SZSYR v Minister for Immigration and Border Protection

Application for EXTENSION of time 7 The principles relevant to the exercise of the power of the Court to extend time are: whether the applicant has provided an acceptable explanation for the delay in lodging the application; whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and the merits of the substantive application. The grant of extension of time is not automatic, and the object of the power to extend time in the Federal Court Rules 2011 (Cth) is to ensure that rules which fix time for doing acts such as lodging notices of appeal do not become instruments of injustice. See: SZQBT v The Minister for Immigration and Citizenship [2011] FCA 1281 at [15] per Collier J and SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [13]-[15] per Flick J. 8 The Minister accepts that the period of four days is not a long delay and therefore there is no prejudice to the Minister if the extension were to be granted. It is therefore necessary to consider the prospects of success of the substantive application. 9 The draft notice of appeal states a single ground of appeal: "The Court did not follow law in my case". There are no particulars of this ground. At the hearing, the applicant elaborated on the ground. 10 First, the applicant noted the recent election in Bangladesh and information he has received about violence between supporters of the two main parties involving jeopardy to those caught in the cross fire and jeopardy to the political leadership. The Minister correctly submits that this argument invites the Court to impermissible merits review and that events after the Tribunal's decision cannot give rise to a ground of appeal in the context of judicial review. She also correctly noted that at [13] of the Tribunal's decision record the Tribunal recognised that the applicant might well have been owed protection because of the political situation in Bangladesh if his claimed political activity in the past was true. However, the Tribunal found the applicant "thoroughly lacking in credibility" and believed his claims were "almost entirely invented." 11 Second, the applicant said that the Tribunal and the Federal Circuit Court "failed to consider" his claims. When asked to explain this, he reiterated his factual claims for protection and complained that the Tribunal had not accepted letters from BNP leadership in Australia, Japan and Bangladesh and other documents which he had supplied to the Tribunal. He said that if the Tribunal looked deeper into his situation they would understand and accept his claims. 12 The Minister submitted that these are complaints about factual and credibility findings. On a fair reading of the Tribunal's decision record, the Tribunal's reasons for not accepting the applicant's claims were open to it and not illogical or irrational and therefore no legal error is revealed. This reflects the reasoning of the primary judge at [20]-[27] and [32]-[33] of his reasons and I find no error in the primary judge's consideration of this issue and his finding that this ground is not made out. Further, at [28]-[31] of his reasons, the primary judge considers whether the Tribunal had any greater obligation to conduct investigation of the applicant's claims than it undertook and rejects this contention. I see no error in the primary judge's consideration of this issue and conclusion that the Tribunal did not have any obligation to conduct further investigation of the applicant's claims. 13 I find that the ground of appeal set out in the notice of appeal has no reasonable prospect of success for the reasons set out above. I dismiss the application for extension of time essentially for the reasons set out in the Minister's written submissions which I have marked for identification as MFI 1. I note that the Minister's written submissions contain a detailed consideration of the Tribunal's decision record, the primary judge's reasons and relevant case law. 14 I order that the applicant pay the Minister's costs in the lump sum of $1,756. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.