Brahmbhatt v Minister for Immigration and Border Protection

The application for an extension of time 26 The factors relevant to whether an extension of time should be granted include the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, and any relevant public interest considerations. Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 (Brennan CJ and McHugh J at 521-522, and Kirby J at 542-543). 27 In the circumstances of the present case, other than the merits of the appeal, each of the relevant factors point in favour of allowing an extension of time. Amongst other things, the delay is only one or two days. The applicant misunderstood the time limit for an appeal, which is understandable given that he is not legally trained or legally represented, and English is not his first language. He will suffer prejudice by being required to leave Australia if an extension of time is not granted, and the Minister did not contend that there was any prejudice to his interests if the application is allowed. 28 However, I can see no merit in the appeal and, in my view, allowing an extension of time would be futile. I readily accept that an application for an extension of time only requires an examination of the proposed grounds at a reasonably impressionistic level, and the Court should not descend into a full consideration of the arguments for and against each ground. The correct approach may be expressed by the use of language such as whether a ground is arguable, reasonably arguable, sufficiently arguable, or has a reasonable prospect of success: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] (Mortimer J), and MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ). 29 In my view it is not reasonably arguable that the Tribunal fell into jurisdictional error nor that the primary judge erred in failing to find jurisdictional error on the Tribunal's decision. The application before the Federal Circuit Court essentially sought merits review of the Tribunal's decision when the Court had no jurisdiction to entertain such a review. All of the applicant's grounds merely express disagreement with conclusions the Tribunal reached, which conclusions were, in my view, plainly open on the evidence. The applicant was unable to point to anything other than disagreements with the merits of the Tribunal's decision. 30 The applicant's grounds before the Federal Circuit Court (which he said were the same grounds he intended to advance in the proposed appeal) took issue with the Tribunal's conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily, which conclusion it reached because it found his evidence was conflicting in part, implausible and overall unconvincing. 31 Such findings are a function par excellence of the primary decision-maker, and should not lightly be disturbed, but they are not immune from appellate review merely by their nature: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J). Determinations on credibility and weight must still be made rationally and logically, and articulated properly: CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [62]. An irrational or illogical finding on the way to a final conclusion may establish jurisdictional error, provided that the finding is material or critical to the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [132] (Crennan and Bell JJ); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55]. 32 The applicant did not however contend that the Tribunal's findings on the way to its ultimate conclusion, or the conclusion itself, was irrational or illogical. He merely disagreed with the findings and conclusions. I see nothing in the Tribunal's decision to indicate that it is reasonably arguable that the Tribunal's conclusion, or its findings on the way to that conclusion, were such that no rational or logical decision-maker could reach that conclusion on the evidence: see SZMDS at [130]-[135]. In my view is plain that the Tribunal's decision was open on the evidence. 33 It is appropriate to dismiss the application for an extension of time within which to appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.