MZZLM v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to seek leave to appeal from a judgment of the Federal Circuit Court given on 14 October 2013 dismissing, with costs, an application for judicial review of a decision of the Refugee Review Tribunal dated 30 April 2013. The Tribunal had affirmed a decision of a delegate of the Minister dated 29 October 2012 not to grant the applicant a Protection Class XA Visa. 2 The applicant needs leave to appeal the decision of the Federal Circuit Court because the decision was an interlocutory decision within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). That section provides that an appeal shall not be brought from a judgment that is a interlocutory judgment unless the court or a judge gives leave to appeal. The proceeding in the Federal Circuit Court had been for an order to show cause under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(1)(a) permitted the Federal Circuit Court to dismiss the application if it was not satisfied that the application raised an arguable case for the relief claimed. A decision under that rule is interlocutory and, for the avoidance of doubt, r 44.12(2) provides that a dismissal of a proceeding under paragraph (1)(a) is interlocutory. In SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 French J (as the Chief Justice then was) said at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained. Allsop J (as the Chief Justice then was) said at [68]: In support of the submission that the order for dismissal of the proceeding based on incompetency was interlocutory, the Minister relied on the authorities collected by Lindgren J in SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6]. Not all these cases concerned questions of a found lack of jurisdiction. Some certainly did: see in particular the Full Court in Minogue v Williams (2000) 60 ALD 366 at [18]; and Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695. However, as Merkel J said in Fifita (his Honour reserving the question for an occasion with a proper contradictor) there is some tension between Minogue v Williams 60 ALD 366 and the view of the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of the Ship 'Zoya Kosmodemyanskaya' (1997) 79 FCR 71 at 80, an authority to which the Full Court in Minogue v Williams was not referred. No real debate took place on this issue before this Court in either proceeding. I have had the advantage of reading in draft what French J has said on this issue in his reasons. His Honour's reasons, if I may say so, clearly illuminate some of the difficulties in this area. For the reasons given by French J, I am prepared to accede to the proposition that the order in this case was interlocutory. Tracey J said at [114]: I agree with the orders proposed by French J. I do so for the reasons given by his Honour. In particular, I agree that the decisions of the Federal Magistrates Court which it is sought to challenge were interlocutory in character … The reason that such decisions are interlocutory lies in the fact that they do not decide the underlying issues and disputes between the parties even though the effect of the decision is to end the proceedings between them. 3 The applicant also needs an extension of time within which to seek leave to appeal because the application for leave to appeal was made 47 days late. Rule 35.14(3) provides that an application for an extension of time must be accompanied by: (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01(1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. In Mehmood v Attorney-General of the Commonwealth [2013] FCA 406 Foster J considered the principles to be applied when considering an application for an extension of time under r 35.14. At [5]-[6] his Honour said: 5 In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]-[30] I said: The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)). The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed). It would be a proper exercise of the Court's discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. 6 The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules. An application for leave to appeal is required to be filed and served within 14 days after the day on which the judgment is pronounced: Federal Court Rules 2011 (Cth) r 35.13(a). Her Honour Judge Riley delivered judgment on 14 October 2013 and the 14 day period for an appeal expired on 28 October 2013. The application for an extension of time was filed with a delay of 47 days on 18 December 2013. 4 In determining whether or not to extend time it is relevant to consider the length of the delay, the explanation for the delay, any prejudice to the other parties, and the merits of the proposed appeal: SZSPR v Minister for Immigration and Border Protection and Another [2013] FCA 1210 at [16]; BZACZ v Minister for Immigration and Border Protection and Another [2013] FCA 1230 at [23]. In this case the delay was of 47 days but the Minister accepts that the applicant's explanation was reasonable. The applicant's affidavit accompanying his applications to this court explained: that he is an asylum seeker who arrived in Australia by boat; that he had been detained and then released into the community on a bridging visa; that he has limited knowledge of the English language and limited knowledge of Australian laws and customs; that he lives in a remote area in Queensland and was struggling to access community support and immigration services; that he does not have access to legal aid; that there is no legal aid assistance for refugee judicial review cases in Queensland; and that such assistance as he has been able to obtain has come from interstate organisations which has involved delays despite his efforts. 