend to marry an Australian citizen and have my own business like being a Cheesecake shop as I know a lot in this trade.

   Question:Why you did not leave in 2006 when your visa ceased?

   Answer:My family in Pakistan was having financial difficulties and I need to work to support them.”

   [1] CB 11

   [2] CB 118

   [3] CB 115

   [4] CB 120

2. In response to a question from the detention officer, the question being question 22: “Are there any reasons why you cannot return to your home country?” The record of the answer is, “I can’t think of any special reasons.” On 21 May 2012 the applicant applied for a Protection (Class XA) visa.[5] In his application, the Applicant responded to the question why he left Pakistan as follows:[6]

   “I went back to Pakistan in October 2005. When I was there my family asked me to marry my cousin. Marry a cousin is allowed in our religion. When I refused they hid my passport and started to push me to marry my uncle’s daughter. I was under tremendous pressure to marry my uncle’s daughter. I was not consulted in this arrangement and they exerted pressure on me to accept. I had only one support, that is from my mum.  I was so stressed. I was not allowed to go outside. They said that I was engaged to my cousin since we were kids. Due to the continuous pressure

   
   

   I thought it best to pretend like accepting their arrangement in order to escape from them. I told them that they were right in selecting my partner. I will accept their wish. However, I told them I need some time before engage in a married life. Although they were not completely satisfied with my explanation, nonetheless they allowed me to go outside. After that some of my friends helped me to purchase an air ticket and my mum helped me to get a passport. I ran away from there and returned to Australia.  After I returned to Australia I could not sleep in night and started getting nightmares.”

   [5] CB 10

   [6] CB 16

3. He stated in his application, that if he returned to Pakistan:[7]

   [7] CB 17

   “I fear that I will be killed for disobeying my custom by not marrying my cousin.  My uncle and family will take revenge and I feel that I will be killed.  My uncle is a convicted murderer. He killed someone in 1994 so on a holy .... day he was convicted and sentenced to death. However, after six years he had a deal with the victim family and paid compensation to the victim’s family and was released from prison. He is notorious and will do anything to protect his family’s pride and honour. I fear that I will be harmed, possibly killed, because my uncle’s family consider me as a person who ruined their pride and reputation. My cousin is still single and I fear that I’ll be forced to marry her against my will and I oppose to marry her I will be harmed by my uncle’s family. Though I returned to Australia in early 2006 I did not seek protection in Australia for the following reasons. I was not fully aware about the refugee matters. I thought that my issue is a family matter and not a basis to seek protection as a refugee.  But when I realised that after the introduction of complementary protection there is a hope for people like me to seek protection

   
   

   I decided to explore it.”

4. The applicant’s migration agent, who submitted the applicant’s application for a protection visa, stated in correspondence dated

   
   

   21 May 2012 that the applicant was seeking a protection visa on the following grounds:[8]

   [8] CB 1 & 2

   “He will be seriously harmed if he returns to Pakistan for the following reasons:

   (1)It is submitted that the applicant is a person to whom Australia’s protection obligations as he has a well-founded fear of suffering prosecution for convention reasons if she returns to Pakistan for the cumulative reasons of a particular social groups.

   (2)We further submit that given the current ongoing human rights problems and security situation and political and religious instability in Pakistan there is no meaningful option there for the applicant to relocate or obtain effective protection from the Pakistan authorities given the problem he fears.

   (3)We further submit that Australia has obligations complementary to the Refugee Convention towards people facing serious harm and torture if they return to their home countries. We note this obligation arises from the concept of refoulment. We note that these obligations are now incorporated into domestic law.”

5. There was also provided excerpts from country information.

6. The Minister’s delegate found on 28 June 2012:[9]

   “I’m not satisfied that (the applicant) is a person to whom Australia has protection obligations under section 36 of the Migration Act and clause 866.221 of the schedule 2 to the Migration Regulations. Accordingly I refuse to grant (the applicant a protection class XA visa.”

   [9] CB 135

7. The applicant appeared before the Tribunal himself, having not nominated a representative, by video and elected to communicate in English without the aid of an interpreter. He appears today representing himself, again without the aid of an interpreter. The Tribunal set out the evidence given by the applicant including the matters already averted to in his application,[10] that he returned to Australia in February 2006 to avoid having to marry his cousin. That in 2007 the applicant’s mother told him that his uncle had been released from prison.[11] When his uncle was released he was looking for something to legalise his status as he realised he could not return to Pakistan if his uncle was free.[12]

   [10] CB 221, (38)-(48)

   [11] Ibid (38)

   [12] Ibid (41)

8. The Tribunal set out the applicant’s evidence at hearing as follows:[13]

   [13] CB 42-46

   ·he inquired with others and did find out about protection visas in 2007.

