SZOGU v Minister for Immigration

[2010] FMCA 405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGU v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 405

MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time – no satisfactory explanation for delay – substantive application lacking merit – application dismissed as not competent.

Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425, 476, 477

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZOGU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 647 of 2010

Judgment of: Nicholls FM

Hearing date: 9 June 2010

Date of Last Submission: 9 June 2010

Delivered at: Sydney

Delivered on: 9 June 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms L Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 24 March 2010 is dismissed as being not competent.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 647 of 2010

SZOGU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. The applicant has made two applications to the Court. Both were made on 24 March 2010. The first is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) and seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 December 2007, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. The second application seeks an extension of time within which the substantive application can be made to this Court. I note that s.477(1) of the Act provides for a time limit to be imposed on the making of applications under s.476 of the Act. That requires any application to the Court to be made within 35 days of the date of the making of the Tribunal’s decision. In this case it was not.

3. The Tribunal’s decision was signed on 27 December 2007. But given the provisions that then existed requiring the Tribunal to hand down its decision, the date of the Tribunal’s decision was at that time said to be the date of the handing down of the decision. This occurred on 17 January 2008 (CB 67).

4. The application to this Court was made on 24 March 2010. The current version of s.477 was enacted by the Migration Legislation Amendment Act (No.1) 2009 (Cth) and this became operational on 15 March 2009. By way of the relevant transitional arrangements provided for in the relevant legislation, any decision of the Tribunal made prior to that date is, for the purposes of the current version of s.477, taken to have been made as at the date of operation. That is, 15 March 2009 (see Schedule 2 to the Migration Legislation Amendment Act (No1) 2009 (Cth)).

5. For the purposes therefore of s.477(1) the application to this Court should have been made on or before 19 April 2009, being 35 days from the date of the decision. In these circumstances, therefore, the substantive application made to this Court is outside the time limit imposed by s.477(1).

6. There is no discretion in s.477(1) to extend that time limit. Such discretion does exist in s.477(2).

7. There are two limbs to s.477(2). The first, as set out in s.477(2)(a), requires that:

   “…

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

8. The application for an extension put before the Court does satisfy these requirements.

9. Section 477(2)(b) provides that:

   “…

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

10. The elements that are relevant to such consideration by the Court as to whether it is in the interests of the administration of justice to extend the time are as follows:

    (1)The extent of the delay and whether any satisfactory reasons have been put before the Court to explain the delay.

    (2)Whether there is any merit in the substantive application. That is, whether the grounds of the application have any reasonable prospects of success.

    (3)Any prejudice to the respondent.

    (4)The impact on the applicant if the Court did not extend the time for the making of the application.

    (5)The interest of the public at large. That is, the Australian community.

    (6)    The actual exercise of the Court’s discretion.

Hearing before the Court

1. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms L Buchanan appeared for the first respondent. I note that the Court has before it a bundle of relevant documents (Court Book – “CB”). These documents were put before the Court in compliance with orders made at the First Court Date in this matter.

2. When the applicant appeared before the Court he first indicated that he had nothing to say. When asked whether he was seeking that the applicant’s affidavit of 23 March 2010, which he had filed at the same time as his applications, be read into evidence before the Court he initially indicated in the negative.

3. After some attempt at explaining the situation to the applicant and some adjournment he noted that he did not want to withdraw his applications to the Court and sought to proceed with the hearing. At this stage, he asked for the Court to read his affidavit into evidence.

4. I granted this leave and the applicant was cross examined by Ms Buchanan. I will return to the applicant’s evidence in due course. 

The Applicant’s Claims and Evidence: Delay and the Reasons for Delay

1. From what can be derived from the application for an extension of time and the affidavit itself, it appears that the applicant’s position is as follows.

2. The Tribunal sent its decision record to his friend’s post office box, this being the address for service provided to the Tribunal. As stated in the affidavit itself the applicant asserts that he received the letter after the “28 day” time limit because his friend did not give him the letter in time.

3. The affidavit also asserts that the applicant did not know that he could seek to have this time extended, and it is only now, following his detention by officers of the Minister’s department and his placement in immigration detention at the Villawood Immigration Detention Centre (“VIDC”), that other detainees have told him that he could do this.

