Amm21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) - [2022] FedCFamC2G 496

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMM21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 496

File number(s): PEG 45 of 2021

Judgment of: JUDGE LUCEV

Date of judgment: 23 June 2022

Catchwords:
MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – whether proposed grounds of review reasonably arguable

PRACTICE AND PROCEDURE – Extension of time – factors – whether substantial delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of review reasonably arguable

Legislation: Migration Act 1958 (Cth) ss 5AAA, 423A, 424AA, 424A, 426A, 438, 476, 477

Cases cited:
ADN15 v Minister for Immigration and Border Protection [2016] FCA 810

BJM15 v Minister for Immigration and Border Protection [2021] FCA 786

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Brar v Minister for Immigration and Border Protection and Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402

BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83

CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588

CXS18 v Minister for Home Affairs [2020] FCAFC 18

CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1

DLE16 v Minister for Home Affairs [2019] FCA 136

DNN18 v Minister for Home Affairs & Anor [2018] FCCA 2926

Duwai v Minister for Immigration and Border Protection [2014] FCA 1141

EMT18 v Minister for Home Affairs [2019] FCA 1501

EMT18 v Minister for Home Affairs [2019] FCCA 660

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469

Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 44; (2021) 390 ALR 590

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646

MZZRO v Minister for Immigration & Anor [2014] FCCA 882

NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491

Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795

Sharma v Minister for Immigration & Anor [2018] FCCA 1382

SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702

SZJRV v Minister for Immigration & Citizenship [2008] FCA 298

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1

SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244

SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17

SZTES v Minister for Immigration & Border Protection [2015] FCA 719

SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Tran v Minister for Immigration & Border Protection [2014] FCA 533

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350

WZANW v Minister for Immigration and Citizenship and Anor [2009] FMCA 1075

WZARX v Minister for Immigration & Border Protection [2014] FCA 423

WZASQ v Minister for Immigration and Border Protection and Anor [2013] FCCA 1726

WZAWB v Minister for Immigration & Anor [2016] FCA 1345; (2016) 309 FLR 398

Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476

Division: Division 2 General Federal Law

Number of paragraphs: 64

Date of last submission/s: 3 March 2022

Date of hearing: 3 March 2022

Place: Perth

The Applicant: Appeared in person

Counsel for the First Respondent: Ms M. Scott

Solicitor for the First Respondent: Australian Government Solicitor

For the Second Respondent: Submitting appearance, save as to costs
ORDERS

PEG 45 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AMM21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

23 JUNE 2022

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be 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 LUCEV
INTRODUCTION