   ·that he was not aware of whether they would apply to him.

   ·he went with a friend to an agent.

   ·he told the agent about his fear of his uncle but this person just laughed and said everything would be the same.

   ·he said the agent said the applicant’s fear of his uncle would not fit within the definition of a refugee.

   ·as a consequence of this advice he backed off and was waiting for a miracle to happen.

   ·in 2008 2009 the applicant consulted a lawyer who told him if he had a skill he could apply for permanent residency and on that basis he decided that was the way that he might go.

   ·he had a friend who had purchased a pastry-making business which was where he was working when he was apprehended by officials from the department.

   ·although he consulted a lawyer in 2009 he did not tell him about being afraid of returning to Pakistan because of the harm he feared from his uncle.

   ·he did not tell his lawyer this because he thought that his case did not come within the definition of a refugee.

9. Relevantly, the Tribunal asked the applicant why he did not tell the detention officer his fear of harm. The applicant answered that he was, at the time, shocked and not in a position to do so and that it was not in his head at the time that his claims in that respect would fit in the definition of the word, “refugee” and this was because he had consulted a lawyer who told him information in relation to obtaining a skill related visa and for that reason he did not think to mention his fear of harm.[14]

   [14] CB 47-48

10. The Tribunal also questioned the applicant regarding his return to Pakistan in 2005 and whether he had reported to the police his fear.

    
    

    The applicant stated, in fact, that he had gone to the police.[15] The Tribunal provided the applicant with the opportunity following the hearing to obtain the statements that he said he made in relation to the police. No further documents were provided to the Tribunal.[16]

    [15] CB 55

    [16] CB 101

11. Relevantly, the Tribunal directly questioned the applicant regarding the fact that when he arrived in Australia in 2006 he was in fear of his life but he did not make an application until six years later for a protection visa.[17] The Tribunal put to the applicant that according to his evidence he had come to Australia in 2006 to save his life but he did not make an application for a protection visa until six years later which could indicate that he was not genuinely in fear of harm in Pakistan.

    
    

    In response the applicant said that it was a mistake to have waited for things to change in Pakistan.[18]

    [17] CB 60-62

    [18] CB 60

12. The Tribunal also invited, I should note for completeness, pursuant to s.424AA of the Act, the applicant to comment on or respond to the fact that in his compliance client interview he did not tell the officer about his fear of returning to Pakistan due to his refusal to marry his cousin. The Tribunal noted that the applicant did not request extra time to comment or to respond to the information in question.[19]

    [19] CB 62

13. Turning to the findings of the Tribunal, the Tribunal found that the applicant was not a witness of truth, especially having regard to the applicant’s inaction and delay in seeking a protection visa which was, in the Tribunal’s view, unsatisfactorily explained and having regard also to the inconsistencies between the statements made to the detaining officers in May 2012 and his application for a protection visa. In relation to delay, the Tribunal said at paragraph 73:

    “Overall, the applicant’s behaviour in this respect and the substantial delay on his part in applying for protection on the basis of the harm he claimed to fear in Pakistan indicated the applicant is not genuinely in fear of harm and has not been truthful as to why he left Pakistan and why he did not wish to return there. This was put to the applicant at the hearing and the Tribunal has considered his various applications.”

14. The Tribunal considered the applicant’s response regarding the period prior to his uncle’s release in 2007 and stated:

    “The applicant said he did not meet anyone who had done a protection visa application and did not watch the news or read papers.”

15. Whilst that may be so the Tribunal stated that does not excuse the applicant from actually making inquiries as to how he could remain in Australia to avoid the harm he feared in Pakistan.

16. At paragraph 75 the Tribunal stated:

    “The Tribunal does not believe the applicant would simply just wait in hope that his uncle might be put to death in Pakistan.”

17. At paragraph 76, as the Tribunal referred to the period after the applicant learnt his uncle had been released and his failure to take steps to obtain a protection visa and stated:

    “He has not put forward any satisfactory explanation for failing to make inquiries through more proper channels such as lawyers or more reputable agents. He took no proper steps to find out if his view of the circumstances was correct, namely, that the grounds no which he feared harm in Pakistan would not come within the definition of the term, ‘refugee’.”