5 The significant question in this application for extension of time is, however, whether the application has any merit. A consideration of the merits of the case is relevant both to whether to grant an extension of time as well as whether leave to appeal should be granted. In Gallo v Dawson (1990) 64 ALJR 458 McHugh J said that in an application for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal. His Honour explained that the reason for that lay in the purpose of the rule being to ensure that rules which fix times for doing acts do not become instruments of injustice. At [2] his Honour said: The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. His Honour's decision was approved on appeal to the Full Court of the High Court: Gallo v Dawson (No 2) (1992) 66 ALJR 859; see also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [35]-[39]. In DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court adopted the observations in Niemann v Electronic Industries Ltd [1978] VR 431 of the considerations as "an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision was sought" to include: (1) whether in all the circumstances the decision [was] attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused supposing the decision to be wrong. The test thus expressed is cumulative and not satisfied unless each is established: Mawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36 at [5]; See also Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908 at 910. It is therefore necessary to ask whether there is sufficient doubt about the decision of the Federal Circuit Court to warrant an extension of time in which leave to appeal could be sought and whether a refusal would give rise to substantial injustice. 6 The materials before the court do not warrant a conclusion of sufficiency of doubt to grant leave to appeal or to grant the extension of time within which to bring the application for leave to appeal. It is, of course, the applicant who bears the onus of persuading the court (see Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56]) and in this context the applicant must identify in the notice of appeal a substantive ground to be pursued on appeal: See SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [9]. The applicant does not identify a substantive ground to be pursued on appeal with any prospect of success. The grounds of appeal in the application for extension of time and for leave to appeal was stated as: 1 I did not have legal representation at the hearing. 2 I was given short notice to find a lawyer and did not at the time know the details of what was in my refugee review tribunal decision because it was in English and Tamil is my first language and living in rural Queensland I was unable to get someone to assist me to explain the document or the laws before the hearing. The same grounds were stated orally by the applicant, through an interpreter, at the hearing of his applications to this Court. Neither of these grounds, however, identify error in the decision of the Federal Circuit Court. The proposed grounds of appeal in the draft notice of appeal similarly failed to identify error in the decision. The proposed grounds of appeal are: (i) That there is a jurisdictional error in the Federal Circuit Court's decision. (ii) The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations was neither logical nor rational. (iii) Further grounds of appeal were provided once I have legal representation and the review of the written reasons for the decision has been completed. None of these proposed grounds can be regarded as identifying any error committed by the learned Federal Circuit Judge in the sense of setting out a substantive ground that could be pursued properly on appeal: See SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [9]. The claim that there is jurisdictional error in the decision is an assertion of error but does not identify what the error is said to be or how the error is a jurisdictional error. The claim that further grounds will be provided once legal representation has been obtained does not demonstrate an existing error. Describing the reasons of the Tribunal which were not found to be in error by the learned Federal Circuit Judge as "neither logical nor rational" may express the applicant's disagreement with her Honour's conclusion but does not identify an error or show any lack of logic or any irrationality. 