WZANZ v Minister For Immigration and Anor (No.2)

[2011] FMCA 208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2011] FMCA 208

MIGRATION – Refugee Review Tribunal – protection visa application – whether jurisdictional error.

PRACTICE AND PROCEDURE – Migration – extension of time – principles.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11(1)(c)
Evidence Act 1995 (Cth), s.56(2)
Migration Act 1958 (Cth), ss.36(2), 65(1), 425, 476, 476A, 477

Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
AZAAA v Minister for Immigration and Citizenship (2009) 177 FCR 363; [2009] FCA 554
Hakim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 29 ALD 193
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Krishell Pty Ltd v Nilant (2006) 32 WAR 540 [2006];WASCA 223
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225
Lindon v The Commonwealth(No. 2) (1996) 136 ALR 251; [1996] HCA 14
Lucic v Nolan (1982) 45 ALR 411
Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1991) 24 ALD 410
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v VSAF [2005] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Saville v Health Care Complaints Commission [2006] NSWCA 298
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD 25; [2008] FCA 1638
SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91
SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62
SZHEW v Minister for Immigration and Citizenship [2009] FCA 783
SZJAO v Minister for Immigration & Anor [2007] FMCA 1102
SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264
SZKLK v Minister for Immigration [2008] FCA 1125
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNOR v Minister for Immigration and Anor [2009] FMCA 639
SZOPW v Minister for Immigration & Anor [2011] FMCA 48
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171
WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
WAME v Minister for Immigration [2007] FMCA 1569
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599
Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108
Wong v Minister for Immigration & Anor [2009] FMCA 747
WZAND v Minister for Immigration & Anor [2009] FMCA 26
WZANJ v Minister for Immigration & Anor [2009] FMCA 396
WZANW v Minister for Immigration [2009] FMCA 1075

Applicant: WZANZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 226 of 2009

Judgment of: Lucev FM

Hearing date: 1 June 2010

Date of Last Submission: 4 November 2010

Delivered at: Perth

Delivered on: 8 April 2011

REPRESENTATION

Counsel for the Applicant: Mr M D Howard SC and Ms K Francis

Solicitors for the Applicant: Maxim Litigation Consultants

Counsel for the Respondents: Mr P J Hannan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Paragraph 1 of the applicant’s affidavit sworn 18 November 2009 be struck out.

2. Paragraphs 2 to 7 inclusive, and 9 to 16 inclusive, of the applicant’s affidavit made 19 May 2010 be struck out.

3. That Pastor Ka Hoo Law’s affidavit affirmed 14 May 2010 not be admitted into evidence.

4. The applicant’s application for an extension of time to the date of actual filing to file the application in this Court is dismissed.

5. The applicant’s application, as amended, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 226 of 2009

WZANZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant:

   a)is presently 33 years of age having been born in August 1977;[1]

   b)completed 5 or 6 years of primary school education only;[2]

   c)after leaving school worked in rural China as a farmer, and as a labourer in the construction industry;[3] and

   d)is a citizen of the People’s Republic of China.[4]

   [1] Court Book (“CB”) 1.

   [2] CB 114 (6 years); CB 120 (5 years).

   [3] CB 120.

   [4] CB 128.

2. The applicant arrived in Australia in December 2008.[5]

   [5] CB 14.

3. The applicant lodged an application for a Protection (Class XA) visa[6] with the Department of Immigration and Citizenship[7] on 11 February 2009.[8]

   [6] “Protection Visa”.

   [7] “Department”.

   [8] CB 1-37.

4. A delegate of the first respondent[9] refused the application on 11 May 2009.[10]

   [9] “Delegate”.

   [10] CB 71-82 (“Delegate’s Decision”).

5. On 4 June 2009, the applicant applied to the Refugee Review Tribunal[11] for review of the Delegate’s Decision.[12]

   [11] “Tribunal”.

   [12] CB 84-87.

6. The Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa on 8 September 2009.[13]

   [13] CB 113-129 (“Tribunal Decision”).

7. The applicant’s migration agent filed an application for review of the Tribunal’s decision in the Federal Magistrates Court on 2 December 2009, on behalf of the applicant.[14]

   [14] “Original Application”, and the applicant’s affidavit made 19 May 2010 (“Applicant’s May 2010 Affidavit”) paras.24-30.

8. An Amended Application dated 30 April 2010 was subsequently filed.[15]

   [15] “Amended Application”.

Applications

1. There are two applications before the Court:

   a)an application by the applicant, under section 477(2) of the Migration Act1958 (Cth),[16] for an extension of time within which to apply for judicial review;[17] and

   b)the Amended Application by the applicant for judicial review, under section 476 of the Migration Act, of the Tribunal Decision affirming the Delegate’s Decision not to grant the applicant a Protection Visa under the Migration Act.

   [16] “Migration Act”.

   [17] “Extension of Time Application”.

2. The Extension of Time Application is logically and legally prior to the Amended Application. If the Extension of Time Application fails then the Amended Application must be dismissed as incompetent because of the failure to comply with the time limit under s.477(1) of the Migration Act.[18]

   [18] See SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at paras.2, 3, 39, 40, 197 and 198 per Nicholls FM (“SZMFJ”).

3. The Extension of Time Application and the Amended Application must be kept separate as:

   a)without an extension of time the Court has no jurisdiction to hear an application for judicial review under the Migration Act made out of time;[19] and

   b)an appeal may not be brought to the Federal Court from an order of this Court either granting or refusing an extension of time under section 477(2) of the Migration Act.[20]

   [19] Migration Act, s.477.

   [20] Migration Act, s.476A(3)(a).

The applicant’s claims

1. The applicant claims to fear persecution in China on the basis of his religious beliefs and his involvement in an underground or home church in China.[21]

   [21] CB 44-45.

2. The applicant claims that he was arrested at a church gathering on 23 March 2008, was subsequently detained for 15 days, and fined for his involvement in the church.[22]

   [22] CB 45.

3. In support of these claims, the applicant produced the following three documents in their original Chinese script:[23]

   a)a “Release Certificate”;[24]

   b)a “Notice to Detainee’s Family Member or Unit”;[25] and

c)a document entitled “Fuqing City PSB: Distrait Products Documents Sheets”.[26]

[23] Collectively “Detention Documents”.

[24] CB 57, 58 and the translation at CB 59.

[25] CB 56, 60 and the translation at CB 61.

[26] CB 55, 62 and the translation at CB 63.

1. The applicant submits that the Tribunal:

   a)did not accept that the applicant had participated in underground church activities in China from December 2007 or January 2008 until he left China, and did not accept that he had been arrested and detained in March 2008;[27] and

   b)“[b]roadly” came to this conclusion on the basis that the applicant did not have a sufficient knowledge or understanding of Christianity, and that this “founded” the Tribunal’s adverse credibility findings against the applicant.[28]

   [27] Applicant’s Outline of Submissions, para.12.

   [28] Applicant’s Outline of Submissions, para.13.

Tribunal Decision

1. It is necessary to set out aspects of the Tribunal Decision in some detail.

2. The Tribunal noted that the applicant’s proof of identity was based on submitted copies of his Chinese National Identity Card and his Marriage Registration, but that he had come to Australia on a Japanese passport.[29] The applicant stated that he did not have a Chinese passport, as he was unable to get one in China, but that he had travelled to Dili in East Timor via Thailand on an Indonesian passport, and had picked up the Japanese passport in Dili.[30]

   [29] CB 116.

   [30] CB 117.

3. The Tribunal noted the applicant’s statement in support of his protection visa application in which he alleged he had been injured at work in 2002 and that a colleague had paid for his medical expenses.[31] When he asked his colleague why he had done this, his colleague said that God had told him to do this.[32] The applicant said that in 2005 he had witnessed an incident in his village where a priest drove a demon out of man’s body. Thereafter, whenever someone had come to his home to talk about Jesus they had been welcomed and he had listened to them, but not attended their gatherings.[33] Later, he participated in the Easter and Christmas gatherings of two Brothers who had often talked to him about Jesus Christ.[34] The applicant says it was on Easter Sunday in 2008 that local police came to one of the Brothers’ houses, confiscated material and took the seven people present, including the applicant, to the police station.[35] Thereafter they were detained at the Fuqing Detention Centre and fined 3000 Yuan.[36] The applicant says that the gaolers often beat the arrestees, and that they had smashed his head against a wall.[37] The incident was reported to his employer and his employment was terminated. After his release, the applicant says that the police frequently checked on him, and that as a consequence he felt threatened. The applicant further states that in China there was no religious freedom and that the police could arrest Christians at any time.[38]

   [31] CB 116.

   [32] CB 116.

   [33] CB 116.

   [34] CB 117.

   [35] CB 117.

   [36] CB 117.

   [37] CB 117.

   [38] CB 117.

4. The Tribunal recounted the evidence given by the applicant to the Delegate. The Tribunal noted that the applicant told the Delegate that his Mandarin was not very good, and that he spoke the Fuqing dialect. The applicant told the Delegate that he had stayed one night in Darwin, where he had arrived by air from Dili, and then went to Perth, but did not take the Japanese passport with him to Perth.[39]

   [39] CB 117.

