DQA16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-12-21|Before: Mr J, Wigney J

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Solicitor for the First Respondent: Mr J Pinder of MinterEllison

Counsel for the Second Respondent: The Second Respondent made a submitting notice, save as to costs

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: WIGNEY J DATE OF ORDER: 21 december 2018

The application be dismissed.
The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 The applicant is a citizen of Zimbabwe. He arrived in Australia in February 2011 on a student visa. After being granted a further student visa, he subsequently applied for a Protection (Class XA) visa. That application was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection. That decision was affirmed on review by the second respondent, the Administrative Appeals Tribunal. The applicant sought to challenge the Tribunal's decision in judicial review proceedings in the Federal Circuit Court of Australia. He did not, however, file his application within the statutory time limit in s 477(1) of the Migration Act 1958 (Cth). His application pursuant to s 477(2) of the Act for an extension of time within which to file his application was refused by a Circuit Court judge on 7 August 2017. 2 No appeal lies to this Court from a judgment of the Circuit Court refusing to make an order pursuant to s 477(2) of the Act: s 476A(3)(a) of the Act. The applicant, however, applied to this Court for judicial review of the decision of the Circuit Court to refuse his extension application. The Court has jurisdiction to entertain such an application: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [2]-[11]. The question for the Court on such an application is whether there was a jurisdictional error by the Circuit Court judge: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [50] (Robertson J, with whom Logan and Kerr JJ agreed). 3 As will be seen, most of the arguments that were advanced on the applicant's behalf, by an apparently qualified solicitor, in support of the proposition that the Circuit Court judge erred in a jurisdictional sense were entirely without merit. Some bordered on the ridiculous. There is, however, an issue as to whether the Circuit Court judge constructively failed to exercise his jurisdiction by either not engaging with the arguments that were advanced on the applicant's behalf, or by reason of the judge's inadequate reasons for judgment.

EVIDENCE IN SUPPORT OF THE APPLICATION 4 The evidence tendered by the applicant in support of his application for judicial review essentially comprised the record of the proceedings in the Circuit Court, including: the extension application filed in the Circuit Court; an affidavit, affirmed on 21 October 2016, which simply annexed the Tribunal's Statement of Decision and Reasons dated 15 September 2016; the Court Book that was before the Circuit Court, which contained documents relating to the applicant's visa application, his application to the Tribunal, and the Tribunal's determination of his review application; the Circuit Court judge's written reasons for Judgment; and the orders made by the Circuit Court judge on 7 August 2017. 5 The applicant tendered a copy of the transcript of the Tribunal hearing. That tender was rejected and the transcript was not admitted into evidence. That was because the applicant conceded that he did not tender, or even attempt to tender, the transcript of the Tribunal hearing in the Circuit Court. He also conceded that he did not contend, either before the Circuit Court or in this Court, that the account of the hearing that the Tribunal gave in its Reasons was in any way inaccurate. In light of those concessions, the applicant was unable to articulate how or why the transcript could be relevant to his claim that the Circuit Court judge made a jurisdictional error. Nor was he able to coherently explain how the transcript was relevant to any of the grounds of his application. That was perhaps not surprising given that, as will be seen, the grounds of the application were in any event prolix and somewhat difficult to decipher. 6 It is also important to emphasise that the applicant did not tender a copy of the transcript of the hearing before the Circuit Court judge, or a copy of any written submissions that he filed or relied on in the Circuit Court. Nor did he seek to read or rely on any affidavit evidence concerning what occurred in the course of the hearing before the Circuit Court judge. The significance of the absence of any such evidence will become apparent later when the applicant's grounds of review and arguments are addressed.

THE TRIBUNAL'S REVIEW AND DECISION 7 As was noted at the outset, the applicant is a citizen of Zimbabwe who arrived in Australia as the holder of a student visa on 5 February 2011. He applied for a protection visa on 9 April 2014. 8 The basis of the applicant's protection visa application was that he claimed to fear that he would be harmed on account of his political opinion if he was required to return to Zimbabwe. He claimed to have been an active supporter of the Movement for Democratic Change (MDC) and that he feared harm at the hands of the authorities and supporters of the Zimbabwe African National Union-Patriotic Front (ZANU-PF). He recounted that he was the subject of a report to the ZANU-PF and that the ZANU-PF wanted to recruit him to work for it, against his beliefs. He claimed to have been harassed and beaten. He said that he feared he would be tortured to death by ZANU-PF youth if he returned to Zimbabwe. He also said that his prospects of securing employment and "settl[ing] in" in Zimbabwe if he returned there were slim, given that he had been a member of the opposition party. 9 A delegate of the Minister refused the applicant's protection visa application on 3 November 2014. It is unnecessary to detail the delegate's reasons for refusing the application as nothing turns on them. 10 The applicant applied to the Tribunal for a review of the delegate's decision. The Tribunal invited the applicant to appear at a hearing before it and invited him to provide any further submissions or evidence that he wished to rely on. The applicant did not provide any further evidence or submissions prior to the hearing. He did, however, appear at the scheduled hearing. He was represented by a migration agent. That agent was the solicitor who appeared for the applicant both in the Circuit Court and in this Court. 11 It is readily apparent from the Tribunal's Reasons that the hearing did not proceed smoothly, though that may be an understatement. The Tribunal stated (Reasons at [6], [22]-[33]) that, on a significant number of occasions during the hearing, the applicant refused to answer questions. The applicant or his agent also requested multiple adjournments and the agent was, at times, obstructive (Reasons at [32], [55], [57]). The applicant and his agent eventually walked out of the hearing before it concluded. In the circumstances, and given that there was no further communication received from the applicant or his agent, the Tribunal proceeded to make a decision on the basis of the evidence that was before it up to that point, without offering the applicant another hearing (Reasons at [34]). 12 The Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the applicant. 13 The Tribunal's Reasons are detailed, comprehensive and, for the most part, logical and cogent. It is unnecessary to refer to them at length. 14 The Tribunal's essential reason for affirming the delegate's decision was that it did not accept key aspects of the claims that the applicant had made in support of his application for the protection visa. The Tribunal reasoned that the applicant's evidence before it was insufficiently detailed to establish or substantiate parts of his claim, particularly as he had refused to answer many of the questions which were put to him (Reasons at [41]-[45]). In particular, the applicant refused to answer questions concerning his family's circumstances, his relationship with members of his family, and their affiliation with ZANU-PF (Reasons at [49]-[64]). The Tribunal also found that certain information on cards which purported to show the applicant's membership of the MDC was inconsistent with parts of his evidence (Reasons at [46]-[48]). It also found that the applicant's evidence concerning his involvement with the MDC and the harm that he supposedly suffered at the hands of ZANU-PF was inconsistent and not credible (Reasons at [65]-[71]). 15 Having considered the applicant's evidence, the Tribunal found that it was likely that the applicant was a member of ZANU-PF. The Tribunal did not accept that the applicant was a member or supporter of the MDC or that there was any reason for him to fear harm in Zimbabwe (Reasons at [76]-[78]). It also did not accept that the applicant would face difficulties securing employment in Zimbabwe or that he would suffer harm for that reason (Reasons at [80]). 16 On the basis of its factual findings, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa (Reasons at [85]-[86] and [88]-[91]).