On 2 March 2021 the applicant, AMM21, filed an application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time (“Extension of Time Application”) in which to file an application for judicial review (“Proposed Judicial Review Application”) under s 476 of the Migration Act. The Proposed Judicial Review Application is in respect of a decision of the Administrative Appeals Tribunal made on 4 November 2020 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively), the now Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant AMM21 a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 403 pages (“Exhibit 1”);
(b)the affidavit of AMM21 made on 26 February 2021, annexing the Tribunal Decision (“AMM21 Affidavit”);
(c)the Minister’s written submissions filed 26 October 2021 (“Minister’s Submissions”);
(d)AMM21’s submissions filed 1 March 2022 (“AMM21’s Submissions”), submissions which, despite apparently having been prepared and settled by solicitors and Counsel, do not address the Extension of Time Application; and
(e)the affidavit of Jonathan Papalia, a lawyer with the Australian Government Solicitor, affirmed 2 March 2022 (“Papalia Affidavit”).
EXTENSION OF TIME APPLICATION
Extension of time – legislative provisions
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act. Section 477(2) of the Migration Act is as follows:
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
Law
In considering the law with respect to delay in making an application for judicial review under the Migration Act, regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
(b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority, CLR at 553 per McHugh J.
With the above statements of principle in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act are well established, but not closed, and can be summarised as follows:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)whether the merits of the Proposed Judicial Review Application are reasonably arguable,
see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Delay
AMM21 was required to file his judicial review application in this Court by 9 December 2020. The Extension of Time Application was filed on 2 March 2021. The delay is some 83 days.
The delay is not insignificant. It is more than twice the statutory time limit that Parliament has adjudged as reasonable for an individual to make a judicial review application to the Court.
It has been said that a delay of 54 days is likely to be fatal to an application for an extension of time where there is no reasonable explanation for the delay: WZANW v Minister for Immigration and Citizenship and Anor [2009] FMCA 1075 at [28] per Lucev FM; see also EMT18 v Minister for Home Affairs [2019] FCA 1501 at [29] per Rares J citing EMT18 v Minister for Home Affairs [2019] FCCA 660 at [3] per Judge Street, where a delay of 41 days was held to be “not insignificant” in circumstances where the explanation proffered was not satisfactory.
In this case, the Court finds the delay of 83 days weighs quite significantly against the grant of an extension of time.
Explanation for delay
Generally, “the longer the delay, the more persuasive the explanation needs to be”: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J; see also, Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ.
AMM21’s explanation for failing to file the application within time is that he was not legally represented before the Tribunal and he was not aware of the time limit: AMM21 Affidavit at [4]; Transcript pp 5 and 9.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay, even for a self-represented litigant: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [5]-[6] per Flick J; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). In SZSDA at [38] per Foster J, the Federal Court observed that:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the … Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. …
This passage from SZSDA has been applied on many occasions over many years in this Court (then styled the Federal Circuit Court of Australia): see, by way of example, MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [34] per Judge Jones; MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F. Turner; WZAWB v Minister for Immigration & Anor [2016] FCA 1345; (2016) 309 FLR 398 at [92] per Judge Lucev; DNN18 v Minister for Home Affairs & Anor [2018] FCCA 2926 at [27] per Judge Driver; CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371 at [22] per Judge Kendall.
It is well-established that an applicant has the onus of making proper inquiries as to any applicable time limit and of taking any reasonable action to ascertain whether the relevant decision can be challenged: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J; SZSDA at [38] per Foster J; Duwai v Minister for Immigration and Border Protection [2014] FCA 1141 at [7] per Edmonds J.
The fact that AMM21 was not legally represented before the Tribunal is not unique. AMM21 was in the same situation as many applicants who come before the Tribunal and who subsequently file their judicial review application within time. Further, AMM21 was provided with ‘MR 25 Information about decisions’, an information brochure that specifically identified that AMM21 had to lodge an application for judicial review with the Court within 35 days of the Tribunal Decision: Papalia Affidavit at [3] and Annexure JP-1.
There is no right to legal representation before the Tribunal: WZARX v Minister for Immigration & Border Protection [2014] FCA 423 at [14] per McKerracher J; SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244 at [30]-[31] per Flick J; Sharma v Minister for Immigration & Anor [2018] FCCA 1382 at [18] per Judge Lucev. The Court also observes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev, although the Court may, particularly where the delay is short and no injustice is done to the Minister, take into consideration the fact that a person is self-represented, does not speak English (or English as a first language), and does not have a lawyer to assist them: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J.
The fact that AMM21 did not have access to legal advice either before the Tribunal, or indeed before this Court, is of itself insufficient to explain any delay. It may be trite to observe that the majority of applicants in migration judicial review proceedings in this Court are self-represented, but they still make their judicial review applications within the prescribed time limit. In refusing an application for an extension of time in which to appeal the Full Court of the Federal Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [38] per Yates, Wheelahan and O’Bryan JJ said that:
