FEDERAL COURT OF AUSTRALIA

EBQ17 v Minister for Immigration and Border Protection [2019] FCA 1183

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time within which to appeal.

2.    The appeal is dismissed.

3.    The appellant 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

BURLEY J:

1.    INTRODUCTION

1    The applicant is a citizen of Malaysia. She lodged an application for a protection visa on 21 June 2016. A delegate of the Minister for Immigration and Border Protection refused the application and the applicant then sought a review before the Administrative Appeals Tribunal. In a decision delivered on 7 August 2017, the Tribunal affirmed the decision of the delegate.

2    The applicant then sought judicial review of the decision of the Tribunal before the Federal Circuit Court of Australia (FCCA). On 16 November 2018, the FCCA dismissed the application; EBQ17 v Minister for Immigration & Anor [2018] FCCA 3882 (Judge Smith).

3    At the time of the FCCA’s decision, r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (FCR) required that a notice of appeal be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The last day for filing a notice of appeal in the present case was 10 December 2018. The applicant did not file a Notice of Appeal by that date. Instead, on 19 December 2018 she filed an application for an extension of time, supported by an affidavit sworn on 17 December 2018.

4    In her affidavit, the applicant says that she was self-represented before the FCCA and was informed verbally by that Court when her application was dismissed. She was waiting to receive written reasons and a Court Order before filing a Notice of Appeal. However, when a friend informed her that an appeal should be lodged within 21 days, she decided to lodge the present application for an extension of time. She states that she fears being required to return to Malaysia.

5    At the original listing of the hearing in this Court on 21 May 2019, the applicant sought an adjournment because she said counsel had indicated to her that he would appear for her at the hearing, but had failed to appear on the day. A short adjournment was granted to allow the applicant an opportunity to find legal representation, which she has now done. The applicant has since filed written submissions and an amended draft Notice of Appeal, and the first respondent has filed further written submissions.

6    In her amended draft Notice of Appeal, the applicant identifies the following four proposed grounds of appeal (excluding particulars):

(1)    The Tribunal was unreasonable in finding that the evidence of the applicant was false without a logical and probative basis and FCCA erred in finding the Tribunal had considered the evidence in a probative manner;

(2)    The FCCA erred in failing to consider that the Applicant was unrepresented before the Tribunal and the FCCA;

(3)    The Tribunal applied the wrong test in assessing whether the applicant has a genuine fear of harm from the loan shark in Malaysia and the FCCA erred in accepting the Tribunal's decision;

(4)    The Tribunal erred in not providing the applicant with the benefit of the doubt and the FCCA erred in finding that the Tribunal was under no obligation to provide the applicant with the benefit of the doubt.

7    The applicant was represented by Turner Coulson Immigration Lawyers at the hearing. The respondent was represented by Adele Carr of Counsel, who also filed written submissions in advance of the hearing.

8    The hearing was conducted on the basis that the question of leave and the appeal were heard at the same time.

2.    THE TRIBUNAL

9    The decision of the Tribunal records that in her application for a protection visa, the applicant advanced the following claims; (a) that Malaysia is experiencing political and economic problems. The applicant was unemployed and faced with financial problems and so borrowed money from a loan shark for her survival, who now wants to kill her; (b) before leaving Malaysia, she was verbally threatened by the loan shark and then beaten when she could not pay the debt due to high interest rates; (c) the applicant did not seek help from the police because they say that such matters are personal, and they are also afraid of the loan sharks; (d) the loan shark is now angry because the applicant ran away and will find her if she returns to Malaysia; and (e) if she returns to Malaysia she will not be able to live, as she will have no work and no money and stills owes money to the loan shark.

10    At the hearing before the Tribunal, the applicant added to her claims. In particular, the decision of the Tribunal records that she said that she had borrowed 15,000 RM in May 2014 from a loan shark in order to finance an operation for her mother. She was subsequently unable to meet the repayments, so the loan shark apprehended her, beat her and forced her into prostitution with men. She said she managed to escape after four days. After that she eventually made her way to Australia.

