SZWAF v Minister for Immigration & Border Protection

[2015] FCCA 1732

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1732

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 65, 477

Cases cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for immigration and Citizenship [2010] FCA 500
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
SZIQP v Minister for Immigration and Citizenship [2008] FCA 169
SZHFX v Minister for Immigration and Citizenship [2008] FCA 355
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: SZWAF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 158 of 2015

Judgment of: Judge Emmett

Hearing date: 23 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 23 June 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: Mr Rohan White
(Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 158 of 2015

SZWAF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed 21 January 2015; was some 55 days from the date of the decision sought to be reviewed. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

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

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

   (3) In this section:

   ‘date of the migration decision’ means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

   (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

2. The decision of the Refugee Review Tribunal (“the RRT”) is dated 27 November 2014. In the circumstances, the applicant’s application for judicial review to this Court, filed on 21 January 2015, is in excess of the 35 day time limit provided for in s.477(1) of the Act.

3. However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.

4. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

5. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).

6. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).

7. I explained to the applicant that in considering whether time should be extended to him, of significance for the Court would be the explanation for his delay and the prospects of success of his proposed application for judicial review of the RRT’s decision.

8. The applicant confirmed that his explanation for his delay was as contained in his application for judicial review, filed 21 January 2015, which is as follows:

   “1. The postman left a sheet for me to pick up the RRT decision. Unfortunately, the sheet was mixed with other advertisement leaflets. It was already late when I realised it. After I read the RRT decision, I have strong will to make an appeal application to Federal Circuit Court, because the reasons that RRT refused my case were non-acceptable. I have strong grounds to appeal. I knew it was my negligence. I will be much appreciated if the court can give me a chance.”

9. The substance of the explanation appears to be that the applicant collected the RRT’s decision record, as left by the postman, and mixed it up with other advertisement leaflets and that it was already past the 35 day period when he realised his error. By itself, that explanation is unsatisfactory. It is the applicant’s responsibility to ensure that he is careful about collecting mail in circumstances where he is expecting important documents. In any event, the RRT’s decision record was also sent by the RRT to the applicant at the email address nominated by him in his Application for Review by the RRT. Those documents are both contained in Exhibit 1R, being a bundle of documents identified as ‘Court Book’, filed on 17 March 2015, and tendered by the solicitor for the first respondent.

10. In the circumstances, the applicant’s explanation provided to this Court for his delay, although not extensive, is not a satisfactory explanation of the delay. 

11. I also have regard as to whether it would be in the interests of justice to extend time to the applicant. I explained to the applicant that the role of this Court was very different to that of the RRT and that it was not for this Court to consider his claims and make different factual findings or reach different conclusions. The Court was concerned only with whether or not the decision of the RRT is affected by a mistake that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the RRT rarely by itself establishes such a mistake.

12. The applicant confirmed that he relied on the grounds contained in his initiating application in establishing jurisdictional error on the part of the RRT. Those grounds are as follows:

    “1. RRT’s doubt about my credibility was based on no evidences. RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

    According to law, I was not required to know the operation process of RRT’s hearing. In fact, when I applied for protection visa, the claims in the written statement were what I thought were necessary, but it did not mean that the supplement evidence provided in Tribunal hearing were unreliable (Para16-17, Para 19-20, Para 31, Para32-33, Para 34).

    RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing (Para 25-27, Para 66-67). For example, in Para 25-27, RRT officer should ask me directly about using Camfrog to sell virtual products online, but the officer just asked me about what I did in China, and then considered that my evidence was non-credible.

    Para 16-17: Although in the written statement, I did not mention I was forced, over a one-month period, to go to a hotel where I would locate child pornography from the web and send screenshots of child pornography. However, this is a fact, I was in Dagang Youtian Hotel using my own computer taken from police from 17 to 19 July , and then I was in some cheaper hotel, such as Meike Meijia Hotel over one month using a laptop provided by police.

    Para 19-20: On 30/8/2012, I refused Fan’s request to be an informer, but after been beaten on 5/10/2012, I felt like my life was under threat and considered to hide, so I did not resist police’s request to be an informer. I indeed did things I did not intend to do (sending child pornography online) I wish police can lose the level of monitor, so I can hide in other cities. However, I did no verbally or officially (signed the agreement) to become and informer.

    Para 25-27: My full time job is working at a petrol company. I also do part time photo design, occasionally I edit some pictures. I barely sell virtual products on Camfrog for extra income. It was my hobby, not my job. I always do night shifts at the petrol company, so I have a lot of spare time. I use Camfrog to make extra income during the day.

    Para 31: There was a cost that I did not get hurt during the following 9 months. I helped them do things that I did not intend to do. I helped police to get information by making use of net friends’ trust.