… the circumstances referred to by the applicant as his explanation for the delay are unexceptional in that they involve matters (including lack of legal representation) that are shared by many litigants in this Court in the migration jurisdiction.
Finally, the Court notes that AMM21 stated that he became aware of the time limit on 31 December 2020 (at which time he was 25 days out of time), when he contacted a lawyer in Sydney to obtain initial legal advice: AMM21 Affidavit at [5]. AMM21 does not explain why he did not contact this, or any, lawyer until this time. Nor does he explain why he did not provide instructions to his lawyer to assist with filing the Extension of Time Application until 22 January 2021: AMM21 Affidavit at [6], and, further, why the Extension of Time Application was not then filed until 2 March 2021. Arising from these facts, three pertinent observations may be made:
(a)first, AMM21 did have the benefit of legal advice, seemingly over a period of at least some weeks;
(b)second, the matters deposed to in the AMM21 Affidavit still leave the delay entirely unexplained, save for the alleged lack of awareness of the time limit; and
(c)third, from the time AMM21 says he first became aware of the time limitation until the time of filing there is still a not insignificant delay of 61 days.
Having regard to the matters set out at [10]-[18] above, the Court finds the explanation for the delay given by AMM21 to be inadequate, and this therefore weighs against an extension of time.
Prejudice
In this matter the Minister acknowledges that no prejudice has been suffered, however in submissions correctly observed that this alone is insufficient to justify an extension of time: DLE16 v Minister for Home Affairs [2019] FCA 136 at [27] per Justice Derrington; Hunter Valley Developments at 348-349 per Wilcox J.
Merits of the Proposed Judicial Review Application
The Proposed Judicial Review Application contains three proposed grounds of review set out at [26] (ground 1), [32] (ground 2) and [46] (ground 3) below.
Whether proposed grounds of the Proposed Judicial Review Application are reasonably arguable
The relevant background to the Proposed Judicial Review Application is as follows:
(a)AMM21 is a citizen of Malaysia who arrived in Australia on 3 August 2015 on a Visitor (class FA) (subclass 600) visa (“Visitor Visa”): CB 30. The Visitor Visa was due to expire on 2 February 2016: CB 50;
(b)on 27 January 2016 AMM21 applied for the Protection Visa: CB 10-56. AMM21’s claims can be summarised as follows (see CB 40-43):
(i)he and his father ran a petroleum business and were required to borrow money at a high interest rate. AMM21 was paying the interest for 1 year, however, the lenders (“the loan sharks”) started taking money without reducing the principal amount and he then had to borrow money from another person to settle the debt, but this was still not enough;
(ii)the loan sharks lodged a police report, started calling his house and threatening him, took his car from him, posted his picture all around his housing area and took him to a “dark spot”, hit him and threatened to kill him, and consequently AMM21 fears that the loan sharks will harm or kill him;
(iii)AMM21 had tried to relocate but the loan sharks found him; and
(iv)the police are unable to assist him;
(c)on 20 May 2016 the Delegate refused to grant AMM21 the Protection Visa: CB 57-76. The Delegate determined that AMM21 was able to access effective protection measures, namely the Royal Malaysian Police and Malaysian Judiciary, and, accordingly, AMM21 did not meet the refugee or complementary protection criterion;
(d)on 19 June 2016 AMM21 applied for review of the Delegate’s Decision with the Tribunal: CB 77-78;
(e)by email dated 18 December 2017 AMM21 was invited to attend a hearing before the Tribunal on 12 February 2018: CB 82-84. AMM21 failed to attend that hearing and the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act: CB 85-88 and 92-94. AMM21 was advised that he could apply for reinstatement within 14 days;
(f)AMM21 sought reinstatement of his application by email sent 24 February 2018: CB 95-95. On 26 February 2018, the Tribunal reinstated the application pursuant to s 426A(1C)(a) of the Migration Act: CB 98;
(g)AMM21 attended a short hearing before the Tribunal on 2 October 2019: CB 115-118, and was then invited to attend a further hearing on 1 November 2019: CB 119-121;
(h)AMM21 sought an adjournment of the hearing on 1 November 2019 saying that he had not fully appreciated the importance of presenting evidence and that he intended to obtain further information: CB 125-126. The Tribunal granted an adjournment until 27 November 2019: CB 131-135, but that hearing was cancelled: CB 144;
(i)a further hearing was scheduled for 27 March 2020, however, following AMM21’s employer, Dr Jon Sainken (“Dr Sainken”), advising the Tribunal that AMM21 was not content for the matter to proceed via telephone, the Tribunal adjourned the hearing once again: CB 149-165;
(j)on 5 May 2020 Dr Sainken provided written submissions and further documentary evidence on behalf of AMM21: CB 182-246;
(k)AMM21 attended a hearing before the Tribunal on 6 May 2020: CB 247-250.
(l)following the hearing, the Tribunal wrote to AMM21 notifying him that a certificate issued under s 438 of the Migration Act had been provided to the Tribunal. The Tribunal invited him to respond to adverse information, comment upon the validity of the certificate and whether it should disclose the document, and on information it had received that AMM21 had threatened to kill persons and that he had used another person’s details to incur debts: CB 252-255;
(m)on 15 May 2020 Dr Sainken responded to the request refuting the allegations and requiring the “full text” of the complaint in order to address all aspects of the complaint: CB 258. Further submissions and supporting documents were provided on:
(i)18 May 2020: CB 260-271;
(ii)20 May 2020: CB 272-283; and
(iii)1 June 2020: CB 284-287;
(n)on 2 September 2020 AMM21 attended a further hearing: CB 321-324; A number of supporting documents were provided to the Tribunal at the hearing: CB 326-344; and
(o)on 4 November 2020 the Tribunal affirmed the Delegate’s Decision to refuse AMM21 the Protection Visa: CB 367-403.
Tribunal Decision