11    Of relevance to the proposed grounds of appeal in this Court, the Tribunal said in relation to a promissory note tendered by the applicant as evidence of her loan:

[24]    …Noting the document is written in English the Tribunal asked the applicant whether she understood the content of the document when she signed it. The applicant replied in the affirmative and said she knew she had to pay monthly payments of 1,500 RM. The Tribunal questioned why the document is not signed by the lender and the applicant replied that there is another copy held by the loan shark which is signed by both parties. When asked if she brought this document with her to Australia the applicant said she did. When asked why she did not submit it with her written application she said she was told to provide it at hearing.

[25]    The Tribunal pointed out the document indicates that the total amount borrowed is 15,000 RM but that payments of 15,000 RM were to be made on the 15th of every month. While the document goes on the outline the monthly interest payments required the Tribunal pointed out that this appears nonsensical because the first monthly payment of 15,000 RM would have settled the debt. The applicant expressed surprise about this and reiterated she was required to pay 1,500 RM per month. The Tribunal put it to the applicant that it is concerned about the veracity of the document because it is not signed by the lender, the content seems illogical and it has only been produced at a late stage in the proceedings. The applicant replied that she was told to sign the document and cannot obtain the other copy held by the loan shark. The Tribunal also questioned why the applicant did not use the 10,000 RM payout received from her employment to settle her debt with the loan shark instead of using that money to travel to Australia in 2015. She replied that she took that decision because she thought she was going to be granted a work permit which would have allowed her to repay the debt more quickly.

12    The Tribunal rejected the applicant’s claims. It found that the version of events presented by the applicant was not credible. In particular, whilst it accepted that the applicant may have lost her job in Malaysia, and that having come to Australia with a view to finding work and earning money she is upset by the prospect of having to return to Malaysia, it was not satisfied that the applicant is indebted to a loan shark or that she was harmed or forced into prostitution as claimed. The primary judge accurately summarised the credit findings of the Tribunal at [6] in the primary judgment as follows.

13    First, the Tribunal did not find credible the applicant’s reasons for not including the “very serious claim” of forced prostitution in her application. It did not accept she was advised to mention this claim only at the hearing when her application included claims of harassment and beatings from the loan shark. It found she introduced this claim “to strengthen her claim for protection”, and raised these concerns with her at the hearing.

14    Secondly, the Tribunal did not find it credible that the applicant failed to report “such a serious incident” to the police, particularly as country information indicated the Malaysian police were generally considered to be a professional and effective force that took action against loan sharks and gangs that resorted to violence or extortion to recover borrowed money. It also found her reasons for not doing so were “differing” and “contradictory” because she claimed she could not go to the police as the loan shark’s brother was a police officer, but also conceded that the police might have helped her if they had the time. In addition, it found her reasons were inconsistent with her written claims that the police regarded these matters as personal and were afraid of loan sharks.

15    Thirdly, the Tribunal found the applicant failed to provide a satisfactory explanation as to why the promissory note was written in English and, as it put to her at the hearing, its contents were illogical. The Tribunal was not convinced that a loan agreement for 15,000RM would stipulate monthly payments of that same amount, and also found it “problematic” that the applicant had brought the promissory note with her to Australia but failed to tender it as evidence to the Department.

16    Fourthly, the Tribunal did not find it plausible that the loan shark went to such extreme measures to enforce payment from the applicant but took no action against her family in her absence, and was “not persuaded’ that the loan shark would not have pressured her family for repayments.

17    On the basis of these matters, the Tribunal was not satisfied that the applicant faced a real chance of serious harm as a result of being indebted to a loan shark, or satisfied with the applicant’s claim that she would experience economic hardship if she returned to Malaysia. It found there is no real chance she would suffer serious harm due to the economic and/or political situation in Malaysia, or from being unemployed. In support, the Tribunal found that the applicant had family in Malaysia with whom she could live and that she had good prospects of finding employment given her age, employment history, and country information that indicated the Malaysian economy was “relatively strong” and the unemployment rate in 2015 was low. Additionally, the Tribunal found that the applicant had fabricated her claims in order to be granted a visa to remain in Australia.

