CBX15 v Minister for Home Affairs

The Tribunal's Decision 8 The applicant sought review of the Delegate's decision by the Tribunal. The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments in support of his claim for the visa. The hearing before the Tribunal was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant was represented at the hearing by his registered migration agent. The Tribunal received evidence from two witnesses who gave evidence in support of the applicant's claim. 9 The Tribunal noted that the applicant claimed to be of Rohingyan ethnicity, a Sunni Muslim, and stateless. He also claimed to have been born in Maung Daw in the Rakhine State before moving, at three or four years of age, to Yangon (formerly known as Rangoon). 10 The Tribunal accepted that the applicant resided in the Rakhine State of Burma up until the applicant was three or four years of age and that he then travelled with his family to Yangon where he resided until he departed Burma in October 2012. The Tribunal accepted that the applicant was a Rohingya and a Muslim. 11 An important question for the Tribunal was whether the applicant was, as he claimed, stateless. The Tribunal appears to have accepted that if the applicant was a stateless Rohingya, then he may well be the subject of persecution in Burma because as a non-citizen, he might not be allowed to reside outside Rakhine State, where Rohingya were subjected to a higher rate of harm. 12 The Tribunal was satisfied that the applicant departed Burma with a genuine passport issued in his own name. It was also satisfied that the applicant was a citizen of Burma. It was not satisfied he had a real chance of suffering serious harm by reason of his Rohingyan ethnicity should he return to Yangon. The Tribunal accepted that he may be subject to some discrimination due to his ethnicity were he to return there, but it was not satisfied that any harm to which he may be subjected would constitute serious harm. 13 Central to the Tribunal's conclusion that the applicant was a Burmese citizen, was the passport in the name of the applicant (or in what the applicant said was his Burmese name), a copy of which had been shown to him during the course of the identity interview and again during his interview with the Delegate. The Tribunal informed the applicant that the UK authorities had verified that the passport was genuine, but that the applicant's application for a study visa had been refused because he did not have the requisite language skills required for the course of study he intended to undertake. 14 The applicant claimed the passport was a fake which had been procured for the purpose of permitting him to leave Burma. The applicant accepted that he had destroyed the passport together with what he alleged was a false Burmese identity card which he had also obtained, he claimed, for the purpose of obtaining the false passport. The Tribunal was satisfied the applicant destroyed both the identity card and the passport because they were genuine documents and he did not wish them to be considered in connection with his claim to protection.

THE PRESENT APPLICATION 15 At the hearing before me the applicant relied on six affidavits including two made by him. The first of these was made by him on 15 February 2019, and another made by him on 1 August 2019. These include the applicant's explanation for the almost three year delay in filing his application for an extension of time. 16 Other affidavits read by the applicant include an affidavit made on 11 August 2019 by Aminata Conteh annexing a copy of a certificate purportedly issued under s 438 of the Migration Act 1958 (Cth) ("the Act") dated 20 August 2014 ("the s 438 notice") and various documents referred to in the certificate which were first provided to the applicant's legal representatives on 8 August 2019 ("the s 438 documents") pursuant to an order made by me earlier that day. 17 The evidence also includes an affidavit from Khin Win, an interpreter in the Burmese and Rohingya languages, which includes a translation of a portion of the audio recording of the hearing before the Tribunal in which the applicant states why he believed he would be harmed if he were to return to Burma. It also includes an affidavit from Christine Palomo, a migration agent, attaching a record of a transcript of the identity interview conducted with the applicant on 7 February 2014. 18 At the hearing of the application the applicant was represented by Mr Schipp of counsel. The Minister was represented by Ms Francois of counsel. Both made detailed written and oral submissions. Neither the applicant nor any of his witnesses was required for cross-examination. 19 The factors usually taken into account when considering whether or not to grant an extension of time are those enumerated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 where his Honour was considering an application for an extension of time within which to make an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour identified the following matters which should guide the exercise of the discretion when a court is determining whether or not to grant an extension of time: (a) special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do; (b) the prescribed period is not to be ignored; (c) the prima facie rule is that proceedings commenced outside the prescribed period will not be entertained; (d) the applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; (e) the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; (f) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and (g) fairness between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion. The authorities make clear that this list of relevant considerations is not exhaustive. The discretion to grant an extension of time is broad. Ultimately, the question for me to decide is whether I am satisfied that it is in the interests of the administration of justice to grant the extension of time sought by the applicant. 