CIRCUIT COURT PROCEEDINGS AND JUDGMENT 17 The applicant did not file an application in the Circuit Court within the 35-day time limit prescribed by s 477(1) of the Act. As a result, he was required to, and did, file an application for an extension of the time limit pursuant to s 477(2) of the Act. It does not appear that he filed any affidavit in support of that application which explained why he did not file an application within the time limit, or why he otherwise considered that it was necessary in the interests of the administration of justice for the time limit to be extended in his case. 18 The application filed by the applicant stated that he sought a writ of certiorari to quash the decision of the Tribunal and a writ of mandamus directing the Tribunal to determine his application according to law. The grounds in support of the application were as follows (as drafted): 1. The member Tribunal took irrelevant consideration into account when she relied upon the inconsistencies in the answers of the applicant to the questions which were totally irrelevant to the claim of the applicant. 2. The member tribunal clearly indicated to the applicant even before the hearing started that she was not satisfied that the applicant faced a real chance of serious harm or real risk of significant harm. This approach of the member Tribunal shows the element of bias against the applicant and suffers from procedural unfairness. 3. The Tribunal took irrelevant considerations into account when it considered and relied upon the inability of the applicant to answer the questions as to the fate of his other colleagues who were also members of MDC. 4. The Tribunal gave undue weight to the inconsistency between his evidence as to place of residence vis-à-vis places recorded in MDC membership cards in rejecting his claim that he was the member of MDC. 5. The Tribunal erred in not giving any weight to the applicant's MDC membership cards. 6. In an attempt to assess the credibility of the claim of the applicant, the member Tribunal misdirected herself by asking the applicant irrelevant questions as to the dates of birth of his five brothers and three sisters, their occupations and places of residence. 7. The member Tribunal took irrelevant consideration into account by declining the review application for the reason, inter alia, that the Applicant could not answer the questions as to the dates of births, occupation and places of residence of his brothers and sisters. 8. The member Tribunal failed to give any weight to the consistent evidence of the applicant that he was member of MDC and was open to serious risk of harm at the hands of the ruling party. 19 The Circuit Court judge dismissed the application for an extension of time. His Honour delivered reasons ex tempore on 7 August 2017. Written reasons (the Judgment) were published on 6 September 2017. 20 As will be seen, the applicant contended that the Circuit Court judge's ex tempore reasons differed in material respects from the written reasons subsequently published in the Judgment. The applicant's complaints concerning the ex tempore reasons will be dealt with later. The following summary of the Circuit Court judge's reasons is based on the Judgment. 21 The Circuit Court judge noted that the applicant had adduced "no evidence that provides a satisfactory explanation for the delay" in filing his notice of appeal (Judgment at [41]). Nevertheless, the main reason for refusing the application was that the judge was "not satisfied that the merits of the application warrant[ed] an extension of time in the interests of the administration of justice" (Judgment at [42]). His Honour found, in effect, that the applicant had failed to "make out any arguable jurisdictional error" on the part of the Tribunal (Judgment at [39]). 22 The Circuit Court judge addressed, or at least purported to address, each of the applicant's eight grounds. It would perhaps be fair to say that his Honour's reasoning was sparse, to say the very least. All but one of the grounds was rejected in a single short paragraph. Some were rejected by a single conclusory sentence. 23 In relation to ground one, the applicant apparently argued that it was irrelevant for the Tribunal to have had regard to inconsistencies in his evidence in respect of matters that were said to be irrelevant to his claims. The Circuit Court judge rejected that argument and held, in effect, that inconsistencies in an applicant's evidence may be relevant to the credit or credibility of the applicant (Judgment at [30]). 24 The applicant's argument in relation to ground two appeared to be that the Tribunal had prejudged his application. The basis of that contention was apparently a statement which was made in the Tribunal's letter which invited him to attend a hearing. That statement was that "the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone" (Reasons at [20]; Judgment at [19]). The judge held that the statement in the Tribunal's letter would not have caused a fair-minded lay observer to reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the applicant's review application (Judgment at [20]) and did not support any allegation of bias (Judgment at [31]). 25 It would appear that the applicant also raised a "concern" relating to s 423A of the Act. While is it not entirely clear from the Judgment what that concern was, it would appear from arguments advanced on behalf of the applicant in support of his application in this Court that the applicant argued that the Tribunal had tried to encourage him to raise a new claim so that it could draw an adverse inference against him pursuant to s 423A of the Act. The Circuit Court judge appears to have rejected that argument. His Honour held that the applicant's concern about s 423A did not explain what had occurred at the hearing, including the applicant's departure from the hearing (Judgment at [32]). 26 In relation to ground three, the Circuit Court judge rejected the applicant's contention that the inability of the applicant to answer questions as to the fate of his fellow MDC members was an irrelevant consideration. His Honour held that "it was a proper matter for the Tribunal to take into account the matters that it was unable to explore in respect of the applicant's evidence and inconsistencies" (Judgment at [33]). 27 Ground four appeared to simply raise an issue concerning the weight which the Tribunal gave to inconsistencies between the MDC membership cards and the applicant's evidence concerning his MDC membership. It is difficult to see how that ground could have supported a finding of jurisdictional error. The weight to be given to evidence is generally a matter for the Tribunal. The Circuit Court judge held that "it was a matter for the Tribunal to determine whether to accept the applicant's evidence in relation to alleged MDC membership" (Judgment at [34]). 28 Ground five also raised an issue concerning the weight which the Tribunal gave to the applicant's evidence concerning the MDC membership cards. The Circuit Court judge held that "it was a matter for the Tribunal to determine what weight to give to the applicant's evidence" (Judgment at [35]). 29 As for ground six, the Circuit Court judge rejected the applicant's contention that the Tribunal "misdirected [itself] by asking the applicant irrelevant questions" concerning his siblings. His Honour held that "it was a relevant matter for the Tribunal to explore with the applicant details in relation to the applicant's siblings" and that the Tribunal's questions "were not irrelevant to the applicant's credit or to the claims made" (Judgment at [36]). 30 Ground seven also related to the Tribunal's questions concerning the applicant's siblings. It was contended that the fact that the applicant could not answer certain questions concerning his siblings was an irrelevant consideration. The Circuit Court judge simply concluded in relation to this ground that "there is no irrelevant consideration that was taken into account" (Judgment at [37]). 31 Finally, ground eight asserted that the Tribunal failed to give any weight to an important aspect of the applicant's evidence. The Circuit Court judge simply stated, in relation to this ground, that "it was a matter for the Tribunal to determine what weight to give the applicant's evidence" (Judgment at [38]).