3.    THE DECISION OF THE PRIMARY JUDGE

18    In the decision of the FCCA, the learned primary judge summarised grounds 1, 2 and 4 as advanced before it as asserting that the Tribunal fell into jurisdictional error by failing to send the applicant a copy of its statement of reasons. The grounds stated that although the Tribunal by letter dated 8 August 2017 notified the applicant of its decision of 7 August 2017, it failed to include within the letter a copy of the statement of reasons. That mistake was realised, and on 24 August 2017, the Tribunal wrote to the applicant attaching a copy of the statement of reasons. The primary judge rejected these grounds of appeal because, although s 430 of the Migration Act 1958 (Cth) requires the Tribunal to prepare a statement of reasons, and s 430A requires the Tribunal to notify the applicant of a decision by providing a copy within 14 days, s 430A(3) provides that a failure to comply with the aforementioned requirements does not affect the validity of the decision.

19    Ground 3 of the application before the primary judge was that the “respondents” (taken by the primary judge to mean the “Tribunal”) misinterpreted and misconstrued the applicant’s claims. The ground was not developed or explained, but the primary judge took it to be an allegation that the Tribunal misunderstood her claim that she feared harm from the loan sharks and that the police would not protect her. This ground he rejected on the basis that far from misunderstanding the claims, the Tribunal understood, considered, and then rejected the claims on the basis that they were not credible for the reasons given.

20    The primary judge then considered submissions advanced by the applicant in her written submissions, including allegations of bias, lack of good faith, failure to consider certain claims, and several others. In a measured and careful way at [16] – [35] of his reasons, the learned primary judge considered and rejected each. The reasons of the primary judge included the following:

[19]    ...the applicant argues that the Tribunal failed to understand that the promissory note had been signed by both the applicant and the loan shark and was held by the loan shark until the full amount was paid. That assertion may have been something which, if accepted, could have led the Tribunal to accepting the applicant’s credibility however, once again, as I have explained, findings of fact such as this were matters for the Tribunal. It gave its reasons for credibility at [27] through to [30] of its reasons. Accordingly, this contention must also fail.

…

[31]    ...the applicant asserts that the Tribunal could have given, in certain instances, the benefit of the doubt to the applicant and fell into error in dealing with irrelevant issues. There is no obligation on the Tribunal to give the applicant the benefit of the doubt and it is clear that the Tribunal came to a firm view about the applicant’s credibility. For that reason, it was under no obligation to consider whether the claims might have been true in assessing the future possibility of harm upon return to Malaysia: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

…

[34]    At the hearing, the applicant made oral submissions. First, she said that the matter should be sent back to the Tribunal because the Tribunal did not believe her, and that the only reason she did not say everything in her application was that she was advised not to do that and that she could say her claims at an interview. That may well be the case however, it goes only to whether or not the applicant ought to have been accepted as a truthful witness and, as I have already said, that is a matter for the Tribunal and not for the Court.

4.    THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL

21    In an application such as the present one, the Court has regard to the following factors when considering whether to grant the extension of time that is sought: the extent of the delay; the explanation for the delay;  any prejudice a respondent might suffer because of the delay; and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] – [63] (Mortimer J).

22    In the present case, the delay in filing the application for an extension of time was 9 days. The explanation for the delay is that the applicant was self-represented at the time, and was misinformed of or ignorant of the correct time limit. These matters do not of themselves disqualify the grant of an extension of time. The Minister does not contend that he would suffer any prejudice in the event that an extension of time is granted. On the other hand, in the event that the applicant is refused leave she is likely to suffer considerable prejudice. The question then becomes whether it is in the interests of justice for leave to be granted, having regard to these matters and also the merits of the grounds of appeal proposed.