5. The applicant told the Delegate that he left China because he had joined a Christian church and had been arrested. The applicant said that he had joined the church in January 2008 and had never been to any church gatherings before January 2008.[40]

   [40] CB 117-118.

6. The applicant told the Delegate that the church met at people’s homes. The applicant told the Delegate that after he had been detained he had not returned to live at his address in his village. He said that he was afraid due to his treatment in detention, and because the police had been to his house on multiple occasions to ask questions and state that the underground church was not permitted.[41]

   [41] CB 118.

7. The applicant was asked by the Delegate about the principles of Christianity, and the applicant referred to thanking God. Asked “Who is God?”, the applicant answered “Jesus Christ”, and he also identified the mother of Jesus as “Maria”.[42] The applicant said that he remembered the Gospel according to John from his reading of the Bible. The applicant told the Delegate that he liked all the things in the Bible.[43]

   [42] CB 118.

   [43] CB 118.

8. The applicant then told the Delegate that after his release from detention he had returned to his home because his head had been injured in the detention centre. He went on to say that he sometimes worked close to his home and sometimes not, and that sometimes he had been at home and sometimes outside. He said that he was in contact with his family at least once a week and that they were still living at the address in his village.[44]

   [44] CB 118.

9. The applicant produced to the Delegate copies of the Detention Documents and said that he could not return to China because he had been arrested and persecuted.[45]

   [45] CB 119.

10. The applicant produced a letter dated 2 April 2009 from his local Chinese Presbyterian Church in Western Australia saying that he was to be baptised on Easter Sunday, 12 April 2009, and that he was a member of the church choir and also a Bible reader.[46]

    [46] CB 119.

11. The Tribunal then set forth the evidence in the Tribunal Hearing.

12. The Tribunal observed that the applicant produced photos of his baptism by the Chinese Presbyterian Church in Western Australia on 12 April 2009.[47]

    [47] CB 119.

13. Before the Tribunal it appears that an issue arose almost immediately as to what language the applicant used to communicate with his representative. The representative had consistently said that the applicant could speak, read and write Mandarin, whereas the applicant maintained that his Mandarin was not very good and that he spoke the Fuqing dialect. The applicant maintained at the Tribunal Hearing that he could not speak standard Mandarin, nor read all of the Mandarin characters, and that he needed help writing Mandarin because he made mistakes.[48] There does not appear to have been a particular resolution of this issue, at the Tribunal Hearing, or in the Tribunal Decision.

    [48] CB 119.

14. The Tribunal went on to observe that the applicant had produced a letter from the Chinese Presbyterian Church which said that the applicant was a Bible reader at the church. The applicant said that that was not correct.[49]

    [49] CB 119.

15. The applicant confirmed details of his primary school education in China, and his employment as a farmer, and later as a labourer in the construction industry, around Fuqing in Fujian Province in China. He also confirmed that upon his release he had been in hiding. The applicant was then closely quizzed by the Tribunal as to whether or not he had returned home at all after his detention. The applicant said that he had been back to his village a couple of times but had gone into hiding because “they” (presumably a reference to the local police) had been looking for him. He also said that his family members were in hiding and that he was unable to contact them. The Tribunal queried this noting that the applicant had told the Delegate that he was in contact with his family, and that he had also been in contact with his family after he came to Australia. The applicant said that he had been in contact in the beginning but not since the police had come to his house to arrest people. The Tribunal noted that if the applicant knew about this then he must have been in contact with his family.[50] The Tribunal indicated to the applicant “that he was being very vague”.[51]

    [50] CB 120.

    [51] CB 120.

16. The applicant was then asked about where he had lived in Australia. The applicant said that he was living in Perth. The Tribunal noted that he had told the Delegate that he was living in Harris Park in New South Wales. The applicant’s response was to ask where Harris Park was. The Tribunal then asked him if he had ever lived in Harris Park and the applicant said that he did in the beginning when he had first come to Australia.[52] The Tribunal then noted that the applicant had told the Delegate that he had arrived in Darwin and made his way to Perth. The applicant then said that there had been no job and he had come to Sydney with the assistance of members of his church, because there were people from his village in Sydney. The applicant then said that he had gone to Perth because the agent or “snakehead” or “boss” had told him where to go.[53]

    [52] There is a Harris Park address on the applicant’s protection visa application form: CB 13.

    [53] CB 120-121. This Court observed in WZANJ v Minister for Immigration & Anor [2009] FMCA 396 at fn.25 per Lucev FM that: It is well known that “snakeheads” are Chinese gangs that smuggle people to other countries for a fee using stolen or altered passports, improperly obtained visas and bribes to move people across national borders: …in an essay by P R Keefe; “The Snakehead. The criminal odyssey of Chinatown’s Sister Ping”, The New Yorker (24 April 2006), … [Keefe describes] the account of Chen, a talented Chinese teenager sent by his parents to the USA:

    “The total fee was thirty thousand dollars, with the balance due upon Chen’s safe arrival in America. Chinese snakeheads had Bangkok immigration officials on the payroll, and furnished their clients with “photo-sub” passports, which required only the substitution of the passenger’s picture. “They told us, ‘Easy: you just go on the bus, or motorcycle to Thailand,’” Chen told me with a bitter smile. “‘In Thailand, maybe one week or two weeks, they will arrange you by plane to the U.S.A.’”

    See also the very extensive and recent discussion of an applicant’s fear of a snakehead on the basis that it could be for reasons of membership of a particular social group in SZOPW v Minister for Immigration & Anor [2011] FMCA 48 where Mr Keefe’s article in The New Yorker formed part of the evidence in the proceedings.

17. The Tribunal asked the applicant why he told the Delegate and the Tribunal that he was living in Sydney if he was in fact living in Perth. The applicant then said he had only recently moved to Perth (this was 27 July 2009 at the time of the Tribunal Hearing), but the Tribunal noted that he had been living in Perth since January 2009, shortly after he had arrived in Australia. The applicant then said that the “boss” had told him to go to Perth, and that he had lived in Sydney “in the beginning”, and then he had “moved to Auburn” (a suburb of Sydney). The applicant then confirmed he had gone to Perth from Darwin (as he had told the Delegate), that he had then gone to Sydney, and then returned to Perth. The applicant confirmed that at the time of the Tribunal Hearing he was living in Perth.[54] The following passage then appears in the Tribunal Decision:

    “I asked the applicant again why he had said in his application to the Tribunal in June 2009 that he was living in Harris Park in New South Wales. The applicant said that this had been his address in April. I indicated to the applicant that this went to whether I could accept that he was telling me the truth. I put to him that if he could not even tell me the truth about where he was living in Australia I might not accept that he was telling the truth about anything else. I noted that it appeared that the applicant had spent large sums of money to travel from Perth to Sydney both for the Departmental interview and the hearing. The applicant said that God was helping him and the church brothers and sisters were helping him. I put to him that if the Tribunal had known that he was living in Perth it would have arranged a hearing for him in Perth. The applicant said that he had used this address in the beginning and he had understood that he could not change it. I noted that he was in fact obliged to tell the Department and the Tribunal whenever he changed his resident address. The applicant said that he had not known about this.”[55]

    [54] CB 121.

    [55] CB 121.

1. The Tribunal then questioned the applicant about his involvement with the church in China. The applicant said that he had begun to be involved in the church in December 2007. The Tribunal noted that when he had been interviewed by the Delegate the applicant said that he had become involved in January 2008 and that he had never been to any church gatherings before January 2008. The applicant then said that he had talked about these matters, but not believed in them, during December 2007.[56] Following questioning about when he had first become a believer,[57] the Tribunal again noted the applicant’s previous statement about having first gone to a church gathering in 2008. The applicant then responded with a question and the Tribunal:

   “… put to him that he appeared to be incapable of giving a straight answer to a straight question and that every time … [he was] asked … a question he asked … a question”.[58]

   [56] CB 121.

   [57] CB 121-122.

   [58] CB 122.

2. The applicant then said to the Tribunal that he had begun to go to church that Easter in 2008 and that he had not really gone before that.[59]

   [59] CB 122.

3. Following some further questioning, the applicant said that he had normally gone to church “once a week”, but then qualified this by saying that it was a long time ago. The applicant said that since having been beaten at the time of his arrest he now had memory problems.[60]

   [60] CB 122.

4. The Tribunal then says:

   “I asked the applicant if he understood that whether I accepted that this had happened at all depended on whether I accepted that he was telling me the truth. The applicant repeated that he had been hit, he had been injured and he had memory problems. I noted that the applicant had told me that he had attended the church only a few times and then he told me that he had attended the church every week. I put to the applicant that he had told me earlier that he had not even been living in his village at this time because he had been working elsewhere as a casual labourer. The applicant said that sometimes he had lived at the work site. I put to him that now he was telling me that he had attended the church in his village every week. The applicant asked if he said every week. He said that sometimes he had come back.”[61]

   [61] CB 122.