    Para 32-33. After been beaten in October, I thought about going aboard. I applied to go to Canada. However, my application was refused because I did not prepare adequately. Then I started to prepare documents and planned to go to Australia. I did not want my application to be refused again, so this time Iw as very careful. It took me very long time to prepare, and also my friend in Australia wrote invitation letter for me. I helped police to do things that I did not intend to do. I applied for visitor visa until they lost the level of monitor.

    Para 34: At the beginning, I just want to hide for a while, I did not want to apply protection visa. Until my wife told me by phone that police knew I went overseas, I decided to apply protection visa.

    RRT did not investigate dutifully, and then made these false conclusion. I think RRT should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined. Therefore, I find the RRT’s decision is not made properly and legitimately.

    2. The Tribunal ignored that I faced particular problems of proof for refugee status. An applicant ma not be able to support his statements of evidences by documentary or other proof, and in cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. If the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

    Para 37: Although I could not provide evidence to support my claim, RRT could not provide evidences to show that my claims is unreliable. Moreover, there is no possible for me to get those evidences.

    It is unfair to judge the evidence (video) I provided without being identified by professionals.

    Para 38-43: The video recording time, people who appeared in the video and place where the video was recorded matches the news. Additional material was prepared shortly after the tribunal hearing. The news was on the Chinese national government website as well as Tianjin local government website. Due to the confidentiality, the information of the police officers involve in the matter only can be identified indirectly.

    Para 44·46: During the one month monitoring, police officer reports to local police station weekly. I accessed to those ideas and copied them when I copied those child pornographies to mobile hard disk drive, because those pictures need to I e edited and added narrative memoranda.

    Para47: During the recording, the police officer was recorded in the video. I request the video to be identified by professional again.

    Para60: RRT thought the names “wang ping" and "Zhang qiang" in the articles were different from my name, so these articles are not relevant to me or are supportive of my claims. Unless the court proved guilt, any news must not use true names. This is common sense. It is not compelling that RRT officer doubt the credible of my evidence based on it. Two news are from websites of two ·Vernment organization. Time, place and event in the news matched my experience. I was unable to fabricate evidence on such big website.

    3. New claims about the New Citizen's Movement

    Para65-66: New Citizen's Movement's Objective: no organizations, no offices, no leaders. It is non-governmental organization and participants will not think themselves leaders or politicians. Thus, at the beginning, I said there are no leaders in the New Citizen's Movement

    Para68-69: ·New citizen’s movement did not form a big influence, in addition to Zhiyon XU and other initiators, no other members were arrested. I do not think our activities belong to political activities. However, police's action shows that they consider our activities as political event.”

    (errors in original.)

13. Each of the grounds was then interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

14. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the RRT’s decision, as follows:

    “Background and the applicant’s claims

    10. The applicant is a Chinese national who arrived in Australia on 18 June 2013 (CB 29) on a Visitor’s visa: CB 13. He lodged an application for a Protection (Class XA) visa on 10 September 2013 (CB 1-25) and outlined his written claims to fear harm in China in a written statement that accompanied his visa application: CB 26-28.

    11. The applicant claimed that he was forced by the Tianjin police to obtain evidence of online drug dealing and child pornography to enable the Chinese authorities to respond to accusations about human rights and the internet blockade. He claimed that in July 2012 the police searched his home, confiscated his computer and later took him to a hotel room where he was threatened with detention if he did not cooperate. The applicant was then interrogated and beaten for two days and told to confess to online drug dealing and child pornography. On 30 August 2012, the police asked him to be an informer and to obtain evidence and report on illegal online activities. The applicant declined and reported his mistreatment to the Petition Office but received no reply.

    12. On 5 October 2012, a group of gangsters put the applicant in a car, beat him and warned him not to talk about things. The applicant suspected that the police had planned this. He also subsequently received calls and warnings from the gangsters because the police used his logon details to ask them questions about illegal deals and they thought it was the applicant. The applicant left China for Australia because he feared that he or his family would be harmed and because he had been rumoured to be a paedophile and a government informer. Further, the applicant claimed that the police had told his wife that he fled to avoid charges and that he was required to surrender himself.

    13. The applicant provided the Department with copies of pages from his passport: CB 29-30.

    The delegate

    14. On 20 January 2014, the applicant was invited to attend an interview before a delegate of the first respondent scheduled for 10 February 2014 (CB 36-38) but he failed to attend the interview (CB 47.9) and did not explain his non-attendance: CB 48. 8.

    15. On 10 February 2014, a delegate made a decision refusing to grant the applicant a Protection visa: CB 45-54. Given his failure to attend her interview, the delegate was unable to be satisfied of the applicant’s claims on the basis of the limited available information and was not satisfied that he faced a real chance of serious or significant harm: CB 49-51, 52-53.

    The Tribunal’s proceedings

    16. On 7 March 2014, the applicant lodged with the Tribunal an application for review of the delegate’s decision: CB 56-57.

