AIF19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1031
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIF19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1031
File number(s): MLG 228 of 2019 Judgment of: JUDGE JOHNS Date of judgment: 4 July 2025 Catchwords: MIGRATION – application for extension of time – judicial review – 908 days out of time – protection visa refusal – inadequate explanation for the delay – adverse credibility findings – opportunity to present case – no reasonably arguable case for jurisdictional error – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5J, 36(2)(a), (36)(aa), 476, 477
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) Division 1 of Part 2 of Schedule 2
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Craig v State of South Australia (1995) 184 CLR 163
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 1 July 2025 Place: Melbourne Applicant: Appeared in person Solicitor for the First Respondent: Jesse Slankard, solicitor of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 228 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIF19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The Applicant pay the First Respondent’s costs in the amount of $4,189.38
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
Before this Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (Delegate) to refuse to grant the Applicant a Protection (subclass 866) Visa (Protection Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application was filed 2 years, 5 months and 24 days (i.e. a total of 908 days) outside the 35-day period prescribed under that section of the Act. In the circumstances, the Applicant must satisfy the Court that it is necessary in the interests of the administration of justice to make an order extending time for the filing of their application.
For the reason that follow the Court is not satisfied that it is necessary in the interests of the administration of justice to grant the Applicant an extension of time. Consequently, the application is dismissed.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issue in dispute
The primary issue is whether there are grounds for granting an extension of time; importantly whether there is a reasonably arguable case of jurisdictional error on the part of the Tribunal.
The application for a Visa
The Applicant is a citizen of Malaysia who arrived in Australia on 16 March 2015 as the holder holding a Class UD 601 Electronic Travel Authority (ETA) visa.[1]
[1] Court Book (CB) 12, 19, 81.
On 26 May 2015, the Applicant lodged an application for a Protection visa.[2] Within this application the Applicant included his cousin, who raised his own protection claims.[3]
[2] CB 1-37, 81.
[3] CB 2.
The Applicant’s protection claims can be summarised as follows:[4]
[4] CB 30-34.
(a)The Applicant took out a Majlis Amanah Rakyat (MARA) loan with a loan shark to fund study and related expenditure. The Applicant’s cousin agreed to be the guarantor. The Applicant receive 10,000 Malaysian Ringgit (RM) which in 2025 is approximately $3,600 Australian Dollars.
(b)Once the Applicant received the money, he had a car accident and used 7,000 RM to repair the car. The Applicant attempted to find a job to improve his finances but was unsuccessful. With the remaining 3,000 RM and 2,000 RM in savings the Applicant paid down the loan balance to 5,000 RM, however the loan shark demanded 12,000 RM.
(c)The loan shark came to the Applicant’s house and threatened him many times., A man was sent to monitor the Applicant around the clock.
(d)The Applicant moved in with his cousin. However, the Applicant was tracked down by the loan shark due to their extensive networks and the circulation of a photo of the Applicant.
(e)The Applicant received death threats, and his cousin also received threats.
(f)The Applicant reported the activity to the police, who suggested to move to another city.
(g)There are a lot of murder cases relating to loan sharks.
(h)The Applicant sought protection from friends and moved to different cities. The Applicant and his cousin stayed with a friend who was also threatened.
(i)Given the constant monitoring by the loan shark and threats the Applicant and his cousin decided to move to Australia to seek protection.
(j)If he returns to Malaysia, he is worried about harassment, torture, injury and death.
Decision by the Delegate
On 4 August 2015, the Delegate refused to grant the Applicant a Protection visa.[5] The Application was refused because the Applicant did not satisfy s 36(2) of the Migration Act.
[5] CB 76-87.
The Delegate found:[6]
(1)Given that the MARA is a Malaysian government loan scheme, it would be reasonable for the Applicant to provide evidence of his dealings with MARA, or for him to provide evidence of his study, such as enrolment documents or academic transcripts. In the
absence of such evidence, the Delegate was not satisfied that the Applicant ever took out a MARA loan or was enrolled in any course of study.
(2)The Applicant’s cousin has also made similar claims for protection.
(3)Neither Applicant provided any specific information pertaining to the loan shark. nor did they provide evidence of a loan that they could not repay. Without specific information pertaining to the details of the loan shark or documentary evidence to substantiate the claims, the claims lack integrity and substance.
(4)The Applicant's failure to schedule an interview casts doubt on the credibility and genuineness of his claimed fear of harm in Malaysia.
