AAZ21 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1073
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAZ21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1073
File number(s): MLG 12 of 2021 Judgment of: JUDGE CORBETT Date of judgment: 28 October 2024 Catchwords: MIGRATION – protection visa – application for extension of time to review decision of AAT–whether proper explanation of delay - consideration of the interest of the administration of justice –decision-maker’s duty to make inquiries – procedural fairness – application for extension of time dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 5J(1)(a), 5J(3), 36(2)(a), 36(2)(aa), 477(1), 477(2), 477(2)(b)
Migration Regulations 1994 (Cth), Sch 2, cl 866.221
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2023] FCA 384
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) FCR 475
DQQ17 v Minister for Immigration & Border Protection[2018] FCA 784
GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169
Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39
MZAB v Minister for Immigration and Border Protection [2015] FCA 1392
Pohahau v Minister for Home Affairs [2019] FCA 1243
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
Tu’uta Katoa v Minister for Immigration, Citizenship and Multicultural Affairs [2002] HCA 28: (2022) 276 CLR 579
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZATH v MIBP [2014] FCA 969
WZATH v MIBP [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submission/s: 25 September 2024 Date of hearing: 25 September 2024 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitors for the Respondents: Mr J McDonald, Clayton Utz ORDERS
MLG 12 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAZ21
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
3.The applicant pay the first respondent’s costs of and incidental to the proceeding fixed in the sum of $7,975.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicant seeks an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act) within which to seek judicial review of a decision of the second respondent (Tribunal) made 15 September 2020. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (subclass 866) visa (Visa).
The application for judicial review was filed 77 days after the date prescribed by s 477(1) of the Act.
To obtain an order extending the time within which to file an application, the Court must be satisfied that it is necessary in the interests of the administration of justice to make an order for an extension (s 477(2)(b) of the Act).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing and designated exhibit “R1”.
BACKGROUND
The applicant is a citizen of Malaysia. He arrived in Australia on a Tourist visa on 15 November 2016 (CB 19).
On 20 December 2016, the applicant applied for the Visa (CB 1-38). In his application for the Visa the applicant identified the following reasons for claiming protection (CB 30–2) (reproduced verbatim):
I am leaving the country because the democratic system practiced has runed my country, under leadership Dato Seri Najib Tun Razak summary no longer to get people and have many investors and shut out of them, result of the Malaysia public work that have to be remove d unemployed.
To continue living the most pressing them had to borrow money from financial companies are not licensed.
Among them including me can not paid more debt increased.
Malaysia is among the highest debt with World Bank
More poor countries but increased more corruption
When people speak about the truth. They will be jailed or they will killed by the assassin.
I have decided to escape into Australia because I am sure the Australia government gives hope people like my and many more people Malaysia the other.
When asked at question 91 of the Visa application form whether he experienced harm in Malayasia and to provide the details of the harm his answer was (CB 31) (reproduced verbatim):
“Among them including me can not paid more debt increased.”
On 6 March 2017, the delegate of the Minister notified the applicant of the decision to refuse to grant the Visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 52-70).
On 22 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 71– 7).
On 20 August 2020, the Tribunal invited the applicant to attend a hearing via telephone on 7 September 2020 to give evidence and present arguments (CB 88–100). The invitation also contained a Response to Invitation form for the applicant to complete in order to provide any further evidence intended to be relied upon at the hearing. The applicant completed the form and submitted it to the Tribunal (CB 97-100).
On 27 August 2020, the applicant provided additional documents to the Tribunal. Those documents included a copy passport extract, a debt agreement, pawn agreement and other financial information of the applicant (CB 101–157).
On 7 September 2020, the applicant attended a hearing of the Tribunal assisted by interpreters fluent in the Malay and English languages (CB 158–161).
On 15 September 2020, the Tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the Visa (CB 162–176) (Decision). The Decision was sent to the applicant with a “fact sheet” that included the following paragraph regarding the judicial review process of decisions (CB 178):
“Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision.”
On 5 January 2021, the applicant filed an application for judicial review that incorporated an application for an extension of time pursuant to s 477(2) of the Act (CB 183–7). The application was supported by an affidavit dated 5 January 2021 (CB 189–190). The application was 77 days after the expiry of the time limit under s 477(1) of the Act.