    17. By a letter dated 5 August 2014, the Tribunal invited the applicant to attend a hearing on 11 September 2014: CB 60-61. The applicant attended the scheduled hearing: CB 62-64.

    18. At the Tribunal hearing, the applicant gave evidence amplifying his written claims: CB 111-112, par 8. He also raised two new claims for the first time namely, that the police came to his work and he was involved with the New Citizens Movement (NCM), which supported Dr Zhiyong Xu and, amongst other things, advocated for officials to disclose their assets.

    19. The applicant also provided a USB at the hearing containing videos and documents. The Tribunal raised concerns with the applicant at the hearing including about his delay in providing this material and that it might not be corroborative of his claims or genuine. It gave the applicant further time to provide any relevant and translated information, which he submitted after the hearing in the form of the same USB and submissions: CB 112, par 9. Printed copies of some of the applicant’s corroborative material are contained at CB 65-105.

    The Tribunal’s decision

    20. In a comprehensive decision dated 27 November 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa: CB 108-130.

    21. The Tribunal had “serious concerns” about the applicant’s credibility and the veracity of his claims: CB 112, par 12. It found he was not “a credible, truthful, or reliable witness” (CB 112, par 14), was prepared to tell untruths and change his evidence to obtain a migration outcome (CB 117, par 35) and had fabricated all of his key claims: CB 123, par 63; CB 127, par 78.

    22. The Tribunal provided cogent and extensive reasons to support its adverse credibility findings. For example, it found the applicant’s oral evidence about how long he was forced by the police to be involved in sending pornography/drug dealing information was “significantly inconsistent” with his written statement: CB 113, pars 15-16. It also identified inconsistencies in his evidence about his knowledge of what the police did in his name (CB 113, par 18), whether or not he was an informer for them (CB 113-114, par 19) and what he feared the police would do to him on return to China: CB 114, par 21.

    23. The Tribunal found the applicant’s responses to questions about what he did in China were “vague” and not consistent with his claimed experience and involvement with the internet: CB 114-115, pars 25-27. It also identified several examples where the applicant’s evidence was found to be inconsistent and to lack credibility: CB 115-117, pars 28-31. The Tribunal also found that the applicant’s claims of harm in China were undermined by his 9 to 10 month delay in applying for a Visitor visa after his difficulties started, his inability to adequately explain that delay and his two and a half month delay in applying for protection after arriving in Australia: CB 116-117, pars 32-33, 34.

    24. In addition, the Tribunal extensively considered the applicant’s corroborative evidence and identified numerous concerns and deficiencies: CB 117-126, pars 37-61, 74-76. For example, given its other credibility concerns the Tribunal did not accept that the applicant’s alleged injuries were caused in the manner that he claimed: CB 117-118, par 37. The Tribunal was also concerned about the applicant’s delay in providing his corroborative evidence (CB 118, par 38) and how he was able to obtain numerous videos, which included police surveillance videos: CB 119, par 44. It was also concerned that the videos he presented could have been staged or fabricated and the static print screens and pornographic videos he provided did not corroborate the events and claims that he alleged: CB 120-121, pars 47, 53, 56. Given these and other credibility concerns, the Tribunal either gave the applicant’s corroborative material no probative value or was not satisfied they corroborated the claims that he advanced: CB 119-126, pars 43, 46, 52, 54, 57, 59, 61, 76.

    25. The Tribunal also found that his evidence about his late-raised claim to be involved in an anti-government organisation (the NCM) was “vague, evasive, changing and non-credible” (CB 124-125, pars 65-73) and rejected that claim in its entirety: CB 127, par 77.

    26. For these and other reasons, the Tribunal did not accept that the applicant met the criteria for a Protection visa under either s 36(2)(a) or s 36(2)(aa) of the Act: CB 127-128, pars 79-83.

    27. The Tribunal’s factual findings about the credibility of the applicant’s claims were open to it on the available materials and for the reasons that it gave. Such credibility findings were findings of fact for the Tribunal to make par excellence,[1] and the Court cannot review the merits of the Tribunal’s decision.[2] The Tribunal methodically examined the applicant’s corroborative documentary and video materials and identified a number of concerns and deficiencies with these materials and the applicant’s evidence in response to some of its concerns: CB 118-123, pars 38-61. It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[3] The Tribunal’s factual findings regarding this material were open to it for the reasons that it gave.”

    [1] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

    [2] Minister for Immigration & Ethnic Affairs v Wu Shan Liang  op. cit.,

    [3] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]

1. Ground 1 asserts that the RRT’s doubt about the applicant’s credibility was based on no evidence and that he was denied procedural fairness because the RRT did not provide adequate reasons for its findings. The applicant also asserts in Ground 1 that the RRT used its “advantage to beat about the bush continually, making meaningless logical traps” for him at the hearing. The applicant then identifies various findings made by the RRT with which he disagrees. Ground 1 culminates in a complaint that the RRT did not investigate dutifully and then made a false conclusion.