4. The material in the Court Book reveals the following. 

5. The applicant applied for review by the Tribunal on 5 October 2007 (CB 44 to CB 47). Although the application provides a residential address in Australia given as “Berala New South Wales” (CB 45.1), the address to which correspondence was to be sent to the applicant (the mailing address) was given as a post office box in Auburn, New South Wales (CB 46.1). I note that this was the same address that he had given to the Minister’s department in relation to his application for a protection visa (CB 13.3). The applicant had also given the same residential address to the Minister’s department (CB 2.7). 

6. The applicant’s evidence at the hearing in explaining the delay in making the application to the Court was problematic in a number of ways. First, the applicant gave evidence that he had engaged a migration agent to assist him, both before the Minister’s department and before the Tribunal. I note that in none of the appropriate parts of the application forms for a protection visa, and subsequently the application for review, is there any reference whatsoever to a migration agent assisting or representing the applicant. Nor is there anything else in the Court Book to support the applicant’s evidence that he had engaged a migration agent for these purposes. Beyond the applicant’s evidence itself given to the Court, the applicant has not provided any other corroboration of his evidence that he had engaged a migration agent. 

7. Second, it was the applicant’s evidence before the Court that the post office box number which had been provided to both the Minister’s department and to the Tribunal as the relevant mailing address, or the address for service, was, as he had said in his affidavit, a post office box belonging to a friend. Importantly the applicant’s evidence was that it was not the mailing address of any migration agent. The applicant’s evidence was also that his friend, whose post office box he claimed it to be, and the agent were not the same person. 

8. What the Court is left with is that the applicant’s evidence is that he engaged a migration agent. This evidence is given now in circumstances where there is absolutely no other evidence to support it. Second, even if he had engaged this agent, the address for service was not that of the agent but of a “friend”.

9. Third, it was also the applicant’s evidence that he had received some correspondence from the Tribunal other than the notification of the Tribunal’s decision. This was all correspondence which had been sent to the friend’s post office box. It was also the applicant’s evidence that he had left all of the matters relevant to his application to the Tribunal, and indeed even his application before the Minister’s department, in the hands of his agent. 

10. What was not satisfactorily explained by the applicant’s evidence was, at the very least in relation to the Tribunal’s invitation of 16 October 2007 to comment on certain information (CB 50 to CB 51), which he said that he did receive at the relevant time and to which he responded. The applicant did not and could not explain how a letter directed to his friend’s post office box, which I can infer was delivered to that box, ended up in the hands of his migration agent, to whom he said he had left all matters relevant to his application before the Tribunal, such that the agent then contacted him and a response to the Tribunal was drafted and despatched.

11. The applicant’s evidence of some relationship between his friend and the migration agent, expressed in terms of his friend having introduced him to the migration agent, does not satisfactorily explain why, having engaged a migration agent, he would prefer to have correspondence sent to his friend. Nor, more importantly, does it explain how correspondence to the friend’s post office box would then subsequently somehow make its way to the migration agent.

12. It was also the applicant’s evidence in his affidavit that he did not receive the Tribunal’s decision “in time”. Given his evidence this should be understood in terms of his not receiving the notification at all.

13. There are some difficulties in accepting the applicant’s explanation of what he initially put in his affidavit, although some caution must be employed in placing too great a reliance on what the applicant said in his affidavit, if for no other reason than that the applicant does not speak English. There is no evidence as to whether the affidavit was translated for the applicant from Mandarin into English, the language in which the affidavit is expressed. Nor is there any evidence that it was then translated back into Mandarin for the applicant at the time of the making of the affidavit so that he could attest to its accuracy.

14. The applicant makes no claim to speak, read or write English, nor indeed any other language than Mandarin (CB 1.8). Further, even now before the Court the applicant advised he required the services of a Mandarin interpreter.

15. Yet the affidavit contains no relevant certification by any interpreter who may have assisted the applicant in this regard.