GROUNDS AND ARGUMENTS IN SUPPORT OF THIS APPLICATION 32 The applicant's originating application for relief under s 39B of the Judiciary Act 1903 (Cth) contained no details of the grounds upon which it was asserted that the Circuit Court judge had made a jurisdictional error. Rather, it referred to an affidavit sworn by the applicant's solicitor which purported to detail the grounds. That affidavit, however, simply contained a series of sweeping assertions of error which were entirely devoid of meaningful particulars. The applicant was accordingly ordered to file an amended originating application. 33 Regrettably, the applicant's amended originating application, if anything, made matters worse. It again referred to the affidavit sworn by the applicant's solicitor and purported to set out (at [3]-[10] of the amended originating application) the jurisdictional errors allegedly made by the Circuit Court which were "indicated" in that affidavit. In fact, all that was set out was a prolix narrative which read more like a submission. To make matters worse, the amended originating application then purported to detail (at [11]-[24] of the amended originating application) the jurisdictional errors which were said to have been made by the Tribunal. What followed again was a prolix and confused narrative. 34 The applicant was also directed to file written submissions. Written submissions were in due course filed on his behalf. Unfortunately, however, they did not assist at all in identifying, let alone elucidating or explaining, the basis upon which the applicant contended that the Circuit Court judge failed to validly exercise that court's jurisdiction. That is because the written submissions focussed almost entirely on errors that were said to have been made by the Tribunal. 35 At the hearing of this application, the applicant's solicitor, when pressed, eventually agreed that the applicant sought only to advance three grounds in support of the contention that the Circuit Court judge failed to exercise, or validly exercise, his jurisdiction. 36 The first ground was that the Circuit Court judge denied the applicant procedural fairness. The particulars of that ground (supposedly reflected in [3]-[9] of the amended originating application) were that: the Circuit Court judge did not, prior to the hearing, read the application and written submissions that had been filed on the applicant's behalf; the Circuit Court judge did not entertain or engage with the arguments and submissions advanced on the applicant's behalf at the hearing; the Circuit Court judge handed down his decision ex tempore "in order to avoid review"; the procedure followed by the Circuit Court judge displayed a "reasonable apprehension of bias"; and the ex tempore reasons differed from the written reasons subsequently published, which made it difficult to point to a particular error of law. 37 The second ground was that the Circuit Court judge failed to take into account of a number relevant considerations (at [10] of the amended originating application). Those relevant considerations were, essentially, the grounds and arguments articulated by the applicant in support of his application for an extension of time in the Circuit Court. It can be seen that this ground essentially overlapped with, or perhaps was encompassed by, ground one. It would also perhaps be best to characterise this aspect of the applicant's case as amounting to a contention that the Circuit Court judge constructively failed to exercise his jurisdiction. 38 The third ground was, in effect, that the Circuit Court judge erred in rejecting the applicant's case that the Tribunal made jurisdictional errors. The jurisdictional errors allegedly made by the Tribunal (supposedly particularised in [11]-[24] of the amended originating application) were: the Tribunal asked irrelevant questions with the intention of finding an inconsistency in the applicant's evidence, or to procure a new claim from the applicant for the purposes of s 423A of the Act, which was unreasonable and indicated that the Tribunal was biased; the Tribunal erred in drawing adverse inferences from the answers to irrelevant questions, or inconsistencies in the applicant's evidence concerning unimportant issues; and the Tribunal took into account irrelevant considerations, or failed to take into account relevant considerations, in reaching its "credibility assessment" of the applicant.