In the Tribunal Decision (see CB 367-403) the Tribunal:
(a)provided a detailed overview of the procedural history of the application before the Tribunal including:
(i)the dismissal for non-appearance and the subsequent reinstatement: CB 368 at [3];
(ii)the role played by Dr Sainken who acted as a support person (and not a witness) for AMM21: CB 368 at [5]; and
(iii)the various hearings that AMM21 attended: CB 368-369 at [6]-[7];
(b)noted that while an interpreter had been available for the first two hearings, AMM21 indicated he did not require an interpreter at the third hearing. Dr Sainken confirmed this at the third hearing. However, at the conclusion of the hearing Dr Sainken had indicated that he felt AMM21 had not understood the questions put to him. The Tribunal was satisfied that AMM21 had understood the questions, noting that in the 3-hour duration of the hearing no concern had been raised: CB 369 at [8];
(c)having accepted that AMM21 was a citizen of Malaysia: CB 373 at [35], the Tribunal provided a background overview of AMM21 as follows:
(i)AMM21 identifies as Hindu and ethnically Tamil. He is married and has a son. Both his wife and son were in Australia at the time of the latter two hearings on a visitor visa: CB 373 at [36]-[37];
(ii)prior to travelling to Nepal in April 2015 and then on to Australia, AMM21 was living with his parents who remain living in the same family home. AMM21’s wife and his son moved to live with his wife’s parents because of the ‘problems’ that were occurring: CB 373 at [38]-[40]; and
(iii)AMM21’s family own a petroleum business which his father has operated for more than 20 years. AMM21 worked as a driver for the business and operated two of his own businesses; another petroleum business which he operated for 2-3 years and another business which he transferred into the name of his brother-in-law: CB 373 at [41];
(d)referred to the Delegate’s summary of AMM21’s claims for protection and noted that AMM21 had agreed that this was an accurate summary. The Tribunal noted that AMM21 indicated that his father feels shame, that his family continue to be bothered by the loan sharks, and that the bank had advised his sister that AMM21 has to pay $100,000 for his car which was stolen: CB 374 at [42]-[43];
(e)noted that it had put relevant matters in the Delegate’s Decision to AMM21 for comment pursuant to s 424AA of the Migration Act and that AMM21 had provided written submissions in response: CB 374 at [44] and 377 at [53]-[56], and confirmed that it had received a copy of AMM21’s wife’s Departmental file, however, it did not consider this to be relevant: CB 374 at [45];
(f)itemised the documentary information which had been provided to it. The Tribunal noted it had discussed with AMM21 documents which he said would be provided, but did not appear to have been provided, the effect of the operation of ss 5AAA and 423A of the Migration Act, and AMM21’s response that he was not aware of the need to provide evidence, that he did not want to disturb his family, and that it took a long time to send the material: CB 374-377 at [46]-[51];
(g)having noted that two certificates under s 438 of the Migration Act were on AMM21’s file, the Tribunal:
(i)confirmed that it had asked for clarification of one certificate which appeared to have been incorrect and a certificate was reissued by the Department in response: [57];
(ii)stated that it had made AMM21 aware of the certificates during the hearing and had written to him on 12 May 2020 inviting him to comment on the validity of the certificates and respond to other information: CB 378 at [58]-[59];
(iii)referred to the submissions provided by Dr Sainken on 15 and 20 May 2020, and confirmed that it had taken AMM21’s submission to be a request that the Tribunal exercise the discretion to disclose the documents the subject of the certificates: CB 378 at [60];
(iv)identified that it found the certificates to be valid as the information had the necessary quality of confidence: CB 378-379 at [61]-[62]; and
(v)chose not to exercise the discretion to disclose the documents to AMM21 as it considered it important to uphold the public interest in maintaining confidentiality and noted that the relevant content of the information the subject of the certificates had been put to AMM21 and he had responded in detail: CB 379 at [63]-[64];
(h)summarised in significant detail the evidence that had been provided by AMM21 and his wife during the second and third Tribunal hearings: CB 379-387 at [66]-[121]. In the course of summarising the evidence, the Tribunal noted:
(i)the questions it had asked of AMM21 and his responses to those questions;
(ii)the contents of the documents AMM21 had provided to the Tribunal and the discussion AMM21 and Tribunal engaged in about those documents;
(iii)the matters that the Tribunal “put” to AMM21 that may cause it to consider he left Malaysia for other reasons;
(iv)that AMM21’s family had financial means to pay off a debt;
(v)that AMM21’s claims may not be credible; and
(vi)the evidence that had been provided by AMM21’s wife;
(i)summarised submissions that had been made by AMM21 and Dr Sainken about the delay in applying for the Protection Visa, namely that AMM21 wanted to “explore legal channels for remaining away from his troubles in Malaysia” and his friends had told him there was no rush as he was on a Visitor Visa: CB 387 at [122]-[123]. The Tribunal further summarised the submissions of Dr Sainken, both written and oral, in relation to the Delegate’s Decision, as to why there was a delay in providing evidence and information, why AMM21 could not return to Malaysia and that the inconsistencies in AMM21’s evidence were only small: CB 387-388 at [124]-[128];
(j)summarised the country information from the latest 2019 DFAT Country Information Report on Malaysia in relation to loan sharks: CB 388-389 at [129]-[135] and also summarised other information it had gathered from a variety of other sources, and noted that it had discussed aspects of this information with AMM21: CB 389-392 at [136]-[144];
(k)accepted that:
(i)AMM21’s family operate a petroleum business;
(ii)AMM21 operated two further registered businesses;
(iii)AMM21 was declared bankrupt in Malaysia on 5 October 2014; and
(iv)AMM21 borrowed money from two loan sharks to assist with short-term cash flow financing for his family’s business: CB 392-393 at [146];
(l)explained that it had discussed its concerns about AMM21 not providing documents to the Department and the effect of s 423A of the Migration Act: CB 393 at [149], and noted that:
(i)AMM21 had stated that he was not aware of the need to provide documents and it took him time to get the information once he realised it was required: CB 393 at [150];
(ii)it was not clear why documents relating to AMM21’s bankruptcy, the flier claimed to be from the loan sharks (which was referred to in AMM21’s Protection Visa application), the loan details or the statement from AMM21’s sister or his wife could not have been provided earlier: CB 393 at [150];
(iii)accepting that AMM21 was unrepresented at the time, considered that the Migration Act was clear in providing an obligation on AMM21 to provide sufficient detail and evidence to support his claims: CB 393 at [151];
(iv)delay in the matter being heard was not considered an acceptable explanation for the delayed provision of documents, and therefore, pursuant to s 423A of the Migration Act, the Tribunal drew an adverse inference as to the credibility of the following late submitted documents:
(A)documents relating to AMM21’s bankruptcy;
(B)the loan-shark flier;
(C)a statement from his sister alleging death threats to the family on the day of the death of a family member and the attempted suicide of AMM21; and
(D)the summary of the loans detailing payments: CB 393 at [152];
(m)accepted that:
(i)AMM21’s family had made repayments on loans that were taken out and the loan sharks may have threatened to harm AMM21 if he did not honour his debts; and
(ii)it was plausible that red paint had been placed on AMM21’s door: CB 394 at [153];
(n)did not accept that AMM21’s car had been stolen, as this was contradicted by AMM21’s wife who stated that AMM21 gave the car to a friend to avoid it being repossessed: CB 394 at [154]. The wife’s evidence was consistent with the fact that AMM21 was facing bankruptcy issues in 2013 and the Tribunal preferred the wife’s evidence to AMM21’s in this regard: CB 394 at [154]. The Tribunal also found AMM21’s claim that the car was stolen to be implausible: CB 394 at [154], and therefore found AMM21’s claims not to have known about his bankruptcy proceedings to be implausible and lacking in credibility: CB 394 at [155]-[156], which also cast doubt over AMM21’s claims to have departed Malaysia to avoid loan sharks: CB 394 at [156];
(o)referred to the timeline of AMM21’s bankruptcy, noting that:
(i)AMM21 was living with his parents until April 2015 and the notice of AMM21’s bankruptcy proceedings was sent to his parent’s address;
(ii)the bankruptcy hearing was on 11 February 2015 (prior to AMM21 leaving Malaysia);
(iii)AMM21 departed for Nepal in April 2015;
(iv)AMM21 arrived in Australia in August 2015; and
(v)the bankruptcy took effect on 5 October 2015,
further noting that it was this timeline that allowed AMM21 to depart Malaysia without travel restrictions imposed as a result of his bankruptcy: CB 394 at [155];