On 15 January 2021, the Minister filed a notice of appearance and a Response to the application. In the Response, the Minister identified that the application was not made to the Court within 35 days of the date of the Decision and that an extension of time under s 477(2) of the Act was required. Furthermore, that the Decision was not affected by jurisdictional error and that the application for judicial review should be dismissed with costs (CB 206-7).
TRIBUNAL DECISION
In the Decision the Tribunal identified the criteria for a Protection visa required by ss 36(2)(a), 36(2)(aa) of the Act and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal also considered the requirements of ss 5H(1)(a) and 5J(1) the Act and the exclusionary considerations in s 5J(3) of the Act (CB 165-6 [8]-[10]).
The Tribunal then considered the claims and evidence of the applicant, particularly the applicant’s application for the Visa and the grounds for protection (CB 166-7 [14]-[22]).
The Tribunal was satisfied from a copy of the applicant’s passport that he was a citizen of Malaysia and that Malaysia was his receiving country. The Tribunal identified that the issues to be determined were whether the applicant had a well-founded fear of being persecuted for one or more of the five reason set out in s 5J(1)(a) of the Act and if not, whether there were any substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country, there is a real risk he will suffer significant harm (CB 167 [16]).
The Tribunal noted the credibility considerations that are available to the Tribunal when assessing the veracity of the applicant’s evidence and assertions (CB 167-8 [18]–[22]).
The Tribunal recorded in the Decision the evidence of the applicant that he had asked for the assistance of a “friend of a friend” to complete his application for the Visa. The applicant was asked by the Tribunal why his claims for protection were identical to those of another Protection visa application that provided the same address as that of the applicant in the Visa application. Under s 424AA of the Act the Tribunal was required to ask the applicant to comment on that information and did so. The applicant indicated that he understood why the information was relevant to the review and indicated that he did not need additional time but wished to comment on the information immediately. The applicant explained that there were seven Malaysians and four Indonesians living at that address and that the person who assisted him in completing the application form was also a resident of the same address. The applicant said that he had talked to this person about “his story” before completing and submitting his application for the Visa (CB 168-9 [24]–[25]).
The applicant then explained to the Tribunal his financial difficulties that had led him to leave Malaysia and enter Australia. The Tribunal accepted the applicant’s explanation and “genuine financial concerns” in Malaysia that led him to enter Australia (CB 169 [26]).
The Tribunal asked the applicant about his family history and received further evidence as to his financial circumstances in Malaysia. The applicant claimed that he entered into a loan agreement for RM 60,000 (approximately AUD 19,860) to enable him to restart his restaurant business that had been damaged from a devastating flood in Malaysia in 2014. He informed the Tribunal that he decided to pawn his wife’s gold jewellery and decided to start a new life in Australia after looking on the internet. He said that since arriving in Australia in November 2016, he had been able to make repayments on his loan and has redeemed his wife’s jewellery (CB 169 [29]).
The Tribunal considered the further documents provided to it by the applicant regarding his loan for RM 60,000 and financial circumstances (CB 170 [31]).
The Tribunal put to the applicant that his claims at the hearing were very different to those in his application for the Visa. The applicant commented that he had directed his friend to complete the application but did not know how much his friend included in the application (CB 170 [33]).
The Tribunal asked the applicant what he fears now, should he return to Malaysia. His response was that he feared he would not make his loan repayments each month leading to the potential consequence of being blacklisted by the financial market which would “upset” his plans to rejoin his wife and children. He expressed to the Tribunal that he has sacrificed a lot by remaining in Australia including missing the birth of his fourth child in Malaysia. There was no mention in the Decision of a fear of physical harm (CB 170 [34]).
The Tribunal then put to the applicant the Malaysia country information that indicated that agencies in Malaysia such as the Malaysian Muslim Consumers Association (PPIM) and the Malaysia Chinese Association (MCA) could assist people who had taken loans with loan sharks. Moreover, MCA can reportedly renegotiate loan repayments and provide payment plans. The Tribunal put to the applicant that such agencies could help him, if necessary, to make arrangements to repay his remaining debt within his financial means. The applicant responded that he was aware of such agencies and commented that he had not had any difficulties making repayments since he had been in Australia but has had to sacrifice contact with his family and being at the birth of his fourth child. The Decision records that the applicant added that if the consumer agencies were not able to help him it might impede his life back in Malaysia, so he would rather repay the debt on his own in Australia and help his family, adding that his intention is to then return to Malaysia once the debt is repaid (CB 170 [35]).
