FEDERAL COURT OF AUSTRALIA DDB16 v Minister for Home Affairs [2019] FCA 880 File number: WAD 616 of 2018 Judge: MCKERRACHER J Date of judgment: 6 June 2019 Date of publication of reasons: 11 June 2019 Catchwords: MIGRATION – application under s 39B of the Judiciary Act 1903 (Cth) – judicial review of a decision of the Federal Circuit Court of Australia refusing to extend time under s 477(2) of the Migration Act 1958 (Cth) – whether the primary judge erred in refusing an extension of time – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 477(2) Cases cited: CEV15 v the Minister for Immigration and Border Protection [2017] FCA 976 MZABP v the Minister for Immigration and Border Protection (2015) 242 FCR 585 Date of hearing: 5 and 6 June 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person (with the assistance of an interpreter) Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs Counsel for the Third Respondent: The Third Respondent did not appear ORDERS WAD 616 of 2018 BETWEEN: DDB16 Applicant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 6 JUNE 2019 THE COURT ORDERS THAT: 1. The application for judicial review be dismissed. 2. The applicant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REVISED FROM THE TRANSCRIPT MCKERRACHER J: 1 The applicant applies under s 39B of the Judiciary Act 1903 (Cth) for a writ of certiorari quashing the decision of a judge of the Federal Circuit Court of Australia made on 26 November 2018. The applicant had originally proceeded by way of appeal but was informed by the West Australian Registry that that form of relief was unavailable to him: see s 476A(3)(a) of the Migration Act 1958 (Cth). 2 The Federal Circuit Court refused to grant the applicant an extension of time to lodge an application for judicial review of the decision of the Administrative Appeals Tribunal. The decision of the Tribunal was made in September 2016. The applicant claimed that the delay was caused by a failure to be notified of the Tribunal decision by his previous lawyers. He further claimed that the decision of the Federal Circuit Court was unreasonable, having regard to the Minister's consent to an extension of time, the delays in notifying the applicant of the Tribunal's decision and the failure to provide written reasons. 3 This matter was listed for a first case management hearing on 6 February 2019 and orders programming the matter to hearing were made. The applicant has filed no written submissions but has made oral submissions before the Court. The application was first listed before me on 5 June 2019 for the substantive hearing but, in the absence of an interpreter, the application was adjourned until 6 June 2019 so that an interpreter could be present to assist the applicant. 4 The applicant's originating application is supported by an affidavit in which he says that the Federal Circuit Court was in error in finding that he was required to seek an extension of time. He said: … 7. I was not notified of the AAT decision until around 20 September 2016 by my previous lawyer AUM Lawyers. I do not know when my lawyer received the notice from the AAT but the notification letter was dated 12 September 2016. 8. If I was required to seek an extension, the Federal Circuit Court erred in not granting an extension of time because at the hearing on 26 November 2018, the first respondent agreed to extend the time required for my application. 9. The Federal Circuit Court did not properly consider my case and did not give written reasons as to why my application was unsuccessful. 10. The Federal Circuit Court's refusal to grant an extension of time was unreasonable having regard to the first respondent's consent, the delays of notifying the decision by the AAT, the delays from my previous lawyers of notifying the AAT decision to me. 5 The Minister has served on the applicant an affidavit, sworn 3 May 2019, containing the Federal Circuit Court's reasons for decision, as well as the Minister's submissions in relation to this matter. BACKGROUND 6 The applicant has been in this country since March 2013, when he arrived at Darwin as an unlawful non-citizen. He is a citizen of Vietnam. In June 2014, he applied for a protection (class XA) visa claiming to be at risk of persecution if he returned to Vietnam on the basis of his Catholic religion and because he had come to the adverse attention of the Vietnamese authorities after throwing rocks at government loudspeakers which were interrupting a church service that he was attending. 7 The delegate of the Minister refused to grant a protection (class XA) visa. The applicant lodged an application with the former Refugee Review Tribunal, seeking review of the delegate's decision. The applicant's representative provided a submission to that Tribunal in support of the applicant's claims. On 10 June 2016, the applicant attended a hearing and was accompanied by an interpreter. His representative also attended that hearing by telephone. Further written submissions and documents were provided to the Tribunal after the hearing in July 2016 on behalf of the applicant. The applicant then attended yet a further hearing of the Tribunal in August 2016 and again this was with the assistance of an interpreter and his representative. 