(p)in relation to AMM21’s claim that he attempted suicide as a result of threats from the loan sharks, did not accept this claim as it was only raised by AMM21’s sister and was not raised by AMM21 in the course of his evidence: CB 394 at [156]. The Tribunal did not accept that it was difficult for AMM21 to provide the statement from the sister prior to the Delegate’s Decision and, drawing a negative inference, rejected this claim: CB 394 at [157]. The statement from the sister also mentioned that the sister had been threatened, however, AMM21’s evidence was also silent on this. Again, as this evidence was not raised earlier, and no satisfactory explanation was given, the Tribunal did not accept this claim: CB 395 at [158];
(q)in relation to the loan shark flier, AMM21 had not provided an explanation for why this evidence was not provided earlier. The Tribunal did not consider it reasonable for there to be such a delay when the document was, on AMM21’s evidence, distributed more than 6 years prior to the Tribunal’s hearings. Accordingly, little weight was placed on the document as being corroborative of AMM21’s claims: CB 395 at [159];
(r)in light of the credibility concerns with AMM21’s evidence, the Tribunal did not accept that AMM21 was beaten or had a petrol tanker stolen from him: CB 395 at [160]. AMM21 had provided no evidence to support the claim and the Tribunal considered it to be implausible that the incident would not have been reported to the police. The Tribunal considered AMM21’s explanation that he was worried for his family to be inconsistent with his evidence that his family had not been harmed at the time of the incident or since he departed Malaysia: CB 395 at [160]. While there was country information to suggest that police were unsympathetic to those who borrow money from loan sharks, the Tribunal considered that the theft of the fuel tanker was from the father’s business and the police would not refuse or fail to investigate in these circumstances: CB 395 at [160];
(s)accepted as plausible that inquiries had been made about AMM21’s whereabouts to his family, however, the Tribunal did not consider that these approaches constituted serious harm to AMM21’s family members: CB 395 at [161];
(t)said that its concerns regarding the credibility of AMM21’s claims were strengthened by AMM21’s evidence that he has sought to invest money with loan sharks to earn interest while in Australia and has access to significant sources of finance to assist him: CB 395-396 at [162], and did not accept that AMM21 would “invest” with loan sharks if he had experienced serious harm from them in the past or was genuinely fearful: CB 395-396 at [162];
(u)accepted that if AMM21 returned to Malaysia, it was plausible his creditors may renew their claims for payment, however, this was considered unlikely given AMM21’s creditors had not sought to enforce the debt against his family: CB 396 at [163] and 398 at [172];
(v)in circumstances where:
(i)AMM21’s family had not experienced any serious harm in the five years since he left Malaysia;
(ii)AMM21’s wife had regularly travelled from Malaysia to Australia;
(iii)AMM21’s wife had been in contact with and visited AMM21’s family; and
(iv)considering the country information generally,
the Tribunal did not accept AMM21’s claim that there is a real chance that he will face serious harm from loan sharks on his return to Malaysia. The Tribunal considered that AMM21 came to Australia to escape his financial problems and restrictions imposed upon him by his bankruptcy and not because of any fear of harm from loan sharks: CB 396 at [163];
(w)in relation to AMM21’s claim his family had received threats since his departure, the Tribunal considered the evidence vague and did not accept any instances of physical harm had occurred: CB 396 at [164], and accepting AMM21’s evidence at its highest, the lack of interest in enforcing the debts against AMM21’s family suggested that the creditors were not interested in pursuing their debts. Further, and in any event, based on the evidence before the Tribunal in relation to investments made by AMM21 and his family in Malaysia and Australia, AMM21 would be able to meet any loans due: CB 396 at [165];
(x)noted that the claimed harassment of AMM21’s family was not reported to the police, and that AMM21’s assertion that the police would not have done anything was considered an “easy assertion to make”. The Tribunal considered it implausible that AMM21 and his family would not seek assistance from the police in circumstances where they genuinely feared for their lives and where there was no evidence that the police would refuse to investigate reports of threats or harm to AMM21’s family: CB 396 at [166];
(y)noted that the country information reflected that predatory lending practices in Malaysia were associated with violence and crime, however, the police and government were acting and there were a number of organisations to assist people in situations similar to AMM21: CB 397 at [167], and the fact that AMM21 had not sought to access this assistance tended to undermine his claim: CB 397 at [168];
(z)in relation to AMM21’s claim that the loan sharks will not stop until the loan is repaid and AMM21 could not approach the police due to a risk to his family, indicated that it did not accept this, as the loan sharks had not sought to enforce the debt against AMM21’s family despite threats being made to harm them, and AMM21’s wife and son had visited Australia and AMM21’s family in Malaysia regularly: CB 397 at [169];
(aa)noted that AMM21 had advised the Tribunal that his family had their own debts and could not assist him to repay his. Referring to the evidence (including AMM21’s family business and money paid by a cousin in Malaysia), the Tribunal considered this indicated that AMM21’s family had financial means they were willing to make available to AMM21. Considering the lack of action taken to enforce the debt, the Tribunal considered this reflected negatively upon the seriousness of the threat. Further, AMM21’s lack of effort to access services available also reflected that AMM21 may not be fearful for his life. Overall, these matters had moderate weight when assessing the seriousness of the threat from the loan sharks: CB 397 at [170];
(bb)considered that the harm AMM21 had experienced to date led it to conclude that he would not face a chance of serious harm in Malaysia. The harm experienced was low-level harassment prior to his departure and his family have received visits since his departure, though this does not suggest a chance of significant harm upon return, and AMM21 had the option and the time to make a report to the police or access the assistance of an organisation to assist with the debt: CB 397-398 at [171];
(cc)found, based on AMM21’s experience in Malaysia, the lack of any serious harm to his family since he left Malaysia, and the country information generally, that it did not accept AMM21’s claim that there was a real chance that he will face serious harm from loan sharks on his return to Malaysia, or for any other Convention related reason: CB 398 at [173];
(dd)was not satisfied that AMM21 met the refugee criterion: CB 398 at [174];
(ee)in relation to the complementary protection criterion, found that AMM21 had made repayments on his loan in excess of the principal loan amount, that he had family who had previously provided him with financial support and his family owns and runs a business, and accordingly AMM21 would have family support and prospects of employment in Malaysia: CB 398 at [177];
(ff)found there was no real chance of harm from loan sharks, and noting the real risk test was the same as the real chance test, did not consider that AMM21’s claim of harm from loan sharks gave rise to a real risk of significant harm: CB 398 at [178]-[179];
(gg)noted that AMM21 did not make any specific claim to fear harm in relation to the bankruptcy orders, and found that there was no evidence that the bankruptcy laws in Malaysia were applied in a discriminatory manner, that they were laws of general application, and that any travel and work limitations imposed on AMM21 if he remains an undischarged bankrupt would not amount to serious and significant harm, as AMM21 would have family support: CB 398-399 at [180]-[181]; and
(hh)assessing the claims of AMM21 individually and cumulatively, was not satisfied that AMM21 met the refugee or the complementary protection criterion: CB 399 at [183]-[187].
Principles - whether Proposed Judicial Review Application reasonably arguable
In determining whether the merits of the Proposed Judicial Review Application are reasonably arguable it is not necessary for AMM21 to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J. In determining whether the grounds of review are reasonably arguable the Court is only required to deal with the grounds of review, and to examine them in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether AMM21 would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be reasonably arguable if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ). The merits of the Proposed Judicial Review Application may be assessed “in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469 at [9] per Brennan CJ and McHugh J, recently applied in BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [45]-[46] per Colvin J and CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588 at [15] per O’Bryan J.
Requirement for jurisdictional error

