FEDERAL COURT OF AUSTRALIA

BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400

ORDERS

THE COURT ORDERS THAT:

1.    The application to extend time in which to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The applicant seeks an extension of time in which to appeal the decision of a Federal Circuit Court Judge who dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a protection (Class XA) visa (visa). The application for an extension of time in which to appeal was filed on 27 July 2017, being some 14 days after the expiration of the prescribed appeal period. By way of explanation for the failure to lodge an appeal within time, the applicant identifies certain errors by his legal advisers. The applicant also asserts that he has a substantial ground of appeal which he ought be entitled to ventilate in full.

Relevant principles to apply on applications to extend time

2    The power afforded to this Court pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) to grant an extension of time in which a party might appeal from the Federal Circuit Court is discretionary. The rule itself imposes no fetter on the matters which the Court might consider when exercising the discretion. That said, it must necessarily be exercised in a principled manner constrained by the interests of justice and the subject matter and purpose of the legislation in which it is found. The relevant principles to apply in dealing with an application of this nature were succinctly stated by Katzmann J in Dunlop v Fishburn (No 3) [2012] FCA 315 at [9] and [10] in the following terms:

9.    The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.

10.    The requirement in the former Rules (O 52 r 15(2)) that an applicant show “special reasons” has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court’s discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b)    The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(c)     Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(d)     Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;

(e)     The merits of the appeal are to be taken into account.

See also the discussions in Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243 at 246-247, [15]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

The extent of the delay

3    The extent of the delay in this matter is relatively minor, being only 14 days. Whilst it is always important to keep in mind that the legislature imposes temporal limitations on the institution of appeals for good reason, in this case the failure to comply with the requirement was far from excessive. On the other hand, the time limits prescribed by the Court Rules are not mere aspirational guidelines. They are intended to mark out the period in which it is expected that any appeal might be lodged. Once that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs.

Explanations for the delay

4    The explanation for the failure to lodge an appeal within time and the brief delay in filing the application to extend time for appealing is provided for in an affidavit of a Barrister who was assisting the applicant in this matter. That Barrister deposes to having believed that the time limit for appealing was 28 days after the making of the order by the Federal Circuit Court. In fact, the time limit for filing a notice of appeal expired after 21 days from the date of the order. No doubt, once it was realised that the time limit for appealing had passed, additional work had to be undertaken to make an application for an extension of time in which to appeal. This would have extended the expiration of time prior to which the application to extend time was filed.

5    The Barrister who had assisted the applicant was acting pro bono. Occasionally, it is said that those who act for impecunious litigants in the courts without charge are expected to provide the same levels of service as professionals who are remunerated for their work. That is, with respect, a most difficult proposition. It is a view which neglects to pay heed to the lack of financial capacity which has forced the litigant to seek pro bono legal assistance in the first place. That same diminished financial capacity has the necessary consequence that the litigant’s financial resources available to the pro bono lawyer which might be used to meet the standards required of the court are non-existent and must be contributed to by the lawyer them self. Further still, the socio-economic reality is that those who require pro bono legal services will often be encumbered with other difficulties (such as language barriers, lack of a fixed abode or sufficient education) which render the giving of appropriate instructions problematic. These are just some of the issues which belie the suggestion that pro bono lawyers are expected to deliver the same service as might be provided by a paid lawyer. That is not to say that lawyers who provide a service to the courts and the community by the donation of their time and effort should not exercise the reasonable skill and care of a reasonable legal practitioner. Necessarily, as a member of the profession, they must. However, when their conduct falls to be considered, a full and proper acknowledgment must be given to the limitations under which these gratuitous legal services are provided.

6    In any event, in this case the applicant has provided an explanation for the delay which ought to be accepted as being reasonable. He apparently acted upon erroneous legal advice for which he held no responsibility. Acceptance of this explanation is in line with the established proposition that the courts generally avoid, where possible, punishing a party for the inadvertent mistakes of their legal representatives (see SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at 463-464, [25]).

Prejudice to the Minister by reason of any delay

7    The Minister quite properly acknowledged the absence of any prejudice to him arising by the granting of any extension. He does, however, correctly submit that the mere absence of prejudice is not enough to justify the grant of an extension of time (see Parker v The Queen [2002] FCAFC 133). It is for the applicant to establish that there is a proper reason for the exercise of the discretion in his favour.