Ground 1: procedural fairness and bias 39 Many and varied arguments were put on the applicant's behalf in support of the proposition that he was denied procedural fairness in the Circuit Court and that the Circuit Court judge was biased. Most of them were not easy to follow. The arguments are perhaps best considered and addressed by categorising them as follows: first, arguments based on the Circuit Court judge's conduct of the hearing; second, arguments based on the ex tempore reasons; and third, arguments based on the brevity of the Judgment.

The Circuit Court judge's conduct of the hearing 40 The applicant's arguments which were based on the Circuit Court judge's conduct of the hearing may be disposed of shortly. The fundamental problem for the applicant is that he did not tender the transcript of the hearing before the Circuit Court judge, or adduce any evidence which addressed what in fact occurred at the hearing. The applicant's assertions, in both his amended originating application and submissions, that the Circuit Court judge did not read his application and written submissions before the hearing, that the judge only read the material during the hearing, and that the judge did not engage with or listen to his submissions during the hearing, have no factual or evidentiary basis. 41 It is readily apparent that the applicant was given the opportunity to, and did, appear before the Circuit Court judge to present his case and advance submissions in support of it. There is no basis to conclude that the opportunity given to the applicant was not real and meaningful, or that the judge acted in any way which impeded or frustrated the applicant in putting his case, or that anything else which occurred at the hearing resulted in the applicant suffering any practical injustice. 42 The question whether the brevity of the reasoning in the Judgment supports the proposition that the Circuit Court judge did not engage with the applicant's case is dealt with separately. 43 There is also no factual or evidentiary basis for concluding that the Circuit Court judge's conduct of the hearing indicated that he was actually biased, or that a fair-minded lay person might think that the Circuit Court judge did not bring a fair and impartial mind to the applicant's case: see Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [37]. For the reasons already given, there was no evidence that the Circuit Court judge did not read the applicant's application or submissions prior to the hearing, or that his Honour did not read those documents "comprehensively", or that anything else occurred during the hearing which could possibly support the allegation of actual or apprehended bias. 44 It should also be emphasised in this context that an allegation of bias is a serious allegation which must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. A finding of actual bias is a "grave and exceptional matter" and the accusation of actual bias must be "firmly established": NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 at [16]. That is particularly the case where the allegation is made against a judge: BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [13]. The test for actual bias is "stringent" and the onus of proving it is a "heavy one": Hocking v Medical Board of Australia [2014] ATSC 48; (2014) 287 FLR 54 at [174]-[175]; BDS17 at [15]. 45 The allegation of actual bias based on the Circuit Court judge's conduct of the hearing before him was unsupported by any evidence and was accordingly entirely unmeritorious. It should not have been made in those circumstances. The allegation of apprehended bias was equally unmeritorious given the absence of any evidence concerning the manner in which the Circuit Court judge conduced the hearing.