A Tribunal decision may be set aside on judicial review on the basis of a material jurisdictional error in relation to a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Ground 1
Ground 1 is as follows:
1.The AAT erred when it drew adverse inferences against the Applicant as to credibility of the late-submitted documents and evidence pursuant to S 423A of the Migration Act [150]-[-152] and, having done so, then considered the matters subject to adverse inferences were capable of giving rise to 'credibility concerns' in other areas [160], which allowed the AAT not to accept other aspects of the applicant's case, when a correct application of S 423A does not permit adverse inferences as to credibility to be found in claims not the subject of the S 423 A claims but which are based upon the adverse inferences as to credibility pursuant to S 423A.
Particulars
i. S 423A of the Migration Act.
AMM21’s Submissions
In relation to ground 1, AMM21 submits that the Tribunal committed jurisdictional error by misunderstanding s 423A of the Migration Act and misapplying it, thereby making irrational and unreasonable findings, and in particular that:
(a)the Tribunal referred to information in documents that had not been submitted to the Tribunal prior to the Delegate’s Decision being made: CB 393 at [149]-[152], and drew an adverse inference as to the credibility of the late submitted documents: CB 393 at [151];
(b)at CB 393 at [152] the Tribunal identified the documents and the claims against which it drew an adverse inference, as being:
(i)documents related to the bankruptcy;
(ii)the loan-shark flier;
(iii)a statement from AMM21’s sister alleging death threats to the family on the day of the death of a family member and the attempted suicide of AMM21; and
(iv)the summary of loans detailing payments;
(c)the documents at CB 393 at [152] related to:
(i)various documents concerning AMM21’s bankruptcy: CB 374-376 at [47];
(ii)AMM21’s sister’s statutory declaration dated 21 November 2019 in which she asserted “the moneylender had splashed red paint on the front door of the house and that a picture of the red paint was attached. No picture was attached to the document to the Tribunal. It states that AMM21 feared for his life and attempted suicide in 2015 and that the family believed that for his safety and mental health it was best to send him to Nepal with his friend”: CB 381 at [79];
(iii)a leaflet bearing his Malaysian identity card was distributed within 5-10 km from home: CB 380 at [74] and 382 at [89]; and
(iv)a summary of loans prepared with the assistance of AMM21’s brother-in-law following the Delegate’s Decision: CB 380 at [73];
(d)the Tribunal considered the documents at CB 393 at [152] and in doing so generally reiterated the same reasons (that is, new claims made late with no reasonable explanation) to which the Tribunal applied s 423A of the Migration Act and made adverse inferences as to the:
(i)bankruptcy documentation: CB 394 at [153]-[156];
(ii)attempted suicide claim: CB 394 at [157];
(iii)threats by reference to a car accident of a family member: CB 395 at [158]; and
(iv)loan shark flier: CB 395 at [159];
(e)the Tribunal then stated: “[g]iven credibility concerns with AMM21’s evidence the Tribunal does not accept” CB 395 at [160] after which the Tribunal considered other claims made apart from those enumerated above, including:
(i)that AMM21 was beaten or had a tanker of petrol stolen from him: CB 395 at [160];
(ii)AMM21’s evidence he had sought to invest money with loan sharks to earn interest while in Australia: CB 395-396 at [162];
(iii)that AMM21 came to Australia because he wished to escape his financial problems and in particular the restrictions imposed by bankruptcy, and to seek employment in Australia, and not because he feared serious harm from loan sharks: CB 396 at [163];
(iv)neither AMM21 nor his family sought assistance from the police: CB 396 at [166]; and
(v)that the loan sharks will not stop regardless of the amounts paid: CB 397 at [170];
(f)it is clear that the Tribunal relied upon adverse inferences in respect of the documents listed at CB 393 at [152] when it used the words “[g]iven credibility concerns with AMM21’s evidence”: CB 395 at [160], a reference to the said adverse inferences which were discussed immediately prior to CB 395 at [160]; and
(g)the reliance on the adverse inferences in respect of the documents listed at CB 393 at [152] to make further credit findings in relation to additional claims amounts to jurisdictional error, since s 423A of the Migration Act requires the Tribunal to make adverse findings limited, by implication, to the matters subject to s 423A of the Migration Act. The Tribunal made such findings in respect of other claims: see CB 395 at [160], 395-396 at [162], 396 at [163] and 397 at [166] and [170] – which relied in part or in full on the adverse inferences.
Minister’s Submissions
The Minister’s Submissions with respect to ground 1 were that it lacks merit because:
(a)AMM21 misreads the Tribunal Decision, which at CB 395 at [160] was concerned with AMM21’s claim to have been beaten and had his petrol tanker stolen, and the “credibility concerns” that the Tribunal there refers to are the concerns which the Tribunal then discusses in the balance of that paragraph, namely that:
(i)there was no other evidence provided to support AMM21’s claim to have been beaten by the loan sharks;
(ii)it was implausible that the loan sharks would have access to a tanker in which to transfer and then transport the fuel;
(iii)it was implausible that AMM21’s father would not have reported the incident to the police given the financial implications for the company;
(iv)AMM21’s explanation for why it was not reported was inconsistent with his evidence that his family had not been harmed prior to, or since, the incident; and
(v)country information did not support AMM21’s assertion that the police would have been unsympathetic to AMM21. Rather, the tanker was the property of AMM21’s father’s company and there was nothing to suggest the police would not act in relation to a theft from a business; and
(b)the adverse inferences that the Tribunal drew from the late submitted evidence (pursuant to s 423A of the Migration Act) were entirely distinct from the findings at CB 395 at [160]. The effect of the adverse inferences drawn under s 423A of the Migration Act is discussed by the Tribunal at CB 394-395 at [157]-[159]. At its highest, the inferences resulted in two new claims being rejected (and, therefore, AMM21’s sister’s statement being disregarded) and minimal weight being attributed to the evidence. Neither of these matters impinged on the assessment of the credibility of AMM21’s claim to face harm from loan sharks. The credibility of those claims was assessed by reference to AMM21’s evidence, his wife’s evidence, and the country information.
Consideration – ground 1
A proper reading of the Tribunal Decision demonstrates that the Tribunal dealt with:
(a)two credibility concerns, first, the provision of late documents and the effect of s 423A of the Migration Act, and second, credibility concerns generally; and
(b)the two credibility concerns separately, dealing with the late documents at CB 393-395 at [149]-[159], and with the concerns generally at CB 395-396 at [160]-[162] and CB 397 at [169].
The content of the Tribunal Decision accords with the form of the Tribunal Decision as set out in the preceding paragraph, whilst:
(a)drawing specific conclusions, particularly at CB 394-395 at [157]-[158] (“Accordingly, the Tribunal draws …”) and CB 395 at [159] (“Accordingly, the Tribunal places little weight …”); and
(b)turning to CB 395 at [160], to the non-acceptance of AMM21’s evidence with respect to his being beaten and a petrol tanker being stolen, and in subsequent paragraphs dealing with other discrete issues,
which reinforce the fact that the two credibility concerns are separately dealt with by the Tribunal, such that the only reasonable interpretation of the Tribunal Decision is that the two credibility concerns are separately dealt with and do not overlap. It follows that the Tribunal did not misunderstand s 423A of the Migration Act in the manner suggested by AMM21, and nor did it misapply s 423A of the Migration Act.
For the above reasons, ground 1 cannot reasonably be made out, and does not give rise to a reasonably arguable case of jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 is as follows:
2. The AAT erred when it made findings against the Applicant including
a.It is implausible that the applicant's father would not have sought to protect those interests by reporting the incident to the police [160];
b.It would be unlikely creditors (including loan sharks) would renew their claims for payment given they have not sought to enforce the debt against the applicant's family's business or assets since he left Malaysia [163];
