ADT20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 946
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADT20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 946
File number(s): MLG 114 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 20 June 2025 Catchwords: MIGRATION – judicial review – application to review registrar’s decision – review application filed 16 days out of time – whether extension of time should be granted – unsatisfactory explanation for delay – no arguable case of jurisdictional error – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Bechara v Bates [2021] FCFAFC 34; (2021) 286 FCR 166
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Vella v Minister for Immigration and Border Protection [2015] HCA 42
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 4 June 2025 Place: Melbourne Applicant: Appeared in person Solicitor for the First Respondent: Mr Gianluca Rossi of Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 114 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADT20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The application for review of a registrar’s decision lodged on 16 May 2025 is dismissed.
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 JOHNS
INTRODUCTION
On 16 May 2025, the Applicant lodged late an application pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth) (Rules), for review (Review Application) of a decision of a registrar of this Court dated 23 April 2025 (Registrar’s Reinstatement Decision).
The Registrar’s Reinstatement decision dismissed the Applicant’s substantive application for judicial review of a decision of the then Administrative Review Tribunal (Tribunal) by refusing to reinstate the substantive application filed on 13 January 2020 (Originating Application).
The Tribunal’s decision (Tribunal Decision) affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Delegate) made in February 2017 to refuse the Applicant a Protection (Subclass 866) Visa (Protection Visa).
The Originating Application was dismissed on 4 March 2025 for non-appearance by the Applicant at a call-over pursuant to r 13.06(1)(c) of the Rules.
A review under r 21.04 of the Rules proceeds by way of a hearing de novo.[1]
[1] see also Bechara v Bates [2021] FCFAFC 34; (2021) 286 FCR 166 at [1]-[7].
However, the Court must first determine whether to grant the Applicant an extension of time to file the Review Application. That is because the Review Application was filed 16 days late. Also relevant is the fact that the Applicant’s Originating Application filed in this Court was also late, it having been filed 2 years, 8 months and 1 day after the Tribunal Decision.
For the reasons that follow, no extension of time is granted. Consequently, the Review Application is dismissed.
FACTUAL BACKGROUND
The Applicant is a citizen of Malaysia who arrived in Australia on 31 March 2016 as the holder of a Visitor (subclass 601) Visa (Visitor Visa).[2]
[2] Court Book (CB) 23, 45 and 62.
On 30 June 2016, the Applicant lodged an application for the grant of a Protection Visa.[3] In support of his application, the Applicant claimed that:
(a)he left Malaysia due to emotional stress arising from the breakdown of his marriage,
(b)his ex-wife’s family were demanding, and one of her relatives took custody of his son,
(c)his ex-wife was abusive toward his mother,
(d)after the divorce, he felt that the direction of his life had become uncertain, and that he had been left emotionally broken,
(e)he felt “dead” when living in Malaysia, but since arriving in Australia, he felt “alive” and experienced freedom,
(f)he attempted to relocate within Malaysia by studying in Perak, but continued to feel psychologically unsettled,
(g)although he did not fear being harmed or mistreated in Malaysia, his mental health would deteriorate if returned, and
(h)the Malaysian authorities could protect him if necessary, but that his issues were of a mental health nature, not criminal.[4]
[3] CB 1 – 37.
[4] CB 32 – 34.
Delegate’s Decision
On 10 February 2017, the Delegate refused to grant the Applicant a Protection Visa.[5] The reasons for doing so were that:
(a)the Applicant had not expressed a fear of harm for any of the five reasons set out in s 5J(1)(a) of the Act, namely, race, religion, nationality, membership of a particular social group, or political opinion,[6]
(b)the Applicant had not previously experienced harm in Malaysia and did not anticipate being harmed if he returned,[7]
(c)the Applicant himself stated that state protection was available to him[8], and
(d)country information did not suggest that he would be denied such protection.[9]
[5] CB 45 – 53.
[6] CB 48.
[7] CB 52.
[8] Ibid.
[9] CB 49 – 52.