The ex tempore judgment 46 As has already been noted, the Circuit Court judge dismissed the applicant's case and gave ex tempore reasons on 7 August 2017 and subsequently published written reasons on 6 September 2017. There were effectively two limbs to the applicant's arguments relating to the ex tempore reasons. 47 First, the applicant complained that the written reasons were only published after the expiry of the period within which he was able to bring these proceedings. That was said to support the inference that the Circuit Court judge gave ex tempore reasons to avoid any review of his Honour's decision. It was also said to have made it difficult to identify the errors of law made by the judge. 48 Second, the applicant complained that the written reasons were materially different from the ex tempore reasons. It was contended that this made it difficult, if not impossible, to challenge the Circuit Court judge's decision. That was said to be because, once the ex tempore reasons were given, the judge was functus officio and, therefore, recourse could not be had to the written reasons in order to determine whether there had been an error. 49 There are a number of difficulties with the applicant's arguments concerning the ex tempore reasons. 50 The first, and perhaps most fundamental, problem is that all the applicant's arguments were premised on the proposition that there were material differences between the primary judge's ex tempore reasons and the written reasons in the Judgment. There was, however, no evidence to support that proposition. The applicant's solicitor was present when the Circuit Court judge delivered his ex tempore reasons. It would have been open to the solicitor to swear or affirm an affidavit deposing to any alleged differences between the ex tempore reasons and the Judgment. That was not done. No reasonable or cogent explanation was given for the absence of that evidence. 51 It may also have been possible for the applicant to obtain the tapes or a transcript of the ex tempore reasons. Transcripts of court proceedings that are provided to the parties do not usually include the transcript of ex tempore reasons for judgment. Prior to the final hearing of this application, however, the applicant sought leave to have a subpoena issued to obtain the hearing tapes from the relevant transcription service. Leave to issue that subpoena was refused. 52 The reason for the refusal was that, at the time leave to issue the subpoena was sought, the applicant was unable to demonstrate a legitimate forensic purpose for requiring the production of the recording or transcript of the ex tempore reasons. The amended originating application and supporting affidavit did not raise any intelligible ground which would have justified issuing the subpoena. The request for leave simply asserted that the audio recording would establish that the Circuit Court judge had denied the applicant procedural fairness and was acting for an improper purpose. No particulars were provided in relation to those broad assertions. No indication was given of any alleged differences between the ex tempore reasons and the written reasons, or why any such differences might support the allegations of denial of procedural fairness, or improper purpose, or any other jurisdictional error on the part of the Circuit Court judge. In those circumstances, it appeared that the applicant was simply "fishing". The applicant made no further attempt to have a subpoena issued. 53 The difficulty with the applicant's argument based on the timing of publication of the written reasons is that the applicant was able to file a valid originating application in this Court which challenged the Circuit Court judge's decision in the original jurisdiction of the Court pursuant to s 39B of the Judiciary Act. Contrary to the submissions made on the applicant's behalf, there was no relevant time limit in relation to the commencement of these proceedings. The applicant could, theoretically at least, have waited until the judge published his written reasons. He chose, however, to file his application before the judge published the written reasons. It may reasonably be inferred that the application was filed on the basis of the notes or recollection of the applicant's solicitor in relation to the ex tempore reasons. In any event, the applicant was given leave to file an amended originating application after the publication of the written reasons. The applicant accordingly had the benefit of the written reasons when framing the terms of the amended originating application. The applicant was unable to show how he was disadvantaged by the fact that his Honour's reasons were delivered ex tempore and that there was some delay before the publication of the written reasons. 54 The applicant's contention that the Circuit Court was functus officio once the ex tempore reasons were given, and that it was not possible to have recourse to the written reasons, is entirely without foundation. The applicant relied on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. That decision, however, provided no support whatsoever for the applicant's case. The applicant cited no other authority in support of this contention. 55 It has been accepted that a judge may reduce ex tempore reasons to writing and, in so doing, make some alterations to what was said orally, so long as the alterations are not substantive: Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 at [51]; see also Richmond v BMW Australia Finance Limited (No 2) (2009) 174 FCR 232 at [12]. There is nothing to suggest that the Circuit Court judge did anything but make insubstantial changes to what was said orally when he delivered the ex tempore reasons. As has already been noted, the applicant did not adduce any evidence capable of establishing that there was any material difference between the terms of the ex tempore reasons and the Judgment. 56 Finally, the applicant's contention that the Circuit Court judge delivered ex tempore reasons and then deliberately delayed the publication of written reasons to avoid any review of his decision was entirely unsupported by evidence and was not an available inference from the surrounding facts and circumstances. It was not, in any respect, inappropriate for his Honour to pronounce orders and deliver ex tempore reasons on the day of the hearing, particularly given the nature of the hearing. It was, on the other hand, entirely inappropriate for the applicant to make this serious allegation in circumstances where it was entirely unsupported by any evidence.

Arguments based on the brevity of the judgment 57 As has already been indicated, there is no question that the reasoning in the Judgment was sparse. The Judgment runs to nine pages and 45 paragraphs. The part of the Judgment that actually addresses the applicant's review grounds, however, runs to only about two pages and 10 paragraphs. 58 It is possible to envisage a case where a judge's reasons for judgment are so devoid of meaningful reasoning that they could support a finding of denial of procedural fairness or bias. The brevity of reasons might, for example, in some cases, suggest that the judge had predetermined the matter and was unwilling to listen to or be swayed by the unsuccessful party's arguments, or at least give rise to a reasonable apprehension on the part of a reasonable bystander that that might be the case. Equally, the brevity of a judge's reasons might, in some cases, suggest that the judge did not provide the unsuccessful party with a meaningful hearing, because the judge did not listen to or engage with that party's arguments. The High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] appeared to accept that a failure to respond to a "substantial, clearly articulated argument" might constitute a denial of procedural fairness. 59 This, however, was not such a case. 60 While the Judgment is undoubtedly brief and contains very little real or meaningful reasoning, as opposed to conclusory statements, concerning the merits of the applicant's grounds and arguments, it is necessary to consider the Judgment in context. That context includes that the application which was before the Circuit Court judge was an application for an extension of time. It was not a final hearing of a review application. The context also includes the nature and quality of the arguments that the Circuit Court judge was called upon to consider and determine. 61 It was open to the Circuit Court judge, in the particular circumstances of this case, to give relatively short shrift to most, if not all, of the applicant's grounds and the arguments advanced in support of them. As Perram J said in AXE16 v Minister for Immigration and Border Protection [2018] FCA 646 at [30], "the thoroughness of a judge's treatment of an issue will legitimately be a function in very many cases of the substance of the point the judge is considering". In this case, the underlying reality is that the arguments which the applicant appeared to have advanced before the Circuit Court judge were, almost without exception, manifestly devoid of any merit. 62 That is not to say, however, that the Judgment should be lauded. Far from it. One can readily see how and why the applicant and his solicitor might feel a legitimate sense of grievance concerning the Judgment. It is not hard to see why they might reasonably think that the judge had not really considered the arguments which had been advanced and why that might lead them to think that the judge had predetermined the matter, or had denied the applicant a fair hearing. That sense of grievance might have been avoided if the Circuit Court judge had deigned to put more care and effort into the formulation of his reasons. 63 It should also be noted, in this context, that the applicant's arguments concerning bias and denial of procedural fairness, to the extent that they relied on the brevity of the Judgment, were rendered substantially more difficult for the applicant to establish by virtue of the fact that he did not tender the transcript of the hearing before the Circuit Court judge. Nor did he tender a copy of his written submissions filed in support of his Circuit Court application. That makes it particularly difficult to assess the contention that the Circuit Court judge did not listen to or engage with the applicant's case. 64 The appellant's contention that the Circuit Court judge did not engage with or consider his grounds and arguments is dealt with in more detail in the context of grounds two and three. So too is the question whether the judge failed to give adequate reasons. It is perhaps preferable to consider those arguments as part of the broader issue of whether the Circuit Court judge constructively failed to exercise his jurisdiction, than it is to consider them in the context of the contentions of bias or denial of procedural fairness. It is sufficient for present purposes to say that the brevity of the Circuit Court judge's reasons provides no basis for a conclusion that his Honour denied the applicant procedural fairness.