23    In addition, the grounds now advanced in the amended draft grounds of appeal, other than ground 4, were not clearly raised before, or dealt with by the learned primary judge, and accordingly the applicant requires leave in order to advance them, having regard to the considerations not dissimilar to those relevant to the grant of an extension of time; see SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [28] (Besanko, Gleeson and Burley JJ).

24    In this context, I commence my consideration of this application with the observation, which is apt for many such applications, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the visa, or to grant the applicant a visa. As such, neither court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the applicant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the applicant the visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court on appeal is required to consider whether, pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth), there is error in the FCCA’s judicial review of the Tribunal’s decision.

4.1    Proposed grounds 1 and 3

25    In closing submissions, the applicant characterised the first and third proposed grounds of appeal as based on legal unreasonableness. The precise factual basis for these contentions is opaque.

26    In the first proposed ground of appeal, the applicant contends that the Tribunal was unreasonable in finding that the evidence of the Applicant was false, without having a logical and probative basis for that finding, and the FCCA erred in finding the Tribunal had considered the evidence in a probative manner. The particulars appended to this ground advance the propositions: that the Tribunal found that reasons for omitting the forced prostitution claim from the application form were not credible; that the Tribunal did not accept that the applicant was advised to mention this claim only at the hearing when the application form includes harassment and beatings from the loan shark; that the Tribunal found that the Applicant had no valid reason for not including the very serious claim of prostitution and therefore the introduction of this claim at this stage of the proceeding was in order to strengthen her claims for protections; that the Tribunal stated that the Royal Malaysian Police Force is generally considered a professional and effective force that does take action if loan sharks and gangs resort to violence or extortion to recover borrowed money; that the Tribunal found that the Applicant was not credible as she did not attempt to report such a serious incident to the police. Finally, the applicant asserts that the Tribunal failed to give adequate weight her evidence that she was harassed and beaten by the loan shark which is a legitimate fear of significant harm if she returns back to Malaysia under section 36(2A) of the Act. As such, applicant submits the Tribunal did not address the applicant's evidence in a logical and probative manner.

27    The third proposed ground of appeal is phrased in terms of the Tribunal applying the “wrong test” in assessing whether the applicant has a genuine fear of harm from a loan shark in Malaysia, and the FCCA erred in accepting the Tribunal’s decision. However, at the hearing the applicant indicated that it was in effect also based on legal unreasonableness. The applicant contends that Tribunal so erred in assessing whether the applicant has a genuine fear of harm from the loan shark in Malaysia, and that the FCCA erred in accepting the Tribunal's decision. In the particulars appended to this ground, the applicant points to the Tribunal finding that it was not satisfied that the applicant is indebted to a loan shark, or that a loan shark harmed her, and found that she had fabricated her claims in order to be granted a visa to remain in Australia. The country information referred to in the protection visa decision record mentioned multiple media reports which found that the practice of illegal money lending is widespread in Malaysia, and that police operations targeting Ah Long (colloquial term for loan sharking) are not uncommon. The Daily Express report dated 22 April 2014 found that one of the most significant barriers to prosecution of Ah Long syndicate members is the lack of cooperation from the public, especially those who have fallen victims to the syndicate. The applicant submits that the Tribunal failed to consider that loan sharks are still operating in Malaysia and the police are still unable to assist persons such as the applicant, as is evident from the country information.

28    Despite the wide-ranging criticisms identified in the particulars, the central tenet of the submissions advanced by the applicant in support of these grounds is that the Tribunal erred in reaching its conclusions as to the credit of the applicant.

29    Findings of credit are generally matters for the administrative decision maker, although this does not mean that they are beyond scrutiny on judicial review. They may be challenged as amounting to jurisdictional error where they fall within the concept of legal unreasonableness (in the sense that no reasonable decision-maker could have come to that view), or amount to reaching a finding without a logical, rational or probative basis, or amount to a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker; see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 at [32] – [35], [37] (Perram, Perry and O’Callaghan JJ).