7 The applicant filed submissions on 16 May 2014 in support of his applications but those submissions also failed to identify a substantial error in the decision of the learned Judge. The relevant part of the submissions are not lengthy and stated: I submit that it appears that there [was] an over reliance on the country report to the exclusion of more important background reports. There appears to be jurisdictional errors and lack of procedural fairness. The Tribunal in finding that there was an inconsistency in the applicant's evidence led to some errors. In a critical analysis of the facts there appears to be no inconsistency. The applicant was in hiding for fear of persecution and only came out when assured by the TNA that it was safe to come out. These two scenarios are not necessarily inconsistent and it therefore amounted to jurisdictional error for the Tribunal to have relied on such an alleged inconsistency in rejecting the applicant's claim. He pasted posters under the cover of darkness, met his wife, who frequented the church where he was hiding and married her in the home of the Registrar with only two witnesses present also after dark while in hiding […]. The Tribunal failed to properly consider factual material which was potentially corroborative of material issues and thereby committed a jurisdictional error. Specifically, the Tribunal failed to undertake a proper examination of the authenticity of the applicant's purported membership of the TNA as evidenced by the letter from the MP in Batticaloa. Minister for Immigration and Citizenship v SZGR [2011] HCA 1 2 February 2011. There appears to have been procedural fairness issues as the adverse findings relating to this letter was not put to the applicant. Minister for Immigration and Multicultural Affairs; ex parte MIAH [2001] HCA 22; 206 CLR 57; 179 ALR 238; 75 ALJR 889 (3 May 2001). The Tribunal committed jurisdictional error by placing no weight on documents provided by the applicant and the delegate in circumstances where it could not be said that the applicant's credibility had been so weakened as to be beyond redemption by corroborative evidence. The Tribunal's findings that the applicant will not experience serious harm as defined in the Migration Act upon return to Sri Lanka while conceding that there is the likelihood of detention and other activities meant it has in whole or in part misunderstood or misconstrued [SRC] of the applicant's claim, including a factual claim. The submissions then referred to cases and provided some factual information about the applicant and the asylum seeker profile. However, the submissions do not demonstrate any reviewable error but, rather, understandable complaints by the applicant that the facts found were contrary to his claims. The repetition of facts and arguments by a disappointed litigant which were not accepted or rejected by a decision maker does not establish reviewable error. It was for the Tribunal to find the facts on the material available and to give such weight as it thought appropriate. The Tribunal's findings may be contrary to those urged upon the Tribunal by the applicant but the rejection of his claims does not make the Tribunal's decision wrong. In that context the Tribunal was entitled to evaluate the credibility of the evidence presented and the credit of those giving evidence. The applicant did not show any reviewable error in the decision of the Tribunal. He was, understandably, dissatisfied that his evidence was not fully accepted, and was in part rejected, and that he was not successful in obtaining the visa, but the appellate jurisdiction of the Court depends upon correcting error and is not a review of the merits. 8 The proceeding before the Federal Circuit Court was decided on the basis that the application to that court failed to raise an arguable case for the relief claimed. Her Honour had set out the facts relevant to the Tribunal's decision and identified, in paragraph 14, that "the only ground mentioned in the application [was] an unparticularised assertion of legal error". In that context her Honour observed that she was unable to identify any legal error in the Tribunal's decision, and none has been shown in this proceeding. Her Honour summarised the applicant's claims and set out the Tribunal's findings in relation to those claims. Specifically her Honour said: 8. The Tribunal accepted that the applicant was a Sri Lankan citizen and a Tamil. The Tribunal, relying on country information which it cited, did not accept that, as a Tamil from the north-east or a young Tamil male from a formerly LTTE-controlled area, the applicant faced a real risk of persecution. 9. The Tribunal did not accept that the applicant had any particular profile that would lead to him attracting adverse attention from the Sri Lankan authorities. The Tribunal did not accept that the applicant had been a member or supporter of the TNA. 10. The Tribunal considered that the applicant's evidence in relation to the TNA claim was vacillating and lacked relevant detail. The applicant's claims in relations to the TNA were made late in the piece. The Tribunal gave no weight to the letter provided by the Member of Parliament. Consequently, the Tribunal did not accept that the CID had any interest in the applicant and did not accept that the CID had gone to his house looking for him. 11. The Tribunal did not accept that the family of the applicant's friend who had been killed sought revenge against him. The Tribunal noted certain discrepancies in the applicant's