Case: WAAD v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 399
Outcome: considered
In WAAD v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 399 , at [7] the Full Court gave a reminder that the purpose for which the discretion to extend time is conferred is to do justice between the parties observing of an example where the delay was short and no injustice would be occasioned to a respondent that justice would usually be done if the extension of time were granted. 15 There could be no shorter delay than that presented in this case. No prejudice to the Minister was asserted. In such circumstances the question of the applicant's prospects of success in the proposed appeal has a determinative quality in relation to the exercise of the discretion to extend time. 16 Only one ground of appeal is specified in that draft notice of appeal. That is that the learned Federal Magistrate erred in failing to find the following alleged jurisdictional error: "I have been a Falun Gong practitioner since 1999. I persecuted by the Chinese authorities. I presented the documents: "Labour Reform Relief Assessment Form" and "[Named] People's Hospital Diagnosis" issued by the official authorities were not accepted by the Tribunal. I think the Tribunal has bias against me. The Tribunal didn't take my claims into account. The Tribunal fell into jurisdictional error." [sic, omitting name of particular hospital] 17 The way in which the Applicant has formulated his ground of challenge reflects his lack of legal training. That does not mean that it fails to state a ground of challenge known to law. The Minister apprehended that the essence of the desired appeal was that the Federal Magistrates Court had erred in failing to set aside the Tribunal's decision on the basis that a reasonable apprehension of bias on the part of the Tribunal had been shown. This seems to me to be a fair way to approach the matter, especially having regard to the ground of review particularised in the amended application lodged in the Federal Magistrates Court. 18 In the amended application to the Federal Magistrates Court the apprehended bias ground was pleaded in this way: "1. The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias. PARTICULARS (a) The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision. (b) The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include: 1. The finding that the applicant has learned a few basic facts about the movement (that being Falun Gong). 2. The finding that the applicant had no apparent knowledge or understanding of the philosophy of Falun Gong. 3. The finding that the applicant had no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners. 4. The applicant had no apparent understanding of the key concept of "truthfulness, benevolence and forbearance". 5. The finding that the applicant had ample opportunity at the hearing to demonstrate his knowledge and/or understanding of Falun Gong. 6. The applicant's discussion of Falun Gong was trite and shallow. 7. The finding that the applicant's account shows that he had given seemingly low priority to Falun Gong in Australia. 8. The finding that the Applicant had changed his evidence in relation to why he had stopped exercising in a park. 9. The finding that the applicant's claim to have participated rather than just observed a singing performance in support of withdrawing from the Communist Party had evolved in response to the Tribunal's questions. 10. The finding that there was a change in evidence in relation to the applicant's contact with Falun Gong practitioners in Australia. 11. The finding that the information contained in the purportedly corroborative documents of the applicants claim as to having been sent to labour reform for detention for one year and suffered injury whilst detained are not genuine and that the Tribunal gives no weight to the documents. 12. The finding that the applicant's failure to advise the Department of the purportedly corroborative documents and the conclusion that the applicant did not hold the documents in October 2006 and that he concocted this claim as to having held the documents at that time. 13. The findings in relation to the document from the [the particular named] People's Hospital to the effect that as the document does not show how the injury came about it went against the claim that he was injured in the way he described. 14. The findings in relation to the applicant's differing statements as to his recollection of one of the names of the policeman who had struck him in May 2002. 15. The findings that the explanation by the applicant as to what happened to the persons who were detained and assaulted with him in May 2002 changed during the hearing thus suggesting that the applicant was fabricating claims and details as he gave evidence at the hearing. 16. The findings in relation to the two day difference appearing in the Labour Reform Relief Assessment Form and the finding that the applicant had dissembled in relation to the date of his detention. 17. The finding that the Tribunal's conclusions were reinforced by the applicant's arrangements to depart China. 18. The finding that there was a difference in the claims made in relation to how the applicant obtained his passport, such that it supported a finding that the applicant was fabricating claims and details as he gave evidence at the hearing. 19. The reliance on the passport being stated as having been issued on 21 January 2005, when the applicants claim was that the passport had been illegally obtained and the Tribunal elsewhere in the Decision accepted the prevalence of the irregular or improper issue of documentation. 20. The rejection of any need to consider whether the applicant or his wife had to get the assistance of a "connection" to get his passport on the basis that the Tribunal did not accept that the applicant was a Falun Gong practitioner known to the authorities. Yet the Tribunal relied on the applicants travel arrangements to find reinforcement for its conclusions concerning his Falun Gong practice. 21. The finding that the Tribunal did not accept that the applicant has had any association with the Falun Gong movement in Australia or has practised Falun Gong in Australia despite, and the failure to have regard to the evidence from the applicant's migration agent that she only represents applicants who claimed to have been Falun Gong practitioners on referral from known Falun Gong practitioners in Australia." (Emphasis by italics in original)