18. At paragraph 77 the Tribunal noted, this was the case even though he did subsequently see two lawyers.

19. The Tribunal stated at paragraph 78:

    “Were the applicant genuinely in fear of harm in Pakistan as he claims, the Tribunal does not believe he would withhold from these lawyers the real basis on which he claims to be unable to go back to his country.”

20. At 79 the Tribunal stated:

    “Similarly, the Tribunal did not believe that, were the applicant genuinely in fear of harm he would then choose to simply spend more time in this country while not having the right to reside here permanently in the hope that the cousin he was to marry might well be married off to somebody else and so his uncle would change his attitude towards him.”

21. The Tribunal stated at paragraph 80 that it appreciated his claims about social pressure on his uncle’s family but again, repeated that it did not believe that the applicant would choose to remain in Australia in the hopes that his cousin would be married off.

22. The Tribunal stated at paragraph 81 it considered the applicant’s more general claim that he was embarrassed and that he did not want to share this with others and that he was wrong, he had the wrong mindset, was lazy and made a big mistake.  The Tribunal stated:

    “None of these matters can explain his inaction in seeking protection when he claims his life is at risk in Pakistan.”

23. At paragraph 82 the Tribunal stated:

    “In particular, the Tribunal does not believe that embarrassment about a life threatening situation in his home country would prevent him from making inquiries of appropriate people in Australia about that situation.”

24. At paragraph 83 the Tribunal stated it appreciated it was only earlier this year that the complimentary protection criteria came into force and which would have broadened the terms on which the applicant could attempt to gain a protection visa.  It said, however:

    “What concerns the Tribunal is the fact that up until that time the applicant did not take proper steps to be certain that his view of his eligibility was actually correct, as well as his inaction about seeking protection.”

25. Turning to the question of the inconsistencies in the evidence, the Tribunal stated at paragraph 87:

    “The Tribunal does not accept the responses that were given by the applicant. The applicant could well have understood the questions he was being asked, having been apprehended by the officers and that this related to his right to be in Australia. Were he genuinely in fear in Pakistan he would have said so when he was interviewed, especially when he was being given specific opportunities to do so.”

26. The Tribunal said that it accepted that the applicant may well have wished to remain in Australia on the basis of the work he was going to undertake or skills be was planning to acquire but this still did not explain his failure to tell the detention officer when given the opportunity to do so that he wanted to stay in Australia to avoid a life threatening situation.[20]

    [20] CB 89

27. Again, the Tribunal considered his comments made pursuant to s.424AA of the Act and acknowledged that the applicant may well have been nervous at his compliance client interview but formed the view that he would have also well understood that this interview was regarding his status to be in Australia and the Tribunal still considered that were he genuinely in fear of harm in Pakistan he would have said so at his compliance client interview.[21]

    [21] CB 90

28. As to the applicant’s evidence that he made a mistake, the Tribunal stated it did not believe the applicant would mistakenly forget or choose not to tell the officers about his fear of harm in Pakistan.

29. The Tribunal then went on to set out its conclusions on credibility. The Tribunal stated at paragraph 93:

    “Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility leads the Tribunal to conclude that the applicant is not a witness of truth and the account of events on which his protection claims are based is false.”

30. The Tribunal found that the applicant’s claims which follow not credible:

    ·that the applicant’s claim that his family arranged for him to marry the daughter of an uncle and the applicant refused to marry that person and as a result an uncle wished to harm him and made threats to do so;

    ·that the applicant has been told by others that his uncle wants to harm him; and

    ·that the applicant left Pakistan in 2006 out of any apprehension about having to marry a cousin and in fear of harm and that the applicant is genuinely in fear of harm in Pakistan.[22]

    [22] CB 94

31. The Tribunal then went on at paragraph 97 to say that:

    “The Tribunal accepts no more than that the applicant comes from Pakistan and he has a family there. The sole basis on which he claimed to fear harm in Pakistan was his fear of his uncle; claims the Tribunal has found not to be credible. There is no credible evidence before the Tribunal as to why the applicant left Pakistan in 2006 and why he does not want to return there.”

32. At paragraph 99, dealing with section 36(2)(a), the Tribunal referred to the represented’s written submission and stated:

    “There is no need for the Tribunal to determine whether or not the particular social groups referred to in the submissions exist.  This is because the Tribunal does not believe that the applicant is the subject of an arranged marriage as he claimed.”

1. The Tribunal then noted at paragraph 101:

   “For the sake of completeness the Tribunal notes the applicant said that he had given a report to his representative to give to the department about his uncle being in jail and getting released.  There is no such document on the department file and his claims in this respect, at any rate, are disbelieved.