c.There is not a real chance the Applicant will face harm from his loan sharks [163];
d.It is implausible the Applicant would not seek assistance from the police [166];
e.It can be inferred that the Applicant and his family did not consider these threats to be sufficiently serious to warrant taking any action [168];
When the material before the Tribunal included evidence that
f.Predatory lending practices in Malaysia can be associated with violence and crime [167];
g.It is plausible that any remaining creditors may renew their claim for payment [163], [172];
h.Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and those borrowers and their family members have been shot at gunpoint and had fingers cut off [131];
i.Those in debt have been counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay the debt fast reduce risks and shame to their family [131];
j.DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and they also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters [134];
k.According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions on the country [140] and corruption can limit the effectiveness of police action against loan sharks [140];
l.Country information suggests that the Malaysian state recognises the threat that loan sharks represent [142],
Such that the findings were unreasonable, contrary to the weight of the evidence, and failed to place proper weight on relevant evidence in coming to the above findings.
AMM21’s Submissions
In relation to ground 2, AMM21 submits that:
(a)the Tribunal failed to give proper weight to the matters identified at particulars (f) to (l) of ground 2;
(b)the Tribunal’s finding, that AMM21’s father did not report the theft to the police because the father was worried about his son and his family, went against the evidence given by AMM21: CB 395 at [160]. The Tribunal’s finding, that the father considered the financial impact on the company over-rode AMM21’s personal interests, was unreasonable;
(c)the Tribunal’s finding that it would be unlikely the creditors would renew their claims: CB 396 at [163], nevertheless accepts it is plausible, and accordingly the possibility that AMM21 would be subjected to physical danger: see the DFAT Report extract at CB 388 at [131], is clearly a likely scenario;
(d)the Tribunal finding that there is not a real chance AMM21 will face harm from loan sharks is unreasonable “in light of the acceptance he will face harm and that it is plausible”: CB 396 at [163], and downplays the DFAT Report extract at CB 388 at [131], which notes the risk involved in not servicing a debt;
(e)the Tribunal’s finding that it is implausible AMM21 would not seek assistance from the police: CB 396 at [166], ignores the evidence concerning the police, which includes the nature of predatory lending practices which can be associated with violence and crime: CB 397 at [167], that police are generally unsympathetic to those who borrow money from loan sharks: CB 397 at [167], that Malaysian police are perceived as one of the most corrupt institutions in the country, which has been acknowledged by the Malaysian government: CB 390-391 at [140], and the evidence from AMM21 that he could never go and ask the police for help as he was worried loan sharks would become angrier: CB 392 at [144]. The Tribunal finding it was “implausible” denotes there is “no possibility”, and is clearly wrong on the accepted evidence; and
(f)the Tribunal finding that it can be inferred AMM21 and family did not consider threats to be sufficiently serious to warrant taking action with non-government agencies: CB 397 at [168], assumes there would be no repercussions, a matter countered by AMM21 in his evidence to the effect that the loan sharks will not stop: CB 397 at [169]. The Tribunal failed to appreciate the true nature of the loan sharks and did not give appropriate weight to the material before it, made unreasonable findings, and so committed jurisdictional error.
Minister’s Submissions
In relation to ground 2, the Minister submitted that it raised no arguable case because:
(a)it is well accepted that the weight to be afforded to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ. Further, the findings and the country information that AMM21 takes issue with are taken out of context. In particular, the Minister notes:
(i)the “findings” AMM21 refers to at particulars (a)-(e) of ground 2 were findings that were arrived at based on an assessment of AMM21’s circumstances and the country information. It is not to the point that country information may suggest a particular action or approach, the country information must be applied to the circumstances of AMM21;
(ii)the “evidence” that AMM21 refers to overlooks AMM21’s circumstances. For example, in particular (g) of ground 2 AMM21 refers to the statement that “it is plausible that his creditors will renew their claims for payment”, but this is immediately followed by reference to AMM21’s particular circumstances – “his experience in Malaysia, the lack of any serious harm to his family since he left Malaysia, and the country information generally”: CB 398 at 172. While something may be plausible, the test is whether there is a real chance;
(iii)AMM21 has taken the country information out of context. For example:
(A)in particular (f) of ground 2 AMM21 refers to the evidence stating “predatory lending practices in Malaysia can be associated with violence and crime”, but what follows this is a statement that “the Malaysian police and government authorities have taken and continue to take prosecutorial action against such practices and violence… there are organisations who offer assistance to individuals and businesspeople in circumstances such as … [AMM21] has described and that such services may be available to assist AMM21 on return to Malaysia”: CB 397 at [167];
(B)particulars (i) and (j) of ground 2 need to be considered in the context of the country information as a whole. While the information does refer to loan sharks operating in Malaysia, the country information assessment which follows: CB 389-392 at [133]-[143], details the measures in place in relation to assisting those involved with loan sharks; and
(C)particular (k) of ground 2 refers to “DFAT assess[ing] those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and they also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters”. What immediately follows this is the statement “[h]owever DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt”: CB 389 at [134].
(b)the Tribunal provided comprehensive and analytical reasons for arriving at its conclusion, and AMM21 is simply inviting the Court to disagree with the Tribunal’s findings and take a different view of the information before it.
Consideration – ground 2
Both the grounds and the submission made by AMM21 in relation to ground 2 fail to have regard to essential features of the law concerning the making of findings with respect to jurisdictional error in judicial review proceedings.
Fact-finding is a matter for the Tribunal, and as part of its fact-finding function it is for the Tribunal to identify the material it considers relevant to its reasoning and to give that material the weight it considers to be appropriate, so that mere disagreement with the Tribunal findings, even if the disagreement is emphatic, constitutes no more than a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors [1996] HCA 6 (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per RD Nicholson J. It is sufficient if the evidence in support of a relevant finding is “slight”: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ, and it is not required that evidence to support a finding be direct, and it may be found in material that permitted the Tribunal to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ.
What AMM21’s submissions seek to do is to apply the most favourable conclusion with respect to general factual circumstances, and to apply that conclusion to suggest error in the Tribunal Decision, without considering the facts and material as they particularly apply to AMM21, and as they were considered and applied to AMM21’s circumstances by the Tribunal. What the Tribunal did in this case was to deal with each of the factual claims made by AMM21 and consider facts relevant to those claims, including any relevant country information, and draw a conclusion, based on facts relevant to AMM21. When viewed as a whole, ground 2 amounts to little more than a thorough-going expression of disagreement with a number of factual findings made in the Tribunal Decision, and in the circumstances is no more than an impermissible merits review challenge, and does not establish jurisdictional error in the Tribunal Decision.