The Tribunal considered the documents submitted by the applicant, the applicant’s financial circumstances that prompted the need to borrow RM 60,000 and the inability to service that loan from the restaurant business. The Tribunal found that the applicant’s written claims did not reflect the applicant’s personal circumstances, and that the applicant did not fear being jailed or killed by an assassin for speaking out against the former Prime Minister of Malaysia (CB 171 [36]). No adverse findings as to the credibility of the applicant were made by the Tribunal.
The Tribunal then referred to the loan documentation and concluded that there was no evidence that the finance company from which he had borrowed the RM 60,000 was associated with unlicensed moneylenders (CB 171 [37]).
The Tribunal accepted that the applicant wished to remain in Australia and that he could earn significantly more in Australia than he could in Malaysia yet found that there was nothing to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in Malaysia. The Tribunal concluded that it did not accept that the applicant faced a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s 5J(1)(a) of the Act (CB 171-2 [41]).
The Tribunal then reasoned that there was nothing to indicate or suggest that the applicant would suffer severe economic hardship that would threaten his capacity to subsist, on his return to Malaysia (CB 199 [43]).
After carefully considered the applicant’s claims individually and collectively and having regard to the relevant country information, the Tribunal did not accept that there was a real chance that if the applicant were to return to Malaysia, now or in the foreseeable future, he would suffer persecution involving serious harm from a finance company and/or their agents, the Malaysia government, its authorities, or anyone else, for one or more of the five reasons under in s 5J(1)(a) of the Act. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act (CB 172-3 [44]-[45])
The Tribunal then applied the “real risk” test to the assessment of a “well-founded fear” and applied that test to the applicant’s circumstances and the relevant country information, (CB 172-3 [47]-[48]).
The Tribunal concluded that any economic hardship the applicant might experience if removed to Malaysia, including feelings of emotional distress and/or humiliation due to his financial circumstances would not amount to significant harm for the purposes of the Act (CB 173 [50]).
GROUNDS OF REVIEW
The applicant’s application for judicial review identified the following grounds of review (CB 183–5) (reproduced verbatim):
The Tribunal filed to consider many vital integer of my case.
The Tribunal to deprived me of procedur fairness
The Tribunal member failed relied on incorrect information and decided my case using facts form some other case;
The Tribunal member failed to ask me questions abaout the types of harm relevant in my case.
According in section 44 of the Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such action appeal to Federal Circuit Court
The applicant also identified the grounds of application for an extension of time, as follows (reproduced verbatim):
1 I did not have enough money for the Court appeal process at the time.
2 I also can not pay legal service for appeal to this Court at that moment, so to make sure I in lawful I get volunteered in union of workers to help me in this appeal process.
The affidavit filed 6 January 2021, in support of the application for judicial review and an extension of time, did not expand on these grounds and did not provide any further particulars (CB 189). At paragraph 2 of the affidavit the applicant said (reproduced verbatim):
“I am consider that day are grand, for an applicant for review in this Court. Now produce and show to me decision record (A) and notification of decision (B)”
HEARING BEFORE THIS COURT
On 10 April 2024, a Judicial Registrar of the Court ordered the applicant to file and serve on or before 1 May 2024 written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which the applicant seeks to rely. The applicant did not comply with this order and did not seek to file any supplementary documents to support his grounds of review.
There was no further affidavit or evidence filed with the Court by the applicant to support the application for an extension of time.
On 29 April 2024, the applicant wrote a letter to the Registry of the Court at Melbourne in which he recorded various reasons for the late lodgement of the application for judicial review.
The interlocutory hearing of the applicant’s application for an extension of time under s 477(2) of the Act took place on 25 September 2024 at Melbourne. The applicant appeared in person and was assisted by an interpreter fluent in the English and Malay languages. Mr McDonald, solicitor, appeared for the Minister.
The Court confirmed that the applicant had received the Court Book and the Minister’s written Outline of Submissions.
The Court explained to the applicant that because the application for judicial review was filed outside the 35-day time-limit, the applicant must first apply for an extension of time within which to commence the proceeding. The applicant was required to explain the reason for his delay in filing the application and also satisfy the Court that it was necessary in the interests of the administration of justice to make an order extending time.