GROUND 2: constructive FAILURE TO exercise jurisdiction 65 The applicant contended the Circuit Court judge failed to consider or engage with his arguments concerning the jurisdictional errors that he contended were made by the Tribunal. That was a conclusion that was said to flow from, amongst other things, the inadequacy of the Circuit Court judge's reasons. That amounted, in effect, to a contention that the Circuit Court judge constructively failed to exercise his jurisdiction. 66 A judge who fails to engage in an "active intellectual process" directed at a party's evidence or arguments may be found to have constructively failed to exercise jurisdiction: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] and the cases there cited; AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 [23]-[24]; COZ16 v Minister for Immigration and Border Protection (2018) 159 ALD 120 at [32]-[46]; Goodwin v Commissioner of Police [2012] NSWCA 379. 67 Likewise, a series of fairly recent cases, most of which unfortunately involved the same Circuit Court judge, have clearly established that a failure of a judge to provide adequate reasons may constitute not only an error of law, but also a failure to exercise jurisdiction: COZI6 at [40] (citing Goodwin); CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 at [15]-[20] and [32]; AXE16 at [20]-[30]; DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at [46]-[48]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [24]-[26]; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [56]-[78]. 68 It is unnecessary to refer at length to what has been said in the authorities concerning the need for adequate reasons, or what will or will not qualify as adequate reasons. It is perhaps sufficient, for present purposes, to emphasise four points. 69 First, reasons will generally not be adequate, in the context of a judicial review application, if they simply state a "conclusion for rejecting each ground [of review] at such a high level of generality that the basis for the conclusion is not exposed": DAO16 at [48]. 70 Second, reasons will also generally not be adequate, in this context, if they do no more than simply recite or repeat matters of general principle without any attempt to tie the principles back to the particular facts or circumstances of the case: BDS17 at [71]. 71 Third, "[b]revity of reasons, of itself, does not establish a failure to give reasons or jurisdictional error": CPF15 at [32]. 72 Fourth, the adequacy of a judge's reasons will depend on the legal and factual issues under consideration and the substance of the point that the judge was considering: BDS17 at [77]; AXE16 at [30]. 73 The last-mentioned point is an important point in this case for at least two reasons. 74 The first reason is that the proceeding before the Circuit Court judge was an application for an extension of time in which to bring review proceedings. There is no doubt that the merits of the potential review application are relevant on such an application. Generally speaking, however, the merits of the proposed review application do not need to be considered to the same level of detail as they would if time was extended and the matter proceeded to a final hearing. 75 The second reason is that the applicant did not tender either the transcript or his written submissions which were relied on in the Circuit Court. It is accordingly difficult to know the extent to which the grounds of review were developed in coherent or meaningful submissions before the Circuit Court judge. Based on the quality of the advocacy displayed in this Court, it may reasonably and not unfairly be inferred that his Honour might not have been given much assistance. In those circumstances, the brevity of the Circuit Court judge's reasons might reasonably be explained on the basis that the grounds of review were not developed, or not intelligibly developed, in the submissions made on the applicant's behalf. 76 As has already been noted, there could be little doubt that the Circuit Court judge's reasons for finding that each of the applicant's eight review grounds was without merit were very brief. Many of the grounds were dismissed as being unarguable on the basis of a single conclusory sentence, or by reference to a general statement of principle. Nevertheless, as was adverted to earlier in the context of ground one, when the reasons are considered in context, it cannot be said that they are inadequate, at least to the extent that it could be concluded that the Circuit Court judge constructively failed to exercise jurisdiction. The critical point is that the grounds of review which the applicant pursued before the primary judge, and the arguments that were apparently advanced in support of them, were, almost without exception, demonstrably without merit. They were properly able to be dealt with in short terms, particularly in the context of an application for an extension of time. 77 It undoubtedly would have been preferable for the Circuit Court judge to address the applicant's arguments and exposed his reasoning in relation to them in a more fulsome manner. The Judgment certainly could not be said to be a model example of judicial reasoning. Nonetheless, it cannot be said that the reasons were so inadequate as to justify a finding that the Circuit Court judge constructively failed to exercise jurisdiction. 78 Perhaps the clearest way to demonstrate or illustrate why that is so is to briefly examine the applicant's grounds and arguments that were pursued before the Circuit Court judge. That can conveniently be done in the context of ground three of this application, pursuant to which the applicant effectively sought to reargue the case that was put to the Circuit Court judge.