8 On 9 September 2016, the Tribunal set aside the delegate's decision to refuse to grant the applicant a protection (class XA) visa, but substituted a decision to refuse to grant the applicant a protection (class XD) visa. This minor adjustment to the visa category was of no assistance to the applicant, who had still failed in his application for a protection visa. The decision of the Tribunal is quite detailed. It set out the claims as they were advanced by the applicant in support of his application (at [22]): The applicant's statutory declaration commences by stating that it is only a summary of his claims for protection and 'not an exhaustive statement of the reason or reasons' that he cannot return to Vietnam. It continues that at his entry interview he was asked to provide his claims in a brief form and all of his claims were not disclosed at that stage. Also, he had not been told what was relevant and what he was required to disclose to the Department for the purpose of the assessment of his claims. The rest of the statement is reproduced below: My citizenship is Vietnamese and my religion is Catholic. I am married and I have one child. My wife and child are currently in Vietnam together with my siblings. My parents passed away due to natural causes. I used to be married prior to my current marriage but we separated. There were no children of this marriage. I finished my high school the worked as a waiter in Ho Chi Minh City for a year. I then opened a coffee shop until 2011 then started trading vegetables. I fear returning to Vietnam as I believe my life will be in danger. Why I left my country. I have been going to church my whole life. The government in Vietnam persecutes the Catholics, as it is a communist government. The Vietnamese government try to stop the Catholics from practising our religion. The Vietnamese government installed two big speakers and placed them right outside our local church. The local government would increase the volume of the speakers once we start praying at church. This would make it very difficult for us to pray. The priests in our church tried to talk to the authorities but they did not succeed. On 25 February 2013 we had a mass in the church in the morning. The government started playing the speakers really loud and we could not continue the mass. I was very angry at the authorities and I felt that I couldn't practice my church freely. At night around 10pm I went to church together with another 3 members of the church. We got some rocks and started throwing them at the speakers. We managed to break the speakers then we ran off. Around 2 March 2013 I received a summons from the police to attend. I went to the police and they interrogated me. I was detained for one night and they beat me up. The officers were trying to get me to confess that I was the one who threw the rocks at the speakers but I did not say anything. I was released but the officers said that it is not over and that I will be asked to go to the police again. After my release I was very scared, I decided to leave the country because I knew that the police would be after me. On the 13 March and after my departure another summons was received. · What I fear may happen if I go back to my country I fear I will be persecuted, imprisoned and possibly killed. Who I think will harm or mistreat me if I go back The Vietnamese authorities. Why I believe they will harm or mistreat me if I go back I did throw rocks at the government and I was accused of doing it. The government sent summons for my arrest[.] Why I believe that the authorities in my country will not protect me if I go back It is the authorities whom I fear persecution from. Why I believe I will suffer significant harm I was detained and beaten in the local station because I was accused of throwing rocks at the speakers. The authorities said that it is not over and that I will be arrested again. Why I cannot relocate The Vietnamese authorities have a stronghold over the country. They will find me anywhere in Vietnam. 9 It also set out the exchanges which occurred in both the first hearing and the second hearing respectively before the Tribunal in its reasons (at [36]-[64] and [67]-[73]), respectively as follows: Evidence at the first hearing 36. At the hearing the applicant confirmed that before he travelled to Australia he was living in … province. He was born in this village and, although he lived in … for around a decade, he returned … at the end of 2011 or early 2012. His ho khau (household registration) has always been registered in …. The applicant's only child was born on 7 October 2012. Asked if his son had been baptised, he gave evidence that his son was baptised on 28 February 2013 at the … Church. His wife and son are still living in his home village. He is often in contact with his family. Asked if he was at his son's baptism, he said he went away to secretly make a passport so he wasn't there when his son was baptised. 37. The applicant told the Tribunal his wife is currently attending the … church. His wife also teaches children about the Catholic religion. He confirmed he had two sisters and a brother in Vietnam. Asked where his siblings are living, he said his elder brother lives next door to his house in Vietnam. His sister is married and lives elsewhere. Another sister lives in a neighbouring hamlet. His brother also attends the … church. 38. The applicant left Vietnam using a genuine passport in his own name. I noted that there was a bit of confusion: his protection visa application said he never had a passport but he told the delegate he did have a passport and he used it to leave Vietnam. He said when he reached Australia he wanted to throw everything away, so he threw this passport in the ocean. 