20 When determining whether an extension of time should be granted, the merits of the applicant's proposed appeal are to be assessed at an impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 ("MZABP") at [62]-[70] per Mortimer J and SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 at [25]-[26] per Collier, Wigney and Gleeson JJ. It is not appropriate on the hearing of an application for an extension of time in which to file an appeal to embark on what amounts to a full hearing of the proposed appeal. 21 However, as Mortimer J observed in MZABP at [62] "… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success …". That a proposed appeal lacks reasonable prospects of success may be readily apparent or it may require closer analysis. But such an analysis is not undertaken for the purpose of determining whether what is properly characterised as a reasonably arguable appeal is unlikely to succeed. 22 The Minister placed considerable reliance on the decision of McHugh J in Re Commonwealth: Ex Parte Marks (2000) 177 ALR 491 in which his Honour refused an application for an extension of time in which to apply for an order nisi in respect of a decision adverse to the applicant in a wrongful termination case that was the subject of an appeal to a Full Bench of the Australian Industrial Relations Commission. However, it is apparent that his Honour refused to grant the extension in that case, first, because the proposed substantive proceeding had no reasonable prospects of success and, second, because his Honour did not consider the explanation for the lengthy delay was adequate. I do not think the decision does more than apply well settled principles to the facts of the case before his Honour and I do not think anything further is to be drawn from it for the purpose of resolving the present application. 23 In circumstances where the applicant for an extension of time seeks to bring an appeal nearly three years after it should have been filed, and where none of the proposed grounds of appeal are based on matters raised before the primary judge, it seems to me that the Court is entitled, in the exercise of a broad discretion, to scrutinise the proposed appeal quite closely, not with a view to determining whether it will succeed or fail, but with a view to deciding whether it would be in the interests of justice to grant the applicant leave to raise, years after judgment was given, what is in effect a new case not run before the primary judge. 24 The undesirability of allowing a party to raise a new argument in circumstances where, whether deliberately or by inadvertence, it was not advanced below, is well recognised. Some of the well-known authorities are referred to by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[17]. They include Metwally v University of Wollongong (1985) 60 ALR 68 at 71, Coulton v Holcombe (1986) 162 CLR 1 at 8 and, in the context of migration appeals, VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 ("VUAX") at [46]-[48]. As the Full Court (Kiefel, Weinberg and Stone JJ) said in VUAX at [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

Procedural History 25 Given the length of the extension of time that is required, it is necessary to refer in some detail to the applicant's evidence as to the reason for the delay in filing either a notice of appeal within the time allowed under the Federal Court Rules 2011 (Cth) ("the Rules") or an application for an extension of such time prior to the date on which the present application was filed. 26 According to the applicant, he was informed of the Tribunal's decision when the Department contacted him to advise it was over 28 days since the decision had been made and that his bridging visa had expired. According to the applicant he then called his migration agents, BMA Lawyers, who confirmed to him that his application to the Tribunal had been unsuccessful. The applicant then sought legal advice from a firm of immigration lawyers in Sydney (Turner Coulson) which later acted for him in his proceeding in the Federal Circuit Court. 27 The applicant says that when his application to the primary judge was refused on 23 February 2016, his then solicitor, Mr Turner, provided him with a costs estimate in relation to an appeal to this Court. The applicant says that by that stage he had run out of money. His evidence does not disclose whether he was given any advice by Mr Turner in relation to the prospects of an appeal. However, he was referred by a friend to another lawyer, Mr McCrudden, who then reviewed the reasons for the decision of the primary judge and who, according to the applicant, could not identify any grounds of appeal which would have a reasonable prospect of success. 28 Mr McCrudden advised the applicant to lodge a ministerial intervention application which was lodged on 4 April 2016. The following month Mr McCrudden advised the applicant that the Minister was going to refuse the application. 29 The applicant's evidence describes his attempts to obtain a travel document from the Myanmar Embassy in Australia and difficulties that he encountered along the way. He says in his evidence that he was contacted by the Myanmar Embassy which indicated that his application for a passport had been refused. Very little progress seems to have been made until December 2018 when the applicant's friend referred him to his current solicitor, Mr Taylor, who told the applicant that he may be able to appeal the primary judge's decision on the ground that "… the Myanmar passport which the Identity Officer had presented to [the applicant] had Yangon as [the applicant's] place of birth while [the applicant] had stated in [his] entry interview that [he] was born in Maungdaw, and the Tribunal accepted that [he] was from Maungdaw". 30 On Mr Taylor's advice, a further application for a ministerial intervention application was lodged by the applicant in February 2019. Mr Taylor also advised the applicant that he could lodge an application for an extension of time to appeal against the primary judge's decision. The ministerial intervention application was then withdrawn and the application for an extension of time now before me was filed.