5. The Tribunal then questioned the applicant at length about his religious beliefs and understanding.[62] This included questioning the applicant about:

   a)what he had been told at church gatherings about God, to which the applicant responded that he was told about the Lord coming back to life, about spreading the Good News, and about the Bible;[63]

   b)whether he had read the Bible, and the applicant answered that he had but that he was no good at reading because of his lack of education;[64]

   c)what he had been specifically told about God, or the Lord, or the Bible, to which the applicant said that he had been told about Jesus rising from the dead and how Jesus had saved people who were sick.[65] The Tribunal responded that it believed “that even a beginner would know more than he seemed to know”;[66]

   d)the telling of stories, or parables by Jesus, to which the applicant asked whether the Tribunal was referring to how Jesus saved people. The Tribunal noted that the applicant was confusing parables with miracles;[67]

   e)what the applicant thought people were being saved from, to which the applicant responded that it was to help people like him who had been persecuted in China, that God had saved him and sent him to Australia, and that following his release he had been able to come to Australia with God’s help. The Tribunal observed that the applicant did not appear to be able to tell the Tribunal what it was that people were being saved from by God;[68]

   f)the significance of baptism, to which the applicant responded that it was to wash away all of his sins and enable him to become a disciple of Jesus;[69] and

   g)what it meant to be saved, for a second time, because the Tribunal was puzzled that the applicant did not know what this meant given his knowledge of the significance of baptism. In particular, the Tribunal questioned the applicant about Christian followers being saved from eternal damnation by their beliefs, compared to the applicant’s belief which the Tribunal said was related to “things which happened in this world”.[70]

   [62] See generally CB 122-124.

   [63] CB 122.

   [64] CB 122.

   [65] CB 122.

   [66] CB 123.

   [67] CB 123.

   [68] CB 123.

   [69] CB 123.

   [70] CB 123-124.

6. Ultimately, the Tribunal put to the applicant, “as … had already [been indicated to him] that the Tribunal considered that he had not been a co-operative witness … [and] that he had repeatedly tried to avoid answering … questions, even about the most basic things … [and] that he had very little knowledge or understanding of Christianity.”[71] The Tribunal also put to the applicant that he was “simply being deliberately obstructive”.[72] The applicant asserted that he had been telling the truth, but sometimes did not understand the question. The Tribunal said that it “expected that someone who had been attending church for a year would have a better understanding of Christianity than he appeared to have.”[73]

   [71] CB 124.

   [72] CB 124.

   [73] CB 125.

7. The Tribunal then addressed the issue of the Detention Documents. The Tribunal put to the applicant that the Australian Department of Foreign Affairs and Trade[74] advice was that any official document could be either bought or forged in China, and that this suggested that little weight ought therefore be placed on any official Chinese document. The applicant said that he did not know about this but that he had provided the true documents.[75]

   [74] “DFAT”.

   [75] CB 125.

8. The Tribunal explained to the applicant that all the information referred to in the Tribunal Hearing was relevant to the review because the Tribunal might conclude that there was no truth to the applicant’s claims of his involvement in church activities in China, and of his arrest and detention in 2008 for participation in church activities. The applicant reiterated his arrest, the confiscation of his books, and the provision of a release certificate. In relation to the latter the Tribunal again indicated that DFAT advice was that such official documents could be bought or forged in China. The applicant again decried knowledge of such matters.[76]

   [76] CB 126.

9. The Tribunal findings and reasoning begin with observations concerning the necessity for a liberal attitude on the part of the decision-maker.[77] The Tribunal goes on to observe that where conflicting evidence and questions of credit need to be resolved, the Tribunal is entitled to weigh one piece of evidence against another and to act on its opinion that one version of events is more probable than another.[78] This is subject to the qualification that in determining whether there is a real chance that an event will occur the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.[79] The Tribunal further observed that if it had no real doubt that the claimed events did not occur, it was not necessary for it to consider the possibility that its findings might be wrong,[80] and that the Tribunal was not required to hold a positive state of disbelief before making an adverse credibility assessment in such cases.[81]

   [77] CB 126 citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J.

   [78] CB 127 citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282 per Brennan, Toohey, McHugh, Gummow, Kirby JJ (“Wu Shan Liang”).

   [79] CB 127 citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

   [80] CB 127 citing Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220 per Sackville J at 241.

   [81] CB 127 citing Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 per O’Connor, Branson and Marshall JJ.

10. The Tribunal then proceeded to assess the applicant’s conduct before the Tribunal. It did so particularly in relation to whether or not he was telling the truth about his involvement in church activities and his claimed arrest and detention in March 2008. The Tribunal considered, as it had put to the applicant during the course of the hearing, that he was being “deliberately obstructive” and that even when using simple direct language, the applicant “repeatedly tried to avoid answering … questions”.[82] In assessing credibility the Tribunal said that it took into account the claims of the applicant’s limited education and the head injuries that occurred in detention. The Tribunal did not, however, consider that those factors explained “his evasions or his lack of knowledge or understanding of Christianity.”[83] In particular the applicant “appeared unable to tell … [the Tribunal] what the church had said about …” the content of the Bible, the Lord and God.[84]

    [82] CB 127.

    [83] CB 127.

    [84] CB 127.

11. The Tribunal then observed that:

    “As I put to the applicant, I would have expected that someone who had been attending underground church gatherings for about a year before he left China would have had a better understanding of Christianity that [sic] he appeared to have. I do not believe that the applicant’s level of education or his claimed loss of memory explains his attempts to avoid answering even the simplest questions at the hearing before me or his inability to tell me more about what he claims was said about the content of the Bible, about the Lord and about God at the underground church gatherings he claims to have attended. I do not accept that the applicant is a witness of truth. … [T]he applicant produced to the Department what purport to be three official documents in corroboration of his evidence that he had been arrested on 23 March 2008 for participating in illegal religious activities and detained for fifteen days. However, as I put to the applicant, the Australian Department of Foreign Affairs and Trade has advised that any official document can be either bought or forged in China and that it would suggest that little weight should therefore be placed on any official Chinese document … having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not consider that these documents outweigh the problems which I have with the applicant’s own evidence.”[85]

    [85] CB 128.

12. The Tribunal then went on to make findings of non-acceptance of the essential parts of the applicant’s evidence with respect to his involvement in underground church activities in China, his arrest and detention, and his membership of a Christian church. The Tribunal therefore went on to find that there was not a real chance that the applicant would be persecuted for reasons of his real or perceived religious beliefs if he returned to China now or in the reasonably foreseeable future.[86]

    [86] CB 128-129.

Grounds for the Extension of Time Application

1. The applicant raises three grounds in support of the Extension of Time Application as follows:

   1.     As set out in the Applicant’s affidavit to be filed herein.

   2.The Applicant has a good case for the application for review to succeed as set out in the grounds … [of the Amended Application].

   3.The Respondents will not suffer prejudice by the extension of time being granted.

Grounds for the Amended Application

1. The applicant raised three grounds in support of the Amended Application, but at hearing only grounds one and three were relied upon. Grounds one and three are as follows:

   1.The Second Respondent made a reviewable error in its decision of 8 September 2009 (0904227) (“the decision”) by taking into account an irrelevant consideration, being the Tribunal Member’s own opinion or perception of the minimum knowledge or understanding that a person in the Applicant’s position should have of Christianity, when it rejected his evidence that he had been persecuted.

   Further, the Second Respondent, because of the Member’s said own opinion or perception, failed to take properly into account a relevant consideration, being the Applicant’s evidence of his Christian beliefs, and so made a reviewable error.

   3.Further, and/or, alternatively to Grounds 1 and 2, the Second Respodnent made a reviewable error in its decision in failing to take into account relevant considerations, namely three original Chinese documents which were produced by, or on behalf of, the Applicant … and which were strongly corroborative of the Applicant’s evidence that he had been persecuted.

   Further, the Second Respondent failed to make a finding as to the authenticity of the said Chinese documents and so made a reviewable error.

Affidavit evidence and objections

Affidavits

1. The following affidavits were tendered at the hearing of this matter:

   a)affidavit of the applicant sworn 18 November 2009;[87]

   b)affidavit of Pastor Ka Hoo Law, affirmed 14 May 2010;[88] and

   c)Applicant’s May 2010 Affidavit.

   [87] “Applicant’s November 2009 Affidavit”.

   [88] “Pastor Law’s Affidavit”.

2. Objections were taken to portions of some of the affidavits at hearing, and the Court indicated that it would determine those objections when determining the Extension of Time and Amended Applications.

Objections to evidence

Applicant’s November 2009 Affidavit

1. The first respondent objects to paragraph 1 of the Applicant’s November 2009 Affidavit, which it argues goes to the merits of the Tribunal Decision, and hence is irrelevant. The paragraph asserts that the applicant is Christian, was persecuted in China and will be put in jail or a detention centre if he returns to China. None of these facts are relevant to the grounds for the Extension of Time Application, and the Applicant’s November 2009 Affidavit is not, in any event, relied upon on those grounds. Nor do any of those facts go to establish jurisdictional error by the Tribunal, being assertions of fact going to merit, and are therefore irrelevant to the Amended Application. The paragraph does not therefore relate to any matter required to be considered by this Court on the Extension of Time or Amended Applications, and will be struck out as irrelevant.