39. The applicant's wife has told him not to return to Vietnam as he could be put in jail and beaten up. I asked whether his wife was having any problems going to church. The applicant said he told her when she went to church to go with their son and his elder brother was there too even though he really wanted to go and work far away. He told his brother to stay home to look after his wife for their safety. Because in their family both his parents have passed away so he has no one to rely on and his older brother needs to stay home. Asked how often he attended church in Vietnam, he said every day. Asked what about when he was living in Ho Chi Minh, the applicant said three times a week. 40. The applicant was questioned about seven sacraments of the Catholic Church and his involvement in Christian ceremonies. The applicant said he didn't really understand the question. The Tribunal notes that the interpreter appeared to be unfamiliar with the term 'confirmation['] and the Tribunal did not pursue questions about the sacraments or confirmation. The applicant gave evidence that when he was growing up he was one who helped father organise ceremonies, to put on the clothes, get the wine, and get the handkerchief to be ready for the ceremonies. 41. The applicant said his son's baptism was to wash out the sins of the family and prepare for his son to enter into the Catholic religion; to become a Catholic. He told the Tribunal that when he was in Vietnam he attended mass at the … church every morning. He said the mass was similar to the one that is organised on Sunday but happens every day. The applicant said basically he went to church and prayed to God: in life there are some things you can solve and some things you can't and God helps us with these things. 42. I asked if he was going to a church in Australia. He said he is going to church that belongs to the Vietnamese Catholic church in Australia. He wasn't sure of the name of the church but it is on … road and he has been going to this church since he moved to Perth until now. He attends the church twice a week; it is part of the Vietnamese Catholic Group in WA. I asked if there was someone at the church who could corroborate his attendance there. He said yes a lot. I indicated I would give him time to obtain a letter of support from his church. 43. I asked why he decided to leave Vietnam. He was worried he could be arrested, beaten up and put in the prison because he and some of his friends smashed speakers belonging to the hamlet where they lived. Asked whether, other than his fear he might be harmed because he was trouble with the authorities, there any other reasons he was afraid of returning to Vietnam, the applicant said no. Asked when the incident with the speakers occurred, the applicant said it was on the 25th of March 2013. The applicant confirmed this was the correct date. I observed that it can be difficult to remember exact dates and I asked how he remembered that date. He said that it was the date that he attended the morning mass and the village used the loudspeakers to interrupt the church service. Every time there was a church mass the village officials would turn up the loudspeakers made it noisy and disturb people who wanted to attend the church service. 44. I asked whether the incident where he smashed the church loudspeakers happened before or after his son was baptised. He said afterwards, before. I asked whether it was before or after. He said before. I noted he told the Tribunal his son was baptised on 28 February 2013 and he agreed this was correct and he gave evidence the incident with the speakers occurred on 25 February 2013. I noted it sounded like his earlier evidence that it was on 25 March 2013 was a mistake. He agreed it was a mistake; he got mixed up. 45. The applicant described the location of [the] … Church. Asked whether there are other churches in his area, he said yes, there are two more nearby. I asked whether the … church was registered. He said yes, fully everything. I asked the applicant whether he had ever been detained by the Vietnamese authorities. He said not yet. He then said yes, he was detained once. Asked when he was detained he said that he was arrested on 3 March 2013. I asked how he remembered he was arrested on the 3 March 2013 and he said that on that day the village sent him a letter asking him to come and sort out the issue - he smashed the loudspeakers. Asked how he responded, he said he did not admit guilt. Asked how long he was detained for, he said one night. He was released the next morning around 9am. He said he was released because he did not plead guilty; he told them he didn't know who did it and he denied responsibility. 46. The applicant told the Tribunal he and three friends threw rocks at the speakers to break them at around 9pm on 25 February 2013. I asked who his friends were. He said they agreed that no matter what when the village officials arrested them they would not disclose the name of the other people in the incident. I reiterated the remarks I had made at the outset of the hearing: nothing he said to the Tribunal would be disclosed to the Vietnamese authorities. The applicant provided three names and he said one of these people was his brother. I noted he had said that his brother was still in Vietnam. I asked whether his brother had any trouble with the Vietnamese authorities, he said no. Asked about the other two men, he said one was working far away and the other one is still studying. He said both of the men are still in Vietnam 47. I asked if he knew anyone from the … church who was now in Australia. He named one person. I asked why he didn't tell the delegate the names of the other people who threw the rocks at the speakers. He said they had previously agreed that they were never going to disclose the names of people involved in this incident. If the local authorities become aware of this these people will have a hard time. Sooner or later the authorities will arrest us to warn other people not to destroy public property like this. The Vietnamese government doesn't want the Catholics to expand and if the Catholics tell people the truth it is very hard for the government to control the people. 