30    As the Full Court summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ):

...

(3)    By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

31    I do not consider that the decision of the Tribunal reflects the errors for which the applicant contends. The factual premise for the applicant’s claims is that she feared harm if returned to Malaysia as a result of her interactions with a loan shark. The Tribunal weighed the evidence in this regard and gave four reasons for rejecting that claim as not credible, as set out at [13] – [16] above. It concluded that it was not satisfied that the applicant is indebted to a loan shark or that a loan shark harmed her as she claimed.

32    The applicant in oral submissions emphasised three aspects of the reasons of the Tribunal in relation to grounds 1 and 3. The first is that the Tribunal took an unrealistically “commercial mind” to the promissory note in concluding that it was implausible that the document would require monthly loan repayments of 15,000 RM, when the total debt was also 15,000 RM, meaning that the first monthly payment would amount to the total debt. The second is that the Tribunal considered the applicant embellished her claims of mistreatment by a loan shark by introducing a claim at hearing that the loan shark forced her into prostitution, a claim which was not included in her original application form. The third is that the Tribunal erred in considering the effectiveness of the Royal Malaysian Police Force in general terms, rather than at the “street level”. These are matters that the Tribunal, in weighing the credit of the applicant’s claims, was entitled to take into account.

33    Furthermore, in relation to the first point, in setting out its reasons for rejecting the credibility of the claims advanced, the Tribunal not only relied on the implausibility of the payment amount, but also found that the promissory note was inexplicably written in English, that it was unsigned, and that it was not produced until the time of the hearing before the Tribunal, even though the applicant allegedly had it with her when she came to Australia. The Tribunal found that the failure to report the loan shark to the police was problematic because the applicant gave different and contradictory reasons for not going to the police.

34    In relation to the second point, although the applicant submits that the core basis of a claim that has been embellished may not necessarily be false, the Tribunal was clearly entitled to take into account the lateness of the applicant’s claim of forced prostitution in assessing her credibility.

35    In relation to the third point, the applicant cites SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; 150 FCR 448 at [18] and [64] (Madgwick J), and relies on various paragraphs of the delegate’s decision under the heading “Refugee Criterion Assessment”, which was part of the material before the Tribunal and the FCCA. The applicant submits that the Tribunal failed to consider that loan sharks are still operating in Malaysia at the street level, as evidenced by this material, and that this resulted in a legal error in applying the wrong test, or was legally unreasonable in the sense that it caused a failure in the logic of the Tribunal’s reasoning.

36    In SZAIX, the Court found that in determining whether the applicant qualified for a protection visa, the Tribunal’s failure to consider the adequacy of the state protection in the specific local area she would live if returned to her country of origin, rather than in the country generally, resulted in jurisdictional error: see [28] – [64]. In that case, the Tribunal had accepted the applicant’s claims of persecution in her country of origin, and credit was not in issue. That case turned on factual findings as to the level of protection local police could provide the Chinese applicant from her anti-Chinese persecutors if she returned to her former area of residence in Indonesia, and whether she was able to relocate to another part of Indonesia.

37    However, similar issues do not arise in the present case, because the Tribunal did not accept the applicant was indebted to, or harmed by, a loan shark, and found that her claims were fabricated. Insofar as any test is espoused in SZAIX, it does not apply here. Nor can it be said that the Tribunal’s finding regarding the Royal Malaysian Police Force set out in [26] above was so unreasonable that no reasonable decision-maker could have made it, based on the country information it referred to and the material identified by the applicant.

38    In my view, the reasoning of the Tribunal was not so lacking in a rational or probative basis so as to amount to being legally unreasonable.