It was also explained that when considering the interests of the administration of justice, the Court was also required to consider the merits of the substantive application (at an impressionistic level) and to decide whether the applicant had arguable or reasonably arguable grounds for review.[1]
[1] MZAB v Minister for Immigration and Border Protection [2015] FCA 1392; DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) FCR 475 at 492 [64] and Tu’uta Katoa v Minister for Immigration, Citizenship and Multicultural Affairs [2002] HCA 28: (2022) 276 CLR 579 at 589 [14] (Tu’uta Katoa).
The applicant was then asked to explain why he should be granted an extension of time. The applicant sought to rely upon a bundle of documents which he offered to the Court. These were inspected by the solicitor for the Minister and then by the Court. It was apparent that the documents were documents already in the Court Book or that were further financial documents and tax returns of the applicant after the date of his application for judicial review. Included in the bundle of documents was a copy of the letter to the Registry dated 29 April 2024. The letter was admitted as evidence in support of the application, without objection by the solicitor for the Minister, and marked as exhibit “A1”.
The applicant explained in the letter and again to this Court that due to COVID-19 he had been unemployed and was “afraid to generate income to survive”. He declared that his employment as an Uber Eats Delivery driver had “expired” and that “[he] [had] not been working since that time”. He also said that he did not have enough money to engage any “legal service, and he had been assisted by a union delegate to complete his application forms. He was also committed to repaying his loans and supporting his wife and child in Malaysia.
The Court then asked the applicant to explain why the Tribunal had fallen into “jurisdictional error” and/or what the Tribunal got “wrong” in the Decision (see DQQ17 v Minister for Immigration & Border Protection[2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2023] FCA 384 at [24]). The applicant explained that since the COVID-19 pandemic and the opening of schools in Malaysia his wife had received a message from someone in the village that a “loan shark” had been asking about him. This concerned his wife, and he was now worried for his safety if he returned to Malaysia. He said that he wanted to repay his debts and that he needed more time in Australia to do so. He said he was worried that if he did not repay his loan, he would be sent a “sign” or “shot” should he return to Malaysia.
The applicant explained to the Court that he had stopped repaying his loan in May 2021 and it was then that his wife received the message. He informed the Court that his loan would take another two to three years to repay (RM 10,000 to 15,000 owing) and he wished to remain in Australia to earn money in order to repay the balance. The applicant explained that he told the Tribunal of these circumstances.
With the assistance of the Court, the applicant was asked to address each of the grounds of review made in his application for judicial review.
When asked about ground one, he explained that the Tribunal had failed to consider that he still had a debt owing and that it would take three more years to pay off.
In relation to ground two, where it was alleged that the Tribunal deprived him of procedural fairness, he said that the hearing was by telephone and that the Tribunal member did not inform him what was needed from him. He said that he had given the Tribunal everything but that the Judge/member didn’t tell him of the legal “things” he needed to do.
In relation to ground three, where it was alleged that the Tribunal considered facts from some other case, the applicant explained that when he arrived in Australia he had moved to a house in Cairns where there were other people from Malaysia and Indonesia. He explained that he obtained assistance in the completion of his application to the Tribunal by telling his story to a friend who he believed had accurately transcribed his story into the form. This was a repetition of his explanation to the Tribunal of the shortcomings in his application form for the Visa. He could not identify any particular fact that had been wrongly considered by the Tribunal.
In relation to ground four, it was alleged that the Tribunal member failed to ask the applicant questions about the types of harm relevant to his case. The applicant explained that he now believes that if he returned to Malaysia he would be hurt. He claimed that the Tribunal member did not ask about the harm he would suffer, and that the Tribunal merely focused on the availability of agencies such as the PPIM and the MCA to assist him. He said that these agencies would not be able to assist him personally but seek to protect the interests of the public generally and not individuals. He said that the Tribunal did not consider his fear of what would happen to him if he was to return or that he was now likely to be “shot”.
In relation to ground five, the applicant was unable to explain that ground of review at all. He read the paragraph several times and when asked by the Court whether he understood it his candid response was “no I don’t understand it”.
When asked if there was anything further, he wished to put before the Court or say about his application he replied that his circumstances had changed since 2021 and 2022 and he was concerned for his safety and the safety of his family if he was unable to repay his loans.
In the submissions made on behalf the Minister, it was submitted that the principles upon which an extension of time may be granted were well established in the High Court decision in Tu’uta Katoa at [14] and [16]. It was submitted that the applicant had not satisfied the requirement to provide a proper explanation of the delay in bringing the application and further, that the grounds of review upon which he relied on had no reasonable prospects of success. It was submitted that the allegations in the grounds of review lacked particulars and that this alone was basis upon which the court should dismiss the application (see WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and WZATH v Minister for Immigration and Border Protection [2014] FCA 969).