48. I noted he said he had been a practising Catholic all his life. I asked whether, other than issue where he threw the stones at the speakers, had he had any problems with the Vietnamese authorities. The applicant said the local authorities often tried to prevent the community activities and during the mass and important ceremonies in the church the village officials turned up the volume on the loudspeakers and made it very loud. He said the local authorities give them a hard time; at one stage (in around 2010 or 2011) his older brother was involved in an accident and the other party was a relative of the local authorities and his brother was beaten up in the village in front of the officers as well. He said the people were very angry because they felt he was oppressed by the local authorities and some members of the public hit back. I asked the applicant whether he was there and I noted that I didn't think he was living in his village at that time. The applicant said he was home on that day but he didn't participate in the event. He heard the story about the incident from his older brother. He was working doing masonry work on that date. 49. The applicant told the Tribunal he disagreed with the Vietnamese government; he did not think it was a good government. I asked whether, other than this incident, he ever had any problems with the Vietnamese authorities because of his religion or for any other reason. He said yes, when he was in … and when he was running a coffee shop he often had to pay bribes in order to run his business otherwise they would get gang members to disrupt the business. He said that he stopped running the coffee business in the beginning of 2011 after he got married. 50. I referred to the applicant's claims that when he reported to the police he was detained overnight and then released. He said that he was beaten up over night with a thick stick and they put a pillow on his body. He said that they hit him and told him that if they knew who was involved then they would reduce the penalty or if he pled guilty they would consider it. I noted he was never charged in relation to this incident. He said he did not plead guilty so they could not collect any evidence against him. I asked why, given he was released, he still thought he was of interest to the authorities and he needed to leave Vietnam. He said before releasing him they could invite him back anytime and he was not allowed to leave the local area. He said he was not allowed to leave the local area because he was scared so he decided to leave. He said two days after they released him he left the local area and he went to live with his friend in Vinh province. I asked where he went from there. He said he stayed there for about seven to ten days and he flew to Hanoi and then to Ho Chi Minh City and then to Indonesia. I asked whether he considered just leaving his local area and living somewhere else in Vietnam. The applicant said he did think about it but the Vietnamese government could easily locate where he was especially when he was running away like this. He referred to a saying: you're not running away unless you are guilty. 51. I asked why he thought the police were still interested in him after he was released. He said because in Vietnam the way they investigate things is not like other countries: they arrest you and beat you up until you admit to guilt. I noted he was released after he was taken into detention. I asked whether, after he was released, anything else happened that made him think that he might be taken into detention again. The applicant said because at the time when he was angry he just threw the rocks at the loudspeakers but he thought he destroyed the mouth of the government so sooner and later they would get him. After he was beaten up by the authorities he was worried and confused. After releasing him the local authorities said until they can find out who did this they would continue to ask him [questions]. 52. I asked the applicant where he was when he first started making arrangements to travel to Australia. He said at his friend's house in Vinh province. He gave evidence that after he left his family members received another invitation from the authorities and his wife informed him about this letter. I asked whether he was still in Vietnam at this time and he responded that he was but he was in hiding in …. province. When he was in the camp his wife sent the letters to him. We discussed the letters that the applicant had provided to the Department and I noted that they were untranslated. The interpreter provided a translation of the two documents which were from police officials in the applicant's village and addressed to the applicant. The documents invited the applicant to come and speak to them to solve a matter to do with public order. I noted that the dates on the documents are consistent with the details the applicant provided in his written claims. 53. The applicant confirmed that his son was baptised on 28 February 2013. Asked why he was not there, he said that he was worried that the local authority would follow him; if they knew he was at the baptism of his son they would attend so he ran away to arrange his passport. I asked why he did that at that time. He said at that stage the local authorities hadn't charged him so he still had an opportunity to apply for a passport but if he pled guilty or if he was charged he would be arrested and he couldn't apply for a passport and leave Vietnam. I asked why, at that stage, he thought the authorities were interested in him. He said they did tell him that they could invite him at any time to investigate further, that why he ran away to get his passport. I asked why, on the 28 February 2013, he thought he was of interest to the authorities. The applicant responded that they did tell him they could invite him any time to investigate further about the incident and he had already been beaten up. He said he was worried and he tried to arrange a passport to run away. 54. I asked whether he was beaten up before or after his son was baptised. The applicant said before his son was baptised. 1 put to the applicant that he had said on the 25th of February he threw the stones at the speakers and then on the 28th of February his son was baptised and he couldn't attend and then on the 2nd of March he went to the authorities in response to an invitation and they detained him over night and beat him before releasing him. Then he decided he was worried the authorities would arrest him so he went to Vinh city and then on to Hanoi. I put to the applicant that, according to this timeline of events, he was beaten up after his son's baptism but he had just given evidence he was beaten up before his son was baptised. The applicant said on 25th of February 2013 he threw the rock at night time and smashed the speaker and he was beaten up by the village authorities on the 3rd of March and on 2nd March he was invited to go to the authorities' office in the afternoon. He was beaten up at night time. 55. I put to the applicant that he told the Tribunal that his son was baptised on the 28th of February and that he couldn't go to the baptism but, at that stage, according to his own evidence, he hadn't been detained and beaten by the police and he voluntarily went to the police after they invited him to talk to them - it was not clear why he couldn't go to his son's baptism and I was concerned that there were some inconsistencies in his timeline of events. I asked whether there was anything else he wanted to say. The applicant said he mixed up the date. He said the 28 February was the date he went to do the paperwork. Asked if he remembered when his son got baptised, there was a pause. He subsequently said the 25th was the night that he and his friends smashed the loud speaker of the village. He was worried that sooner or later the local authorities would investigate him about this incident so he went to arrange to have his passport on the day his son was baptised just to avoid the eyes of the local authority. He was worried that they were going to investigate him and charge him and when he was charged he would not be able to apply for a passport anymore. He was worried that sooner or later they were going find out he was involved in the incident so he decided to be one step ahead. 56. I put to the applicant that, if he was worried about being caught by the authorities, why did he go to the police when he was invited to report to them. The applicant said he thought that if he hesitated they would know he was a witness and he would voluntarily turn up and pretend he knew nothing. I put to the applicant it was strange that he was so worried about this incident that he felt like he needed to obtain a passport but his brother, who he said was also involved, is still living in his village. The applicant said the issue is his brother never spoke about anything but he often spoke up to protect the Catholic people and organised activities for the Catholic people and the government had undercover police officers. This was why it was more than likely that they picked on him. 57. The applicant confirmed his wife and his brother are still going to … church. I asked if he knew whether, since he left Vietnam, the practitioners of [the] … church, had any problems. He said there was an incident in 2014 when the local authorities arrested two Catholic petitioners in the … area. I commented I had read about some incidents in 2013 but this hadn't stopped his brother and his wife going to the church. He said the police from … province came and Catholic people were beaten up, arrested, and imprisoned and then released a few days later. The police smashed the houses of some Catholic practitioner and his wife was so scared she took their son to her mother's house to stay for a few weeks. He said this was in 2014. I noted I had read about incident involving [the] … church in 2013 and he indicated couldn't remember the date exactly because he was in the detention centre and his mind was confused. 58. I noted I had considered a range of country information about the situation of Catholics in Vietnam including the information in the delegate's decision and the information referred to in the pre-hearing submissions. I noted I had to have regard to a report by DFAT which states that the Catholic Church is registered in Vietnam and there is a large population approximately 6.5 million Catholics. I put to the applicant that, according to DFAT, since 2011 30 Catholics activists have been arrested and that this was a very small percentage of the total number of Catholics. I put to the applicant that essentially DFAT's advice was that so long as one's religious activities is exercised within state sanctioned boundaries and doesn't challenge the interests or the authority of the government religious practice is tolerated and that Catholics that worship in a manner that conforms to government policies and sensitivities are able to do so with a low risk of interference. 59. I put to the applicant that, on one view, he appeared to have been able to practice his faith freely in Vietnam and on one view, it appeared that if he returned to Vietnam, he would be able to attend the … church with his brother and his wife. He said the country information is what the government says but the problem with the Vietnamese government is that they say one thing and do another. I put to the applicant that the Australian Department of Foreign Affairs and Trade based its report on a range of different sources. He said people like him who live in a remote area tend to suffer more and face more severe consequences than people in larger areas. I noted I had read reports about the treatment of Catholics in his local area about demonstrations that were broken up by police where Catholic protesters were injured. I observed that the information available to the Tribunal suggested that the situation had improved somewhat in his area since 2013; almost three years had passed and there were some reports that the Vinh diocese was strong, well organised and very united. 60. The applicant told the Tribunal that their Catholic bishop informed the people about fish dying in the ocean because of pollution but the Vietnamese government television announced that the bishop was lying. I noted that there was country information that Catholics who were perceived as political activists could have problems with the authorities. However, on one view of his evidence, I might have difficulty accepting that he was any kind of activist. Given the country information seems to indicate that Catholics are able to practice their religion freely and openly and the fact that his brother and his wife were currently attending [the] … church, it might not be clear why he would face any harm if he were to go back and practice his Catholic faith. The applicant responded that the reality is different. You are free to attend mass but why do the local authorities turn the volume up really loud to disturb the mass. There is no real freedom. In other countries Christmas is a public holiday, but children have to attend school on Christmas day in Vietnam. I reminded him that I needed to consider whether there was a real chance that he would face serious harm or significant harm because of his religious beliefs. The applicant said the local authority would know he was running away from him; they would know they were involved in that incident. He said if he returned to Vietnam he would have two choices: to go overseas illegally and ask to become a refugee somewhere else or to be involved [he may have meant implicated] in activity to destroy public property in Vietnam. 61. I observed that the applicant left Vietnam legally and that it did not appear he would be charged in relation to illegal departure. I discussed with the applicant country information about the treatment of asylum seekers and returnees and, where relevant, this information and the applicant's responses are set out below in the Assessment of Claims and Evidence. I also put to the applicant information about the consequences of the data breach and l noted that, at the time of the data breach, he had not yet lodged his protection visa application. 62. I referred to a letter that appears on the departmental file from a former Bishop on the Vinh Diocese which refers to the applicant and other asylum seekers from the Vinh Diocese. I asked how his name ended up on this list. The applicant said he is a Catholic follower and he participates very often on charitable activities and he helped in catholic areas when the situation was weak and organised activities for the Catholic people as well and participated in activities were they exchanged music. I noted the letter stated the people listed had their names placed on black lists but the country information available to the [T]ribunal didn't indicate that simply because they were Catholic and sought asylum abroad he would be on a black list. 63. The applicant responded that he participated in activities to improve the Catholic position in Vietnam, youth activities; maybe for that reason the authorities didn't like him. I asked the applicant what activities in particular did he think might have got him in trouble, he said Vietnam operates like a dictatorship, they do not accept other ideas. He encouraged young individual to stand up and if they saw anything wrong with what the authorities are doing to speak up and maybe why they didn't like him. I noted I had read reports in 2013 of Bishops in his diocese encouraging Catholics to evangelise and do charitable works and, on one view of the country information, it didn't seem he would face harm for this reason. He said he did charity like giving Christian gifts to people but the local government didn't like this. 64. I asked the applicant how his situation was different from that of his brother who was living in his village and attending church and who didn't appear to be having any problems. The applicant said the local authorities didn't like they were involved in giving gifts (like warm clothes in cold weather). The authorities thought they were trying to encourage more people to join the Catholic religion and they didn't like it because the more people who become Catholic the harder it is for the government to control them as they listen to the Catholic faith rather than the communist government. I asked the applicant why he would have problems, when his brother did not. He said that his brother is married and does not participate in these events. The applicant said at that time he was recently married and he had money; he contributed financially to charity. … 67. At the resumed hearing the applicant was questioned about his church attendance in Australia and his Catholic faith. He said he started going to this church in around March 2014. As well as attending church regularly, he also goes to the church and helps the church: he cleans up, cuts the grass, vacuums the carpets, and cleans the toilets. Some of the questions that were asked at the first hearing about confirmation and sacraments were repeated with the assistance of a different interpreter and the applicant had no difficulty responding to the questions. 68. The applicant was also questioned further about his claims he threw rocks at government speakers and a result came to the attention of the local authorities. He was asked whether, other than that activity, he had engaged in any other activities that might be seen as being against the Vietnamese authorities. He referred to charitable activities he was involved in when he was younger, which involved collecting second hand clothes and money and giving them to poor people - this happened at Christmas time. These activities were undertaken by a Catholic group but they gave the goods to anyone irrespective of their religion. He gave evidence he lost the connection to this group after he moved back home in 2011. I noted it didn't sound like the authorities stopped him. I asked whether he had ever been in any protests. He responded no, but at the time he was in the group the government didn't like him and paid attention to the group - this was a while ago and it wasn't in his home province. He added that he did give clothes to people in his home town. The government worried they would convert the poor people to be Catholics. 69. When questioned about the date of his son's baptism, the applicant reiterated that this event occurred on the 28 February. I noted that that was what he said at the last hearing as well. I observed it was difficult to remember exact dates and I asked how he remembered the date his son was baptised. The applicant said that day when his son was baptised he was not there and it was the same day that he threw rocks at the speakers. He said that was why he was worried and tried to apply for the passport. I observed we had spoken about this at the last hearing and he had previously said he threw the rocks at the government speakers on the 25 February 2013, three days before his son was baptised and before he reported to the police on 2 March 2013. The applicant said on the evening of the 25th he threw rocks at the speakers and he was scared so he secretly obtained a passport. I noted I thought he just said that he threw the rocks at the speakers on the same day his son was baptised. The applicant replied no, he threw the rock on the 25th. 70. I put to the applicant that the country information available to the Tribunal indicated that it was possible to get fraudulent documentation in Vietnam and, as the documents he had provided were copies, it was not possible to verify their authenticity. I put to the applicant that if I relied upon this country information I might only be able to give the documents little or no weight and I might place greater weight on his oral and written testimony. The applicant responded by saying he had the original documents at home but on 13 July 2016 someone broke into his room in Australia and stole the original documents. Asked why he didn't provide the originals earlier, the applicant said he didn't know because his solicitor advised him to give them copies. I advised the applicant of his right to claim legal professional privilege. He said if the Australian authorities were to check with their home town issued that summons, the authorities in his home town wouldn't say that they did it. I noted that Australian authorities would not make such checks in any event. I observed that the country information indicated that it was possible to obtain genuine documents by fraudulent means. 71. I advised the applicant that I accepted that he was a Catholic and that he told me that he and his brother and his wife attended the … church. I discussed with the applicant country information about the treatment of Catholics in Vinh diocese and where relevant this information is discussed further below in the Assessment of Claims and Evidence. 72. After the hearing was adjourned to enable the applicant to speak privately with his representative, the applicant reiterated that he threw the rocks at the speakers. He said his wife was not related to this activity. He was worried he might be arrested if he returned to his country because he did these activities. His elder brother did the same activities but he had a different personality to his brother. He didn't know why the authorities didn't keep any eye on his brother but they did keep an eye on him. 73. The applicant's representatives submitted that it was open to the Tribunal to accept the documents that the applicant had provided were genuine and he observed that the applicant's claims had been raised early, in his entry interview, and had maintained his claims relatively consistently. The representative submitted that any confusion or discrepancy about the dates could be due to the passage of time and the extended period of time he had been waiting for review. It was submitted that if it was accepted that the applicant was summoned by the authorities as claimed then this would be sufficient to establish the applicant would be at risk of harm particularly as he received the summons after he left the country. The representative noted that the Vietnamese authorities do arbitrarily detain people for having any government views. 