2. None of the complaints in Ground 1 would appear to establish any jurisdictional error on the part of the RRT. The applicant was invited to say whatever he wished in support of Ground 1. The applicant told the Court that he had a witness who was a credible Australian citizen who had lived in Australia for more than 10 years. I tried to explain to the applicant that this Court was not rehearing his claims and that his witnesses would not be required before this Court. The applicant asserted that the RRT had a duty to investigate at least his identification and whether it was him in the video. The applicant complained that the RRT did not spend time in getting a better understanding of his evidence.

3. To the extent that Ground 1 asserts that the RRT made use of its “advantage to beat about the bush continually, making meaningless logical traps” in the hearing, such a complaint is not borne out on the face of the RRT’s decision record and no evidence was provided by the applicant in support of that bare assertion.

4. To the extent that Ground 1 asserts that the RRT’s doubts about the applicant’s credibility were not based on any evidence, the RRT’s decision record makes clear that the RRT went through in a thorough and comprehensive manner all claims made by the applicant. The RRT explored in detail the concerns it had about the applicant’s evidence, putting those concerns to the applicant, inviting the applicant to comment and noting the applicant’s responses.

5. Ultimately, the RRT comprehensively rejected the applicant’s claims of harm for the reasons given. The RRT found the applicant’s evidence to be evasive and inconsistent and that the applicant was not a witness of truth.

6. The RRT was also concerned by the applicant’s delay in lodging his protection visa application once in Australia. The RRT noted that, having arrived in Australia on 17 June 2013, the applicant did not sign his protection visa application until 5 September 2013. The RRT also noted that the applicant received assistance in filling out his application form and his statement.

7. The RRT was not satisfied that any of the evidence provided by the applicant in support of his claims was capable of being probative of the claims. The RRT stated as follows:

   “76. Given the above concerns, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the videos or documents or evidence produced by the applicant on and from the USB contain genuine evidence that is truthful, accurate and relevant to the applicant, and consequently, the Tribunal does not consider that the evidence supports his claims. The Tribunal gives no weight to the internet information, videos, print screens, or submissions, as supporting his case.”

8. Ultimately, the RRT stated that its concerns about the applicant’s credibility led it to conclude that the applicant had fabricated the accounts of events upon which he based his protection claims and his claimed supporting evidence was manufactured, staged and/or obtained by the applicant in China in order to support his claims.

9. There is nothing to suggest that the RRT’s findings were not open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

10. There is no general obligation on a RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

11. The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the RRT in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

12. It may be that, in certain circumstances the Refugee Review Tribunal may be obliged to make some further investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the RRT to investigate his claims further.

13. In the circumstances, Ground 1 does not appear to identify any jurisdictional error.

14. In Ground 2, the applicant asserts that the RRT ignored that he faced particular problems of proof and that he should be given the benefit of the doubt. Ground 2 again goes on to identify particular findings of the RRT with which the applicant disagrees.

15. Nothing in Ground 2 is capable of establishing an error on the part of the RRT. Ground 2 makes bare assertions supported by various identified disagreements with the RRT’s findings and conclusions.

16. Again, such complaints invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

17. To the extent that the applicant asserts that the RRT should have given him the benefit of the doubt, there is no legal principle that requires the RRT to give the applicant the benefit of the doubt. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J).

18. It is for the applicant to satisfy the decision maker, in this case the RRT, that he meets the criteria for the protection visa for which he applied. In the event that the applicant does not so satisfy the RRT, s.65(2) of the Act mandates that the visa application must be refused.

19. Accordingly, Ground 2 does not appear to identify any jurisdictional error on the part of the RRT.

20. In Ground 3 the applicant refers to new claims about the “New Citizen’s Movement” but does not identify a particular complaint about the applicant’s claims or the RRT’s findings in relation to those claims.

21. I understand Ground 3 more likely than not to be a complaint about the RRT’s findings and conclusions, with which the applicant did not agree. Ground 3 was not supported by particulars, evidence or oral or written submissions. The applicant declined to make any further submission in support of that ground when invited to do so.

22. In the circumstances, Ground 3 would appear to be no more than a disagreement with the findings and conclusions of the RRT, thereby again inviting merits review.

23. Whilst I make no final finding as to whether or not the decision of the RRT was affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant, either in his written grounds of review or in his oral submissions this morning.

24. In the circumstances, it is likely that if time was extended to the applicant, his application for judicial review would be found not to raise an arguable case. I am satisfied that the present proposed application for judicial review has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant. This is a conclusion that I would reach even if I was satisfied about the explanation offered by the applicant, which I am not.

25. Accordingly, the application for an extension of time should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  13 July 2015