The reasons given by the applicant for not filing his application within the statutory timeframe included a lack of funds and financial hardship. It was submitted that this was not an acceptable explanation and did not discharge the onus of establishing that it was in the interests of the administration of justice to extend time. The solicitor for the Minister correctly acknowledged that there was no real prejudice to the Minister caused by the delay but that the absence of prejudice to the Minister does not warrant the grant of an extension (see: Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 at 348 and SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]).
It was submitted that the delay of 77 days to file an application is a substantial delay with much shorter delays having been held to be fatal to an application’s prospects of success (see WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28]). It was noted that there had been no claim by the applicant for a fee waiver and that this was a significant factor that weighed against the application for an extension of time. Mere lack of funds was not considered an acceptable reason for delay in GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25] per Collier, Rangiah and Derrington JJ (GOK18).
On the issue raised by the applicant of a failure by the Tribunal to ask him relevant questions and to assist him, the Minister relied on the general proposition that the Tribunal owes no general “duty to inquire” and that it was the responsibility of the applicant to provide sufficient evidence to establish the claim (s 5AAA of the Act). It was submitted that in some circumstances there may be an obligation upon the Tribunal to ask obvious questions that may arise however there was nothing unreasonable disclosed in the Decision that revealed that the Tribunal’s reasoning was unreasonable or illogical. It was submitted that the Tribunal considered both the written and oral claims of the applicant regarding his fear of harm, the debts owed by him and the possible connection to loan sharks. The Tribunal gave weight to those claims but reached the conclusion that there were protection measures available to the applicant in Malaysia that mitigated the risk of significant harm.
The solicitor for the Minister then addressed each of the grounds of review in the application for judicial review noting that the Court need only consider the merits of the substantial application on an “impressionistic” basis. It was submitted that it is seldom in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success (see Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]).
In relation to ground one, it was submitted that the Tribunal had explicitly considered and found that the applicant had a loan of RM 60,000 with a finance company (CB 198 [38]). The loan had a seven-year term with three years remaining. The written ground identified in the application for judicial review lacked proper particularisation and the oral ground submitted by the applicant to the Court was simply wrong because the loan term and duration were considered by the Tribunal.
In relation to ground two, it was submitted that the Tribunal discharged its obligations under the Act to extend procedural fairness. The Tribunal invited the applicant to a hearing and invited the applicant to submit documents and evidence to support his application for protection. The applicant replied to that invitation, provided documents and attended a hearing. The Tribunal correctly put information that it had to the applicant and asked him to comment on that information and the applicant was able to comment accordingly. He did not require an adjournment to consider the information or otherwise address it. There was nothing apparent in the process of the Tribunal or the Decision to suggest a lack of procedural fairness.
In relation to ground three, it was submitted was misconceived because the Tribunal had clearly raised the information it had with the applicant regarding the completion of his application form (CB 195 [24]). Nevertheless, the Tribunal accepted and considered the applicant’s further explanation of his personal circumstances, and the fear of significant harm should he return to Malaysia. This included evidence of his financial difficulties in Malaysia, personal circumstances and family history.
In relation to ground four, the Tribunal asked expressly what the applicant feared should he return to Malaysia (CB 197 [34]). The applicant did not identify physical harm although it was implicit in his concern regarding “loan sharks” that there may be some risk of physical harm or intimidation should he return. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under s 36(2)(aa) of the Act and this finding was reasonable and open on the weight of the evidence (CB 200 [49]).
Ground five appeared to be an erroneous reference to the right to appeal from the Tribunal to the Federal Court of Australia. The jurisdiction of this Court arises under s 476 of the Act and not s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
CONSIDERATION
The applicant’s explanation for the delay in filing his application for judicial review is unsatisfactory. The Full Court of the Federal Court of Australia in GOK18, citing QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] and SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 [12], said at [25]:
“Generally speaking, a party’s financial circumstances or difficulties alone are an insufficient excuse for delay and will not provide a justification for an extension of time…”
In this case, there is no documentary evidence of the applicant’s financial circumstances at the time of commencing this proceeding and he simply asserts that he was unemployed and did not have the funds to issue the proceeding or obtain legal representation. There was no evidence of an application to the Court for financial relief in respect of the issuing fee and no explanation given as to why the applicant’s situation suddenly changed in January 2021 to enable him to then issue the application. The Court accepts that the applicant may have required assistance in completing the application and affidavit, however in the absence of a clear and cogent explanation as to why a delay of 77 days is excusable and should be allowed in the interests of the administration of justice, the application for an extension of time must fail.