4.2    Proposed ground 2

39    The second proposed ground of appeal is that the FCCA erred in failing to consider that the applicant was unrepresented before the Tribunal and the FCCA. In her particulars, the applicant contends that she submitted to the FCCA that the Tribunal had failed to understand the promissory note which was signed by both the loan shark and applicant was being held by the loan shark until the full amount was paid, and that the FCCA found that this assertion may have been something which, if accepted, could have led to the Tribunal accepting the applicant's credibility. She also contends that she made oral submissions to the FCCA that the only reason she did not explain all her claims in her application was that she was advised not to do that, but to instead say her claims at an interview, and the FCCA found that that may have been the case but concluded that it was a matter for the Tribunal and not for the FCCA. The applicant then submits that the FCCA failed to consider that the applicant was unrepresented before the Tribunal and therefore had difficulty articulating herself and explaining her claims before the Tribunal. In oral submissions, the applicant further contends that although the Tribunal rejected her claim as to forced prostitution as reflecting an embellishment, that should not have led to a conclusion that her basic claim of having been the victim of threats and harm at the hands of the loan shark should be rejected. The applicant submits that this argument was one that could have changed the primary judge’s mind, and could have been put before the FCCA, but was not because the applicant was unrepresented.

40    In my view, none of these matters gives rise to error on the part of the Tribunal or the FCCA. First, as I have noted, the Tribunal rejected the applicant’s claims on the basis that it did not consider that her evidence regarding her interactions with the loan shark was credible. The four reasons for so concluding are set out at [13] – [16] above. In relation to each of those findings, the Tribunal records that it queried the applicant on why she adopted the position advanced. Secondly, the primary judge at [19] records the applicant’s submission that the Tribunal had failed to understand that the promissory note had been signed by both the applicant and that the loan shark held it. The primary judge then explains, in effect, that the explanation offered by the applicant in this regard was beside the point, because the Tribunal had rejected the factual substratum of the submission on credit grounds, by concluding that there had not had been any dealings between the applicant and the loan shark at all. Thirdly, contrary to the submission advanced by the applicant, the Tribunal not only rejected the embellished aspect of the claim (forced prostitution), but it rejected the entirety of the claims advanced about the applicant’s interactions with the loan shark. That rejection was not only because of the late embellishment to the claim, but also because of other aspects of the evidence that the Tribunal found incredible. Fourthly, the Tribunal records in its reasons at [21] – [24] that it gave the applicant an opportunity to explain the matters that it found troubling in relation to the credibility of her claim.

41    The conclusion of the Tribunal as to credit was within its jurisdiction, and accordingly, it was not a matter for the primary judge to reconsider. This reasoning does not reflect jurisdictional error. Further, the fact that a challenge to the Tribunal’s credit finding was not put before the FCCA due to the applicant being unrepresented does not give rise to an error by the FCCA.

4.3    Proposed ground 4

42    In the fourth proposed ground of appeal, the applicant contends that the Tribunal erred in not providing the applicant with the benefit of the doubt, and the FCCA erred in finding that the Tribunal was under no obligation to provide the applicant with the benefit of the doubt. The basis for this argument is that a “fundamental principle adopted internationally is the requirement to provide refugees with the benefit of the doubt”.

43    In submissions, the applicant cites SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] (Middleton J). In that case, his Honour said at [24] and [25]:

Generally, there is no onus of proof in administrative inquiries and decision making: Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288.  However, it is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.  The decision maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170.

It is also the case that in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  However, the Tribunal is not required to uncritically accept any or all of the allegations made by an applicant. 

44    The difficulty in the present case is that the Tribunal did not find that the applicant was generally credible. The substantive basis for her claims was rejected on the basis that they were not credible. This ground challenges in a different way the Tribunal’s conclusion that the applicant’s claims were not credible.

5.    DISPOSITION

45    I consider that the applicant has adequately explained the reason for filing her notice of appeal a short period out of time. No prejudice flows to the first respondent as a result of that delay. In the circumstances, I am of the view that the applicant should have leave to file her proposed notice of appeal out of time. However, having considered the grounds advanced on appeal, in my view each of them must fail on their merits. Accordingly, the appropriate orders are:

(1)    The applicant be granted an extension of time within which to appeal;

(2)    The appeal is dismissed;

(3)    The appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:    31 July 2019