The Delegate was therefore not satisfied that the Applicant met the definition of a refugee under s 36(2)(a), nor that there was a real risk of significant harm for the purposes of complementary protection under s 36(2)(aa). The application for a visa was accordingly refused.
Application to the Tribunal
On 21 February 2017, the Applicant applied to the Tribunal for review of the Delegate’s decision.[10]
[10] CB 54 – 55.
On 10 April 2017, the Applicant was invited to attend a hearing on 11 May 2017.[11]
[11] CB 64 – 65.
On 3 May 2017, the Applicant responded to the hearing invitation, confirming that he would attend the scheduled hearing.[12]
[12] CB 70 – 73.
On 11 May 2017, the hearing took place in-person in Melbourne, with the Applicant in attendance with the assistance of a Malay interpreter.[13]
[13] CB 75 – 77.
TRIBUNAL’S DECISION
On 12 May 2017, the Tribunal affirmed the Delegate’s decision to refuse the Protection Visa.[14] The Tribunal Decision is 8 pages long and spans 27 paragraphs. Part of the decision outlines the criterion for a Protection Visa. Paragraphs 13-18 provide a summary of the evidence which the Applicant adduced at the hearing.
[14] CB 80 – 87.
The Tribunal accepted the Applicant’s Malaysian nationality and his account of emotional hardship as a result of his divorce, the separation from his son, and the painful memories linked to returning to his home area in Malaysia.[15] The Tribunal also accepted that these circumstances had negatively affected the Applicant’s mental health and that he sought to remove himself from the possibility of encountering his ex-wife.[16]
[15] CB 83 at [22].
[16] Ibid.
However, the Tribunal found that:
(a)the Applicant did not allege fear of persecution for a Convention reason under s 5J(1)(a),[17]
(b)the possibility of emotional distress resulting from a chance encounter with his ex-wife did not amount to serious harm or persecution,[18]
(c)the applicant’s circumstances were of an emotional nature, not of a kind that would engage Australia’s protection obligations under either s 36(2)(a) or s 36(2)(aa).[19]
[17] CB 83 – 84 at [23].
[18] Ibid.
[19] Ibid.
For those reasons, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations. Accordingly, it affirmed the delegate’s decision.[20]
[20] CB 84.
On 15 May 2017 the Applicant was notified of the Tribunal’s decision.[21] In the accompanying letter titled “Information about decisions – MR Division”, the Applicant was informed that he had 35 days from the date of the decision to seek judicial review of the Tribunal’s decision in this Court:
Review of decisions
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. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.[22]
PROCEEDINGS IN THIS COURT
[21] CB 79.
[22] CB 89.
Judicial review application
On 13 January 2020, the Applicant filed the Originating Application with this Court under s 476 of the Act. In seeking judicial review of the Tribunal Decision dated 12 May 2017 the application was 2 years, 6 months and 27 days out of time.
In the Originating Application, the Applicant sought the following orders:
(a)An order quashing the decision of the Tribunal affirming the refusal of the Protection Visa,
(b)A writ of mandamus directing the Tribunal to reconsider the application according to the law, and
(c)An injunction restraining the Minister from taking any adverse action against the Applicant arising from the Tribunal’s decision.
The Originating Application contained the following grounds of review (reproduced with minor alterations made for clarity):
1. The Tribunal deprived me of procedural fairness.
1.1.At paragraph 23 Member said the applicant only involving for one or more of the five reasons set out at s.5J(1)(a).
In s.5J(1)(a) meaning of well-founded fear of persecution
(1).for the purposes of the application of this act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a).the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
But whereas the applicant qualifies as a person under this section. This because in DFAT version 13 December 2019, under article 160 of the Constitution, a Malay person is an individual with characteristics that include professing the religion of Islam, habitually speaking the Malay language, conforming to Malay customs, and being the child of a Malay parent. Consequently, all Malay children are automatically registered as Muslim, and this is specified on their identity card.
Because this law and rules, the stigma as Malay typical cultural are definitely blaming and accusing applicant and torture him. Over that time, its make it depression psychology.
2.The Tribunal member relied on incorrect information and decided my case using facts from some other tribunal case.
2.1. the member has failed to do his duty
2.2.the member failed to ask me questions about the types on harm relevant.
3.According in section 44 of Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such (sic) action appeal to federal circuit court.
Because the Originating Application was filed outside the 35-day time limit specified in s 477(2) of the Act, the Applicant requires an extension of time within which to pursue the substantive matter in court. The Applicant’s reasons for seeking an extension of time are as follows (reproduced without alteration):
1.I did not have enough money for the court appeal process at the time.
2.I also cannot pay legal service for appeal to this court at the moment. So, to make sure I lawful I get volunteered in union of workers to help me in this appeal process.
Case management
On 7 February 2020, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted, among other things, that this Court has no jurisdiction to review the Tribunal’s decision on the basis that it was not filed within the 35-day period of the date of the Tribunal’s decision.
On 18 January 2022, the Minister filed a bundle of relevant documents (Court Book).
On 7 February 2022, a Registrar of this Court made orders (Registrar’s First Orders) directing that:
(1)the matter be listed for an extension of time hearing on a date to be advised,
(2)the applicant file and serve any amended application, written submissions and further evidence at least 28 days before the scheduled hearing, and
(3)the Minister file and serve written submissions and further evidence in reply at least 14 days before the scheduled hearing.
Callover hearing
On 18 February 2025, the matter was listed for a Callover hearing before a registrar of this Court on 4 March 2025. The Notice of Listing explained that the “matter may be dismissed, and costs may be ordered” against the Applicant if they did not appear.
On 4 March 2025, the Applicant did not appear, and the application was dismissed pursuant to r 13.06(1)(c) of the Rules (Non-Attendance Decision). The Applicant was ordered to pay to the Minister costs in the amount of $3,500.
Reinstatement application
On 27 March 2025, the Applicant made the Reinstatement Application. That application was made 23 days after the Non-Attendance Decision (i.e. 16 days late).
On 2 April 2025, a Registrar of this Court made orders (Registrar’s Second Orders) directing that:
(a)the application for reinstatement be listed for hearing on 23 April 2025,
(b)the Applicant file and serve any written submissions in support of the application by 9 April 2025, and
(c)the Minister file and serve any written submissions in reply by 16 April 2025.
On 16 April 2025, the Minister filed submissions in accordance with the Registrar’s Second Order.
The Applicant did not file any submissions in support of his Reinstatement Application, despite being invited to do so.
Reinstatement hearing
On 23 April 2025, the Applicant appeared by video with the assistance of a Malay interpreter. The Minister was represented by Ms J. Schultz of Mills Oakley.
On the same day, the Registrar refused the Applicant’s Reinstatement Application and delivered their reasons ex tempore. The Applicant was ordered to pay further costs to the Minister in the amount of $1,252.
Review application
On 16 May 2025, the Applicant lodged the Review Application. Pursuant to r 21.02 of the Rules, the Review Application should have been brought within 7 days of the Registrar’s decision refusing the Applicant’s Reinstatement Application. Consequently, the present application before the Court was also filed 16 days late.
The orders sought by the Applicant in the Review Application are (reproduced without alteration):
1. To set aside the judgment of Registrar Lindsay dated 23 April 2025
2. To remit the matter to the ART to determine according to law
3.An order of cost. And any further orders that this honourable court may deem appropriate.
The Applicant’s grounds of review in his Review Application (reproduced without alteration) are:
1.The Hon. Registrar dismissed the application without considering the legal and factual errors contained in the decision.
2.The Hon, Registrar should have found that the Tribunal failed to properly deal with that I met the criteria for a Protection visa set out in s. 36 of the Act and Schedule 2 to the Migration Regulation 1994 (Cth).
The matter was allocated to my Chambers on 26 May 2025. On 27 May 2025, I listed the matter for hearing on 4 June 2025 to determine the Review Application.
On 29 May 2025, this Court informed the parties via email that the Review Application was made outside of the time prescribed by the Rules to seek such a review. The parties were invited to file written submissions addressing the factors relevant in the exercise of the Court’s discretion to extend the time for filing of the Review Application.
On 2 June 2025, the Minister filed written submissions objecting to the grant of the extension of time. The Applicant did not file any submissions before the hearing, despite being invited to do so.
At the hearing on 4 June 2025, the Applicant sought leave to rely on several documents that he had not filed before the hearing. These included an email sent by the Court on 23 April 2025 to the parties, which enclosed the orders of the Judicial Registrar dismissing the Reinstatement Application on 23 April 2025. As the Minister did not object to the admission of that email, it was received into evidence and marked as Exhibit A1.
The Applicant also sought leave to file a written statement which explained the reasons for the 16-day delay in lodging the Review Application. The Minister did not object, and leave was granted. That statement has been marked as Exhibit A2.
In addition, the Applicant sought leave to adduce evidence of payment of the Court’s filing fees in connection with the Review Application made on 16 May 2025. The Minister did not object, and leave was granted. That statement has been marked as Exhibit A3.
The Applicant further sought leave to file evidence of a payment allegedly made to a lawyer. The Minister objected on the grounds that it was not clear to whom the payment had been made and for what purpose. Having regard to the Minister’s objection and the time already afforded to the Applicant to file evidence, the Court refused to grant leave for that material to be admitted.
Therefore, the materials before this Court are as follows:
(a)Application for judicial review filed 13 January 2020,
(b)Affidavit of the Applicant filed 13 January 2020,
(c)Minister’s response filed 7 February 2020,
(d)Court Book numbering 90 pages filed 18 January 2022 (marked as Exhibit R1),
(e)Reinstatement Application filed 27 March 2025,
(f)Affidavit of the Applicant filed 27 March 2025,
(g)Minister’s written submissions filed 16 April 2025,
(h)Review Application filed 16 May 2025,
(i)Minister’s written submissions filed 2 June 2025,
(j)Email from this Court enclosing the Orders made by the Judicial Registrar dismissing the Reinstatement Application dated 23 April 2025 (Exhibit A1),
(k)Applicant’s written statement filed 4 June 2025 (Exhibit A2), and
(l)Evidence of filing fees in connection with the Review Application made on 16 May 2025 (Exhibit A3).
Hearing of the Review Application
On 4 June 2025, the review application was heard by this Court. The:
(a)Applicant appeared in person and was assisted by a Malay interpreter, and
(b)Minister was represented by Mr Gianluca Rossi of Mills Oakley.
At the commencement of the hearing, the Court explained to the Applicant that the Court cannot set aside the decision of the Tribunal unless there is a jurisdictional error in the decision. The main categories of jurisdictional error were explained.
It was further explained to the Applicant that before the Court could consider the issue of jurisdictional error, it was necessary to determine two preliminary matters: first, whether to grant the Applicant an extension of time to file the review application; and second, whether to grant an extension of time for the late filing of the originating application for judicial review. The Court confirmed with the Applicant that he had read the email sent to the parties on 29 May 2025 which explained the principles relevant to granting an extension of time for filing a Review Application. The Court repeated those principles and invited the Applicant to address about each of the considerations relevant to an extension of time.
The Applicant then made oral submissions. Mr Rossi made submissions on behalf of the Minister. The submissions are referred to below.
RELEVANT RULES AND PRINCIPLES
s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding in which a delegate has exercised any of the powers of the Court to apply to the Court for review of that exercise of power. Such an application must be made within the time prescribed by the Rules or within any further time allowed in accordance with the Rules.
Rule 21.02 of the Rules states:
21.02 Time for application for review
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2)The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b)with the consent of the parties to the proceeding.
The Registrar dismissed the Applicant’s Reinstatement Application on 23 April 2025. Pursuant to r 21.02 of the Rules, the Applicant had until 30 April 2025 to lodge his Review Application. As he did not do so until 16 May 2025, the Applicant is 16 days out of time.
Rule 21.02(2)(b) allows the Court to extend the time prescribed with the consent of the parties to the proceeding. The Minister does not consent.
It remains to be seen whether the Court will extend the time prescribed on any terms the Court thinks fit.
The broad discretion to extend time in r 21.02(2) of the Rules should be exercised in the context of the well-established factors guiding decisions whether to extend time in cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12]. These factors are:
(a)the extent of the delay,
(b)the explanation for the delay,
(c)prejudice to the respondent due to the delay, and
(d)the merits of the proposed application.
CONSIDERATION
At the hearing, the Applicant was invited to address each of the factors relevant to granting an extension of time for the Review Application and, if an extension were granted, each of the factors relevant to granting an extension of time for the substantive application. The Applicant was also asked to identify why they believe the Tribunal made a jurisdictional error.
The Minister made oral submissions and relied on its written submissions filed on 2 June 2025, submitting that an extension would be futile as the decision of the Tribunal was not affected by a jurisdictional error. The Court incorporates (without repetition) paragraphs 14 to 37 of the Minister’s outline of submissions filed 2 June 2025.
Extent of the delay
Before this Court, the Applicant accepted that the delay in lodging the Review Application was 16 days.
Noting that the delay is modest, this factor weighs in favour of granting the Applicant an extension of time.
Explanation for delay
At the hearing, the Applicant filed a written statement which sought to explain the reasons for the delay.[23] That statement reveals that the Applicant was relying on informal assistance from a third party named “Ana” and made payments to a person purporting to provide legal services, though their identity and qualifications were unclear. The Applicant also described working long hours on a farm, supporting a family of three, and having limited understanding of legal processes. The explanation included the claims that:
(a)the Applicant missed the callover hearing on 4 March 2025 because he misread the Notice of Listing, as he was overworked and experiencing mental exhaustion,
(b)the Applicant paid $1,457 (including court filing fees) to a lawyer, via Ana, to lodge the Review Application. He was advised by the lawyer that he had 14 days to file the Review Application, and the time for filing was extended due to public holidays, and
(c)the Court’s email of 23 April 2025 which enclosed the Registrar’s decision dismissing the Reinstatement Application did not state that the Applicant had 7-days within which to seek a review.
[23] Exhibit A2.
The Court notes that the Court’s email of 23 April 2025 did not explicitly mention that the Applicant had only seven days to seek review of the Registrar’s decision. Although ignorance of the law is not a reasonable excuse, this omission may have contributed to the Applicant’s confusion. That omission may merit attention by those responsible for court practice rules to ensure unrepresented litigants receive clear guidance about applicable deadlines.
The Court acknowledges that the Applicant is unrepresented, has limited English proficiency, and has referred to ongoing mental health issues. However, the Applicant’s explanation remains unsatisfactory. The onus remained on the Applicant, given his desire to engage with the judicial review process, to ensure that he filed his application within the set timeframe. If he was unsure about the process, he could have sought professional advice. However, the Applicant made no inquiries with the Court or any legal service to confirm the applicable time limits or to obtain competent legal advice. The reliance on unqualified intermediaries does not excuse the delay. This factor weighs against the time being extended.
Prejudice
The Minister accepts that there is no substantial prejudice that could not be remedied by a costs order. However, the absence of prejudice is not, by itself, a sufficient reason to grant the Applicant an extension of time.
This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time.
Merits
The final and most significant factor in determining whether to grant the Applicant an extension of time to file the Review Application is the merits of the review itself. In this case, that question turns on whether the Applicant has an arguable case that the Registrar’s decision to dismiss the Reinstatement Application was affected by error. However, because this is a hearing de novo, the Court must consider the merits of the matter “a fresh”.
Accordingly, it is necessary to consider whether there was sufficient merit in the underlying application to justify reinstating it. That requires applying the Hunter Valley criteria (discussed at [52]) to the extension of time sought for the substantive application.
Length of delay
The length of delay in filing the substantive application is substantial. The Applicant seeks to challenge the Tribunal’s decision which was made on 12 May 2017. He did not file his application for judicial review until 13 January 2020. Accordingly, it was made 941 days out of time. This is a very significant delay. As the High Court observed in Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [3], where the delay is extensive, only an “exceptional” case may warrant the grant of an extension. For the reasons explained below, this is not such a case.
Explanation for the delay
In his originating application, the Applicant stated that he “did not have enough money for the court appeal process” and “could not pay legal service”. At the hearing, the Court asked the Applicant if he applied for a waiver to pay the application fee to this Court.[24] The Applicant responded that he did not.[25]
[24] Transcript P-18 at [25].
[25] Transcript P-18 at [29].
The Court accepts that financial hardship may limit access to legal assistance, but it does not excuse complete inaction for over two and a half years. Financial difficulty, without more, is not a satisfactory explanation for the entirety of the very extensive delay.[26]
[26] QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].
Prejudice
The Minister conceded that there would not be any substantial prejudice that would result from the grant of an extension of time for the substantive application.
Merits
When determining if a proposed application has “merit” or an “arguable prospect of success”, the Court will do so at a “reasonably impressionistic level”.[27] Importantly, an Applicant need therefore only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[28]
[27] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
[28] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”)
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], the Court has scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. The Court has also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, the Court is of the view that error has not been disclosed on the Tribunal’s part, and for the following reasons, the Court is not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.
At the hearing before the Court, the Applicant was invited to make submissions about:
(a)why they believe the Tribunal made a jurisdictional error, and
(b)each of the grounds of review in his originating application.
To the extent that the Applicant made submissions in relation to the specific grounds, they are summarised below in the context of considering each of the grounds. To the extent that the Applicant made more general submissions, those submissions largely invited the Court to engage in impermissible merits review of the Tribunal’s decision. As this Court explained to the Applicant at the hearing, the Court cannot consider for itself whether the Applicant meets the criteria for a Protection Visa. To the extent that the Applicant’s submissions invite the Court to engage in merits review, they do not establish jurisdictional error in the Tribunal’s decision.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. Incorporated (without repetition) are paragraphs 29 to 37 of the Minister’s outline of submissions filed 2 June 2025.
The grounds of review asserted by the Applicant in his Originating Application will now be addressed in turn.
Grounds in the Originating Application
Ground 1
1. The Tribunal deprived me of procedural fairness.
1.1.At paragraph 23 Member said the applicant only involving for one or more of the five reasons set out at s.5J(1)(a).
In s.5J(1)(a) meaning of well-founded fear of persecution
(1).for the purposes of the application of this act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a).the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
But whereas the applicant qualifies as a person under this section. This because in DFAT version 13 December 2019, under article 160 of the Constitution, a Malay person is an individual with characteristics that include professing the religion of Islam, habitually speaking the Malay language, conforming to Malay customs, and being the child of a Malay parent. Consequently, all Malay children are automatically registered as Muslim, and this is specified on their identity card.
Because this law and rules, the stigma as Malay typical cultural are definitely blaming and accusing applicant and torture him. Over that time, its make it depression psychology.
The first ground relies on claims that were not raised before the Tribunal. The Applicant confirmed in the hearing before this Court that the only issues he had raised before the Tribunal related to his emotional distress following his divorce.[29] The Tribunal accepted that evidence but found that those matters did not amount to persecution or significant harm under s 36(2)(a) or s 36(2)(aa) of the Act.[30] The Tribunal is only required to consider claims that are clearly made or that arise obviously from the evidence.[31] The Tribunal did so here.
[29] Transcript P-19 at [25].
[30] CB 83 – 84.
[31] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60] per Black CJ, French and Selway JJ
No arguable case of jurisdictional error arises in relation to ground one.
Ground 2
2.The Tribunal member relied on incorrect information and decided my case using facts from some other tribunal case.
2.1. the member has failed to do his duty
2.2.the member failed to ask me questions about the types on harm relevant.
By this ground, the Applicant asserts that the Tribunal relied on “incorrect information” and decided his case using “facts from some other Tribunal case.” He also asserts that the Tribunal failed to do its duty and did not ask him questions about the types of harm relevant to a protection visa claim.
The Applicant has not provided any supporting evidence or particulars which identified what information was said to be incorrect or from what other case it was allegedly derived from. At the hearing, the Court invited the Applicant to clarify what incorrect information he believed the Tribunal had considered.[32] The Applicant responded, “I’m not sure.”[33] That answer highlights the lack of any specific factual or evidentiary basis for this ground.
[32] Transcript P-19 at [45].
[33] Transcript P-19 at [47].
The Tribunal’s written reasons do not support the Applicant’s claim that the Tribunal made its decision based on incorrect or material extraneous to the Applicant’s application. On the contrary, the Tribunal set out the applicable legal tests under s 36(2)(a) or s 36(2)(aa) of the Act[34], summarised the Applicant’s evidence[35], and explained why it was not satisfied that the statutory criteria were not met.[36] There is nothing in the Tribunal’s reasons that suggest that the Tribunal relied on evidence from another matter or confused the Applicant’s case with that of another.
[34] CB 81 – 82 at [5] – [9].
[35] CB 82 – 83 at [13] – [18].
[36] CB 83 – 84 at [19] – [26].
Further, the suggestion that the Tribunal failed to ask relevant questions to the Applicant misstates its obligations. The Tribunal’s decision shows that it asked the Applicant what he feared would happen if he returned to Malaysia.[37] The Applicant’s answer only related to the emotional distress he might experience if he encountered his ex-wife.[38] The Tribunal also provided the Applicant with the opportunity to raise any matters or make comments at the hearing.[39] The Applicant chose not to. It is well-established that it is for the Applicant to present his case and provide sufficient evidence to satisfy the Tribunal that the protection criteria are met.
[37] CB 83 at [16].
[38] Ibid.
[39] CB 83 at [18].
No arguable case of jurisdictional error arises in relation to ground two.
Ground 3
3.According in section 44 of Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such (sic) action appeal to federal circuit court.
s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), now repealed, did not confer jurisdiction on this Court to review migration decisions of the Tribunal. In the context of migration matters, this Court derives its jurisdiction from s 476 of the Migration Act 1958 (Cth).
At the hearing, the Court asked the Applicant what he intended to convey by this ground and how it was said to constitute a jurisdictional error. The Applicant replied, “I cannot answer because I do not understand.”
The ground as framed does not disclose any arguable case of jurisdictional error that can form a basis for judicial review. It reflects a misunderstanding of the legislative scheme governing judicial review of migration decisions.
Other matters raised before the Court
At the conclusion of the hearing, the Court asked the Applicant to explain in his own words why he believed the Tribunal’s decision was wrong. The Applicant responded, “I cannot answer that.”
The Applicant had indicated at various points during that hearing that he relied heavily on his wife for assistance due to her superior English proficiency. Although the Applicant was already assisted by an experienced Malay interpreter, the Court also invited the Applicant’s wife to speak on his behalf. The Applicant’s wife did so. However, her explanations did not add materially to the Applicant’s own submissions. Crucially, she did not provide any further particulars that would suggest that the Tribunal’s decision was affected by a jurisdictional error. Her statements largely supported the factual narrative already provided by the Applicant – namely, that the Applicant relied on a third party for legal assistance and that there was a general confusion about procedural requirements.
While this Court accepts that the Applicant (and his wife) found themselves in challenging circumstances those difficulties do not amount to a basis for judicial review or justify extending the time for filing the Review Application in the absence of an arguable claim.
DISPOSITION
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the Review Application, the extensive delay in filing the Originating Application, and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, the Court is not satisfied that it is in the interests of the administration of justice that time be extended in this matter.
Accordingly, the application is dismissed. The Court will now hear the parties on costs.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 20 June 2025
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