Proposed Grounds of Appeal 31 Before me the submissions of the parties focused on the applicant's explanation for the lengthy delay in seeking to appeal the primary judge's judgment and the merits of the proposed appeal. 32 The applicant's proposed grounds of appeal are attached to Mr Schipp's written submissions. The applicant proposes to contend that the primary judge erred because he failed to find that the decision of the Tribunal affirming the Delegate's decision was affected by jurisdictional error in that: 1. The First Respondent failed to afford the Appellant procedural fairness in that it refused, failed or neglected to advise the Appellant that on 20 August 2014 it had issued a Certificate under s438 of the Migration Act, 1958, until July 2019. 2. The Second Respondent failed to afford the Appellant procedural fairness by: (a) Refusing, failing or neglecting to give the Appellant access to the passport, (b) Failing to give a direction under s440 of the Migration Act 1958. 3. The Second Respondent acted unreasonably, illogically, without active intellectual consideration in that it: (a) Determined that Appellant's Application without having before it the critical document, being the Passport, (b) Failed to have regard to the "place of birth" listed on the Passport in determining whether the Passport was obtained fraudulently, (c) Failed to have regard to its own finding that the Appellant was from Rakhine State in determining whether the Passport was obtained fraudulently, (d) Found that the Passport was not fraudulently obtained, and by implication that the Appellant was born in Yangon, when it had found simultaneously that the Appellant was from Rakhine State. 4. The Second Respondent failed to consider whether its determination of the Appellant's citizenship was wrong in circumstances where it was accompanied by doubt. 5. The Second Respondent failed to consider that the Appellant would be required to modify his behaviour and conceal innate or immutable characteristics should he be returned to Burma in order to avoid persecution, and in doing so failed to consider an integer of the Appellant's claim. 6. The Second Respondent was deprived of the opportunity to consider a claim made by the applicant that he feared harm because of his birthplace, by reason of a failure of interpretation. 33 I will consider the merits of the proposed grounds of appeal in the order in which they are raised in Mr Schipp's written submissions.

Grounds 1 and 2 - Failure to advise the applicant of the existence of the s 438 notice or to provide him access to the passport 34 It is common ground that the applicant was not advised of the existence of the s 438 notice until July 2019. As I have explained, the s 438 documents were produced by the Minister to the applicant's legal representatives pursuant to an order made on 8 August 2019 in the week prior to the hearing of the present application. 35 The s 438 documents include a report by the Department recording the results of inquiries directed to other countries for information as to the genuineness of the applicant's Burmese passport and details of any visa applications made by him. The report and other s 438 documents indicate that the Department was informed that the passport was used in connection with an application for a student visa to study for a diploma in business management in the United Kingdom lodged in Yangon which was refused on 8 January 2010 on the ground that the visa applicant's English language skills were not adequate for undertaking that course. According to the report, the Burmese passport provided with the application was found to be genuine. 36 The s 438 documents also include what is referred to as an "identity integrity interview assessment" in respect of the applicant. That assessment includes a number of conclusions which culminate in a finding that the principal name of the applicant was that shown on the Burmese passport. Other material included in those documents indicates that the applicant applied to travel to the United Kingdom in 2010 using that passport. The material also includes a photocopy of a scanned image of the Burmese passport made on 8 January 2010 when the applicant's application for a visa to enter the United Kingdom was refused. 37 In his submissions Mr Schipp placed considerable emphasis on the photocopy of the scanned passport included in the s 438 documents. In effect, it was submitted that the failure to make the s 438 documents available to the applicant at or prior to the hearing before the Tribunal is likely to have adversely impacted the presentation of his claim. In particular, he drew attention to the fact that the copy of the passport showed the applicant's place of birth as Yangon when the applicant claimed that he was born in Maung Daw. This was said to be consistent with the applicant's claim before the Tribunal that the Burmese passport he had obtained (and destroyed on route to Australia) was either a fake or corruptly procured and that this is a matter that would have been open to the applicant to emphasise when seeking to persuade the Tribunal as to the truth of his account of events. 