The Court has also considered the merits of the substantive application for judicial review and whether it has any prospect of success (viewed impressionistically) (Tu’uta Katoa at [17]-[18]). The merits of the application have no prospects of success.
Each of the grounds identified by the applicant in the application for review lack any evidentiary foundation. The applicant could not identify any vital fact or integer that was not actually considered by the Tribunal in the Decision. There was no evidence put before the Court or otherwise identified of any failure to extend procedural fairness by the Tribunal. The Tribunal gave the applicant a written receipt and acknowledgment of his application that contained information about the role and procedures of the Tribunal (CB 79 – 85). The Tribunal also gave the applicant a written invitation to attend a hearing (CB 89-91) to which the applicant responded and there was a hearing conducted by the Tribunal by telephone at which the applicant gave evidence. The applicant also called character evidence at the hearing before the Tribunal from his landlord, Mr Steven Wilson (CB 158 and 176 [27]). The applicant was assisted by Malay interpreters (CB 158) and there was no suggestion that he was any error in translation.
The Tribunal faithfully considered the discrepancies between the written application for the Visa and the applicant’s oral explanation of his need for protection and personal circumstances. The Tribunal correctly put information to the applicant that it held, and which was relevant to consideration of his application for a protection visa. The Tribunal also asked about the applicant’s fear of significant harm but rejected his assertion that the loan company from whom he had borrowed money was somehow associated with illegal “loan sharks”. The Tribunal was not satisfied that the applicant was a refugee and a person who may suffer significant harm should he return to Malaysia.
There is nothing to suggest in the reasoning contained in the Decision that the Tribunal erroneously considered facts from another case in reaching its conclusion. Instead, the Tribunal accepted the applicant’s explanation of the discrepancies between his application form and his actual circumstances and then proceeded to reach its conclusion based upon the latter and the country information available to it.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ, the High Court of Australia held that the Refugee Review Tribunal was under no general duty to make inquiries about an applicant’s claim for protection under s 36(2) of the Act. The Court observed at [45] that the rules of procedural fairness may, in certain circumstances, and individual cases, require some special steps or procedures to be followed but there was no denial of procedural fairness by a failure to, in that case, inquire about the competency of the applicant to take part in a hearing.
In Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39 at [25]-[26] the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was mothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical of the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates… For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
In this case, in ground four of the grounds of review, the applicant asserts that the Tribunal failed to ask him questions about the types of harm “relevant to [his] case”. In the absence of a duty to make such inquiries and in the absence of special circumstances that would place the Tribunal on notice of a need to make further inquiries, there was no failure to provide procedural fairness to the applicant and no jurisdictional error by the Tribunal in reaching the conclusions as to the absence of significant harm. The Decision reflects the fact that the Tribunal did inquire as to the harm that may be suffered by the applicant and that the Tribunal was not satisfied on the evidence available to it that the applicant had a well-founded fear that he would suffer significant harm, nor was there a real risk that the applicant would suffer significant harm from a finance company and/or their agents, the Malaysia government, its authorities, or any other authority, organisation, person or group (CB 200 [48]). There appears to be no jurisdictional error by the Tribunal in that regard and it is not reasonably arguable that the Tribunal failed to inquire as to a necessary fact or acted unreasonably or illogically in reaching the conclusion that it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant’s oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [15], [77], [100], [112]-[114]). No discernible error could be identified.
The applicant’s proposed “grounds of review” and oral submissions, assessed on a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal.
The lack of satisfactory explanation for the lengthy delay in filing and the lack of any arguable case of jurisdictional error are such that it is not in the interest of the administration of justice for the Court to grant an extension of time in this matter. The application for an extension of time is dismissed.
At the conclusion of the hearing on 25 September 2024, the solicitor for the Minister sought the Minister’s legal costs of and incidental to the proceeding in the sum of $7,975.00 which are fair and reasonable in this case.
The Minister also sought to amend the name of the first respondent to Minister for Immigration and Multicultural Affairs and to amend the title to the proceeding accordingly.
ORDERS
The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
The application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs of and incidental to the proceeding fixed in the sum of $7,975.00.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 28 October 2024
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