Applicant’s May 2010 Affidavit

1. The first respondent objects to paragraphs 2-7 and 9-16 of the Applicant’s May 2010 Affidavit on the grounds of relevance. Paragraphs 2-7 of the Applicant’s May 2010 Affidavit deal with the applicant’s alleged arrest and detention in China, and the documentary evidence in relation to that detention, as well as what the applicant was allegedly told by the “people trafficker in China”[89] prior to his arrival in Australia on 31 December 2008. Paragraphs 9-16 deal with the applicant’s interviews with the Department and his contact with his migration agent and wife, particularly in relation to the sending of the originals of the Detention Documents to Australia, once he had arrived in Australia. None of those facts are relevant to the Extension of Time Application. Nor do any of those facts go to establish jurisdictional error by the Tribunal, and they are therefore irrelevant to the Amended Application.

   [89] Applicant’s May 2010 Affidavit, para.6.

2. The Court therefore upholds the objections to paragraphs 2-7 and 9-16 of the Applicant’s May 2010 Affidavit on the grounds of relevance, and those paragraphs will be struck out.

3. The first respondent concedes paragraph 8 is relevant to the Extension of Time Application. The first respondent objects to paragraph 8 of the Applicant’s May 2010 Affidavit being read in support of the Amended Application on the ground of relevance. Because paragraph 8 is relevant to the Extension of Time Application it will not be struck out.

Pastor Law’s Affidavit

1. Pastor Law’s Affidavit purports to provide an expert opinion on the accuracy of the English translations of the Detention Documents in Chinese script which were before the Tribunal.[90] Pastor Law does not depose to being a certified translator. The first respondent does not object to Pastor Law’s Affidavit being read on the basis that Pastor Law lacks the requisite expertise to provide an expert opinion as to Mandarin/English translation. Rather, it objects to the whole of Pastor Law’s Affidavit on the ground of relevance because:

   a)issues about the accuracy of translation of the Detention Documents before the Tribunal relate to the merits of the Tribunal Decision, and hence are irrelevant to both the Extension of Time Application and the Amended Application; and

   b)the accuracy of translation of the Detention Documents is irrelevant to a judicial review application unless there is a ground of review alleging that there was deficient translation in the hearing before the Tribunal.[91]

   [90] CB 55-63.

   [91] Citing SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at paras.45-52 per Jagot J (“SZHEW”).

2. In this case there is no assertion arising from the grounds of the Amended Application that there was any deficiency with the translation of the Detention Documents when this matter was before the Tribunal. Pastor Law’s Affidavit does not take issue with the translation of the “Release Certificate” or the “Notice to Detainees Family Member or Unit”.

3. Pastor Law does however say that he believes that the English translation of the “Fuqing City PSB: Distrait Products Document Sheet” has “some discrepancies in the English translation of that document.”[92] According to Pastor Law the differences are as follows:

   a)the words “Distrait Products Documents Sheets” should read “Confiscation Documents Sheets”;

   b)the nature of the case, which reads “Distracted and attended religious gathering activities” should read “Accused of participating in illegal religious activities”;

   c)“Type” and “Poetry” should read “Audio Tape” and “Hymn Book”; and

   d)in the fine print at the bottom of the document “the cope is kept by owner of distracted products” should read “the copy is kept by owner of confiscated products.”

   [92] Pastor Law’s Affidavit, Annexure KHL1.

4. It is clear, however, when one reads the Tribunal Decision that the Tribunal understood the nature of the document concerned, and more broadly, that the applicant had been detained for participation in illegal religious activities. The Tribunal said of the Detention Documents as follows:

   27. The applicant produced what purport to be:

   ·    a notice issued by the Fuqing PSB on 24 March 2008 stating that he had been detained because he had participated in illegal religious activities;

   ·    a sheet recording items seized from him on 24 March 2008, being a box, a poetry book, two Bibles and a note book; and

   ·    a ‘Release Certificate’ stating that he had been detained on 23 March 2008 for 15 days for participating in illegal religious activities and that he had been released on 7 April 2008.[93]

   [93] CB 119.

5. It is clear that the Tribunal understood that the document re-translated by Pastor Law related to items seized from the applicant. The distinction between a “poetry book” and a “Hymn Book” is essentially immaterial when one looks at the Detention Documents in context because it is apparent that the Tribunal understood that items had been seized in the context of the applicant being arrested in relation to illegal religious activities in China.

6. In the above circumstances it cannot be said that the re-interpretation of a few words in a single document by Pastor Law is a matter of significance for the applicant’s claim, or, more particularly in this case, the Tribunal Decision.[94] There has not been a translation of the single document of such inadequacy as to deprive the applicant of the opportunity under s.425 of the Migration Act to give evidence and present arguments relating to the issues arising in relation to the Delegate’s Decision.[95]

   [94] SZHEW at para.49 per Jagot J.

   [95] Migration Act, s.425(1)

1. Pastor Law’s Affidavit is therefore irrelevant, and inadmissible.[96]

Extension of Time Application

[96] Evidence Act 1995 (Cth), s.56(2).

Background

1. The Tribunal Decision was handed down on 8 September 2009. An application for review of the Tribunal Decision had to be brought within 35 days of the date of the Tribunal Decision, that is, by 13 October 2009, unless an extension of time is granted under s.477(2) of the Migration Act.[97] The applicant did not file an application for review – the Original Application – of the Tribunal Decision in this Court until 2 December 2009. Thus, the Original Application was filed 50 days late.

   [97] Migration Act , s.477(1).

Legislation

1. The Extension of Time Application is made under s.477(2) of the Migration Act, which provides as follows:

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

   (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; and

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

Factors for consideration

1. An application in the form required by s.477(2)(a) of the Migration Act is before the Court.

2. This Court has identified a number of factors relevant to a consideration of s.477(2)(b) of the Migration Act, as to whether it is necessary in the interests of the administration of justice to make an order extending time. They include the following:

   a)the extent of the delay and the reason for the delay;

   b)whether there is any merit in the application;

   c)whether there is any prejudice to the respondents;

   d)the impact on the applicant;

   e)the interests of the public at large; and

   f)the Court’s discretion itself.[98]

   [98] SZMFJ at para.44 per Nicholls FM; WZANW v Minister for Immigration [2009] FMCA 1075 at para.26 per Lucev FM (“WZANW”).

Evidence

1. In respect of the delay in this case, the circumstances surrounding the filing of the Original Application are set out in the Applicant’s May 2010 Affidavit, as follows:

   17.After my hearing at the Refugee Review Tribunal (the “Tribunal”) on 27 July 2009, my migration agent telephoned me and told me that she received a letter from the Tribunal. I do not remember on which date I was called.

   18.She told me that my application before the Tribunal had been refused.

   19.My migration agent told me that the reason for the refusal was that the Tribunal did not think that I had faced serious persecution in China.

   20.I did not see the letter. I only know what my migration agent told me about the letter and the decision of the Tribunal.

   21.My migration agent did not interpret the Tribunal’s decision to me.

   22.I was told by my migration agent that I could appeal to the Federal Magistrates Court but I did not really understand what this meant and I did not have any money to appeal.

   23.After I went into detention on 6 November 2009, one of the other detainees told me how I could make an application to the Federal Magistrates Court.

   24.I asked my migration agent to help me with my application to the Federal Magistrates Court.

   25.    I do not read or speak English.

   26.The migration agent filled out my application to appeal for me. She also wrote my affidavit for me.

   27.My migration agent faxed me two forms to sign which I believe were the application and affidavit.

   28.Those documents were not interpreted to me before I signed them.

   29.After I signed those documents, I faxed them to my migration agent.

   30.I believe my migration agent filed those documents in the Federal Magistrates Court.

Extent of and reason for delay

1. The applicant also argues that the delay here is moderately short. The applicant notes that:

   a)in SZGME v Minister for Immigration and Citizenship[99] that a delay of 50 days (which is the same as the present case) was “not unwarrantable”;[100]

   b)in Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No 2)[101] the Federal Court granted an extension of time to file an application for judicial review even though the application was lodged six months late; and

   c)in Wong v Minister for Immigration & Anor,[102] a 78 day delay was considered not so lengthy as to persuade the Court that an extension of time in a strong case should not be granted.

   [99] (2008) 168 FCR 487; [2008] FCAFC 91 (“SZGME”).

   [100] SZGME FCR at 502 per Black CJ and Allsop J; FCAFC at para.51 per Black CJ and Allsop J.

   [101] (1991) 24 ALD 410 (“Manoher”).

   [102] [2009] FMCA 747 at para.37 per Scarlett FM (“Wong”).