38 The Delegate's decision (which was in evidence before the Tribunal) records that the applicant was asked to note that the passport indicated that his birthplace was Yangon and not Maung Daw. The Tribunal's reasons do not specifically refer to the place of birth shown in the passport but there is no reason to think that detail was not known to the applicant and his migration agent when the copy of the passport was shown to him during the Tribunal hearing. It was always open to him to put a submission to the Tribunal based on the place of birth shown in the passport and the fact that it disclosed his place of birth not as Maung Daw but as Yangon. 39 The applicant does not dispute that he was shown a copy of the Burmese passport when interviewed first at the identity interview and second by the Delegate. The Delegate's decision states that the applicant was shown a copy of the passport and that he was also asked to note that the passport indicated that his birthplace was Yangon and not Maung Daw. So the applicant, the lawyer who advised him in relation to his subsequent application to the Tribunal, and those that advised him in relation to his application for judicial review, would have appreciated that the Department held a copy of the Burmese passport, and that it disclosed that the holder's place of birth was Yangon and not Maung Daw. 40 In written submissions filed in this Court the applicant contended that neither the Delegate, nor the Tribunal, was in possession of the passport and that this was a critical error. Neither the Delegate nor the Tribunal had access to the original passport because, as the applicant admitted, it was destroyed by him while on route to Australia. I do not accept that the lawyer who acted for the applicant in connection with his application for judicial review, would not have appreciated the significance of the passport and the fact that the Department was in possession of a copy of the document which was shown to the applicant on two separate occasions. 41 There is no evidence from the lawyer who acted for the applicant in relation to his application for judicial review nor from the lawyer who subsequently advised him that an appeal from the judgment of the Federal Circuit Court had no prospects of success. In the absence of evidence to the contrary, I infer that those lawyers would have been aware of the existence of the copy of the Burmese passport that was in the Department's possession and the place of birth disclosed in the document. I am satisfied that these were matters known to the applicant and the lawyer who provided him with advice in relation to a proposed appeal at some time between 23 February 2016 when judgment was delivered and 4 April 2016 when an application for a ministerial intervention application was lodged. 42 The applicant's current lawyer, Mr Taylor, first obtained access to the copy passport and the other s 438 documents some months after filing the application for an extension of time. The Minister submitted, and I accept, that the existence of the copy of the Burmese passport and, the place of birth disclosed therein, were matters known to the applicant and his legal advisers at the time he made his application to the Federal Circuit Court and at all relevant times thereafter. Production of the s 438 documents merely confirmed what was already known to the applicant and his lawyers. 43 The evidence shows that a certificate under s 438 of the Act was signed by a Delegate of the Minister on 20 August 2014. As the High Court held in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the giving of such a notice triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. However, as the majority (Bell, Gageler and Keane JJ) held at [2]: … Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. 44 As I have mentioned, the submissions made on behalf of the applicant focused on the copy of the Burmese passport included in the s 438 documents. Other material included in the s 438 documents confirm that the UK authorities advised that the Burmese passport scanned at the time the holder applied for a visa permitting him to enter the United Kingdom to undertake study there was assessed as genuine. The existence of the copy passport, the information it contained in relation to the applicant's place of birth, and the information pertaining to its authenticity provided to the Department by the UK authorities, was known to the applicant prior to his interview with the Delegate. In those circumstances, it is not seriously arguable that, had the existence of the s 438 certificate been made known to the applicant prior to the commencement of the Tribunal hearing, or if the applicant had been provided with the copy of the Burmese passport prior to the commencement of that hearing, that he may have given evidence or made arguments before the Tribunal that was not given or made in any event. 45 In submissions on behalf of the applicant, it was suggested that the applicant may have wished to emphasise to the Tribunal what he asserted was the discrepancy in the place of birth shown in the Burmese passport and that, had he access to it at the time, he may have done so. However, I do not accept this submission given that the applicant already knew of the discrepancy which the Delegate drew attention to in his reasons for decision. Accordingly, I do not think that grounds 1 or 2(a) of the proposed grounds of appeal are reasonably arguable. 46 As to ground 2(b), the fact that the Tribunal did not give a written direction under s 440(1) of the Act prohibiting publication or disclosure of the s 438 documents could not of itself give rise to any breach of an obligation of procedural fairness nor, in the circumstances, of this case, any jurisdictional error.