16. I note also that another concern with the applicant’s evidence is that the affidavit does not indicate, as is required and is provided for on its face, whether it was sworn or affirmed. It raises questions as to whether Malcolm Craig McKellar, who is described as a Justice of the Peace in and for the State of New South Wales (with a particular registration number), who appears as the person before whom the affidavit was made, should be questioned by the appropriate State authorities as to his conduct in relation to the making of this affidavit.

17. On that basis therefore the Court does prefer the applicant’s evidence given orally before the Court in relation to the meaning of the words “in time” appearing in his affidavit. Therefore the applicant’s evidence before the Court stands that he did not receive the notification of the Tribunal’s decision until he was given a copy when he was taken into immigration detention some time within the last five or six months.

18. But even that does not leave any satisfactory explanation as to why the applicant took no steps, on his evidence before the Court, since around about some time in December 2007 to make any meaningful inquiries of the three relevant parties who could have assisted him as to the progress of his application before the Tribunal. His claimed migration agent, the Tribunal and his friends.

19. First, in relation to his migration agent, the applicant gave evidence that he attempted to contact her at some time after he appeared at the hearing before the Tribunal (3 December 2007 – CB 64). It must be said that the applicant’s evidence was unclear in this regard. I did not find as persuasive references to having made telephone calls to his agent and these calls not being returned. Ultimately the applicant’s evidence was also that he found out, although he did not explain how, that his agent had gone back to China. If that was the case then it makes the applicant’s failure to make any inquiries of the Tribunal inexplicable.

20. It was the applicant’s evidence that he did not speak English. But it was also his evidence that at least he had a friend who had assisted him, not only in introducing him to this migration agent but also providing him with a post office box number to which correspondence could be sent. I did not find that the applicant satisfactorily explained why, in these circumstances, he made no inquiries of the Tribunal for some considerable time, most particularly in circumstances where it was his evidence that he found out soon after the Tribunal hearing that his agent had gone back to China.

21. The Court would reasonably expect that an applicant in such circumstances would, at the very least, have made some attempt, even through his friend, to have made inquiries directly of the Tribunal. The applicant’s evidence that he was content once he had been told by the agent that he had a bridging visa must be viewed, in circumstances where such contentment could not have lasted for two years, as at the same time providing a satisfactory explanation for the applicant’s inaction.

22. As Ms Buchanan in my view correctly submitted, the applicant’s actions at that stage can only be contrasted with his very timely actions upon arrival in Australia in making the application for a protection visa and then making the application for review to the Tribunal.

23. At best the applicant’s evidence is that he made some inquiries of friends. The question that remains unanswered, and it is a significant question, is why he did not employ any of those friends to make inquiries of the Tribunal. At least at some latter point during the nearly two years after he had attended the hearing before the Tribunal and after he said he found out his agent had gone back to China.

24. The applicant’s relevant conduct on its own (that is his inaction), and when also viewed in light of the other concerns about his evidence, does not provide a satisfactory explanation for the delay in making the application to this Court.

25. I note further that, as set out at CB 48 and CB 49 (a letter from the Tribunal acknowledging the application), and in light of the applicant’s evidence, it can be inferred that he did receive this letter acknowledgement of his application to the Tribunal. The importance of maintaining an appropriate method of being able to receive communication from the Tribunal was clearly stressed in this letter. In the applicant’s circumstances he provided a post office box address of his friend, and then gave evidence that his friend did not give him the one critical piece of correspondence, that is the notification of the Tribunal’s decision. Yet he received other correspondence from the Tribunal utilising the same method.

26. There is no evidence before the Court that that letter of notification was not sent by the Tribunal to the address provided, in circumstances where it was the applicant’s evidence that he did receive other letters that had been provided to that post office box address all sent in a similar fashion to the same address and addressed to the applicant by registered post.

27. I find it difficult to accept that an applicant would not take responsibility for making sure that he received correspondence from the Tribunal in circumstances where the application to the Tribunal was to be recognised as a refugee. Clearly implicit in that is that the applicant’s claim to fear for his life and liberty surely makes the receipt of correspondence from the Tribunal literally a matter of life saving significance.