GROUND 3: JURISDICTIONAL ERRORS SAID TO HAVE BEEN MADE BY THE TRIBUNAL 79 The applicant's arguments in this Court mainly concerned jurisdictional errors which were said to have been made by the Tribunal. That demonstrated a misconception of the nature of this application and the Court's jurisdiction in relation to it. 80 As was noted at the very outset, this is not an appeal. The Court has no jurisdiction to entertain an appeal from a judgment of the Circuit Court refusing an extension of time pursuant to s 477(2) of the Act: see s 476A(3)(a) of the Act. The question for the Court was and is not whether the Tribunal made a jurisdictional error, or whether the Circuit Court judge made an appellable error in finding that there was no jurisdictional error on the part of the Tribunal. Rather, the Court's jurisdiction was and is limited to determining whether the Circuit Court judge made a jurisdictional error in dismissing the extension application. It was, in those circumstances, inappropriate for the applicant to effectively seek to reargue the case that he supposedly ran in the Circuit Court in relation to the Tribunal's decision. 81 It is, however, convenient to briefly address the appellant's arguments concerning the alleged jurisdictional errors by the Tribunal, if only to demonstrate that the Circuit Court judge did not err in a jurisdictional sense in rejecting the applicant's arguments in the brief and rather summary terms that he did. 82 It should be emphasised, in this context, that the applicant's submissions concerning the Tribunal's decision are necessarily circumscribed by the case that was in fact put to the Circuit Court. It could scarcely be suggested that the Circuit Court judge erred in a jurisdictional sense by not considering issues and arguments concerning the Tribunal's review and decision which were not the subject of the grounds of review and submissions in the Circuit Court. That point was emphasised, albeit in somewhat different circumstances, in the relatively recent decision of the Full Court in SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 at [71]-[74]. 83 The applicant's main complaint concerning the Tribunal's review was that the Tribunal asked the applicant questions about matters which did not directly relate to his claim that he feared persecution. The applicant contended that those questions were irrelevant and that it was accordingly not open to the Tribunal to have regard to his failure to answer them, or to any inconsistencies that may have emerged from his answers to them. The applicant characterised the Tribunal's questioning as constituting a "credibility assessment" process which was unlawful. The applicant went so far as to contend that the Tribunal approached the review on the basis that its task was simply to assess his credibility. 84 The applicant relied, in support of his contentions concerning the Tribunal's allegedly unlawful "credibility assessment" process, on the following observations made by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALD 224 at [73] (point 7): There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The tribunal must be firmly told - if necessary by this court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so. (footnotes omitted) 85 The applicant's arguments concerning the alleged unlawful "credibility assessment" process appeared to comprise the nub of his case in respect of review grounds one, three, four, six and seven before the Circuit Court judge. Exactly how clearly that argument was articulated and advanced before the Circuit Court judge is open to question. 86 In any event, the following points may be made in relation to the applicant's arguments concerning the allegedly unlawful "credibility assessment" process and his reliance on the judgment of Kirby J in SGLB. 87 First, Kirby J was in dissent in SGLB. There is no indication that the majority judges agreed with that part of Kirby J's judgment which the applicant sought to rely on. It is "not proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment": Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314. 88 Second, the opinion which was expressed by Kirby J in any event did not support the broad propositions which appeared to underlie the applicant's arguments concerning review grounds one, three, four, six and seven. Kirby J was simply observing that inconsistencies in a review applicant's evidence do not always undermine the applicant's credit. In that context, his Honour emphasised that the Tribunal should exercise considerable caution in arriving at adverse assessments of a review applicant's credit in certain circumstances. That is not to say that the Tribunal can never have regard to inconsistencies in a review applicant's evidence, even inconsistencies in relation to matters that do not directly relate to the applicant's claims to fear persecution, in assessing the applicant's credibility. Kirby J's observations also plainly do not support the even broader propositions which appeared to be advanced by the applicant; that, in conducting its review and making its decision, the Tribunal cannot assess the credibility of the applicant based on his or her evidence and any inconsistencies in it, and that the credibility of a review applicant is an irrelevant consideration. 89 In all the circumstances, it was open to the Tribunal to ask the applicant questions about matters which did not directly relate to his claims of persecution, including questions about his siblings. It was also open to the Tribunal to have regard to any inconsistencies in the applicant's evidence in assessing his credibility as a witness and the credibility or reliability of his evidence generally. It was equally open to the Tribunal to have regard to the applicant's refusal to answer certain questions in assessing his credibility. The applicant's submissions to the contrary had and have no merit. 90 It was also plainly open to the Circuit Court judge to reject any suggestion that the Tribunal approached the review on the basis that its task was simply to assess the applicant's credibility. Any such contention, if made, was completely unsupported by evidence. Such an approach to the review was not at all apparent from the Tribunal's reasons and, as has already been noted, the applicant did not tender the transcript of the Tribunal hearing or adduce any other evidence concerning the hearing in support of his application in the Circuit Court. 91 It follows that the Circuit Court judge was correct to reject the applicant's review grounds one, three, four, six and seven insofar as they relied on his arguments concerning the alleged unlawful credit assessment process. 92 It should also be noted that it is, at best, unclear whether the applicant relied on Kirby J's judgment in SGLB in his submissions before the primary judge. It is equally unclear whether he contended that the Tribunal approached the review on the basis that its task was simply to assess the applicant's credibility. The review grounds certainly do not explicitly raise that argument and, as has already been noted, the applicant did not tender the transcript of the Circuit Court hearing or his written submissions. If the applicant did refer to SGLB and did specifically raise the argument about the Tribunal's allegedly unlawful approach to the review, it is regrettable that the Circuit Court judge did not specifically address the applicant's submissions in that regard. It does not necessarily follow, however, that the Circuit Court judge constructively failed to exercise jurisdiction, simply because his reasons only dealt with the arguments on a more general level. That is particularly the case given that the arguments lack any merit. 