evidence. The Tribunal noted that the applicant had not explained why he would be held responsible for his friend's death. Additionally, the Tribunal noted that the applicant did not claim to have experienced any harm when he returned to Sri Lanka from Dubai in 2009 and before he departed for Australia in 2012. The Tribunal rejected the applicant's explanation for that, being that he was in hiding, because that was inconsistent with his claim to have publicly campaigned for the TNA and his claim to have met and married his wife. 12. The Tribunal did accept that the applicant was a member of a particular social group consisting of failed asylum seekers. The Tribunal accepted that he had departed Sri Lanka illegally and would be subject to scrutiny if he were to return. However, the Tribunal did not accept if the applicant were questioned, subject to surveillance or held briefly in detention, that these things would amount to serious or significant harm. Relying on UNHCR guidelines, the Tribunal did not accept that the applicant would be treated differentially because of his Tamil ethnicity if he were to return to Sri Lanka. 13. The Tribunal did not accept that the applicant faced serious or significant harm under either the general refugee provisions or the complementary protection provisions. The Tribunal consequently rejected the applicant's application. Her Honour then concluded that there was no error in the Tribunal's reasons. The applicant has not shown her Honour to be incorrect in her reasons and findings or in her Honour's acceptance of the reasons and findings of the Tribunal. 9 The Tribunal had not been satisfied that the applicant had met the refugee or complementary protection criteria for the grant of a protection visa and, therefore, affirmed the decision of the Minister's delegate. The Tribunal did not accept that the applicant had a well-founded fear of persecution for a convention reason on his return to Sri Lanka now or in the reasonably foreseeable future, nor that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to a receiving country, there would be a real risk of him suffering significant harm. Specifically the findings and reasons of the Tribunal were expressed as follows: 51 On the basis of the applicant's passport I accept that the applicant is a national of Sri Lanka and find that the applicant does not have right to enter and reside in a third country. In respect to complementary protection I find the country of reference to be Sri Lanka. 52 I accept the applicant is a Tamil but I do not accept that simply being a Tamil or a Tamil from the North East, or a young Tamil male from a formerly LTTE controlled area gives rise to a well-founded fear of persecution from the authorities of Sri Lanka. I make this finding on the basis of the country information from UNHCR set out above which indicates that merely coming from a particular region or of a particular ethnicity does not of itself, without a particular additional profile factor, give rise to a well-founded fear of harm on return to Sri Lanka. I do not accept that the applicant has a particular profile that would bring him to adverse attention of the Sri Lankan authorities. 53 I do not accept that the applicant is a supporter of the Tamil National Alliance. I make this finding on the basis that I found the applicant's evidence on this claim to be vacillating and lacking relevant detail. The applicant claimed to be a supporter but when questioned about his support and commitment to the TNA at the hearing the applicant claimed not to be a supporter but rather to have merely handed out leaflets for two days at election time. He claimed he did this because he had just returned from Dubai and was in need of work. When pressed if this meant if he was paid the applicant stated that he hand out leaflets in return for food. In light of this evidence I do not place weight on the letter provided by the MP in Batticaloa that the applicant is a supporter of the TNA. 54 As I do not that the applicant had any involvement with the TNA I do not accept that the authorities in Sri Lanka have an adverse interest in him because of a claimed association with the TNA. I do not accept that since the applicant's arrival in Australia the CID has gone to the applicant's family home looking for the applicant and asking questions about the applicant and his involvement in the TNA. 55 I do not accept that there are persons seeking revenge on the applicant by reason of the death of a member of their family that occurred during fighting and when the applicant was in Dubai. I make this finding for several reasons. The applicant has not explained why he would be held responsible for this death. The applicant returned from Dubai to Sri Lanka in 2009 and departed for Australia in 2012. He did not recount any events of attempted harm against him during this period of time. When it was put to the applicant at the hearing that nothing untoward had happened to [him] prior to his departure to Australia the applicant claimed that nothing happened as he was in hiding. As discussed with the applicant at the hearing it is difficult to reconcile that he was both hiding and campaigning publicly for the TNA and meeting his future wife and marrying. 