   The applicant told the Tribunal he might be able to produce the statement he claims he made to the police in 2005 about his fear of his uncle.  The Tribunal allowed the applicant a period of three weeks to produce the document but no further documents have been received from him.”

2. In relation to s.36(2)AA the Tribunal held:

   “…as regards to the complimentary protection criteria, the Tribunal repeats its finding that the applicant is not a witness of truth. …. Accordingly, there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Pakistan there is a real risk he will suffer significant harm.”

3. As a consequence of these findings the Tribunal concluded that:

   ·it was not satisfied that the applicant is a person in respect of whom Australia has a protection obligation and hence does not satisfy the criterion under s.36(2)A;

   ·it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa); and

   ·there was no suggestion that the applicant satisfied s.36(2) on the basis of being a member of the same family unit as a person who satisfies ss.36(2)(a) or (aa) and who holds a protection visa.

4. Accordingly, the Tribunal found the application does not satisfy the criterion in s.36(2) for a protection visa.

Application for Review

1. The grounds for the application in the application filed by the applicant were not particularly helpful, which is no criticism of the applicant as he is self-represented. They refer to ss.95, 101 and 105. The applicant’s affidavit, which was filed by him on 8 January 2013, sets out in writing, it appears, the basis for his application for review, and I quote from that as follows:

   “In the decision record made by Refugee Review Tribunal on

   
   

   29 November 2012 under section 95, 101, the Tribunal disbelieves my claims about my biological uncle’s existence and also his conviction, and also said I have given a report to my representative about that report.  I was a decision of the court releasing my uncle.  The copy of the decision I received via an email from my brother and I forwarded that to my representative.  I learnt that by the decision record made by RRT that that the copy of that court decision was not submitted.

   That decision was made by the court and can’t be a fabrication.

   
   

   I request the court to please give me a chance to provide these documents. I received that email, the court decision releasing my uncle, on 6 June 2012 and it’s still in my email. There is no way I can know about not submitting that decisions copy prior to the RRTs decision. I can provide evidence about the exact date I received that email. Also I can provide the copy of the decision releasing my uncle.”

2. In the hearing today, the applicant has clarified that, he gave the documents that he referred to in relation to the release of his uncle to his migration agent.  He says that it is apparent that those documents were not provided to the Tribunal by the migration agent and he accepts that it is a failure of the migration agent and not a failure of the Tribunal as he also accepts that the documents were not before the Tribunal.

3. Looking at the applicant’s grounds for review: Firstly, they attack the Tribunal’s findings as to his credibility, and secondly relies on the failure by the Tribunal to take into account a court report from Pakistan that sets out the release of his uncle.

4. These may be characterised, in the terms of jurisdictional error grounds, as the failure to take into account a relevant consideration and/or failure to afford the applicant natural justice.

5. In the hearing today counsel for the Minister informed the Court that documents had been received by his instructing solicitor from the applicant which contained certain documents. The documents, the applicant explained, go to the question of documents that he says the migration agent ought to have filed for his review by the Refugee Review Tribunal.

6. The documents have not been admitted into evidence, although they have been provided to the Tribunal, on the basis that it is not the Court’s function to review the applicant’s case on its merits. This is a judicial review and the decision of the Court must be made by way of satisfaction or otherwise that there had been a jurisdictional error.

Extension of time

1. I have dealt in some detail with the Refugee Review Tribunal’s decision because, whilst the discretion of this Court to order that the period within which the applicant may make an application for review is extended, takes into account matters such as delay. It also takes into account the merits of the substantive claim.

2. Counsel for the Minister has sensibly conceded that as the applicant was in detention at the time period in which the applicant’s application was outside the period specified in s.477(1) was short, that there was an acceptable reason for delay. The Court finds that is so. The real issue here is the merits of the applicant’s substantive claim. The Minister argues that there is no jurisdictional error on the basis that the report was not before the Tribunal, not because of any fraud of the agent, but simply the applicant’s migration agent’s negligence in providing that report.

3. The applicant has stated in the hearing today that the migration agent failed to provide the report. It was the migration agent’s failure and negligence. There is no evidence before the Court that the applicant asserts that there was fraud on behalf of the migration agent.

   
   

   The Minister states that even were the report relevant in some way, the applicant was provided an opportunity by the Tribunal to submit further documents for a period of three weeks after the completion of the hearing. This is in reference to paragraph 101 of the Tribunal’s decision. It is not clear, on the face of that paragraph, whether the Tribunal was referring to police statements that the applicant stated that he obtained in 2005 or, in fact, the reports recording the uncle’s incarceration and release.