Ground 3 47 The applicant's submissions did not explain why the Tribunal acted unreasonably, illogically or without engaging in active intellectual consideration of the applicant's case, in deciding his application without having before it the Burmese passport. One difficulty with this submission is that the Tribunal did not have the passport before it because it was destroyed by the applicant. To the extent it is suggested that the Tribunal should have had a copy of the scanned passport before it, there is nothing to indicate that this was necessary given that the Tribunal was in possession of the information included in the passport (including the nominated place of birth) which is recorded in detail in the Delegate's decision. 48 As to ground 3(b), it is true that the Tribunal's reasons do not refer to the "place of birth" nominated in the copy of the Burmese passport. But in circumstances where the applicant did not rely on that discrepancy in his arguments to the Tribunal, I do not see how the Tribunal's failure to have regard to that matter could justify a conclusion that the Tribunal had acted unreasonably, illogically or had failed to give proper consideration to the applicant's claim. 49 As to ground 3(c), it is apparent from the Tribunal's reasons that it was aware that the applicant claimed to have been born in Maung Daw in the Rakhine State before moving to Yangon when he was three or four years old. The Tribunal accepted evidence to that effect. It also accepted that the applicant was a Rohingya and a Muslim. 50 As to ground 3(d), the suggestion is that, because the Tribunal found that the passport was genuine, it also found, by implication that the applicant was born in Yangon, when it had accepted that the applicant was born in Maung Daw in the Rakhine State. The difficulty with this ground is that the fact that the Tribunal found that the passport was genuine was not necessarily inconsistent with it also finding that the applicant was born in Maung Daw. What this highlights is that there was, on the applicant's evidence, a potential inconsistency in finding that the passport was genuine in circumstances where the document referred to a different place of birth. But the applicant did not advance any argument based on any potential inconsistency to the Tribunal and, in those circumstances, the absence of any discussion of this potential inconsistency in the Tribunal's reasons is not sufficient to justify a finding that the decision was unreasonable or illogical or that the application did not receive a proper consideration: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29]-[30] per French CJ, [70]-[76] per Hayne, Kiefel and Bell JJ and [105] per Gageler J. The Tribunal's decision cannot be sensibly described as one that lacks any evident and intelligible justification or one that no sensible decision-maker aware of its responsibilities could have decided. 51 In my view, ground 3, whether these matters are looked at cumulatively, or individually, lacks any reasonable prospects of success.

Ground 4 52 The applicant submitted that where a finding is not made with sufficient confidence, the decision-maker may need to consider the possibility that the finding is incorrect when determining whether an applicant has a well-founded fear and that this may require the decision-maker to apply what was referred to as the "what if I am wrong" test. The applicant submitted that the Tribunal's failure to apply the "what if I am wrong" test was a jurisdictional error. 53 In support of this submission the applicant relied on the decision of Sackville J (with whom North J agreed) in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Sackville J said at [62]-[63]: [62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took. place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. [63] Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". 54 While the applicant contended that the Tribunal erred in failing to apply the "what if I am wrong" test, he did not make clear to which alleged event (that the Tribunal found not to have occurred) it should have directed that test. If what is relied on is the finding that the applicant was a Burmese citizen who departed Burma legally using a valid passport, then it does not appear that the Tribunal was in any real doubt about the correctness of that finding. 55 In my view ground 4 does not have any reasonable prospects of success.