56 I accepted that the applicant will return to Sri Lanka as a member of a particular social group - failed asylum seekers. I also accept that the applicant that departed Sri Lanka illegally traveling on a boat from Sri Lanka to Australia. I accept that having departed from Sri Lanka in this manner means that on return to Sri Lanka he will come under scrutiny from the Sri Lankan authorities. 57 I do not accept that questioning of the applicant, surveillance or a brief detention of the applicant by the Sri Lankan authorities for reason of the applicant's illegal departure from Sri Lanka amounts to either serious harm in respect to the Refugees Convention or significant harm as required by the complementary protection legislation. On the basis of the UNHCR report set out above I do not accept that because of his Tamil ethnicity the applicant will be treated more harshly than other applicants who have departed Sri Lanka illegally and sought asylum overseas. The findings by the Tribunal are not as the applicant had urged but they are neither irrational nor illogical: the Tribunal explained its reasons and reached its conclusion upon the relevant material which was available to the Tribunal. 10 At the commencement of the hearing the applicant sought to tender new evidence which had not been before the Tribunal or the Federal Circuit Court. The new evidence was a letter from the Bishop of Trincomalee which the applicant contended supported his case. The Minister opposed the admission of the letter as being irrelevant to the application for an extension of time or for leave to appeal since the letter did not bear upon whether the decision of the Federal Circuit Court, or the Tribunal, was erroneous on the material then available. 11 In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 the Full Court considered the relevant principles for the admission of fresh evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) and said at [7]: [U]nless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal. In M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 Crennan J said at [29]-[30]: 29 […] I permitted the affidavit to be read during the course of the hearing subject to my ruling on [the respondent's] objection later. Had this been an ordinary appeal, I may well have been satisfied of the usual requirements for the reception of fresh evidence on appeal because the evidence was not available at the time of the Tribunal hearing and, had it been available, there was a firm chance it may have affected the result: see also NASB at [29]. 30 However, this is not an ordinary appeal. The applicant cannot make any further application to the Tribunal which would give the Tribunal a chance to assess the evidence. Nor do I have any power to remit the matter for a further hearing which would enable the fresh evidence in the supplementary affidavit of the applicant to be assessed: see Thayananthan: see also SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761 at [21]. I am also conscious that adjourning the appeal to seek to resolve issues raised by the "fresh evidence", if I thought I had power to do so, may be entirely inconclusive: see WAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 159. However, of greatest significance in this context is the fact that the applicant's rights to seek further relief are limited to jurisdictional error: see Part 8, Divisions 1 and 2 of the Act. In my opinion, this evidence is irrelevant to any of the grounds alleging jurisdictional error as particularised in respect of the writs sought and irrelevant to the application for leave to proceed out of time. Consistent with authority binding on me, fresh factual issues cannot be raised on an application limited to jurisdictional error unless they bear on some jurisdictional error alleged: See NASB. In any event, no arguable case of jurisdictional error has been made out. Her Honour's decision was approved by the Full Court on appeal in [2004] FCAFC 293 at [10]-[11]; see also SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [24]-[28]. 12 The letter from the Bishop may conceivably be relevant to whether the Minister should determine under s 48B of the Migration Act 1958 (Cth) that s 48A does not apply to the applicant (and the applicant, or those who may be advising the applicant, may wish to consider whether to ask the Minister to make a determination under s 48B), but the letter does not show jurisdictional error in the decision of the Federal Circuit Court. Nor does it show error on the part of the Tribunal. It is conceivable that the Tribunal might have reached a different conclusion if it had had the letter but not that its relevance and weight would make it likely that a different result would have been reached and, in any event, the letter does not establish error in the Tribunal's decision nor in the decision of the Federal Circuit Court. 13 Accordingly, the decision of the Federal Circuit Court has not been shown to be attended with sufficient doubt to justify the grant of leave to appeal or to grant an extension of time and, in those circumstances, the application for extension of time shall be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.