Merits of the proposed appeal

8    In considering this matter it is necessary to keep in mind that it is inappropriate on an application such as this to consider the merits of the proposed ground of appeal in great detail. It has been recognised, as a general proposition, that a court should assess the merits in a “fairly rough and ready way” (see the comments of Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at 521-522, [9]). However, in that case the reasons given as to why a court would necessarily undertake an adumbrated consideration of the merits were that an appeal court hearing the application would only have limited materials and limited arguments on which to consider the question. Whilst that is no doubt true in relation to an application to extend the time in which to appeal after a trial, the principle cannot apply with the same rigour on all occasions. In the present case this Court had before it all the materials which were necessary to decide the ultimate question. The quantity of the material was small and Counsel for both parties traversed it in their submissions. Moreover, the question which arises upon an application for judicial review is largely based upon the reasons of the Tribunal and an appeal from the Tribunal on a question of law. On the other hand, it was made clear at the outset that the hearing only involved the question of an extension of time and, no doubt, the submissions were made with that in mind. The matter must be considered in that light.

9    Counsel for the applicant acknowledged that the sole question in respect of which an appeal might be pursued was based upon the following:

The learned judge at first instance erred in finding that it was not a jurisdictional error for the Tribunal to cite State Department and Home Office reports as sources of information when these reports did not contain that information.

That ground is a reference to paragraph 73 of the reasons of the Tribunal (which was repeated at paragraph [101] of the reasons). Those paragraphs provided:

The United States Department of State and the United Kingdom Home Office both report that failed asylum seekers who departed Vietnam illegally are seen as victims of people smugglers and victims of crime. Both confirm the information provided by DFAT regarding the identification checking procedures, brief period of detention whilst this occurs and the fines imposed for illegal departure. Both report that known political dissidents are detained further, but not failed asylum seekers and others who departed illegally19.

At footnote 19 the Tribunal referenced two of the documents referred to in the paragraph; being the US Department of State (USDOS) Country Reports on Human Rights Practices 2013 (Vietnam 27 February 2014) and the UK Home Office, Country Information and Guidance for Vietnam (Opposition to the Government, December 2014).

10    At issue is the last sentence of paragraph 73 and, in particular, the last part of that sentence. It is not in doubt that both documents referred to included information that political dissidents in Vietnam were detained. However, it is alleged that neither document made any reference to failed asylum seekers and others who departed Vietnam illegally not being detained on their return. The applicant, therefore, submits that the Tribunal erred in its findings as to the contents of those documents and that has given rise to a likely jurisdictional error which ought to be considered upon appeal.

11    It is not enough, however, on an application of this nature to merely identify a factual error of some description. It is necessary to identify, at least to some degree, a basis for arguing that the factual error will amount to a jurisdictional error.

Background

12    In order to assess whether the proposed ground of appeal has a sufficient degree of veracity it is necessary to identify the background to this matter.

13    The applicant is a citizen of Vietnam. He arrived in Australia on 23 March 2013 as an Irregular Maritime Arrival. On 24 October 2013 he made an application for a protection (Class XA) visa. His application was supported by a statutory declaration in which he claimed to fear harm from the Vietnamese authorities were he to be returned to Vietnam. In this respect he relied upon his alleged anti-government political opinion, his practice of his Catholic religion and his determination not to participate in military service. He gave particulars of these matters as follows:

(a)    That in December 2012 and January 2013 he attended two anti-government protests in which he held a sign with a slogan naming two islands of Vietnam which had been taken by China. Apparently the military ended the protest using sticks and tear gas.

(b)    He claimed that he would attend future anti-government protests if he were returned to Vietnam.

(c)    In August 2012 Vietnamese authorities had attempted to confiscate land belonging to the Con Cuong Catholic Community. The authorities apparently prevented people from going to the land to pray and the community protested against this resulting in two people being arrested. The applicant was not arrested.

(d)    That when the applicant turned 18 he would be required to undertake military service. He says he did not want to perform military service given that he would be part of a government that oppressed its people.

14    Subsequent to an interview with a Departmental Officer, the applicant’s representative advanced further claims on his behalf. Relevantly, it was said that he feared harm as a failed asylum seeker who had departed Vietnam illegally and, particularly, because personal information about him being held in immigration detention had been released on the Department of Immigration’s website.

15    On 12 December 2014 the Minister’s delegate refused to grant the applicant a protection visa. Thereupon, the applicant sought the review of the delegate’s decision by the Tribunal. Initially, the Tribunal was unable to make a decision favourable to the applicant on the material which was before it. It then invited the applicant to appear at a hearing to give evidence and to present arguments. That hearing eventually took place on 19 April 2016.

The Tribunal’s decision

16    There is no question that the Tribunal considered each of the grounds advanced to it by the applicant as to why he would be entitled to a protection visa as per s 36 of the Migration Act 1958 (Cth) and sch 2 to the Migration Regulations. It considered the applicant’s claims that he was either a person in respect of whom Australia has protection obligations under the “refugee criterion”, or on other “complementary protection” grounds. The Tribunal considered, in turn, each of the applicant’s grounds. It held that there was nothing arising out of the applicant’s religious practices which would expose him to fear of persecution. It also found that the applicant’s involvement in certain protests would not have exposed him to any fear of persecution. He was not a person who had a profile as a “political activist”. Further, the fact that he did not wish to engage in military service was not a reason requiring him to be accorded international protection.

17    Before the Tribunal, the applicant also advanced his claim that if he were returned to Vietnam he would be arrested and detained for an extended period due to the fact that he had left Vietnam illegally and that he was a failed asylum seeker. The Tribunal records at paragraph 45 of its reasons that it put to the applicant information from the Department of Foreign Affairs and Trade (DFAT), the United States Department of State (USDOS) and the United Kingdom Home Office (UKHO) to the effect that returnees who are failed asylum seekers are neither harassed nor discriminated against by the authorities on their return to Vietnam. At paragraph 45 the Tribunal noted that such persons are able to obtain registration papers if their previous registration had lapsed and, on their return, a person’s identification is checked and verified. They may be briefly detained whilst this occurs. Such persons may also be subject to a fine for illegal departure of between $AUD120 and $AUD600. If a person departed Vietnam using false documents the fine would be greater. A person would only be detained for an extended period if they had a profile as a political activist, if the authorities thought that the person left Vietnam in order to undermine the Vietnamese government, or if the person is thought to be an organiser of illegal departures or of people smuggling activities. These matters were put to the applicant who responded that he escaped Vietnam to seek protection.

18    In its detailed reasons the Tribunal considered all of the matters raised. In doing so it referred to the Country Information supplied in the various reports from the USDOS, the UKHO, the United Nations and DFAT. In relation to its discussion of the suppression of political opinion, the Tribunal acknowledged that the Country Information showed that in Vietnam political opinion was suppressed and there was arbitrary arrest and imprisonment of political activists.

19    Under the heading of “Data Breach, Illegal Departure, and Failed Asylum Seekers Returning to Vietnam”, the Tribunal considered a number of matters including:

(a)    That according to DFAT, Vietnamese nationals who departed the country unlawfully may be subject to fines upon their return of between $AUD120 and $AUD600. Higher fines might be imposed where a false passport or equivalent had been used.

(b)    That DFAT assesses that persons who pay money to organisers of people smuggling operations are viewed by the Vietnamese Government as victims of criminal activity rather than as criminals themselves. Some returnees may be briefly detained and interviewed but that long term detention, investigation and arrest occurs only in relation to those suspected of involvement in organising people smuggling operations (see paragraph 69).

(c)    According to DFAT there was no information to suggest that people known to have or believed to have sought asylum in other countries received different treatment from the government of Vietnam for having sought asylum. The DFAT material indicated that, in the past, some returnees have been held for a brief period upon their return for the purpose of interview and such that the authorities might obtain information relevant to the investigation of people smuggling operations. DFAT observed that those who have been detained for extended periods upon their return have been detained primarily due to their political views, held or imputed, rather than the fact they sought asylum (paragraphs 70-72).

20    Immediately after these conclusions paragraph 73 appears in the reasons. Unusually, that paragraph is repeated subsequently as paragraph 101 of the reasons.

21    Subsequently under the heading of “FINDINGS AND REASONS” the Tribunal made certain findings based on the information before it. In respect of the matters presently under consideration, the Tribunal’s reasons disclose that:

(a)    The Tribunal accepted that the applicant will face punishment in Vietnam if he is returned but only as a person who departed Vietnam illegally (paragraph 95).

(b)    The Country Information before the Tribunal indicated that the applicant will be subject to a fine for leaving the country illegally, albeit not a large fine, but there is no indication that he would be subject to a greater fine for using a false passport or false identification documents (paragraph 96).

(c)    That DFAT assessed that persons who pay money to organisers of people smuggling operations are viewed by the Government as victims of criminal activities rather than as criminals and there is no evidence that the applicant was involved in organising his illegal departure or that of others.

(d)    The Tribunal was satisfied that in Vietnam the applicant will be regarded as a victim of people smuggling operations and, as such, he will be detained for a brief period of time to establish his identity and have his registration papers issued and he will be liable for a small fine (paragraph 97).

(e)    The Tribunal made the following findings in relation to the DFAT analysis of the fate of failed asylum seekers on their return to Vietnam:

99.    The applicant claims that if he is returned to Vietnam he will face harm as a person who has claimed asylum in Australia. In Australia, applications for protection are confidential. According to DFAT there is no information to suggest that people known to have or believed to have sought asylum in other countries receive different treatment from the Government of Vietnam for having sought asylum. DFAT states that in the past some returnees have been held for a brief period upon return for the purpose of interview by the Ministry of Public Security in order to obtain information relevant to the investigation of people smuggling operations. According to DFAT, in general, those who have been detained upon return have been detained primarily due to their political views, held or imputed, rather than the fact that they have sought asylum.

100.    DFAT asserts also that there is no information to indicate that returnees who have sought protection outside Vietnam are treated differently to other returnees. DFAT also states that returnees are able to obtain household registration if their previous registration has lapsed.

(f)    The Tribunal repeated paragraph 73 at paragraph 101.

(g)    The Tribunal found that the applicant does not have the profile of a political activist or a Catholic activist or a person who had acted against the Vietnamese government. It was satisfied that on his return to Vietnam the applicant will be prosecuted for having committed an offence against Vietnam’s entry and exit laws by departing the country illegally and travelling by boat to Australia.

(h)    The Tribunal found that the applicant did not face a real chance of serious harm as a result of his illegal departure and his having sought protection in Australia (see paragraphs 102-103).

22    Consequently, the Tribunal was satisfied the applicant did not face a real chance of serious harm in Vietnam by reason of his race, religion, nationality, membership of a particular social group or political opinion. Neither did he meet the complementary protection criterion.

The issue raised

23    The issue which is sought to be raised concerns the alleged misstatement in paragraph 73 (and repeated in paragraph 101) that the Country Information reports of the USDOS and the UKHO indicated that failed asylum seekers and others who depart illegally are not detained for extended periods. As is indicated below it is said that the misstatement of the contents of those reports amounts to a jurisdictional error.

Was there in fact a misstatement

24    The respondent contends that the impugned sentence does not disclose any error. In the context of the extensive written reasons of the Tribunal, there is some merit in that submission.

25    There are two potential constructions of the last sentence of paragraph 73 which reads, “Both report that known political dissidents are detained further, but not failed asylum seekers who departed illegally”. Those two constructions are:

(a)    That both the USDOS and the UKHO reports state that political dissidents are detained on their return and, they further state, that failed asylum seekers who departed illegally are not so detained.

(b)    Alternatively, that both reports make the positive statement that political dissidents are detained on their return, but that they do not state that failed asylum seekers and others who depart illegally are detained.

26    The applicant submits that the first construction should be preferred, and as such, it is an erroneous construction of the USDOS and the UKHO reports because there are no positive statements in those reports that failed asylum seekers are not detained for extended periods. In relation to this, it is conceded by the Minister that there is no positive assertion in the USDOS and the UKHO reports that failed asylum seekers or illegal departees are not detained for extended periods. He submits, however, that the second construction ought be adopted and, if construed in that way the statement is a correct analysis of the reports from the USA and the UK.

27    Either of the above identified constructions of the last sentence of paragraph 73 is open. That being so, it would be an odd approach to construe the reasons of the Tribunal in a manner which would generate a possible incorrect analysis of the documents rather than construe them in a way which affords a correct analysis. That said, it seems that before the Federal Circuit Court both parties accepted that the first construction was applicable.

28    Although it is probably not necessary to determine, the USDOS report on Vietnam does seem to fit the description in the last sentence of paragraph 73. It identifies the arbitrary arrest and detention of political activists. However, it also says that the government of Vietnam generally co-operated in providing protection and assistance to, inter alia, returning refugees. That would seem to indicate that persons who had fled the country but then returned are provided assistance and are protected. That is the antithesis of arresting and detaining them. By comparison the UKHO report identifies the arrest and detention of political activists, but does not seem to make any mention of the treatment of persons who have returned after failing to obtain asylum in another country.

29    For the purposes of this application it is not necessary to reach a conclusion as to which of the competing constructions is correct. Whilst the second construction seems more logical in the circumstances, on this application it should be assumed in favour of the applicant that the Tribunal incorrectly identified that the USDOS and the UKHO reports positively asserted that failed asylum seekers or illegal departees were not detained for extended periods when returned to Vietnam. It can also be assumed in his favour that the statement is incorrect.

Nature of the alleged error

30    At the hearing of the application, the manner in which the alleged misconstruction of the reports of Country Information amounted to a “jurisdictional error” was not identified with any great clarity by the applicant. On an application such as this the applicant must raise at least an arguable case that the erroneous finding of fact amounted to a jurisdictional error which would be productive of relief on appeal. In some respects it was suggested that the alleged error disclosed “unreasonableness” or “illogicality” on the part of the Tribunal. In other respects it was suggested that the error amounted to a jurisdictional error because it did not deal with a “claim” advanced by the applicant. It is not immediately clear how that might arise given that the Tribunal considered the issue of and evidence relating to whether a returned asylum seeker or illegal departee might be subject to extended detention on return to Vietnam.

Contextualising the issue

31    The question of whether the reasons for the decision of decision-maker (or the Tribunal in its stead) disclose the existence of a jurisdictional error, will seldom appear from a single sentence, let alone a part of a sentence. The impugned part of the reasons must be considered in the context of the whole.

32    As might appear from the above discussion of the Tribunal’s reasons, the context of the issue before it was as follows:

(a)    The applicant had sought a protection visa under s 65 of the Migration Act.

(b)    An issue for consideration was whether Australia had protection obligations to him under the Refugee Criterion or other “complementary protection grounds”.

(c)    The applicant raised a number of issues in support of the assertion that he was vulnerable to persecution were he to be returned to Vietnam. They included his religion, claimed political activity, and his opposition to serving in the military. He also claimed that he would suffer persecution were he to be returned as a failed asylum seeker.

(d)    The Tribunal considered a variety of reports of Country Information including a DFAT report, a report from the USDOS and a report from the UKHO. Whilst the Tribunal noted that dissident political opinion was supressed by persecution, the DFAT report expressly considered that whilst Vietnamese nationals who are failed asylum seekers and who are returned home might be detained briefly for interview, they are treated as victims of people smugglers. The USDOS and the UKHO reports were identified as corroborating the position stated by DFAT.

(e)    There was no material before the Tribunal and none referred to in its reasons which suggested that failed asylum seekers or illegal departees were detained for extended periods on their return to Vietnam. To the extent that there was evidence on this topic it was that which was contained in the DFAT Country Information Report.

(f)    Overall, the conclusion reached by the Tribunal was that if the applicant were returned to Vietnam he will be detained and questioned in order to establish his identity and to allow for his registration and he will be questioned about his illegal departure and the organisers of the boat trip. He will be prosecuted for his illegal departure from Vietnam. The Tribunal did not accept that these procedures will result in a real chance of serious harm to the applicant.

33    It is not inappropriate to observe that this is not a case where it is alleged that the Tribunal overlooked some evidence contained in the reports from the USDOS or from the UKHO which contradicted or was contrary to that in the DFAT report. It is also not a case where the Country Information from those sources suggested that failed asylum seekers would be detained for extended periods on their return to Vietnam. The complaint is that the last part of the last sentence of paragraph 73 incorrectly identified that the USDOS and UKHO reports verified the content of the DFAT report as to the treatment of failed asylum seekers in Vietnam. It is not submitted that the substance of the comment, being that failed asylum seekers are not detained for extended periods, was not in accordance with the evidence before the Tribunal.

34    The nature and extent of the alleged error can be tested in a couple of ways. First, it is useful to hypothesise what the position would be if the last part of the last sentence of paragraph 73 had not been included. If that were the case, such that the Tribunal did not believe that the identified reports corroborated the DFAT reports, it is extremely unlikely that the Tribunal would have reached a different conclusion. It had considered at length the content of the DFAT report on which it obviously placed considerable weight. In particular, it accepted the evidence in the DFAT report to the effect that returned failed asylum seekers and illegal departees are not detained for any extended period by the authorities in Vietnam on their return. That being so, and there being no evidence to the contrary, it follows that even if the Tribunal had not mistakenly believed that the other reports verified the DFAT report in this respect, it would inevitably have reached the same conclusion.

35    The matter can also be tested by considering the converse of that which is alleged to be in error. That is, what would be the position were the Tribunal to have concluded that failed asylum seekers or others who departed Vietnam illegally would be detained on their return (for a period longer than to enable the authorities to check their credentials). Such a determination would not withstand scrutiny. There was simply no information before the Tribunal which suggested that to be the case. The evidence about this topic was contained in the DFAT report which refuted such a proposition. Further, the USDOS and the UKHO reports inferentially supported the DFAT report by indicating that “political activists” and others were detained but they did not suggest that failed asylum seekers or illegal departees were treated in that manner.

36    It is also relevant to keep steadily in mind that the alleged error or finding as to the content of the UK and USA Country Information was a finding which occurred “on the way, to the intermediate conclusion that the applicant, as a failed asylum seeker who departed Vietnam illegally would not be the subject of persecution on his return”. That conclusion was, of itself, a step in the process of determining that the applicant was not a person in respect of whom Australia owed convention responsibility.

37    It would appear that a jurisdictional error might arise as a result of an illogical, irrational or unreasonable finding of fact which is “on the way” to a final conclusion (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [131]-[132]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138, [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 at 434-435, [60]). However, such errors of fact will be within the jurisdiction of the Tribunal to make if they are not critical to, or are immaterial to the final outcome. This point was made by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 where his Honour said:

55.    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

This paragraph was cited with approval by the Full Court of this Court in CQG15 v Minister for Immigration and Border Protection at 434, [60].

38    Here the alleged erroneous view of the Country Information in the USDOS and UKHO reports cannot be said to be “critical to” the ultimate conclusion which was reached. As is apparent from paragraph 73 and its context, those reports were merely relied upon to confirm that which the Tribunal had identified existed in the DFAT reports. They were used as corroborating evidence.

39    As identified in paragraphs 99 and 100, which are set out above and which form part of the Tribunal’s “FINDINGS AND REASONS”, the Tribunal accepted the DFAT Country Information that the applicant would only be subject to a small fine when he was returned as a consequence of him having left Vietnam illegally. The Tribunal also relied upon the DFAT information to find that the applicant will be regarded as a victim of people smuggling operations and as such he would be detained for a brief period to establish his identity and to renew his registration. That information also led it to the conclusion there is no evidence to suggest that he will be treated differently because he sought asylum in Australia. DFAT had also advised that persons were detained for an extended period only where they were regarded as political activists. It follows that there was substantial material before the Tribunal on which it was able to base its findings that the applicant, as a failed asylum seeker and one who departed Vietnam illegally, would be detained briefly for checking and registration purposes and would also incur a small fine. There being no evidence of the applicant being involved in political activities, there was no real chance of serious harm to him on his return.

40    The Tribunal was easily able to reach the conclusion which it did based on the DFAT Country Information report. It had accepted the content of that report and relied on it in all other respects. Moreover, there existed no other evidence to the contrary.

41    Additionally, to the extent to which the statement in paragraph 73 (and paragraph 101) was in error, it was only in relation to what was stated in the UKHO and USDOS reports. On the material before the Tribunal, the substance of the comment, namely that failed asylum seekers and others who departed illegally would not be detained for extended periods, was not erroneous. Indeed, it was consistent with all of the information before the Tribunal. It follows that the impugned comment could not have had any real bearing on the decision process.

42    Finally, there was no evidence that failed asylum seekers or persons who had departed Vietnam illegally would be detained for extended periods. Any finding to that effect would have been contrary to the only material before the Tribunal on that topic.

43    It follows that the reliance on the alleged erroneous statement as founding a jurisdictional error has no chance of supporting any argument as to the existence of a jurisdictional error.

Conclusion

44    It follows that, even if one were to assume in favour of the applicant the existence of the alleged error in the findings of fact by the Tribunal, such a finding was plainly both immaterial to and not critical to the ultimate decision. There is no reasonable possibility of the applicant establishing the existence of a jurisdictional error on the basis of the misstatement.

45    In the circumstances the application to extend time in which to appeal should be dismissed.

Associate:

Dated:    30 November 2017