28. Yet the applicant’s evidence to the Court is that he provided his friend’s post office box number. He received all other correspondence from the Tribunal. But he did not receive that critical piece of correspondence notifying him of the decision because his friend did not pass it on to him.

29. In all the circumstances it is difficult to accept that evidence from the applicant that he did not receive the notification of the Tribunal’s decision at the relevant time. But even if the Court were to accept that the applicant did not receive the last critical piece of correspondence from the Tribunal even in circumstances where he received everything else, his subsequent inaction over such a long period and his failure to satisfactorily explain that inaction leads also to the conclusion that the reason for the delay in seeking judicial review, coinciding as it does with having been taken into immigration detention, remains unexplained.

The Grounds of the Substantive Application

1. The applicant’s grounds as set in the substantive application to the Court in my view lack merit. They lack merit to the extent that it is not in the interests of the administration of justice to further delay the conclusion of the applicant’s matter before the Court beyond today. 

2. I cannot see that the circumstances before the Court in terms of the applicant’s complaint about the Tribunal’s decision are such as to merit another occasion on which those concerns can be more fully explored. Although I note that that opportunity was given to the applicant at the hearing today. 

Claims to Protection

1. From the material in the Court Book I note that the applicant’s claims to protection were that he was a national of the People’s Republic of China (“China”). He claimed to have arrived in Australia using a false passport with an identity not his own (CB 35.6).

2. He commenced the practise of Falun Gong in 2003. He claimed to have been detained by local police when he was found practising Falun Gong in a park. As a result he was discharged from the Aviation Institute which he was attending at the time. He then claimed to have returned to Fuqing where he continued to practise and promote Falun Gong.

3. Subsequently in June 2006 he was dismissed from his employment because he was suspected of practising Falun Gong at that time. He was detained by police in May 2007, and was tortured by them. They sought to extract information from him. He claimed to have been assisted by Falun Gong members and his family to bribe his way out of China. This included the use of a “false” passport. 

The Delegate

1. The delegate found that several aspects of the applicant’s claims lacked credibility. The delegate found that the applicant’s claims had been fabricated to create a refugee profile. These were the central reasons in refusing the application for a protection visa. 

The Tribunal

1. Following receipt and acknowledgement of the application for review, the Tribunal wrote to the applicant on 16 October 2007 and invited his comment on certain information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review (CB 50 to CB 51).

2. This information was in fact information provided by the applicant in his protection visa application. In those circumstances, given the provisions of s.424A(3)(ba), it is not clear why the Tribunal felt compelled to write to the applicant in terms that evoked its obligation pursuant to s.424A(1). Nonetheless, there is no legal error in the Tribunal having done so.

3. Importantly, the Tribunal’s letter specifically drew to the applicant’s attention that it may take the view that he had embellished, if not entirely fabricated his claims, which was indeed the finding made by the delegate. Consistent with the applicant’s evidence before the Court today, he did receive this letter and he responded by letter dated 7 November 2007 (CB 60). 

4. While there was some evidence as to how that response had been drafted, and this involved the migration agent, what is clear is that the applicant appended his signature to that response. In that letter the assertion was that the applicant had told the truth in relation to his claims, and that he would provide more detail at the Tribunal hearing.

5. The applicant did attend a hearing before the Tribunal on 3 December 2007 and gave evidence. The applicant has not put before the Court any other evidence, for example by way of transcript, to challenge the Tribunal’s own account as to what occurred at the hearing that is set out variously in its decision record (CB 72 to CB 75). 

6. The Tribunal found that the applicant was not a witness of truth and that none of his claims materially relevant to his refugee application were true. This conclusion was based on the cumulative effect of a number of findings made by the Tribunal, which included findings about the applicant’s account of why and how he began the practice of Falun Gong, how he continued to practise Falun Gong subsequently, the inconsistency of some of the applicant’s claims with country information available to the Tribunal, and indeed the implausibility of other aspects of his claims. Further, the Tribunal was troubled and concerned that the applicant, on his own evidence to the Tribunal, had not sought to practise Falun Gong in Australia other than for the reading of one book.