93 The applicant's other major complaint concerning the Tribunal's conduct of the review involved an allegation of bias. There were a number of elements to the applicant's arguments concerning bias on the part of the Tribunal, at least as they were articulated in this Court. 94 The first element, which was the subject of review ground two in the Circuit Court, was that the Tribunal's statement, when inviting the applicant to attend a hearing, that it was unable to make a favourable decision on the written material before it, demonstrated prejudgment. It is sufficient for present purposes to say that the Circuit Court judge was correct to reject that argument for the reasons he gave. It was an entirely unmeritorious argument. It should be noted, in that regard, that s 425 of the Act provides that the Tribunal is not required to invite the applicant to appear at a hearing if it is satisfied that it should decide the review in the applicant's favour on the basis of the material before it. It follows that the Tribunal will generally only invite an applicant to a hearing if it is not so satisfied. 95 The second element of the applicant's argument concerning bias was that the Tribunal deliberately questioned the applicant with a view to extracting a new claim from him so that it could then draw an unfavourable inference against him pursuant to s 423A of the Act. The primary judge rejected what was referred to as the applicant's "concern" about s 423A, though it would be fair to say that the judge's reasons for doing so are very brief and rather opaque. 96 The third element of the applicant's argument concerning bias was that the Tribunal asked irrelevant questions, allegedly as part of its so-called "credibility assessment" process. 97 The fourth element was that, according to the applicant at least, the Tribunal bullied, harassed, and intimidated him at the hearing. 98 It should perhaps be noted that the third and fourth elements of the applicant's bias claim do not appear to have been the subject of any review ground or argument in the Circuit Court. They are certainly not directly raised by review ground two, which is the only review ground which alleged bias. There is also no evidence to suggest that the applicant raised those arguments in his written or oral submissions in the Circuit Court. As has already been emphasised, the applicant did not tender the transcript of the hearing in the Circuit Court or any written submissions that he relied on in the Circuit Court. Nor did he adduce any affidavit evidence concerning the hearing in the Circuit Court. 99 In any event, there are fundamental difficulties with each of the second, third, and fourth elements of the applicant's claim that the Tribunal was biased. The main difficulty is that he did not tender the transcript of the Tribunal hearing in support of his case in the Circuit Court. Nor did he adduce any evidence concerning the conduct of the Tribunal hearing. His case in the Circuit Court appeared to rely entirely on the Tribunal's reasons. The Tribunal's reasons plainly did not support the serious allegation of bias which was supposedly based on s 423A of the Act and the questioning which occurred during the hearing. The serious allegations that the Tribunal was biased because it deliberately sought to extract a new claim from the applicant, asked him irrelevant questions and bullied, harassed, or intimidated him, were also entirely unsupported by any evidence in the Circuit Court. The allegation based on s 423A was properly rejected by the Circuit Court judge. 100 It would no doubt have been preferable for his Honour to have explained his reasoning in clearer terms. As already noted, his Honour's reasoning was very brief and rather opaque. That, however, may well have been a product of the nature and quality of the argument that was advanced by the applicant. The primary judge was nevertheless plainly correct to reject the applicant's claim of bias on the part of the Tribunal, however it may have been put. There was no constructive failure to exercise jurisdiction in relation to this aspect of the applicant's case. 101 Review grounds four, five and eight in the Circuit Court concerned the weight which the Tribunal gave to certain evidence. The Circuit Court judge rejected those grounds essentially on the basis of the general principle that it was a matter for the Tribunal to determine the weight to be given to certain aspects of the applicant's evidence. That is correct as a general proposition. It is, however, fair to say that the Circuit Court judge's reasons in relation to those grounds do not really link that general principle to any particular arguments advanced on the applicant's behalf. It does not necessarily follow, however, that the Circuit Court judge did not address or engage with those grounds. 102 The difficulty for the applicant again is that it is unclear exactly what, if any, submissions he made in relation to these grounds. He did not tender any written submissions he relied on in the Circuit Court. Nor did he tender the transcript of the proceedings in the Circuit Court. If the applicant did not advance any, or any detailed or specific, submissions concerning these grounds, it cannot be concluded that the Circuit Court judge's reasons concerning them were inadequate, at least to the point where it could be said that there was a constructive failure to exercise jurisdiction. 103 Finally, it should be noted that, in his submissions in support of this application, the applicant raised a number of issues or arguments which did not appear to have been encompassed by any of his review grounds in the Circuit Court. Nor was it at all apparent that those arguments were advanced before the Circuit Court judge. Those apparently new issues or arguments included the argument that the Tribunal's conduct of the review, or its decision, was legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. For the reasons already given, it was not open to the applicant to contend that the Circuit Court judge constructively failed to exercise jurisdiction because he did not consider or engage with grounds or arguments that that were never properly raised in the Circuit Court proceedings. 104 In all the circumstances, there is no basis upon which to conclude that the Circuit Court judge erred in the way that he dealt with the grounds and arguments relied on by the applicant in support of his application for an extension of time.

CONCLUSION AND DISPOSITION 105 The applicant has failed to demonstrate that the Circuit Court judge made a jurisdictional error, or failed to validly exercise jurisdiction in respect of the applicant's application for an extension of time in the Circuit Court. His application must accordingly be dismissed with costs. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

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