Disposition
7 The Minister did not really complain about the length of the delay or, properly, about any prejudice he might suffer. Rather, he opposed the extension of time because he submitted that the explanation for the delay was unacceptable and because any appeal lacked sufficient prospects of success.
8 As to the explanation for delay, it was submitted that the fact that the applicant was not legally represented was not a proper explanation and that no medical evidence had been adduced to show that he was, as claimed, suffering from depression and anxiety. Before me, the applicant, who was not legally represented, also submitted that he was unaware of the time limit, however, as the Minister correctly submitted, that is no excuse: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9].
9 I also agree with the Minister that a lack of legal representation in and of itself is not a proper excuse: see Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]. However, it nonetheless is a matter to which I can have regard, along with the other reasons relied upon for the delay. Here, they include "depression and anxiety". To the extent that the Minister submitted that there was no evidence before me about those matters, I respectfully reject that contention. The evidence took the form of an affidavit which the applicant had affirmed. That evidence was not challenged. In that respect, the common law has never required testimony to be corroborated as a condition of its admission into evidence. In my view, given that the applicant was not represented and given his difficulties with the English language, the explanation given for the short delay was credible and for that reason acceptable.
10 However, I otherwise agree with the Minister that the proposed appeal lacks sufficient prospects of success.
11 Grounds one to ten may be set aside as they contain a recitation of procedural facts and then a repeat of matters which the Tribunal did not accept as facts. No ground relating to how the Tribunal might have erred at law in reaching these conclusions of fact on the evidence before it was ever articulated.
12 Ground 11 complains that the Tribunal made a mistake in its understanding of the applicant's claims at [35] of the reasons for decision. The error at [35], it was said, was that the Tribunal had considered that a fight with Indian shopkeepers had taken place before 2009 rather than in 2011 as claimed. This was addressed by the learned primary judge, if I may say so comprehensively, at [31] of the judgment below as follows:
The Court makes the following observations:
a) it was a finding of fact for the Tribunal to make regarding the dispute with the shopkeepers, including when that dispute occurred, and the Tribunal, on the material it had before it made the finding the applicant experienced difficulty with shopkeepers in 2009. There is no error of law, including jurisdictional error, in the Tribunal making a wrong finding of fact: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [52]-[54] per Black CJ, French and Selway JJ;
b) based on the information in the applicant's Protection Visa application, the dispute with shopkeepers in India over unpaid rent did commence prior to his arrival in Australia in 2009. This is based on the applicant's responses referring to the dispute going back "a few years", and when asked if he tried to move to another part of India to seek safety the applicant's response was that he had moved to Australia since those disputes: "I moved to Australia since then": CB 79. Therefore there does not appear to be any error on the Tribunal's part in its assessment of the relevant period over which the events that form the basis of the applicant's claims took place;
c) the period of the dispute with the shopkeepers was considered by the Tribunal to assess the applicant's credibility. The applicant applied for the Protection Visa more than five years after he arrived in Australia in circumstances where at least some of the events giving rise to the applicant's claim pre-dated that arrival. The applicant only applied for the Protection Visa after he had exhausted other visa options: CB 213 at [39]-[40]. The Tribunal did not accept that the applicant could not have applied for the Protection Visa earlier: CB 213 at [40], and, accordingly it was open to the Tribunal to make adverse credibility findings against the applicant;
d) even if the Tribunal made an error as to the time of the event the applicant claimed to fear harm as a result of (but in the Court's view no such error was made: see [31(e)] below), it is nothing but an example of misconceiving the applicant's evidence: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ, and not of the Tribunal misconceiving the applicant's claims, as the Tribunal still assessed the applicant's claim of having a fear of harm from "shopkeepers" and did not accept the claim;
e) it is not open to the Court on a judicial review application to consider material which the applicant did not put into evidence before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. Because the applicant failed to attend the interview with the Delegate, failed to make any written submission to the Tribunal, and failed to attend the Tribunal Hearing, the only material before the Tribunal on which it could base the Tribunal Decision was the applicant's claims as set out at [4(d)] above. Those claims do not assert that the relevant events occurred in 2011, and are indeed remarkable for their lack of any detail as to the dates of the relevant events. The Court considers the assertion now made by the applicant (that the relevant events occurred in 2011) to be new material which it cannot consider on judicial review;
f) the applicant had an opportunity to put more material, or indicate to the Tribunal he wished to put more material, before the Tribunal regarding the timing of relevant events prior to the Tribunal Hearing, in the form of a written submission or documentary evidence which he was invited to provide to the Tribunal prior to the Tribunal Hearing: CB 181-184, but did not do so. Even if one accepts the events the subject of the applicant's claim for protection occurred in 2011, there is still a delay, significant in the Court's view, of four years in applying for the Protection Visa, during which time the applicant was in Australia. There is no error in the Tribunal rejecting an applicant's claims as the claims were not made at the first opportunity, or where there was a delay in seeking protection: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J, provided the Tribunal, as it plainly did in this case, exercises care before doing so and considers the material it has before it in support of the applicant's case: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [30] per Lee and Moore JJ; and
g) finally, the Court must not engage in an overzealous review of the Tribunal Decision, rather it must read the Tribunal Decision as a whole: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ. When reading the Tribunal Decision in its entirety it is clear the Tribunal did not reject the applicant's claim solely because the harm he alleged occurred prior to 2009, rather the Tribunal rejected the claim based on previous findings of adverse credibility by the Delegate and the Migration Review Tribunal in previous visa application refusals, the history of visa applications the applicant had made to remain in Australia, the vagueness and paucity of the claims suggesting he feared harm, and his lack of participation in the review process to reinforce his claim, which were all indicative of the applicant not subjectively fearing "harm from shopkeepers", or anyone else, because of events occurring more than six years ago, or for any other reason": CB 214 at [48].
13 The Minister's written submissions supported the foregoing reasons. I respectfully agree with that submission. Before me, the applicant described an incident which he said took place in India when he returned there in 2011. The dispute with the shopkeepers over unpaid rent was now said to include threats to kill. The applicant submitted that the local police would not protect him. It is unnecessary for me to consider this alleged incident any further. That is because this specific event was not put before the Tribunal. Generally speaking, fresh evidence is not admissible in judicial review proceedings or appeals therefrom: see MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J. It follows that this ground, based as it is on a new allegation, is bound to fail.
14 As for proposed Ground 12, I agree with the learned primary judge that it is not a ground for review - nor a ground of appeal - but an asserted legal conclusion. Before me, the applicant accepted that he had not sufficiently proven the incident said to have taken place in India with the shopkeepers, but that was because he had had no legal representation. Now he says he has the means of getting a lawyer and will get the necessary proof. Again, and with respect, this proposed ground of appeal is bound to fail as it relies upon the production of fresh evidence.
15 Proposed Ground 13 was that the decision-maker had not correctly assessed the nature of events. When I asked the applicant which events had not been properly assessed, he could not identify any. Examining the reasons of the Tribunal, I am not satisfied that any events were not properly assessed. Findings were made that were open to be made. It follows that this proposed ground of appeal lacks sufficient merit.
16 For all of these reasons, I am not satisfied that the applicant's proposed grounds of appeal disclose a case which has reasonable prospects of success. Instead, in my view, the grounds are not sufficiently arguable to merit an extension of time. Accordingly, and notwithstanding my acceptance of the reason given for delay, the application for an extension of time is refused with costs as assessed or agreed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.