7. The Tribunal therefore affirmed the delegate’s decision, having rejected the factual basis of the applicant’s claims to be a refugee based on its concerns about the applicant’s credibility and truthfulness.

Ground One

1. Ground one in the substantive application to the Court asserts that the Tribunal failed to invite him to comment on information relevant to his application.

2. I should note by way of preliminary comment that when asked to make submissions in relation to the grounds in his substantive application today before the Court, the applicant stated that he had received assistance with the drafting of those grounds. But he was able to explain to the Court that what was meant by the first ground was that the Tribunal failed to provide him with an opportunity to comment on its decision record because he did not receive the decision record until some two years after the making of the decision.

3. First I note that this is a case to which s.422B of the Act applies. This section became operational on 29 June 2007. It clearly applies to this case given that the application for review to the Tribunal was made in October 2007. The effect on the applicant’s case therefore is that, for the purposes of procedural fairness and the natural justice hearing rule, what is set out in Division 4 of Part 7 of the Act is the exhaustive statement of this rule in relation to this application. That is of course absent any issue of bias, which has not been alleged in this case.

4. Relevantly, complaints about a failure to invite comment on information is wording that invokes the provisions of s.424A. That section is concerned with the Tribunal’s obligation to provide the applicant with an invitation to comment on information which the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. In this case the delegate’s decision. Relying on more recent High Court authority (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) as to what constitutes “information” for the purposes of s.424A(1)), the Tribunal’s decision record itself and as a whole is not information for the purposes of that section.

5. There is no obligation on the Tribunal to provide any draft copy of its intended decision to an applicant for comment pursuant to that section. Further, whatever appraisals the Tribunal may make of the information and evidence before it as contained in its ultimate decision record is not information for the purposes of s.424A. See here SZBYR at [18], and the reference in that paragraph to the Full Federal Court decision of VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471.

6. The applicant’s first ground, as explained by the applicant himself before the Court, lacks merit, let alone any reasonable prospects of success.

7. But even beyond the way the applicant has chosen to explain his ground, if this could in some way be taken to be some reference to some other obligation flowing from s.424A(1) then as I have already said the Tribunal did write to the applicant and did put to him, pursuant to s.424A(1), certain information which it said would be the reason or part of the reason for affirming the decision under review.

8. This was information that he had put in writing in connection with his protection visa application. I note that the provisions of s.424A(3)(ba) became operational in June 2007 and therefore applies to this case. Such information therefore is excluded from the obligation in s.424A(1). As I said earlier, in any event there is no error in the Tribunal writing to the applicant in this way, even if it was not obliged to do so by the relevant procedural code.

9. I note further that the applicant’s evidence that he gave to the Tribunal comes within the exception contained in s.424A(3)(b). That is another exception to the obligation in s.424A(1). The country information to which the Tribunal said it referred also comes within an exception to s.424A(1), namely in s.424A(3)(a). As I said earlier the Tribunal’s adverse views, its appraisals of the applicant’s evidence, and the claims before it are not information for the purposes of s.424A. I note further that the Tribunal did turn its mind, at the hearing, to whether it was required to employ the facility available to it in s.424AA to put any information to the applicant orally at the hearing (see CB 75.3).

10. There is nothing before the Court to show that the Tribunal was in error in concluding that it was not sufficiently satisfied of what information would cause the Tribunal to affirm the decision during the hearing and that led it at that time to form the view that there was no need to put any such “information” further to the applicant, nor to provide the applicant with any further opportunity to respond (CB 75).

11. To the extent that it may also be said that the applicant’s ground may include some broad assertion that the Tribunal did not put to him what turned out to be the determinative issue that disposed of the review during the hearing such that the applicant could both understand and comment on such issue or issues, then in this regard it is quite clear there are two relevant things to note.

12. The first is that that obligation which is said to arise from what the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”), regarding the Tribunal’s obligation to expose an applicant at the hearing to the determinative issue in the review, arises in circumstances where such an issue is not already a live issue as a result of the delegate’s decision. In this case, the determinative issue was the rejection of the applicant’s factual account based on the view that the Tribunal took of his credibility. This was, as I said earlier, a live issue as a result of the delegate’s decision.