(5)The Applicant did not provide any meaningful details about any claimed past experiences which may have given rise to a fear of persecution on return, nor did he adequately described what he fears may happen to him if he does return.
[6] CB 84-85.
The Delegate was not satisfied the Applicant met the refugee criterion under s 36(2)(a) of the Act and found the complementary protection under s 36(2)(a)(a) of the Act was also not satisfied as there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the Applicant will suffer significant harm.[7]
[7] CB 86-87.
By operation of s 476(2)(a) of the Act, this Court has no power to review the decision of the Delegate.
Application to the Tribunal
On 24 August 2015, the Applicant applied to the Tribunal for review of the Delegate’s decision.[8]
[8] CB 88-94.
On 26 May 2016, the Tribunal invited the Applicant to attend a hearing on 28 June 2016.[9]
[9] CB 100-101
On 1 June 2016, the Tribunal received a response to the hearing invitation, with the Applicant confirming his attendance, with his cousin listed as a witness.[10]
[10] CB 102-104.
On 28 June 2016 the Applicant attended the scheduled hearing. The Applicant was accompanied by his cousin and assisted by a Malay interpreter.[11]
[11] CB 106-108.
On 30 June 2016, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the Protection visa.[12]
[12] CB 113-120.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 38 paragraphs.
At paragraphs 9 to 12 of the Minister’s outline of submissions filed on 17 June 2025, the solicitor for the Minister summarised the Tribunal’s reasons. The Court has carefully read the Tribunal’s reasons and accepts the summary provided by the Minister’s representative as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted),
9. The Tribunal found the applicant was not a witness of truth and his claims for
protection were not credible. The Tribunal found various aspects of the applicant’s evidence regarding his loans inconsistent, far-fetched and implausible.10. The Tribunal noted that the applicant showed a picture of a letter on his phone which was untranslated but appeared to be addressed to him and showed an amount of 64,000 ringgit. The Tribunal gave the applicant the benefit of doubt and accepted he
may have incurred fees of 64,000 ringgit related to his studies in Malaysia but given
the vague and contradictory nature of his evidence, did not accept he had a continuing debt of 64,000 ringgit. The Tribunal did not accept that the applicant’s name was blacklisted.11. The Tribunal found the applicant’s evidence was inconsistent. It found substantial discrepancies in his evidence raised serious doubts about the credibility of his claims. The Tribunal also found significant inconsistencies about his alleged experiences once he allegedly moved from place to place and his residential details, and between his evidence and the evidence of his cousin regarding the money allegedly borrowed from the loan shark. The Tribunal put the numerous inconsistencies between the applicant’s evidence and his cousin’s evidence to the applicant in accordance with s 424AA of the Act. The Tribunal considered, but did not accept, that the applicant’s explanation addressed its concern regarding the numerous discrepancies.
12. The Tribunal found that the applicant’s claims were not credible and rejected his
Claims. The Tribunal did not accept that if the applicant returned to Malaysia he faced a real chance of persecution from the loan shark or anyone associated with the loan shark. It found he did not face a well-founded fear of persecution as per s 5J(1) of the Act and was not a refugee as defined in s 5H(1). The Tribunal also did not accept there were grounds for believing that there was a real risk the applicant would suffer significant harm from the loan shark or anyone associated with the loan shark, and was not satisfied he met ss 36(2)(a) 36(2)(aa) of the Act, and affirmed the decision under review.Based on the findings made by the Tribunal it was not satisfied that the Applicant met the refugee nor the complementary protection criterion. Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection visa.
PROCEEDINGS IN THIS COURT
The application
On 29 January 2019 (i.e. more than 2 years after the Tribunal’s decision), the Applicant applied to this Court for judicial review of the Tribunal’s decision (Originating Application). The Originating Application was accompanied by an Affidavit deposed to by the Application (Applicant’s Affidavit).
The Originating Application is brought pursuant to s 476 of the Act. The Applicant seeks the following orders:
(1)That the decision of the Tribunal be quashed.
(2)A writ of mandamus directed at the Tribunal requiring them to determine the application according to law.
(3)A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law.
The Court notes that the third order sought appears to be an error because the no Independent Protection Assessment Reviewer participated in the Applicant’s matter.
As previously noted, the Originating Application was filed outside the 35-day time limit specified in s 477(2) of the Act. Accordingly, the Applicant requires an extension of time within which to pursue the substantive matter in court.
Case management
On 18 February 2019, the Minister filed its response, seeking the application be dismissed. The Minister submitted that the Court has no jurisdiction to review the Tribunal’s decision because it was out of time, and notwithstanding that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
On 4 March 2020, the Minister filed a bundle of relevant documents (Court Book).