2. In SZGME one of the protection visa applicants had previously applied for a protection visa by lodging an incomplete protection visa application which was refused by a delegate, with the Delegate’s Decision being affirmed by the Tribunal. The protection visa applicant unsuccessfully sought Ministerial intervention and then remained in Australia unlawfully for eight years. He then lodged another protection visa application which was rejected on the basis of the provisions of s.48A of the Migration Act. He then filed an application for judicial review in this Court outside of the 28 day time limit, but within the then 56 day time limit in which an extension of time might be granted by the Court. The Full Court of the Federal Court found that one of the reasons for delay put by the applicant, namely that he was waiting on a decision by the Minister under s.48B of the Migration Act, was “perhaps, unwise or naïve, but it did not reveal any lack of bona fides which might attend the administration of justice.”[103] The Full Court of the Federal Court did however have greater difficulty with the applicant’s conduct in failing, over a period of eight years, to take any step to address his immigration status following the Minister’s refusal to grant him a visa, and the invoking of the Tribunal’s processes in circumstances where he had previously rejected them in favour of an approach to the Minister. The majority of the Full Court of the Federal Court accepted that there was no dishonesty involved in the conduct, and that the applicant chose, partly out of fear, not to approach the Department to clarify his position. However, the Full Court of the Federal Court held that his prior conduct (that is, seeking Ministerial intervention and then, eight years later, applying to the Tribunal) was inconsistent with the relief then sought, and also reflected the long delay in taking the step to seek relief. In those circumstances, the majority of the Full Court of the Federal Court held that it was not in the interests of the administration of justice to extend the time for filing the application.[104]

   [103] SZGME FCR at 502 per Black CJ and Allsop J; FCAFC at para.49 per Black CJ and Allsop J.

   [104] SZGME FCR at 502-503 per Black CJ and Allsop J; FCAFC at paras.51-53 per Black CJ and Allsop J.

3. Manoher is distinguishable on its facts from the circumstances presently before the Court. In Manoher, the applicant was unaware of the expiration of the prescribed period of 28 days for lodging the application. By contrast, in this matter, the applicant was aware that he could “appeal” the Tribunal Decision, but elected not to when that was first explained to him. In Manoher the applicant had not given the Minister reason to believe he had accepted the decision challenged, because once his rights were explained to him he had acted promptly, and upon receipt of advice as to his rights, gave instructions to his solicitors for the lodgement of the relevant application.[105] By contrast, in this matter, the applicant, having received advice from his migration agent as to his right to “appeal”, did nothing. In Manoher the applicant had been in custody at all material times and was thereby denied the degree of access to advice in the conduct of his affairs available to an ordinary citizen. By contrast, in this matter, the applicant remained at liberty until taken into detention, and it was only when in detention, that he arranged to lodge the application following further advice from another detainee. In Manoher the applicant had not given reason to believe that he had accepted the decision challenged. By contrast, in this matter, because of the lack of a challenge by the applicant, the first respondent was entitled to take the view that there was no challenge to the Tribunal Decision.

   [105] Manoher at 411 per Lee J.

4. In the circumstances, Manoher highlights the failure of the applicant in this matter to act promptly whilst not in detention, and is therefore of no assistance to the applicant’s argument.

5. In Wong, Wong was incorrectly advised by his migration agent that the only way to deal with the Tribunal decision in that case was to request a review from the Minister. Wong was not told of the possibility of judicial review. Wong acted promptly and wrote to the Minister within four days of the Tribunal Decision, and it was not until five months later that the Minister responded declining his request to intervene. Wong then did nothing until advised by a law student who had met his girlfriend that he should seek legal advice, and the law student directed him to a solicitor who advised Wong correctly. Within ten days an application for judicial review was filed. In Wong therefore the applicant acted promptly in relation to the advice that he obtained, namely that he should apply to the Minister, was incorrectly advised in that regard, but when correctly advised again acted promptly in applying for judicial review. Once again, the circumstances highlight the failure of the applicant in this matter to make any sort of application initially when advised that he had a right to do so, and highlights the fact that the applicant here received correct advice rather than the incorrect advice given to Wong. In the circumstances, the judgment in Wong does not assist the applicant because the facts are distinguishable.

6. If there has been a serious delay for which no explanation has been proffered, a strong case on the merits is required before the Court should exercise its discretion to extend time.[106] The “greater the period of delay the higher the court’s expectation of an explanation”.[107]

   [106] Hakim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 29 ALD 193 at 195 per Heerey J.

   [107] Manoher at 411 per Lee J.

7. A delay of 50 days, or almost one and a half times the 35 day time limit prescribed by s.477(1) of the Migration Act, is significant, and likely to be fatal to an application for an extension of time under s.477(2) of the Migration Act where there is no acceptable reason for the delay.[108]

   [108] WZANW at para.28 per Lucev FM.

8. The applicant submits that the explanation for the delay should be put into context, namely that:

   a)the applicant did not receive any legal advice prior to commencing these proceedings;

   b)the migration agent informed the applicant of the outcome of the Tribunal Decision, but did not translate the Tribunal’s reasons to him, nor did she send him a copy of the reasons;

   c)there is no evidence to suggest that the applicant was aware of the time limits in which to lodge an application for review in this Court;

   d)there is no evidence to show that the migration agent or any other person gave the applicant any advice as to the prospects of success of the application; and

   e)the migration agent completed the Original Application and affidavit for the application in this Court, and did not translate it to him before the applicant signed it.

9. In the Court’s view, the first respondent’s submission that as a matter of substance, rather than form, s.477(2)(a) was only satisfied when the Amended Application was filed, is misguided. Applications for judicial review in this Court are often filed with minimal evidentiary support, and the Court takes the view that an applicant should be given the opportunity to present evidence in support at any hearing of an extension of time or substantive application.

10. The first respondent argues that there has been significant delay by the applicant, and that:

    a)the 35 day time limit prescribed by s.477(1) of the Migration Act expired on about 13 October 2009;

    b)the delay between 13 October 2009 and 2 December 2009 is about 50 days;

    c)the delay between 13 October 2009 and 30 April 2010 (being the date on which the Amended Application was filed) is about six and a half months; and

    d)the delay between 13 October 2009 and 19 May 2010 (being the date on which the unsworn version of the Applicant’s May 2010 Affidavit was served) is about seven months.[109]

    [109] First Respondent’s Outline of Submissions, para.54.

11. The first respondent also argues that there is no, or only a very poor, explanation for the delay and that:

    a)there is no explanation for the delay between 18 November 2009 (being the date of the Applicant’s November 2009 Affidavit) and 2 December 2009 (being the date on which the Original Application was filed);

    b)in the Applicant’s May 2010 Affidavit he states that he received assistance from a migration agent from February 2009;[110]

    c)in the Applicant’s May 2010 Affidavit he states that he knew of the Tribunal Decision and knew of the right to “appeal” to this Court, but only asked the migration agent to “help me with my application to [this Court]” some unspecified time after the applicant went into detention on 6 November 2009; and

    d)the evidence suggests that the applicant initially decided not to apply for judicial review of the Tribunal Decision by not seeking his migration agent’s help with a judicial review application, but then had a change of heart, once he went into detention.[111]

    [110] See Applicant’s May 2010 Affidavit at para.8. That is confirmed at CB 9, 35-36 and 41–43 (being documents dated February 2009), CB 85, 89 and 91 (being documents dated May/June 2009) and CB 109 (being a document dated 8 September 2009).

    [111] First Respondent’s Outline of Submissions, para.55.

Consideration – extent of and reason for delay

1. The applicant did not receive any legal advice prior to commencing these proceedings. However, he did have the benefit of access to a migration agent who acted for him, and upon whom he appeared to rely. Furthermore, there is no evidence that the applicant:

   a)ever sought to have access to legal advice;

   b)that he inquired about access to legal advice;

   c)sought access to legal advice and was refused access; or

   d)was refused advice for some other reason.

2. In reality, this submission raises a false issue because the applicant never sought, and was never denied, access to legal advice. Whilst the Court notes that the applicant had access to a migration agent, it appears that the level of real assistance provided by the migration agent, as it often appears to be in such cases, was minimal and lacking practicality. The applicant says that the migration agent did not:

   a)translate the Tribunal Decision for the applicant;

   b)appraise the applicant of the time limit for applying to the Court for judicial review of the Tribunal Decision; and

   c)give any advice concerning the prospect of success of an application for judicial review.

3. It is, however, clear that the migration agent told the applicant:

   a)of the refusal of his review application to the Tribunal;

   b)of the reasons for the refusal of his review application to the Tribunal; and

   c)that he could “appeal” the Tribunal Decision to this Court.

4. There is no evidence that the applicant:

   a)asked that the Tribunal Decision be translated, or even explained in detail or more detail; or

   b)inquired as to any relevant time limits for the “appeal” which he had been told about by the migration agent.

5. Accepting that the applicant did not necessarily understand what was meant by an “appeal” to this Court, there is no evidence that he made any inquiries, or took any steps at all, to ascertain what it did mean. The issue is highlighted by juxtaposing it against the fact that when the applicant went into detention another detainee told the applicant that he could make an “application” to this Court. Without any evidence that he understood what that meant, he instructed the migration agent to make that “application”. The migration agent then completed what the applicant describes as his “application to appeal” and prepared his affidavit, both of which the applicant signed without having the documents translated. There is no evidence that the applicant understood the true nature and effect of the documents he was signing, or indeed that he knew (as opposed to having a very generally based belief) what the documents were, what they were about, or what their effect would be. In reality the applicant, on the evidence, knew no more about what he was doing, why he was doing it, and what its effect would be the second time (when he signed the application) than he did the first time when he did nothing. Lack of funds is not a factor. The applicant had no funds when the Tribunal Decision was handed down and has no funds now. His funding position has not changed.

6. All that has happened is that the applicant has, seemingly, decided to make this application once he has gone into detention and another detainee has told him that he could make the application. Previously, when told he could “appeal” by his migration agent, he simply did not “appeal”.

7. Assessed objectively, there is in fact no real reason given by the applicant for the delay in lodging the application, other than what appears to be a change of mind. Thus, there is a significant delay in filing the application, for which there is no real acceptable reason. As a factor for consideration this must weigh significantly in the balance against the applicant.

Merits of application

1. In respect of the merits of the application, the relevant test is informed by section 477(2) of the Migration Act itself – whether in light of other relevant considerations there is merit in the substantive grounds of the application for judicial review, such that it is in the interests of the administration of justice that time be extended.[112]

   [112] SZMFJ at para.79 per Nicholls FM.

2. If the applicant cannot show an arguable case, then permitting the application to be made out of time is futile. To extend time would be a waste of resources and a waste of the Court’s time.[113]

   [113] SZNOR v Minister for Immigration [2009] FMCA 639 at paras.16-17 and 19-20 per Scarlett FM (“SZNOR”). See also WZANW at para.106 per Lucev FM.

3. If the Court determines that the substantive application is without merit then an extension of time may be refused. This is because, where a substantive right has vested in a party as a consequence of a decision and the time in which to appeal has expired, the time for appealing will not be extended unless the proposed appeal has some prospects of success, nor will the time be extended if the proposed appeal is hopeless, unarguable or bound to fail.[114]

   [114] WZANW at para.36 per Lucev FM.

4. In an extension of time context, an assessment of the merit of the case is broad. Such an assessment involves a consideration of the outline of the case in relation to which the applicant for an extension bears the burden of persuasion.[115]

   [115] WZANW at para.37 per Lucev FM.

5. The respondents submit that:

   a)the Amended Application lacks sufficient merit to warrant an extension of time, that is especially so when the Court weighs any merit against the reasons for and the extent of the delay in the ultimate exercise of its discretion;

   b)given the lack of merit in the Amended Application, the mere absence of prejudice to the respondents is insufficient in itself to justify extending time, and the time, money and resources that need to be expended in hearing this Extension of Time Application should be taken into account; and

   c)there is no reason why the prima facie 35 day time limit should not apply in this case.[116]

   [116] Respondent’s Outline of Submissions, paras.57-59.

1. It is necessary therefore for the Court to broadly consider the merits of the Amended Application.

Amended Application

Ground 1

Applicant’s submissions

1. Ground 1 can be summarised as follows:

   a)the Tribunal took into account an irrelevant consideration by taking into account the Tribunal Member’s own opinion of minimum knowledge that a person in the applicant’s position should have of Christianity, when it rejected his evidence of persecution; and

   b)the Tribunal failed to properly take into account a relevant consideration, being the applicant’s evidence of his Christian beliefs, because of the Tribunal Member’s own opinion.

2. In respect of ground 1 the applicant submits that:

   a)the Tribunal Member appears to have had his own view as to what was an appropriate or minimum level of knowledge or understanding of Christianity that a person in the applicant’s position should have;

   b)relevantly, the applicant’s position, was:

   i)he had limited formal education – up to year 5 or 6 of primary school only;[117]

   [117] CB 116, 120, 124 and 127.

   ii)he did not read very well;

   iii)he had only worked as a farmer and construction labourer;[118]

   [118] CB 120.

   iv)there was no evidence that he had any adult education; and

   v)he had learnt about Christianity from attending an underground/home church for about 10 or 11 months, but no more than 1 year;[119]

   [119] CB 118, 121, 124, 125.

   c)in short, the Tribunal stated:

   “I expected that someone who had been attending church for a year would have had a better understanding of Christianity than [the applicant] appeared to have.”[120]

   [120] CB 125; see also CB 123, 127 and 128.

   d)the Tribunal took the applicant’s supposed lack of knowledge or understanding of Christianity as a factor significantly against the applicant’s credibility;[121]

   [121] CB 127 and 128.

   e)based on that credibility finding the Tribunal rejected the applicant’s evidence that he had an association with a Christian church in China;[122]

   [122] CB 128.

   f)inherent in the approach which the Tribunal took to its assessment of the applicant’s claims was that if the applicant was to be believed then he would have satisfied some unknowable and unspecified level of knowledge as to the tenets of the Christian faith. In this respect, the Tribunal made the error identified in Wang v Minister for Immigration and Multicultural Affairs[123] and WALT v Minister for Immigration and Multicultural and Indigenous Affairs;[124]

   [123] (2000) 105 FCR 548 at 552 per Gray J; [2000] FCA 1599 at para.16 per Gray J (“Wang”).

   [124] [2007] FCAFC 2 at para.28 per the Full Court (“WALT”).

   g)this is not a case, on the Tribunal’s own findings, where the applicant had no, or virtually no, knowledge or understanding of Christianity. Where an applicant has no such knowledge, it may be open to the Tribunal, permissibly as a matter of fact finding, to find that the witness was not a Christian and had not practised as such – but that is not this case;

   h)the applicant gave evidence that he understood and believed the following:

   i)that Jesus had come back to life or had risen from the dead;[125]

   [125] CB 122.

   ii)that Jesus had saved people;[126]

   [126] CB 122-123.

   iii)that Jesus had healed sick people;[127]

   iv)that Christians would have eternal life and would go to Heaven;[128]

   v)that Baptism was to wash away sins and to become a disciple of Jesus;[129] and

   vi)that Jesus had saved Christians from sin, sickness, trouble, sufferings and gave them peace and joy;[130]

   i)the point of showing that there is a Biblical basis for the applicant’s beliefs or understandings is not to seek to establish that the applicant is a Christian. Rather, it is to show that this is not a case where the applicant had no, or a manifest lack of, understanding of the tenets of Christianity;

   j)in adopting the approach which it did, the Tribunal took into account an irrelevant consideration – namely the Tribunal Member’s own view as to what was an appropriate or minimum level of knowledge or understanding of Christianity. In adopting that approach, the Tribunal fell into jurisdictional error;[131]

   k)further, the Tribunal, in doing so, failed to take into account, in a lawful way, the applicant’s claims. The Tribunal did not properly, as a matter of law, address the applicant’s claims and case and so fell into error;[132]

   l)that error or those errors affected the Tribunal’s assessment of the applicant’s credibility; and

   m)it is clear that the Tribunal’s adverse credibility finding was significantly based on its finding as to whether he was a Christian or not. This is a case where it is not possible to say that the Tribunal’s errors could not have affected the outcome of the Tribunal’s assessment of the applicant’s credibility.[133]

   [127] CB 122-123.

   [128] CB 123, 124 and 125.

   [129] CB 123.

   [130] CB 123 and 125.

   [131] Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.

   [132] SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at paras.22-30 per Madgwick and Conti JJ.

   [133] VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at para.79 per Hill, Sundberg and Stone JJ; WAME v Minister for Immigration [2007] FMCA 1569 at para.19-25 per Lucev FM.

First respondent’s submissions

1. In respect of ground 1 the first respondent submitted that:

   a)the finding of facts, including the making of credibility findings, is uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of this Court. This Court has no jurisdiction to engage in merits review;[134]

   [134] NADRv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson & Selway JJ (“NADR”).

   b)the Tribunal is not required to hold a positive state of disbelief before making credibility findings;[135]

   [135] WZANW at para.98 per Lucev FM.

   c)the Tribunal was not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant;[136]

   [136] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (i) per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at para.13 per French J.

   d)it is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness;[137]

   [137] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 per Gleeson CJ; [2003] HCA 30 at para.12 per Gleeson CJ (“Applicant S20/2002”).

   e)in a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption;[138]

   [138] Applicant S20/2002 ALR at 70 per McHugh & Gummow JJ; HCA 30 at para.49 per McHugh & Gummow JJ.

   f)disagreement with the Tribunal’s findings of fact does not support a contention that the Tribunal failed to consider the evidence properly or fairly;[139]

   [139] SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at para.14 per Jacobson J.

   g)so long as a particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place;[140]

   [140] Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 294-296 per Greenwood J [2008] FCAFC 108 at paras.97-99 per Greenwood J.

   h)there is no jurisdictional error in misconceiving an applicant’s evidence;[141]

   [141] See WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [46] – [47] & [58] – [63] per Marshall, Mansfield & Siopis JJ; WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at para.7 per Lee J. Contrast a misconception of an applicant’s claims. See AZAAA v Minister for Immigration and Citizenship (2009) 177 FCR 363 at 378 per Mansfield J; [2009] FCA 554 at para.53 per Mansfield J.

   i)in the absence of evidence – such as a transcript – to the contrary, this Court is obliged to accept the statements of fact recorded in a Tribunal decision (for example, as to what was said by the applicant to the Member, the general course of the hearing, etc);[142]

   j)the Tribunal’s adverse view of the applicant’s credit seems to have been largely based on the applicant’s behaviour during the hearing. The Tribunal’s recitation of the course of question and answer, and the applicant’s behaviour must be taken as accurate;[143]

   k)in order to invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters, the consideration of which is mandated by law;[144]

   l)the respondents submit that the Tribunal’s treatment of the applicant’s alleged Christian beliefs was in accordance with the principles outlined directly above;

   m)legal error based upon the taking into account of an irrelevant consideration succeeds only where the matter taken into account is one which the law prohibits. Most matters taken into account in judicial or quasi-judicial proceedings, and even in administrative decision-making, are permissible considerations;[145]

   n)it is important not to confuse taking into account relevant considerations with taking into account particular pieces of evidence. A failure to take into account a particular piece of evidence does not give rise to a jurisdictional error;[146]

   o)in deciding whether or not the applicant’s claims were credible, the Tribunal was perfectly entitled to take into account the extent of the applicant’s knowledge (or lack thereof) of basic Christian tenets. In the present case the Tribunal’s approach to religious knowledge was entirely consistent with the approach approved in WALT;[147]

   p)the applicant is, in substance, attacking the reasoning process of the Tribunal in reaching a finding of fact. The Tribunal simply did not believe the applicant was a Christian believer who had (and therefore would) suffered persecution on account of those beliefs;[148]

   q)significant inconsistencies in an applicant’s version of events, together with more minor inconsistencies, may entitle the Tribunal to make adverse findings in respect of an applicant’s credibility;[149] and

   r)the Tribunal Decision was ultimately based on its findings that the applicant’s claims were not credible.

   [142] SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at para.13 per Collier J.

   [143] CB 119 [29] – 126 [60].

   [144] Saville v Health Care Complaints Commission [2006] NSWCA 298 at para.55 per Basten JA (with whom Handley and Tobias JJA agreed) (“Saville”).

   [145] Saville at paras.57-58 per Basten JA (with whom Handley and Tobias JJA agreed).

   [146] WZAND v Minister for Immigration& Anor [2009] FMCA 26 at para.57 per Lucev FM, referring to Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed).

   [147] WALT at paras.7-8, 17 and 29-30 per Mansfield, Jacobson and Siopis JJ (“WALT”).

   [148] The situation is akin to that considered by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650 per Crennan and Bell JJ; [2010] HCA 16 at para.135 per Crennan and Bell JJ (“SZMDS”).

   [149] WZANW at paras.100 and 104 per Lucev FM.

Consideration – ground 1

1. In SZJEH v Minister for Immigration and Citizenship,[150] the Federal Court said that:

   a)“disagreement with findings of fact made by a Tribunal does not support a contention that the Tribunal failed to consider the evidence properly or fairly”;[151] and

   b)“it is well established that findings of credit are a matter for the Tribunal and absent some error going to the jurisdiction of the Tribunal, the decision of the Tribunal is not open to judicial review”.[152]

   [150] [2007] FCA 1706 (“SZJEH”).

   [151] SZJEH at para.14 per Jacobson J.

   [152] SZJEH at para.17 per Jacobson J.

2. As is often said “[c]redibility findings are a matter par excellence for the Tribunal”.[153]

   [153] SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM, citing Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.

3. In this case the applicant’s credibility was extensively tested by the Tribunal during the course of the Tribunal Hearing, as is evident from the Court’s summary of the Tribunal Decision set out above.

4. It was open to the Tribunal to make the findings that it made with respect to the evasiveness of the applicant. The question of the evasiveness of the applicant is very much a matter of impression for a fact-finder of first instance, in this case, the Tribunal. From the facts as they appear in the Tribunal Decision there was sufficient material upon which to found a finding that the applicant was both evasive and obstructive in his answers to the Tribunal, and to make a finding that the applicant’s evidence lacked credibility as a consequence. Furthermore, the various inconsistencies, both major and minor, in a range of areas, including:

   a)when the applicant became involved in the church in China;

   b)whether he went back to, or stayed in, his village after his period in detention;

   c)whether or not he was in contact with his family, both after his period in detention, and since coming to Australia;

   d)his whereabouts in Australia at particular times, and whether he was in Sydney or Perth at particular times; and

   e)his language skills,

   provided a sufficient bases for the Tribunal to find that the applicant’s evidence was inconsistent, and to further find, on that basis, that the applicant’s evidence lacked credibility. The evidence of the applicant’s knowledge of Christian doctrines and belief was not essential to any finding on credibility. Adverse credibility findings were open to the Tribunal without any evidence, or consideration of any evidence, as to such knowledge. Consideration of the material in relation to the various inconsistencies highlighted above meant that there was probative material from which it could logically or rationally be inferred that the applicant was not a witness of truth. Even without the evidence in relation to the applicant’s knowledge of church doctrines and belief that inference was open, it was an inference which any rational or logical decision-maker could draw on the same evidence.[154] Obviously, the Tribunal’s view of these facts is one upon which minds might differ. Different people would have different impressions, and might make different judgments. That does not mean that this particular Tribunal Decision is in error. There was an evidentiary basis for the finding as to credibility, which flowed over into the ultimate findings, with or without the evidence as to religious knowledge or belief.[155] There was, therefore, a basis for the Tribunal Decision in the evidence before the Tribunal.

   [154] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.

   [155] SZMDS CLR at 632 per Heydon J; HCA at para.78 per Heydon J.

5. The position in this case is not dissimilar to that in Minister for Immigration and Citizenship v SZOCT,[156] best summed up as follows:

   83 If the Tribunal's lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent's knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal's decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these "singularly and cumulatively" in support of that finding.

   84 The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal's finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.[157]

   [156] (2010) 189 FCR 577; [2010] FCAFC 159 (“SZOCT”).

   [157] SZOCT at paras.83-84 per Nicholas J.

6. In this case, if the Tribunal Decision had been founded on its assessment of the applicant’s knowledge of Christian doctrine and belief, the Tribunal Decision would be in error. However, in this case the Tribunal Decision is logically and rationally founded, and finds support in, evidence on other matters which allowed the Tribunal to conclude that the applicant was not, in fact, a witness of truth. Once that was found, then the Tribunal was able to find that it was not satisfied that the applicant was a person to whom Australia owed protection obligations. Ground 1 must therefore fail as there was no jurisdictional error.

Ground 3

1. Ground 3 can be summarised as follows:

   a)that the Tribunal failed to take into account relevant considerations which were strongly corroborative of the applicant’s evidence that he had been persecuted, namely the Detention Documents; and

   b)the Tribunal failed to make a finding as to the authenticity of the Detention Documents.

2. In respect of ground 3 the applicant submitted that:

   a)the originals of the Detention Documents supplied by the applicant to the Tribunal were before the Court;[158]

   [158] Copies of which, and their English translations, appear at CB 55-63. The original documents were produced to the Court as Exhibit A1.

   b)in respect of the third document,[159] it appears that there were some infelicities in the English translation of the document. A more accurate translation had been provided by Pastor Law;[160]

   [159] Which with its translation appears at CB 55, 62 and 63.

   [160] Pastor Law’s Affidavit, Annexure “KHL-1”.

   c)the Tribunal did not make a finding as to the authenticity or otherwise of the three documents. Rather, the Tribunal put them to one side;[161]

   [161] CB 128.

   d)the Tribunal took that approach because of what had been said by the Department of Foreign Affairs and Trade in the Country Information.[162] Possession of such a report might have reasonably put the Tribunal on guard, but, of itself, went no further than that;[163]

   [162] Report No. 301/2000 dated 5 June 2000, CX42649.

   [163] SZKLK v Minister for Immigration [2008] FCA 1125 at para.61 per Logan J (“SZKLK”).

   e)as was the case in SZKLK, it does not appear that the Tribunal had any third party information before it as to:

   i)whether or not the agency referred to in the documents existed;

   ii)whether the very documents produced by the applicant, or even that class of document, were or were very likely to be forgeries; and

   iii)more generally, the practices and procedures of the institution from which the documents produced by the applicant purportedly originated, which might have assisted in forming a view as to their likely authenticity;[164]

   f)in this case, it was not permissible for the Tribunal to simply fail to engage with the three documents;[165]

   g)consequently, the Tribunal did not take into account a relevant consideration; ie documents which were strongly corroborative of the applicant’s claims;

   h)it may be noted that the Tribunal did not ask the applicant, nor make any enquiries, as to how the three documents were produced to the Department; and

   i)if the Tribunal had engaged with the question which it was obliged to (ie, whether the documents were genuine), then how the documents came to be produced would have been a relevant consideration. As the Applicant’s May 2010 Affidavit makes clear, if the applicant had been asked, he would have been able to give evidence in support of the authenticity of those documents.

   [164] SZKLK FCA at para.41 per Logan J.

   [165]

First respondent’s submissions

1. In respect of ground 3 the first respondent submitted that:

   a)the Tribunal may legitimately reject the authenticity of a document on the basis of adverse findings concerning the applicant’s credibility;[166]

   [166] SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at paras.12 and 25 per Collier J; WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at paras.65-70 per Marshall, Mansfield & Siopis JJ; cf WAIJ ALD at 574-575 per Lee and Moore JJ; FCAFC at para.27 per Lee and Moore JJ.

   b)the Tribunal’s rejection of the authenticity of the Detention Documents was in accordance with the finding that the applicant did not have any credibility after his credibility had been weakened by questioning in the Tribunal;

   c)the Tribunal’s treatment of the Detention Documents must be considered in context:

   i)the Tribunal had before it advice from DFAT that any official document could be either purchased or forged in China;[167]

   ii)the Tribunal put the DFAT advice to the applicant;[168]

   iii)the Tribunal did not regard the applicant’s version of events as credible;[169]

   d)the Tribunal clearly took into account the Detention Documents, and did so in the context of advice from DFAT;[170]

   e)the Tribunal considered that the Detention Documents, having regard to the DFAT advice, did not overcome the problems the Tribunal had with the applicant’s evidence.[171] Matters of weight are for the Tribunal;

   f)the second paragraph of ground 3 is possibly inspired by the remarks of Lee and Moore JJ in WAIJ.[172] But those remarks were made in a context where the credibility of the applicant had not been destroyed by stark findings of untruthfulness.[173] Further, there was nothing in that case equivalent to the DFAT advice in this case; and

   g)the second paragraph of ground 3 is tantamount to an allegation that the Tribunal was under an obligation to make an inquiry as to the authenticity of the Detention Documents. There is no such duty to inquire. The Tribunal’s only obligation was to conduct a review of the Delegate’s Decision.[174]

   [167] CB 125.

   [168] CB 125–126.

   [169] CB 127–128.

   [170] CB 119 and 128.

   [171] CB 128.

   [172]ALD at 574-575; FCAFC at para.27.

   [173] WAIJ ALD at 575 per Lee and Moore JJ; FCAFC at para.28 per Lee and Moore JJ. Note also ALD at 577 and 580 per Lee and Moore JJ; FCAFC at paras.40 and 52 per Lee and Moore JJ.

   [174] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436-437 per French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ; [2009] HCA 39 at paras.25-27 per French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ;.

Consideration – ground 3

1. The Tribunal clearly considered the Detention Documents. It put to the applicant that those documents might, based on DFAT advice, not be genuine documents. Although this was disputed by the applicant, the Tribunal, relevantly, had regard to the DFAT advice in coming to the view that little weight should be placed on those documents. Thus, the weight attributed to the Detention Documents was not based on a bare assertion, but backgrounded by the DFAT advice. In those circumstances, there was a finding that the Detention Documents did not outweigh the problems that the Tribunal had with the applicant’s own evidence. This is a case where the Tribunal, on proper grounds, has determined that the substantive claims of the applicant were not honestly made, and, it was therefore entitled to find that the documentary material in support, given the DFAT advice, did not independently corroborate the applicant’s claims. There was not therefore, in a relevant sense, a failure to engage with, or consider the Detention Documents. In that regard, there was, therefore, no jurisdictional error.[175]

   [175] See WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 524 per Lee, Hill and Carr JJ; [2003] FCAFC 171 at para.54 per Lee, Hill and Carr JJ; Applicant Ml64/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at paras.89-92 per Lee J.

2. In the above circumstances, ground 3 does not disclose jurisdictional error. Ground 3 must therefore fail.

Conclusion – merits

1. The Tribunal considered the ultimate question of satisfaction, that is, whether it was satisfied that the applicant had a well-founded fear of persecution, for a Convention reason. The Tribunal considered the ultimate question in proper form, having regard to:

   a)the prescribed criteria;

   b)sections 36(2) and 65(1) of the Migration Act;

   c)the definition of “refugee”; and

   d)that element of the definition of “refugee” as to whether there was a well-founded fear based on a “real chance” of persecution for a Convention reason.[176]

   [176] Wu Shan Liang CLR at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minister for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611 at 650-651 per Gummow J; [1999] HCA 21 at paras.128, 130 and 131 per Gummow J; Minister for Immigration and Multicultural Affairs v VSAF [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at para.15 per Ryan, Jacobson and Lander JJ; SZGZQ v Minister for Immigration and Multicultural Affairs [2007] FCA 62 at paras.13-14 per Greenwood J; SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras.28-30 per Lucev FM.

2. The Tribunal was not satisfied that the facts required to be established to satisfy the criteria of the grant of a protection visa had been established, essentially, because the applicant’s claims were not believed by the Tribunal. That is a factual finding as to credibility. It does not amount to jurisdictional error. The Tribunal was therefore entitled to reject the applicant’s claims, and in the absence of jurisdictional error, it is not the task of this Court to review the merits of the Tribunal Decision.

3. The applicant has therefore failed to establish that the Amended Application has reasonable prospects of success, and that must weigh heavily against the Extension of Time Application.

Impact on the applicant

1. The applicant submits that if he is not given an opportunity to be heard then he will suffer an obvious prejudice in that his right to challenge the Tribunal Decision will be denied, it being a serious matter to deprive a person of access to the courts.[177]

   [177] Lindon v The Commonwealth(No. 2) (1996) 136 ALR 25 at 256 per Kirby J; [1996] HCA 14 at para.14 per Kirby J. See also SZNOR at paras.17 and 20 per Scarlett FM.

2. It is in the interests of the proper administration of justice to ensure that a decision has been made in accordance with the law.

3. In respect of the prejudice to the applicant, if there is a rejection of the Extension of Time Application, there is no adverse impact on an applicant if the Tribunal has made findings to the effect that there would be no adverse impact if the applicant was refouled.[178] The Tribunal found that the applicant would not face persecution in China. That finding is now reinforced by the Court’s finding that, on the merits, the Amended Application has no reasonable prospects of success.

   [178] WZANW at para.108 per Lucev FM.

Prejudice to first respondent

1. A mere absence of prejudice is insufficient of itself to justify extending time.[179] The first respondent has suffered the prejudice which arises from the expectation that litigation is complete once the relevant limitation period has expired, and if the matter were to proceed, would suffer time and costs prejudice.

   [179] WZANW at para.107 per Lucev FM.

2. There is, therefore, prejudice to the first respondent, but it is not such that, alone, it would warrant refusal of an extension of time.

Public interest and Court’s discretion

1. In respect of the Court’s discretion, although the Court must look objectively at the various factors and balance them, the Court is not required to give equal weight to all of the factors to be considered in the exercise of the discretion.[180]

   [180] WZANW at para.112 per Lucev FM.

2. On an application for an extension of time, the applicant seeks an indulgence from the prima facie rule that proceedings not commenced within time should not be entertained. The Court must be satisfied that the applicant should be granted such an indulgence.[181]

   [181] Lucic v Nolan (1982) 45 ALR 411 at 416 per Fitzgerald J in the context of an application for an extension of time under s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

3. In respect of the public interest, although the interests of the Australian public at large are not served by refoulment of a refugee to a country of claimed persecution, that factor does not carry weight where the attack on the Tribunal Decision lacks merit.[182]

   [182] SZMFJ at para.194 per Nicholls FM; WZANW at paras.110-111 per Lucev FM.

4. The Court should look at the time, money and resources that need to be expended on defending an application which is out of time.[183]

   [183] SZNOR at para.15 per Scarlett FM.

5. In this case, because the Court considers that the Amended Application lacks merit, and has no reasonable prospect of success, there is no public interest in, and, in the absence of a reasonable explanation for the delay, no reason for the Court to exercise a discretion favourable to, an extension of time.

Conclusion – extension of time

1. The Court notes that the delay is quite long, being about one and a half times the required statutory limit. The reasons for the delay are not adequate, in the Court’s view, to explain either the delay or the length of the delay. If the Tribunal is found to have made a jurisdictional error, then there would be obvious prejudice to the applicant in denying his right to appeal the Tribunal Decision. However, the Court has concluded that the Amended Application lacks reasonable prospects of success, and that there was no jurisdictional error in the Tribunal Decision. In those circumstances, because the Amended Application lacks merit, there is no prejudice to the applicant. The respondents have demonstrated prejudice that they would suffer if the extension of time is granted, but only as their expectation that the litigation was complete once the limitation period expired. There is no public interest in time being extended for an application that lacks merit and has no reasonable prospect of success, and no reason otherwise for the Court to exercise discretion in favour of an extension of time.

Conclusion

1. In all the circumstances set out above, the Court will not exercise its discretion to grant the extension of time to the time of actual filing for the applicant to file the Original Application, and an order will be made accordingly.

2. It follows that the Amended Application must therefore be dismissed, as in the absence of an order extending time in which to file the Original Application, there is no application before the Court, and the Court is without jurisdiction to hear the Amended Application. The Court will therefore order that the Amended Application be dismissed.

3. The Court will hear the parties as to costs.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:   8 April 2011

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at
574-575 per Lee and Moore JJ; [2004] FCAFC 74 at paras.26-27 per Lee and Moore JJ (“WAIJ”); SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD 25; [2008] FCA 1638 at paras.23-27 per Finkelstein J.