13. Second, even having regard to the Tribunal’s unchallenged references to what it said occurred at the hearing before it, it is clear that the Tribunal put the applicant on notice that certain key and critical aspects of his factual claims and explanations were at issue. The Tribunal put to the applicant, for example at CB 73.3, that it may not accept as plausible his claims to have practised Falun Gong in a public park. It put to him certain country information that challenged the applicant’s claims in relation to Falun Gong practitioners and the availability of work (CB 73 to CB 74).

14. On balance, while it may be said that there was no emphatic and clear statement of a challenge to the applicant’s entire credibility, when the Tribunal’s comments, as noted, that were put to the applicant are also seen in light of the delegate’s decision then I cannot see any failure in relation to the Tribunal’s obligation pursuant to s.425 of the Act. What can be said is that there was at least “sufficient indication” at the Tribunal hearing, with reference to [47] of SZBEL, to put the applicant on notice that his entire factual account was at issue.

15. In all ground one, both as pleaded, explained by the applicant or even with any possible reference to any other complaint that could be said to be encompassed within it, does not reveal jurisdictional error in the Tribunal’s decision. For today’s purposes it does not reveal any merit such as to weigh in favour of the applicant in extending the time for the making of the application to the Court.

Ground Two

1. Ground two of the application, in my view, simply seeks to challenge the Tribunal’s finding of fact that the applicant was not a witness of truth. What can clearly be said about this is that this conclusion was based on findings reasonably open to the Tribunal to make, and for which it gave reasons. Any assertion by the applicant now before this Court that he sometimes practises Falun Gong and sometimes does not, does not in any way assist in showing error on the part of the Tribunal.

2. With reference for example to such cases as Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J, the findings made by the Tribunal were an exercise within jurisdiction. In the circumstances the applicant can only be seen as seeking impermissible merits review from this Court. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Others [1996] HCA 6; (1996) 185 CLR 259. This Court of course cannot engage in such merits review.

3. Ground two also does not succeed in showing jurisdictional error on the part of the Tribunal. For today’s purposes it can clearly be said it also lacks merit in relation to whether the Court should exercise its discretion relevant to what is in the interests of administration of justice.

Other Elements

1. Ms Buchanan submitted that there would be some prejudice to the respondent if the Court were to exercise its discretion in favour of the applicant today on the basis that there should be some finality to matters before the Tribunal and that clearly some prejudice would arise to the Minister in allowing the extension of time, particularly in the circumstances as put forward by the applicant today.

2. I would also comprehend the issue of prejudice to the Minister as being relevant as to whether any further delay should be occasioned beyond today in granting the extension of time and the possibility of the applicant then being given a further opportunity before this Court, presumably to more fully explain his complaints about the Tribunal’s decision. I note in this regard, given the applicant’s presentation today, that I am not satisfied that any such opportunity would reveal anything further of advantage to the applicant. There was certainly nothing explicit from the applicant today in seeking any further opportunity.

3. It is of course the case that any prejudice to the Minister must still be balanced against what may be said to be the interests of the Australian community at large and, in particular, that great care needs to be taken in the interests of the Australian community that a refugee not be refouled to the country of claimed persecution. 

4. However that does not apply in the current circumstances because the applicant has been determined not to be a refugee in a decision which, on what is before the Court, is not susceptible to any apprehension of jurisdictional error on the part of the Tribunal. This of course must be balanced with what I have already described as the unsatisfactory explanation for the delay in making the application to the Court, and what is central to the consideration today, that is the lack of merit in the substantive application which far outweighed, in my view, any impact on the applicant. Which is that he would in most probability be returned to China.

Conclusions

1. In all therefore, I am not satisfied that it is in the interests of the administration of justice to make the order sought by the applicant to extend the time for the making of the application to the Court. In these circumstances the applicant has not met the requirement set out in s.477(2) of the Act.

2. In light of this the substantive application made to this Court on 24 March 2010 does not satisfy the time limit set out in s.477(1). In light of that lack of satisfaction I am going to dismiss that application made to this Court as not being competent.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: