FEDERAL COURT OF AUSTRALIA

DLE16 v Minister for Home Affairs [2019] FCA 136

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia made on 29 May 2018 is refused.

2.    The applicant is to pay the first respondent’s costs of the application.

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 application before the Court is for an extension of time in which to file a Notice of Appeal from the decision and orders of the Federal Circuit Court of Australia (FCC) made on 29 May 2018. By that decision the primary judge dismissed DLE16’s application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) not to grant him a Temporary Protection (Class XD) Visa (TPV). The Tribunal had affirmed the decision of the delegate of the Minister to refuse to grant DLE16 a TPV.

2    Pursuant to r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) any Notice of Appeal from the decision of the FCC was required to be filed within 21 days after the date on which the judgment was pronounced. In this matter judgment was delivered on 29 May 2018. No appeal was filed within the 21 day period and the application for an extension of time was not filed until 28 August 2018, being 70 days after the time in which an appeal might be filed had elapsed.

3    The Minister opposes the grant of any extension.

Background

4    Before the FCC the learned primary judge correctly identified that the factual background of the applicant’s claims and the decision of the Tribunal were accurately set out in the written submissions of the first respondent. Her Honour adopted that statement for the purposes of her decision and was correct to do so. They were:

B    FACTUAL BACKGROUND

4.    The applicant is a citizen of Bangladesh, who arrived in Australia as an irregular maritime arrival on 6 May 2013. The applicant applied for a Protection (Class XA) visa on 2 September 2013 (court book (CB) 20–45). However, by operation of section 45AA of the Act and regulation 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), his application was taken to be, and to have always been, an application for a TPV.

5.     On 29 April 2015, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a TPV (CB 100–114).

6.     The applicant sought review of the delegate's decision before the Tribunal by application dated 11 May 2015 (CB 116–122).

7.     The applicant appeared at a hearing before the Tribunal on 7 October 2016 (CB 149–151).

8.     The Tribunal made its decision on 31 October 2016, affirming the decision not to grant the applicant a TPV (CB 397–416).

C    APPLICANT’S CLAIMS

9.     The applicant claimed to fear harm in Bangladesh by members or supporters of the Awami League (AL) for reason of his membership of and support for the Bangladesh Nationalist Party (BNP). In support of this claim, the applicant recounted the following events (CB 70–72):

(a)    he was from Kulia village, Panisara union, Jessore district and resided there until March 2012;

(b)    he joined the BNP between two and a half and eight years ago (having previously voted for them in 1991 and 1996) and he held the 'number 5' position in the BNP in his village;

(c)    he was the 'organising secretary' and he organised the meetings;

(d)     there was a bomb attack at one of the meetings;

(e)     in 2011 or 2012 he was hit over the head with a hockey stick and his wrist broken when he was attacked by AL supporters and he has a poor memory as a result;

(f)     after the attack he fled to Dhaka, where he owned a grocery store for 12 months before leaving Bangladesh;

(g)     while in Dhaka, someone 'ran behind him' and he suspected it was an AL supporter;

(h)     AL supporters would find him in Dhaka because they have telephones; and

(i)     the applicant has attended four to seven BNP meetings since arriving in Australia.

D    TRIBUNAL DECISION

10.     The Tribunal rejected the applicant's claims on the basis of comprehensive adverse credibility findings. The Tribunal made the following key findings:

(a)    it was not satisfied the applicant had any injuries or medical conditions which caused memory loss or explained the deficiencies in his evidence, especially given he had not provided any medical evidence despite being allowed time to do so (CB 410–411: [65]–[66], [71]);

(b)    it did not accept the applicant voted in 1991 aged 8 or 1996 aged 13, because his evidence in this respect was implausible (CB 410–411: [68], [70]);

(c)    it found the applicant's evidence about when he first became involved in the BNP was vague and shifted over time (CB 411: [70]);

(d)    it found the applicant's evidence about the problems he encountered as a BNP supporter was vague and unpersuasive with respect to whether his wrist was broken or whether there had been a bomb at a meeting (CB 411: [71]);

(e)    it found the applicant's evidence about his involvement in the BNP lacked detail and had shifted over time such that his evidence that he was of adverse interest to AL supporters in his home area was not credible (CB 412: [72]–[73]);

(f)    it found the applicant's evidence about why and how he joined the BNP was inconsistent and unpersuasive (CB 412–413: [74]);

(g)     it found the applicant's claims were fabricated to obtain a protection visa and the poor quality of his evidence was not due to memory issues, but was due to 'struggling to describe experiences that he never actually had' (CB 413: [75]);

(h)     having regard to its cumulative concerns about the applicant's credibility, the Tribunal found the applicant was not a credible witness and rejected the entirely of his claims about his past experiences in Bangladesh (CB 413–414: [76]–[77]);

(i)     while the Tribunal was prepared to accept the applicant may have attended BNP meetings in Australia, it considered he did so for 'the sole purpose of strengthening his protection visa claim' and disregarded his conduct under section 91R3 of the Act (CB 414–415: [79]–[80]); and

(j)     it accepted that the applicant would return to Bangladesh as a failed asylum seeker, but having regard to subsection 91R(3) of the Act, and on the basis of country information, it did not accept that the applicant would face harm because of his profile as a failed asylum seeker or because of his limited involvement with the BNP in Australia (CB 415–416: [81], [82]).

11.     For these reasons, and having considered the applicant's claims individually and cumulatively, the Tribunal was not satisfied that there was a real chance the applicant met the refugee criterion (CB 415–416: [82], [84]). For the same reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion (CB 415–416: [83], [85]).

5    The Minister relied upon those same facts for the purposes of this appeal. They are set out in the Minister’s submissions and ought to be adopted. The appellant did not suggest that the facts identified or the reasons of the Tribunal were not accurately recited and it is appropriate to accept them for the purposes of this application.

6    As the above facts identify, the Tribunal accepted that DLE16 was a national of Bangladesh but it did not accept his claims and supporting evidence that he was entitled to protection in Australia. In considering the application before it, the Tribunal correctly approached the assessment of credibility with caution and an understanding that the mere fact that an applicant for a visa is unable to substantiate all of their claims does not mean they are not generally credible. The Tribunal was also mindful of the difficulties facing asylum seekers in recalling their past experiences and using different interpreters. It also considered that DLE16 had made claims that he had suffered a trauma to his brain which resulted in some dysfunction. The Tribunal offered him the opportunity to provide post-hearing material and submissions in relation to that but nothing was produced. Ultimately, the Tribunal member was not satisfied that DLE16 had any injuries or medical conditions that caused memory loss or which might be relied upon to explain the deficiencies in his evidence. As set out in the facts accepted by the learned primary judge there were several significant factors which undermined DLE16’s credibility before the Tribunal.

Decision of the primary judge

7    A number of grounds were advanced to the learned primary judge in the application for review. It is not clear who drew those grounds, however, DLE16 appeared at the hearing before the primary judge for himself and addressed the Court through an interpreter.

8    The learned primary judge considered DLE16’s first complaint that the Tribunal did not believe him. Although he made assertions about what happened at the Tribunal he did not adduce any evidence of the same. Part of his complaint was that the Tribunal did not accept his version of the facts which underpinned his visa application even though it had no contrary information. The primary judge dealt with this observing that the Tribunal was not required to uncritically accept any and all of the claims made by an applicant and it did not have to possess rebutting evidence before concluding that a particular assertion was not made out. Other allegations identified in Ground 1 of the application were bare assertions which were not supported by particulars. At best, such assertions can be taken as mere disagreement with the findings and conclusions of the Tribunal and invites impermissible merits review. Accordingly, the learned primary judge detected no merit in the first ground.

9    DLE16 also asserted he was denied natural justice, however, before the primary judge he said that this was because the Tribunal did not believe him. As the primary judge noted there was nothing on the face of the material before the FCC which suggested that the Tribunal’s review was conducted other than in accordance with the statutory scheme. Consequently, no relevant ground was made out. A further written particular of Ground 2 was that the Tribunal discarded all relevant documents which had been forwarded to it by DLE16. When the applicant was asked to identify which documents were disregarded he was not able to identify any. Again, his complaint in this respect was merely that he was not believed.

10    Ground 2 also asserted that the Tribunal designed questions to confuse the applicant. However, when he was asked to identify those questions he was unable to do so. He merely claimed that the Tribunal did not believe his evidence. The learned primary judge considered all of the material which was before the Tribunal and assayed the Tribunal’s reasons and, after that process, found nothing which might suggest that anything posed to DLE16 was designed to confuse him or, indeed, did confuse him. It was noted that, on a number of occasions, the Tribunal acted in accordance with s 424AA of the Migration Act 1958 (Cth) (the Act) by identifying material which was of concern to it and affording the applicant an opportunity to respond in writing. It also identified with particularity the Country Information on which it relied. The primary judge concluded that the Tribunal comprehensively rejected DLE16’s claims based on adverse credibility findings and no error in that conclusion could detect.

11    The learned primary judge could also detect no error in the Tribunal’s determination that DLE16’s attendance at BNP meetings in Australia were not shown to have been otherwise than for the sole purpose of strengthening his claims to be a refugee. Accordingly, pursuant to s 91R(3) of the Act, they could not be relied upon in determining whether DLE16 met the refugee criterion even though they were relevant to whether the complementary protection criteria were met. That said, the Tribunal had determined that DLE16 was not, nor ever had been, a genuine supporter of the BNP, that he did not have any genuine interest in it, and that he would not be politically active if he returned to Bangladesh. Accordingly, it did not accept that, if he were returned to Bangladesh, there was a chance that he would face harm of any type because of his claimed allegiance to the BNP.

12    DLE16 also took issue with the Tribunal’s conclusion that he would not face harm in Bangladesh as a failed asylum seeker, however, the substance of his complaint was not clear. The learned primary judge concluded the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons which it gave. Those reasons included the adverse credibility findings. The learned primary judge also dealt with what appeared to be an allegation of bias on behalf of the Tribunal. However, her Honour recognised that conclusions of bias are usually rare and exceptional where the allegation is based solely on the published reasons for a decision. Additionally, the mere fact that a Tribunal has made a finding against a person does not, of itself, suggest that the decision-maker approached its task with other than with a mind open to persuasion as to the evidence and the facts to be drawn from the evidence. Her Honour concluded that there was nothing in the Tribunal’s reasons which suggested any prejudgment on its part.

13    Ground 3 of the application for review alleged that the Tribunal did not properly apply the Complementary Protection Provisions under s 36(2)(aa) of the Act, but again, the applicant was unable to give any particulars of the complaint and simply asserted that the Tribunal did not believe him. Her Honour correctly treated that as a challenge to a determination of fact such that no reviewable error arose.

14    The application for review asserted by Ground 4 that the Tribunal did not reach a correct conclusion as to the state of party politics in Bangladesh. In that respect the learned primary judge identified, the Tribunal had regard to both the Country Information provided by the applicant and other Country Information which it had identified. The conclusion as to the state of party politics in Bangladesh was a matter for the Tribunal and there is no error shown in the process by which it reached its conclusion.

15    Ground 5 in the application for review concerned the appropriateness of relocation in Bangladesh. However, as the learned primary judge determined, no issue of relocation arose before the Tribunal such that it could not be said that any error occurred in relation to it. In any event, the Tribunal had comprehensively rejected all of the applicant’s claims of past involvement in, or harm arising from his claimed association with, the BNP and it was those claims which were the foundation of his assertion that he could not relocate. It followed that no ground of review arose from this issue.

16    Ground 6 of the application for review asserted that the Tribunal “unduly adopted harsh approach in assessing the fear of harm” and failed to take into account all of the relevant circumstances. Before the learned primary judge the applicant was not able to advance that ground other than to say that the Tribunal did not believe him. Her Honour rightly identified that, without particularisation and in light of the above discussion, the complaints could not be made out. The primary judge also correctly identified that the record did not support these assertions. Her Honour noted the Tribunal gave comprehensive and detailed consideration to the applicant’s claims and, in its reasons, summarised in detail the various exchanges it had with the applicant and expressed its concerns with respect to the applicant’s responses. Her Honour identified that the Tribunal correctly approached the task of assessing the criterion in s 36(2)(a) of the Act or the Complementary Protection obligations in s 36(2)(aa). Accordingly no ground of review arose out of DLE16’s allegations in this respect.

17    DLE16 further asserted that he suffered some prejudice because the Department had issued a s 438 certificate in respect of three folios. However, the Tribunal concluded that the certificate was invalid and proceeded to treat the documents in the usual way. The documents related to DLE16’s identity. As the Tribunal accepted that DLE16 was who he said he was, no issue in relation to the s 438 certificate could arise.

18    Given the foregoing the learned primary judge concluded that the Tribunal had followed the correct procedure in reaching the conclusion that it did and that all natural justice requirements were complied with. Further, her Honour concluded the findings of the Tribunal were all open on the material and evidence before it. In the circumstances her Honour could detect no jurisdictional error and concluded that the Court had no power to intervene.

Application for extension of time

19    As mentioned, the time in which DLE16 might appeal without leave expired 21 days after the day on which judgment was pronounced. Here, that time elapsed without the filing of any Notice of Appeal, such that the applicant filed an application under r 31.02(1) of the Rules for an extension of time. Although the application as filed is in fact in the wrong form, the Minister quite properly agreed that the formal requirements of the rules should be dispensed with and the Court ought to treat the application as one for an extension of time in which to appeal.

20    The power to extend time under r 35.14 of the Rules is discretionary. That said, the discretion must be exercised in a principled way and for the purposes for which the power is granted. In Dunlop v Fishburn (No 3) [2012] FCA 315, [9]-[10] Katzmann J identified the following considerations as a guide to the exercise of the discretion:

(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 of 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 of time but the mere absence of prejudice will not justify the grant of an extension; and

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

See also BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400, [2] (BLD16) and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

Delay

21    In his written submissions the Minister relies upon observations in BLD16 at [3] to the effect that the time limits prescribed by the Rules are “not mere aspirational guidelines” and “[o]nce that period expires without any appeal being lodged the parties are entitled to assume that the ligation 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 state of affairs.”

22    In a document filed by DLE16 several assertions are made which might be taken as purported explanations for the failure to lodge the appeal. They include that the appellant was waiting on the written reasons for decision, that he had no financial capacity to file a Notice of Appeal within the time prescribed, that he was not properly informed about the time limit for filing a Notice of Appeal, and that he did not know how to prepare the notice.

23    As the Minister submits there is no actual evidence in support of these assertions. Even if the assertions were taken as sworn statements by DLE16, they are not supported by evidence of facts. The Minister also correctly submitted that impecuniosity does not ordinarily provide a sufficient explanation for delay: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9, [7]; SZLIH v Minister for Immigration & Citizenship [2009] FCA 108, [33]. The Minister also correctly submitted that mere ignorance of time limits or Court processes without any additional justification is generally not regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17, [38].

24    Although the applicant seemingly asserts that the primary judge orally delivered her reasons, the Minister submits that they were, in fact, delivered in writing on 29 May 2018, as written reasons. This is verified by the associate’s signature at the end of the judgment and the adjacent date indicating the day on which the reasons were published.

25    In the circumstances it is not possible to accept the implicit assertion of DLE16 that he did not receive or could not receive the written reasons until July 2018.

26    The Minister has correctly identified that, in the circumstances, the proffered explanations for the delay in filing a Notice of Appeal within time were insufficient. They do not, either separately or taken as a whole, satisfactorily explain the delay and failure to file the Notice of Appeal within time.

27    The Minister, however, also appropriately acknowledged that he suffered no prejudice by the delay in filing the application to extend time. That said, the absence of such prejudice is not sufficient to justify the granting of an extension: Parker v The Queen [2002] FCAFC 133; Hunter Valley Developments Pty Ltd at 348-349.

28    In the circumstances of this case, the absence of any satisfactory explanation for delay would justify a refusal to grant an extension of time in which to initiate an appeal. Despite that, it is appropriate to consider the merits of the grounds identified by the proposed Notice of Appeal. Were there to be a ground which had significant merit, it may be that the impact of the unexplained delay would be minimised.

29    The Minister submits that the proposed draft Notice of Appeal fails to identify any basis on which this Court could be satisfied that an extension of time is warranted. The grounds in the draft Notice of Appeal are as follows:

1.    Hon. Judge EMETT of the Federal Circuit Court failed to hold that Administrative Appeal Tbunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act .The AAT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection . AAT decision is unreasonable with regards to Complementary Provision .

2.    The Hon . Judge failed to hold that the AAT. exceeded its jurisdiction or constructively to failed to exercise its jurisdiction ..

3.    The Hon. Judge to hold that the Tribunal made inconsistent assertions on the credibility testimony.

4.    The appellant claims that he was denied natural justice and procedural fairness when the hearing was not conducted freely and fairly ..

5.    Hon Judge failed to hold that the AAT made decision on a limited information and all the written and oral evidence were discarded without giving a reasonable reasons

(reproduced as written).

30    When the matter came on for hearing the appellant appeared on his own behalf. He was taken to each of the grounds of appeal and invited to comment or make submissions on each one. He declined to do so save in relation to Ground 5. He told the Court that he did not prepare the grounds and that was done by a solicitor who had previously represented him. As the following discussion reveals, there is no merit in any of the grounds and it is not likely that they are in anyway applicable to the case at hand. They would appear to be template grounds which have been included for the purposes of allowing the appeal process to continue.

Ground 1

31    The assertions made as Ground 1 in the proposed notice are devoid any particulars and, as such, might be regarded as an attempt by DLE16 to invite this Court to conduct a full merits review of the Tribunal’s decision. That invitation cannot be accepted. This Court has no power to undertake such a review. On appeal from the FCC it is confined to the correction of error in the decision of the FCC. That Court also is not entitled to undertake a merits review of the Tribunal’s decision. Its concern is whether the decision contains a jurisdictional error or the process by which the decision was reached breached a natural justice obligation owed to the appellant.

32    The appellant did not file any written submissions in support of the application for an extension of time as required by the orders of the Court of 12 September 2018, and he was unable to articulate before the Court any foundation for the allegations. Given the Tribunal’s findings with respect to the claim advanced for refugee protection under the Convention and the evidence which was relied upon, there was no basis on which the Tribunal could have concluded that Australia owed DLE16 obligations under the Complementary Protection provisions. The Tribunal disbelieved the appellant’s evidence in many crucial respects and, indeed, concluded that he had fabricated his claims and supporting evidence in relation to his claimed fear of persecution. He relied on the same evidence in support the claims under the Complementary Protection provisions and, because it was disbelieved in relation to his refugee status, it could not be believed for this alternative protection claim.

33    The Minister’s submission that the Tribunal understood and appreciated the difference between the two tests ought to be accepted. In particular, it was submitted that the Tribunal disregarded DLE16’s conduct in attending BNP meetings in Australia when considering protection under the Convention grounds because of the operation of s 91R(3) of the Act, but, it expressly considered that evidence in the context of the Complementary Protection. This approach demonstrates that the Tribunal was alive to the differences in the respective tests which applied in relation to the two alternative claims.

34    A similar ground was advanced before the learned primary judge who concluded that, in the absence of any particulars, this ground was a mere cavilling with the conclusion reached by the Tribunal with respect to the Complementary Protection argument. The primary judge invited the applicant to explain this ground and he simply responded that he had told the Tribunal everything but they did not believe him. In these circumstances the primary judge rejected this ground. No error has been shown to exist in relation to that conclusion. It follows that the applicant has not demonstrated any reason as to why leave should be given to extend time to file an appeal in respect of it.

Ground 2

35    This ground was not agitated before the primary judge and, accordingly, DLE16 requires the leave of the Court to rely upon it: VAUX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, [46]-[48]. The ground is not particularised in any meaningful way and no attempt was made to identify how the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction. In any event, the learned primary judge correctly analysed the decision of the Tribunal and that analysis revealed the Tribunal considered all of the claims advanced to it in detail as well as every integer of those claims. There is no merit in this ground which would warrant allowing it to be agitated on appeal. No extension of time should be granted in respect of it.

Ground 3

36    Similarly, this ground was not agitated before the FCC and the applicant would require leave to rely upon it: VAUX. Again, the allegation is bald and unparticularised. No attempt is made to identify the assertions allegedly made by the Tribunal as to DLE16’s credibility or as to why they were “inconsistent”. Further, a perusal of the Tribunal’s reasons show that its conclusions as to the credibility of the applicant were both justified and consistent. To the extent to which this ground might be taken as a complaint as to the Tribunal’s findings on credit, it must be kept in mind that the Tribunal’s conclusion in this respect was a finding of fact which it is entitled to make: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. There is nothing in this case which suggests that the Tribunal’s findings on credibility are illogical or irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

37    There is nothing in the reasons of the trial judge which is suggestive of any error in relation to this ground and there is no warrant for granting leave to appeal in relation to it.

Ground 4

38    This ground re-agitates an issue argued before the primary judge. As was the case before the primary judge, no particulars of the allegation were provided. In this respect it is impossible to understand the gravamen of DLE16’s complaint. However, the learned primary judge assayed the Tribunal’s reasons in detail and concluded that the Tribunal’s hearing was conducted in accordance with the statutory scheme, that there is no suggestion the Tribunal did not consider all documents advanced by DLE16 to it, or that the Tribunal designed questions to confuse DLE16. The Tribunal’s reasons make it clear that it outlined the claims made by DLE16 and considered them in detail and, in doing so, considered the several pieces of Country Information provided by DLE16 as well as other Country Information. The Tribunal afforded DLE16 the opportunity during the hearing to consult with his representative. It also provided information to him in accordance with s 424AA of the Act and gave him time to respond in writing. Further, it considered his claim that he was suffering from a medical difficulty. No medical evidence was advanced and that remains so even though the Tribunal gave him an opportunity after the hearing to provide such information. It follows that, on the face of the Tribunal’s reasons, DLE16 was accorded all of the procedural fairness and natural justice required under the Act. There is nothing to suggest that the learned primary judge erred in not detecting any error in this respect.

39    Similarly the primary judge did not err in failing to detect any bias in the Tribunal’s reasons. Although the allegation was made there is no material before the Court below or before this Court to suggest that the Tribunal had prejudged the applicant’s case. If an allegation of bias is to be made, the person making it carries a significant burden of clearly articulating the alleged bias and distinctly proving the allegation: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The learned primary judge found that a fair reading of the Tribunal’s decision did not disclose any prejudgment on its part and the mere fact that it made an adverse credibility finding in relation to DLE16 did not justify a conclusion of prejudgment. At [34] of the FCC’s reasons it was held:

A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

40    Here, the appellant has not properly articulated or particularised any allegation of bias and there is no evidence to support such an allegation. Nothing has been shown which might suggest any error on the part of the learned primary judge in reaching the conclusion that no bias or prejudgment was established.

Ground 5

41    By Ground 5 DLE16 asserts that the Tribunal made its decision on limited information and that all the written and oral evidence was discarded and no reasonable reasons were given. That allegation was not advanced before the primary judge and no error can exist in the primary judge not detecting the same. Again, no particulars are provided of this broad allegation. Moreover, the Tribunal provided very detailed and particular reasons for its decision. It set out the information which it gathered as well as that which was provided by DLE16. The Tribunal’s reasons record its analysis of the material advanced by the applicant as well as the oral evidence he gave. There is nothing in those reasons and nor is there any other information which might suggest that the Tribunal failed to consider the information available to it.

42    In the course of the hearing the appellant submitted that the Tribunal did not properly consider his birth certificate. What, in fact, occurred was that the delegate had issued a s 438 certificate in respect of that document and other identity documents on the basis that there were concerns as to their authenticity. The Tribunal determined that the s 438 certificate was invalid and it treated the documents in the usual way as if there were no certificate. It accepted that the appellant was born on the date identified in the birth certificate and it accepted the other particulars contained in it. Nothing arises from the fact that the Tribunal accepted the contents of the birth certificate.

43    It follows that there is nothing in this ground which suggests the existence of jurisdictional error in the Tribunal’s reasons or decision.

Conclusion

44    The consequence of the above is that DLE16 has failed to identify any error in the reasons of the learned primary judge or in the reasons of the Tribunal. No ground is advanced which warrants the extension of time in which to file a Notice of Appeal. Necessarily, the application for an extension of time is dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    15 February 2019