10 The application in the Federal Circuit Court was supported by an affidavit. The applicant stated that the ground for his application, if an extension of time were granted, was that: The Tribunal did not consider my evidence for a protection visa. 11 The matter was listed before a judge of the Federal Circuit Court and, after hearing from the parties, the Federal Circuit Court ordered that the application for an extension of time be dismissed with costs. JUDICIAL REVIEW PROCEEDINGS 12 The applicant now brings this application to this Court pursuant to s 39B of the Judiciary Act, seeking certiorari to quash the Federal Circuit Court's decision. The application is supported by a further affidavit. Again, on all occasions, the grounds as advanced for the applicant were to the effect that his claim had not been properly considered. Similar claims were advanced orally before this Court. The delay by the applicant in seeking relief in the Federal Circuit Court was only minimal and if the grounds were arguable it could be expected that an extension of time would have been granted. The real question before the Federal Circuit Court was whether the grounds, as advanced by the applicant, were arguable given that the delay was only of three days. In looking at the substance of the claim that the applicant would have advanced, the Federal Circuit Court was taking the correct approach. 13 The principles regarding the exercise of discretion in s 477(2) of the Migration Act 1958 (Cth) about an extension of time are well recognised. They have recently been summarised by Perry J in CEV15 v the Minister for Immigration and Border Protection [2017] FCA 976 (at [9]-[10]). The factors relevant to the discretion include the length of the delay, whether an acceptable explanation for the delay has been shown, any prejudice to the Minister and, importantly, the merits of the substantive application. When it comes to assessing the merits, regard is required to whether the proposed grounds of review have reasonable prospect of success or are reasonably or sufficiently arguable. There are many authorities for these propositions, including MZABP v the Minister for Immigration and Border Protection (2015) 242 FCR 585 per Mortimer J (at [63]). 14 The primary judge noted that the applicant explained that the delay was due to communications with his lawyer and that the Minister did not oppose the application for an extension of time, nor was it suggested that the explanation was inadequate. The real question was the actual ground of the proposed application. This was in the following terms: 1. The AAT made a jurisdictional error in finding that the applicant did not satisfy s36(2)(a) or 36(2)(aa) of the Migration Act 1958. 15 The ground was quite unparticularised and the Federal Circuit Court judge asked the applicant to further explain a basis for that ground. An exchange occurred on that topic without illuminating the basis of the asserted jurisdictional error, so the Federal Circuit Court judge then referred to the claims made by the applicant both in the Tribunal and in the hearing. However, his Honour concluded that nothing which the applicant had raised had identified an arguable case of relevant error. On the material before the Federal Circuit Court, despite the very limited delay, his Honour was satisfied that in the absence of an arguable case, an extension of time should not be granted. Proceedings in this Court 16 In arguing the matter before this Court, the applicant has stressed that he wants to have refugee status in Australia. He repeated the grounds and evidence that have been asserted in his earlier claims. 17 I asked the applicant to identify what error he pointed to in the judgment of the Federal Circuit Court. The applicant stressed that this case needed to be reconsidered because if he was returned to Vietnam he may go to prison or be tortured. I tried to explain to the applicant that these submissions were, in substance, an application for merits review which was not the function of this Court. Rather, the function of this Court is to examine the asserted error on the part of the Federal Circuit Court. I invited the applicant to identify a specific error by the Federal Circuit Court or the Tribunal, but the applicant simply stressed, again, that if he went back home there was a risk that he would end up in jail. He stressed that I should look at his case individually and not consider the matter generally. 18 In his reply submissions to the oral submissions made by the Minister, the applicant asserted that the Tribunal's decision was wrong because the Tribunal had provided no evidence that he would be safe if he returned to Vietnam. He said that he asked for proof of this from the Tribunal, but they did not have any. Consideration 19 In my view, it is clear that the Tribunal assessed the applicant's claims carefully. The claims were set out in detail, measured against other country information and evaluated against the applicant's own evidence. 20 In light of his generalised complaint, I have set out above at some length the detail of the analysis by the Tribunal. On its assessment of the merits, the Tribunal was entitled and within jurisdiction to reach the conclusion at which it arrived. It follows that I consider that the Federal Circuit Court was correct in concluding that neither the ground of the application nor anything said by the applicant at the hearing in the Federal Circuit Court raised an arguable case of jurisdictional error. CONCLUSION 21 In all those circumstances, the application for review to this Court must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 11 June 2019