On 18 February 2025, a Registrar of this Court issued an Order (Registrar’s Order) directing the:
(a)Applicant to file any amended application with proper particulars, written submissions and further evidence at least 28 days before the hearing,
(b)Minister to file any written submissions and further evidence in reply at least 14 days before the hearing,
(c)The name of the first respondent be amended to “Minister for Immigration and
Multicultural Affairs”,
(d)The matter be listed for an extension of time hearing and, if granted, a final hearing on a date and time to be advised
The Applicant did not file an amended application and nor did he provide further particulars of the grounds for judicial review, despite being invited to do so. The Court confirmed with the Applicant that he did not file any additional documents in compliance with the Registrar’s Order.
On 17 June 2025 the Minister complied with the Registrar’s Order by filing written submissions.
Therefore, the relevant materials before the Court are as follows:
(a)the Originating Application.
(b)the Applicant’s Affidavit (marked as Exhibit A1).
(c)a Court Book numbering 123 pages filed 4 March 2020 (marked as Exhibit R1),
(d)an outline of written submissions filed by the Minister on 17 June 2025.
The extension of time hearing
At the hearing, the Applicant appeared before the Court without legal representation. The Minister was represented by Jesse Slankard of Sparke Helmore.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
To assist the Applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal’s decision or grant the Applicant the visa they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The Court also explained to the Applicant, that the Court first had to decide whether to grant him an extension of time. The Court explained that the statutory timeframe within which an Applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.
The Court informed the Applicant that his application was filed outside the prescribed period. The Court explained that, despite the late filing of the application, the Applicant can ask the Court for an extension of time within which to file his application.
The Court explained the matters the Court considers when deciding whether to grant an extension of time. The Court invited the Applicant to address the factors relevant to the grant of extension of time (discussed below). The Applicant’s responses are discussed in the consideration that follows.
The Minister made submissions consistent with the outline of written submissions filed by the Minister on 17 June 2025. Noting that the Minister had not addressed the contentions contained in the Applicant’s Affidavit, at the hearing the Court also invited the Minister’s representative to do so.
After the Minister made their submissions, the Court invited the Applicant to respond to what the Minister’s representative had said. The Applicant made no further submissions in reply.
Before reserving its decision and adjourning, the Court as presently constituted, asked the Applicant, “just finally, is there anything else that you want to say about the matter?”. The Applicant responded “No”.
Having regard to all of the interactions between the Court and the Applicant and noting his command of the English language the Court is confident he properly comprehended the scope and purpose of the hearing.
RELEVANT LEGISLATION
s 477 of the Act provides time limits which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which the Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35-day period as the Federal Circuit Court considers appropriate if:
(a).an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b).the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order
CONSIDERATION
Because the Tribunal’s decision was dated 30 June 2016, the Applicant had until 4 August 2016 to seek judicial review. Because the application was not filed until 29 January 2019, it was 908 days out of time.
Consequently, the Court must consider the two limbs of s 477(2) of the Act to determine whether it is appropriate to grant the Applicant an extension of time.
s 477(2)(a) – Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing giving reasons as to why the extension of time should be granted.
In the originating application, the Applicant sought leave of the Court to grant him an extension of time. The Applicant stated (reproduced without alteration):
1. I was unaware I had appeal rights until I approached the Asylum seeker resource centre, who advised that I could appeal the decision out of time and request an extension of time for my matter to be heard given the error in law in my case.
By his Originating Application, the Applicant requested an extension of time in writing and provided “grounds” explaining why he believed the extension should be granted. Consequently, s 477(2)(a) of the Act is satisfied.
s 477(2)(b) – Necessary in the interests of justice
In relation to the second limb in s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
The factors which the court may consider under this limb are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of the delay,
(b)the explanation for the delay,
(c)whether the respondent (or any third parties) would suffer any prejudice due to the delay,
(d)the impact on the applicant, and
(e)whether the proposed substantive application for judicial review has “merit”.
It is now necessary to consider each of these factors to decide whether it is, in all the circumstances, appropriate to grant the Applicant an extension of time.
Length of delay
As outlined above, the delay in the matter is 908 days. At the hearing the Applicant accepted as correct the period of lateness.
In the Court’s view, the delay in this matter is extensive.
This factor weighs against granting the Applicant an extension of time.
Explanation for the delay
In this matter, the Applicant’s “grounds” for an extension of time were stated to be as follows (without alteration):
1. I was unaware I had appeal rights until I approached the Asylum seeker resource centre, who advised that I could appeal the decision out of time and request an extension of time for my matter to be heard given the error in law in my case.
Paragraph 7 of the Applicant’s substantive grounds of review also provided an explanation of the Applicant’s delay:
7. The applicant was not advised that he could appeal the decision to the Federal Circuit Court and applied for Ministerial Intervention but now wishes to put his case the court for determination according to law.
Before this Court, the Applicant confirmed that he was unaware of his appeal rights. After being invited to do so by the Court, the Applicant offered no other explanation for his delay. Asked by the Court when he had approached the Asylum Seeker Resource Centre (ASRC) the Applicant suggested February 2019. However, this date must not be a correct recollection because it is after the date that the Applicant filed the present application for judicial review.
The Applicant’s explanation for the delay is not acceptable. The Tribunal clearly sets out that an applicant has 35 days to apply for review in the “Information about decisions – MR Division” document. This document was provided to the Applicant along with the Tribunal decision. The onus is on the Applicant to be cognisant of his review rights.[13]
[13] SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] (Foster J); MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25].
For the reasons outlined above, the Court does not consider the explanations provided by the Applicant in this matter to be satisfactory. This weighs against granting the Applicant an extension of time.
Prejudice
The Minister contended that,
Whilst there is no specific prejudice to the Minister beyond the public interest in the finality of administrative decision making, the proposed substantive application contemplated by the application does not disclose sufficient merit such as to warrant the Court exercising its jurisdiction to extend time.
This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time.
Impact on the Applicant
If the extension of time is not granted, the Tribunal’s decision will stand, along with all the consequences that will flow from that decision (including the prospect of possibly being removed from Australia). No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act. However, an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth). Before the Court the Minister’s representative conceded the grave consequences for the Applicant if the application is dismissed.
This factor weighs in favour of granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining whether to grant an extension of time for an application is whether the proposed application for judicial review has any “arguable prospect of success”.
When determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”.[14] 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.[15]
[14] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
[15] 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. In addition, the Court considered what appeared to be additional grounds of review contained in the Applicant’s Affidavit. 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 he believes the Tribunal made a jurisdictional error, and
(b)each of the grounds of review in the Originating Application and Applicant’s Affidavit.
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 20 to 28 of the Minister’s outline of submissions.
To assist the Applicant during the hearing, both the Originating Application and Applicant’s Affidavit were printed and provided to him so that he easily had to hand each of the grounds of review advanced by him when the Court asked him to address each of them. In answer to a question from the Court as presently constituted the Applicant advised that he did not draft either document. That is not a criticism of the Applicant. However, it may explain his inability to engage with each of the grounds in a meaningful way.
The grounds of review asserted by the Applicant in his Originating Application and the Applicant’s Affidavit will now be addressed in turn
Grounds of review - Origination Application
Ground/Paragraph 1
1.The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal) which a decision was made on 30th June 2016 where the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Protection Subclass 866 Visa.
Ground 1 is a statement of fact about what occurred. It is background information. It is not a proper ground of review. Accordingly, there is no arguable case of jurisdictional error in relation to ground 1.
Ground/Paragraph 2
2. The tribunal constructively failed to exercise its jurisdiction
The Grounds of Application then have the word “PARTICULARS” next to paragraph 3.
Paragraph 4 (particular 1 of ground 2)
The applicant's documents were not verified in order to label them as false documents, his credibility was diminished before the tribunal made any checks to verify the authenticity of these documents.
At the hearing, the Applicant was asked what he meant by this ground of review. Specifically, he was asked what was wrong with the documents before the Tribunal. The Applicant said he was unsure what this ground meant, and that a family member had drafted the grounds. When asked by the Court as presently constituted “was there anything wrong with the documents?” the Applicant responded, “No”. Further, the Applicant said he had “no idea” what documents this Ground was referring to.
The Applicant suggested he provided no documents to the Tribunal. However, he was wrong in this recollection. The Court Book reveals that the Applicant provided a picture of an untranslated letter (Letter Evidence) at the Tribunal hearing which appeared to show an amount of 64,000 ringgit[16] but was otherwise incomplete and did not show the date. In any case the Tribunal Decision reveals that the Tribunal was “prepared to give the applicant the benefit of the doubt and accept that he may have incurred fees of 64,000 related to his studies in Malaysia.”[17]
[16] CB 117 at [25].
[17] Ibid.
As far as this ground alleges the Tribunal failed to verify the authenticity of the Letter Evidence, the Tribunal was not required to do so. The Applicant had every opportunity to bring before the Tribunal evidence supporting his application for protection, including a translation of the Letter Evidence. Notwithstanding, the Tribunal accepted that the Letter Evidence may point to the fact that the Applicant may have incurred fees at some point in time for his studies in Malysia. However, the Tribunal did not accept that there was a continuing debt to a loan shark, given the vague and contradictory evidence in the Applicant’s evidence regarding the debt.[18]
[18] n 16.
Overall, the Tribunal found the Applicant was “not a witness of truth and that his claims for protection are not credible.”[19] As far by this ground the Applicant challenges the Tribunal’s findings, it was open to the Tribunal to make assessments of the reliability and credibility[20] of his claims for protection given the limited evidence before it.
[19] CB 116 at [22].
[20] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [61]
DAO16 v Minister for Immigration and Border Protection[21] explains how an adverse credibility finding may amount to jurisdictional error,
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
[21] [2018] FCAFC at [30].
There is no discernible jurisdictional error in the present matter because the Tribunal accepted the Letter Evidence provided evidence of a student loan. Having given the Applicant the “benefit of the doubt” there is nothing further in the Tribunal’s decision or findings about the Applicant’s credibility that was unreasonable.[22]
[22] CB 117 at [25].
Ultimately, based on the cumulative evidence and responses provided to the Tribunal, the adverse credibility findings were open to it. The Tribunal’s decision demonstrates a logical connection between the evidence before it and its findings.
According, there is no arguable case of jurisdictional error in relation to this ground.
Paragraph 5 (particular 2 of ground 2)
The tribunal has made errors in administration and has not determined the case according to law.
Although invited to do so at the hearing, the Applicant did not provide any further explanation of this ground. When asked by the Court as presently constituted, “What do you mean by [this ground]?”, the Applicant responded, “I have no answer for that.”
Noting the bare nature of this ground of review that is not supported by any further particulars nor evidence, there can be no arguable case of jurisdiction error.
Paragraph 6 (particular 3 of ground 2)
The tribunal failed to give the applicant an opportunity to state his case. The tribunal therefore failed to exercise its jurisdiction according to law.
The material in the Court Book demonstrates that on 26 May 2016 the Tribunal invited the Applicant to a hearing[23] that was conducted on 28 June 2016[24]. Accordingly, on the material before the Court, it appeared that the Applicant was provided with “an opportunity to state his case”. In answer to questions from the Court as presently constituted, the Applicant confirmed that there was a hearing and that he attended it. Asked “then how did the Tribunal fail to provide you with an opportunity to state your case?”, the Applicant responded, “I have no answer for that.”
[23] CB 100-101.
[24] CB 102-104.
To the extent this ground claims the Tribunal did not give the Applicant “an opportunity to state his case” it must be rejected. If, in fairness to the Applicant, the ground is interpreted as the Tribunal not giving the Applicant sufficient time to prepare for the Tribunal hearing this too must be rejected. This is because the Applicant was on notice of the issues to be determined and had 10 months from the date of applying for review of the Delegate’s decision to the Tribunal hearing. He had ample time to gather any evidence or documents he required to present at the Tribunal hearing.
According, there is no arguable case of jurisdictional error in relation to this ground.
Paragraph 7 (particular 4 of ground 2)
The applicant was not advised that he could appeal the decision to the Federal Circuit Court and applied for Ministerial Intervention but now wishes to put his case the court for determination according to law.
Particular 4 is a statement. It is not a proper ground of review. Accordingly, there is no arguable case of jurisdictional error in relation to this ground.
Additional possible grounds of review discerned from the Applicant’s Affidavit
The Applicant’s Affidavit appears to provide further grounds of review in paragraphs 3-5. In fairness to the Applicant the Court considers them below.
Paragraph 3
3. My evidence was not given adequate weight. The member formed an opinion and discredited my claims on the basis of her opinion and disregarded my evidence of debt to the loan shark without getting my documents verified.
The weight to be given to evidence is a matter for the Tribunal[25], it does not give rise to jurisdictional error.
[25] Abebe v Commonwealth (1999) 197 CLR 510 at 580 [197] per Gummow and Hayne JJ.
In paragraphs [22]-[31] of the Tribunal decision, the Tribunal considered the Applicant’s evidence and found that various aspects of the Applicant’s evidence regarding the loan were “inconsistent”, “far-fetched” and “implausible”.
The only document that the Applicant provided was the Letter Evidence which was handed up on the day of the Tribunal hearing. In paragraph [25] of the Tribunal’s decision the Tribunal gave the Applicant the benefit of the doubt that he may have incurred fees at some point in time for his studies in Malaysia. However, the Tribunal did not accept that this was a continuing debt, given the vague and contradictory evidence in the Applicant’s responses regarding the debt, this was a conclusion which the Tribunal was open to reach.
At the hearing, the Applicant stated he did not have a chance to submit a police report. A police report had not previously been mentioned (either before the Delegate or the Tribunal). At the hearing the Applicant was asked what police report he was referring to. He responded that it was a document he obtained after the Tribunal hearing because it was not “prepared in time” for the hearing. In answer to a question from the Court as presently constituted “that’s not the fault of the AAT is it?”, the Applicant responded, “No”.
The relevant chronology is as follows:
(a)The Application for review of the Delegate’s decision was filed 24 August 2015.
(b)On 26 May 2016, the Tribunal invited the Applicant to attend a hearing on 28 June 2016.
(c)On 28 June 2016 the hearing occurred.
As discussed above, the Applicant had 10 months to prepare his case for the Tribunal hearing. No criticism can be made of the Tribunal for not considering a document not prepared in time for the hearing and, therefore, not before it.
The Tribunal can only make findings based on the evidence before it. It was the Applicant’s responsibility to present his case and put forward any evidence which may have advanced his claims.
Accordingly, there is no arguable case of jurisdictional error in relation to this ground.
Paragraph 4
4. The member chose to label my documents and not genuine without having these checked through proper process.
It would appear that the word “and” should be “as”. That is how the Court has read the ground.
When, at the hearing, the Applicant was asked “what documents are you referring to?”, the Applicant responded “I have no answer for this one”.
To the extent this ground relates to the Letter Evidence, the Tribunal gave the Applicant the benefit of the doubt that it may relate to study fees which he incurred. However, this did not assist the Tribunal in coming to a conclusion that the Applicant had a genuine, continuing debt. It was not the responsibility of the Tribunal to translate the Letter Evidence.
Accordingly, there is no arguable case of jurisdictional error in relation to this ground.
Paragraph 5
5. I cannot return to Malaysia due to my safety and approached the asylum resource centre who advised to appeal and request an extension of time given the circumstances of my case and the events occurred at the tribunal.
The contention that the Applicant cannot return to Malaysia because of concerns for his security is not a matter this Court can consider. It invites the Court to undertake impermissible merits review.[26] This limitation on the Court’s capacity to engage in merits review had been explained to the Applicant.
[26] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272
The Applicant having conceded in the hearing that the Tribunal did consider the issue of his safety, the Court as presently constituted asked the Applicant “why do you say the Tribunal got that wrong?”. The Applicant responded, “sorry, I have no answer to that”. For completeness, the Tribunal did consider the Applicant’s fear of harm and based on the evidence before it, did not accept that as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk that the Applicant will suffer significant harm from the loan shark or anyone associated with the loan shark that he allegedly borrowed money from.[27]
[27] CB 120 at [34].
Accordingly, there is no arguable case of jurisdictional error in relation to this ground.
In conclusion, having considered all of the Applicant’s grounds of review as generously as possible, none of them establish and arguable case of jurisdictional error.
CONCLUSION
Because the Originating Application was filed with this Court 908 days outside the statutory timeframe, the Court may only grant an extension of time if it is satisfied such extension is in the interests of the administration of justice.
Having considered above all of the matters that are to be taken into account in deciding whether to grant an extension of time, in particular:
(a)the length of the delay,
(b)the absence of a satisfactory explanation for the delay in filing the application, and
(c)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.
In its submissions the Minister sought a further order that the “The applicant pay the costs of the first respondent fixed in the sum of $4,189.38”.
The Court explained to the Applicant that:
(a)it had not made a decision about their application,
(b)the Minister is seeking costs in the event that it is successful,
(c)in deciding the question of costs, the Court is required to consider
(i)whether the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party, and
(ii)if the Court is so satisfied that the Applicant should pay costs, how much the Applicant should pay.
The Court then invited the Applicant to make a submission about costs in the event that they are unsuccessful, and their application is dismissed. The Applicant did not make any oral submissions about costs.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister which is in line with the scale costs[28], given the amount of work undertaken as evidenced by the court file.
[28] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) Division 1 of Part 2 of Schedule2.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 4 July 2025
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