4. In any event, the applicant concedes that he did not provide that documentary material later. More significantly, the Minister argues, and the Court finds correctly, that it is a question of whether the particular evidence is fundamental to the integer of the applicant’s claim.

   
   

   Now, the integer of the applicant’s claim is that he fears harm by reason of his arranged marriage, and the fact that if he returns to Pakistan having refused to marry his cousin he will be harmed by his uncle. The Minister correctly states that the reports or documents which record the uncle’s incarceration and release would be, at most, corroborative evidence, but they would not rise to evidence that is fundamental to the integers of the claim.

5. I agree with the respondent’s submission that it was open to the Tribunal to form an adverse view of the applicant. This is in relation to the applicant’s attack on the Tribunal’s finding of credibility.

   
   

   The Tribunal’s view stem from the inadequate explanation by the applicant for the delay in applying for a protection visa from 2006 and 2012, and this is a finding the Court is satisfied the Tribunal could validly make.  And in respect of this, the Court refers to the decision in Selvadurai v The Minister for Immigration & Ethnic Affairs [1994] FCA 1105. In that decision the Court found at paragraph 11:

   “The applicant complained the Tribunal taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness or at least the depth of the applicant’s alleged fear of persecution.”

6. Further, a finding on the credibility of an applicant is, as the respondent Minister has submitted, a function of the primary decision maker par excellence, provided the Tribunal gave reasons for that: Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) HCA 1 at paragraph 67. As I have noted above in some detail, the Tribunal gave fulsome reasons for its finding as to credibility, namely inaction by the applicant in pursuing a protection visa given his alleged fear of harm and the inconsistencies as between material he gave to a detention officer and his application for a protection visa. Likewise, inconsistencies can form a legitimate basis for concluding the applicant is not a person of credit, and I refer to the decision in Durairajasingham.

7. As to relevant consideration and procedural fairness, I concur that it is not the role of the Tribunal to inquire into every evidentiary matter, including rebuttal evidence.  I note that, although the Tribunal gave the applicant an opportunity to provide reports in relation to a police statement, the Tribunal also gave the applicant an opportunity to provide documentary material in general. The applicant could have taken advantage of this to provide the reports of his uncle and did not do so.

8. It is helpful to refer to a recent decision of his Honour Tracey J in Minister for Immigration & Citizenship v MZYZA [2013] FCA 572.

   
   

   In this decision His Honour, whilst not required to decide the point, dealt with the question as to the distinction between a failure to have regard to relevant material that constitutes jurisdictional error and a failure that that does not do so. His Honour, at paragraph 58, referred to a decision of the Full Court in WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at 21 where the Full Court held that:

   “A failure to have regard to relevant material, which is so fundamental that it goes to the jurisdiction, is an error of law.”

9. At paragraph 59 of the decision, his Honour refers to a decision of Lander J in SXRB v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222 wherein his Honour said:

   “The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of the applicant’s claim for an entitlement to a visa. Whether it will or not will depend on whether it is the only or the overwhelming evidence relating to the integer.”

10. In this case, the report or the documents recording the uncle’s incarceration and release was not the sum total of the overwhelming evidence upon which the Tribunal based its decision. As I have indicated, and in fulsome terms, the Tribunal had regard to many other factors and these were the inaction of the applicant in pursuing a protection visa, and inconsistencies in information provided to the Minister by way of, firstly, that that information provided to the detention officer and, later, in his protection visa. The Tribunal held that on this basis the applicant was not a witness of truth, such that it did not accept that the applicant was subject to an arranged marriage from which flowed all the claims of fear of harm and persecution by the applicant.

11. Yes, it is true that the material provided by the applicant today may well have corroborated his claims that his uncle had been incarcerated and released, but the Court is satisfied that that was not overwhelming evidence as to the applicant’s integer of his claim, namely that he feared persecution and harm if he returned to Pakistan.  Consequently,

    
    

    I am satisfied that the Tribunal did not fall into jurisdictional error in its decision. It will be obvious from my decision that I have formed the view that the prosecution of the substantive application would, in fact, be futile. Consequently, I am not satisfied that it is necessary in the interests of the administration of justice to make orders extending the time limit under s.477(1).

12. The application for an extension of time under s.477(2) is, therefore, dismissed and the application filed on 8 January 2013 by the applicant is dismissed as the incompetent pursuant to s.477(1) of the Act. That is my decision.

13. The applicant being entirely unreasonable, the first respondent is entitled to costs and an order shall therefore be made.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:  12 July 2013