Ground 5 56 The Tribunal was not satisfied the applicant has a real chance of suffering serious or significant harm in Burma due to his ethnicity or religion. There was no error on the Tribunal's part in failing to consider whether the applicant would be required to modify his behaviour or conceal personal characteristics should he be returned to Burma. The applicant did not make any claim to that effect to the Tribunal. In any event, the Tribunal still considered it. The Tribunal said at [25]: The Tribunal understands that in Appellant S395/2002 by majority, the High Court held it is an error to fail to consider whether the need to act discreetly to avoid a threat of serious harm constituted persecution. The unifying principle underlying the two joint majority judgments in S395 was that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. The Tribunal did not attempt to make the applicant's case at hearing, but was mindful of any claim (express or implied) that (ie) requiring him to be categorised as Bengali would constitute serious harm for the applicant in Burma. Nothing the applicant said satisfied the Tribunal he would have a real chance of any harm for this reason in Burma. (footnotes omitted)

Ground 6 57 In support of ground 6 the applicant relied upon the following record of an exchange between the Tribunal and the applicant during the course of his interview: Member: Now if I find that you departed legally do you think there is any other reason that you would be harmed as a failed asylum seeker returned to Burma? Interpreter: If I sent back to Myanmar I believe I will be harmed and I will be tortured by the Burmese authority. I have seen some of the people, the same situation. Member: Why, why, tell me why you think you would be harmed? Interpreter: First of all. I have abused my home country. When I applied asylum seeker here in Australia. Interpreter: And other reason I'm a Muslim. Applicant [in Rohingya]: My main concern is my birthplace and my ethnicity is Rohingya. Interpreter: And another thing is my ethnicity I'm a Rohingyan, and I was born in Rohingyan family. 58 The applicant drew attention to the applicant's statement that his main concern was his birthplace and his Rohingyan ethnicity and what is said to be the defective translation of that statement by the interpreter who made no reference to the applicant's birthplace. It was submitted that the applicant made a claim at this point that he would be persecuted by reason of his birthplace if he were to return to Burma and that this claim was not considered by the Tribunal due to the interpreter's error. 59 The Tribunal was aware that the applicant claimed to have been born in Maung Daw in the Rakhine State. It accepted that the applicant resided in the Rakhine State with his family until he was three or four years old before moving to Yangon where he lived until he departed Burma. The Tribunal also referred in its discussion of the country information to the persecution of Rohingyan families in various townships in the Northern Rakhine State including Maung Daw (para 34) and to a statement by the applicant that the Burmese Government were "regularly targeting the township and persecuting the Rohingyan families" (para 35). 60 It is apparent that the Tribunal was conscious that the applicant was from Maung Daw, and that the applicant claimed that the Burmese government targeted Rohingyan families in that township. However, the applicant did not assert that he had any intention of returning to Maung Daw were he to return to Burma. In reality, his claims based on birthplace and Rohingyan ethnicity were closely intertwined. The Tribunal's rejection of the claim based on the applicant's Rohingyan ethnicity and its acceptance that the applicant was a Burmese citizen necessarily carried with it a rejection of any claim based on the applicant's birthplace. This is a clear case in which the claim based on the applicant's birthplace is subsumed by the Tribunal's more general findings in relation to the applicant's claims based on his Rohingyan ethnicity, his Muslim religion and his (alleged) statelessness: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ.

Disposition 61 The applicant's delay in filing a notice of appeal within time, and his delay in applying for an extension of time, is extremely lengthy and is not adequately explained. Against this the applicant asserts, and the Minister does not deny, that the Minister will suffer no prejudice in the event that the application for an extension of time is granted. I proceed on the basis there will be no prejudice to the Minister in the event that an extension of time is granted. 62 In my opinion, each of the six proposed grounds of appeal is either not reasonably arguable or, at the least, weak with little prospect of success. Furthermore, none of the proposed grounds of appeal arise out of matters argued before the primary judge and, as the Minister correctly submitted, the applicant is seeking to construct a new case that he seeks to run by way of an appeal that is wholly different from the case run before the primary judge at a trial in which the applicant was legally represented. No adequate explanation has been provided as to why the grounds now relied upon were not advanced at trial. In the circumstances I am not persuaded that the interests of justice favour granting the applicant the extension of time he seeks. 63 There will be an order dismissing the applicant's application for an extension of time. The applicant must pay the first respondent's costs of the application. 64 The Minister sought an order that the applicant pay the costs of the application for an extension of time on an indemnity basis. The submissions for the Minister did not seek to justify such order by reference to either principle or authority. I am not persuaded that any special costs order is warranted. 65 Orders accordingly. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.