The choice and interpretation of country information is a factual matter for the Tribunal: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
Country information has to be considered and applied to the claims of AMM21, and not, as AMM21 seeks to do, to be considered and applied in general terms to AMM21, whilst selectively quoting the non-substantive part of the Tribunal’s finding on a particular matter, or ignoring evidence which might lead directly or indirectly to quite a different conclusion (there are several examples in the Minister’s Submissions). To the extent, that the Tribunal preferred some country information, or gave greater or lesser weight to certain country information, vis-a-vis evidence or material provided by AMM21, that was a matter within the Tribunal’s discretionary decision-making remit and does not reveal jurisdictional error in the Tribunal Decision.
In certain circumstances, unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ. Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J and included the following:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)       …
(h)       …
(i)        …
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In circumstances where the Court has found that:
(a)the Tribunal dealt with each of the factual claims and considered facts relevant to those claims in arriving at its findings;
(b)the Tribunal had regard to relevant country information, and weighed that country information in a manner consistent with its discretionary decision-making remit; and
(c)AMM21 is, in essence, seeking impermissible merits review based on his disagreement with the Tribunal’s fact-finding,
there is no obvious unreasonableness affecting the Tribunal Decision.
There is also nothing evidently arbitrary, capricious or plainly unjust about the findings in the Tribunal Decision. The Tribunal engaged in a proper, and thorough-going, examination of the factual material, and the country information, and made a well-considered decision having regard to those materials. There is nothing to suggest that some other underlying jurisdictional error may have affected the Tribunal Decision.
In the above circumstances, there is nothing that would indicate that the Tribunal Decision might have been affected by unreasonableness.
For the above reasons, ground 2 does not give rise to a reasonably arguable case of jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
3. The AAT erred when it made findings against the Applicant including:
a.The loan sharks have not sought to harm his family or to enforce the debt against them since he left Malaysia [169], [170], [172];
When the evidence before the Tribunal included:
a.threats were made to the sister against her brother (the Applicant) and the family [79];
b.a suggestion by an unknown person that the Applicant might face the same fate as a close family member who was killed in a car accident [79];
c.the Applicant's wife was threatened until 2014 by coming to the bank where she worked [81];
d.The Applicant thought they (loan sharks) 'might kill me' and will come after him as in Malaysia a lot of things happen and people borrow money and are shot and killed [82];
e.The Applicant's claims in the Delegate's decision record included claims that he was unable to repay the debt and they threatened to kill him and took his car, so he feared he may be harmed or killed by moneylenders [42];
f.The Applicant was worried about his son and family and said he thought they would hurt his family if he went to the police [77].
Accordingly the Tribunal ought not have found the loan sharks had any intention to harm the wife, son or other members of his family since the evidence merely referred to mere threats of harm without any evidence that such threats against the wife, son or other members of his family would ever materialise.
The Tribunal accordingly misunderstood the evidence and made irrational and unreasonable findings.
AMM21’s Submissions
In relation to ground 3, AMM21 submits that:
(a)the material before the Tribunal at particulars (a)-(f) (excluding the document which was late and caused the Tribunal to draw an adverse inference under s 423A of the Migration Act) is to be read with particulars (f)-(l) of ground 2; and
(b)the Tribunal failed to appreciate the true nature of the loan sharks and did not give appropriate weight to the material before it, and made an irrational and unreasonable finding, and so committed jurisdictional error.
Minister’s Submissions
In relation to ground 3, the Minister submits that it fails to identify any arguable jurisdictional error because:
(a)AMM21 is claiming that the Tribunal’s reasoning demonstrates a misunderstanding of the evidence, as AMM21’s evidence was that threats had been made, and, he seems to plead, just because threats are made does not mean that they will be followed through, and that, as such, the Tribunal relying on an absence of physical harm to AMM21’s family as a basis to find he did not face a real chance or risk of harm was erroneous;
(b)it was entirely reasonable and open for the Tribunal to conclude that as the loan sharks had not sought to harm AMM21’s family, nor to enforce the debt against the family, the loan sharks were no longer interested in pursuing their debt and there was no real risk or chance of harm faced by AMM21: CB 396 at [165]. It is entirely rational to expect that, if AMM21 was at risk of harm from loan sharks, those loan sharks would have sought to recoup their costs. This is particularly so in circumstances where AMM21 claimed that he feared his family would be harmed and the country information indicated that “family members have been shot at gunpoint and had fingers cut off”. It cannot be said that no reasonable decision-maker could not have come to the same conclusion;
(c)the Tribunal did not misunderstand AMM21’s evidence. The Tribunal acknowledged that AMM21 had not claimed his family had been physically harmed: CB 395 at [160]-[161]. It accepted that threats to, inquiries of and attendances upon AMM21’s family had been made: CB 395 at [161] and 396 at [164]-[165], but noted that no threats of violence had been made since 2015: CB 396 at [165]. Notably, the Tribunal considered the harm that AMM21’s family had faced from the threats, inquiries and attendances and found that this did not amount to serious or significant harm: CB 395 at [161]; and
(d)in essence, it was the absence of interest in AMM21’s family that was critical. It was not the absence of any physical harm or follow-through of the threats. Rather, it was the fact that AMM21’s family had continued without harassment from the loan sharks.
Consideration – Ground 3
Fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.
The Tribunal clearly understood the nature of the threat posed by loan sharks, and the nature of the harm that they might inflict. The Tribunal specifically referred to country information and cited examples of shootings and digital mutilation involving loan sharks and their victims, and to threats in relation to AMM21 and his family. Against that background it was, however, open to the Tribunal to find, as it did, that there was no threat of serious or significant harm to AMM21’s family on an ongoing basis, in circumstances where no threats of physical violence had been made against the family since 2015, where it appeared that AMM21’s wife had travelled regularly between Australia and Malaysia, and there appeared to be no interest on the part of the loan sharks in pursuing AMM21’s debts: CB 396-398 at [163]-[173]. Furthermore, the Tribunal’s findings in this respect were reasonably open and reinforced by:
(a)the Tribunal’s finding that AMM21 did not come to Australia because of threats from loan sharks, but to escape financial problems and restrictions imposed by his bankruptcy in Malaysia: CB 396 at [163]; and
(b)country information relied upon by the Tribunal which indicated that there was institutional and NGO assistance available in Malaysia to deal with the consequences of bankruptcy and bad debts, but that AMM21 had not sought to avail himself of that assistance: CB 397 at [170].
In the above circumstances, there is nothing that reasonably suggests, as ground 3 posits, that the Tribunal misunderstood the evidence, or made irrational and unreasonable findings with respect to loan sharks, and whether or not loan sharks had sought, or will seek, to harm AMM21’s family (or AMM21), or had sought to enforce AMM21’s debt against the family since AMM21 left Malaysia.
For the above reasons, ground 3 does not give rise to a reasonably arguable case of jurisdictional error in the Tribunal Decision.
Other jurisdictional error – where an applicant is self-represented
The Court is also cognisant that AMM21 is self-represented and that the Court must therefore endeavour to remain independently alert to the possibility of a reasonably arguable jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Two issues arise which might possibly give rise to jurisdictional error are considered hereunder.
Absence of an interpreter
An issue was raised in the closing of the third Tribunal hearing that the absence of an interpreter may have led AMM21 to misunderstand some of the questions: CB 369 at [8]. There is no doubt that it may be a jurisdictional error if Tribunal hearings needed to be adequately interpreted for AMM21, and they were not: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [9] per Allsop CJ.
No reasonably arguable jurisdictional error arises in relation to the non-provision of an interpreter at the third Tribunal hearing for AMM21 for the following reasons:
(a)AMM21 had not used an interpreter for the two previous Tribunal hearings and specifically advised that there was no need for an interpreter at the third Tribunal hearing;
(b)the Tribunal hearing record at CB 322 indicates that the third Tribunal hearing was nearly 3 hours in length. At no time during the questioning in the hearing did AMM21 or Dr Sainken, who accompanied and assisted AMM21, advise that there appeared to be difficulties in understanding the Tribunal questions;
(c)neither AMM21 nor Dr Sainken identified for the Tribunal, or the Court, any of the misunderstandings that were claimed to have occurred; and
(d)the Tribunal refers to AMM21’s evidence provided during the third Tribunal hearing, including his responses to questions that were asked: CB 382 at [87] and 384 at [98]-[102]. In the absence of a transcript, audio or other reliable record of the third Tribunal hearing, the Tribunal Decision is the best available record or evidence of what occurred at the third Tribunal hearing: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration and Border Protection and Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [17] per Judge Lucev, and on the face of the summary provided in the Tribunal Decision at CB 382 at [87], 384-385 at [98]-[103], and 386-387 at [117]-[121] it is apparent that AMM21 understood and responded directly to what was asked of him by the Tribunal.
It follows from the reasons in the preceding paragraph that no reasonably arguable jurisdictional error arises from the absence of an interpreter at the third Tribunal hearing.
Section 438 certificates
Two certificates under s 438 of the Migration Act were before the Tribunal. The Tribunal advised AMM21 of the fact of the certificates and invited him to comment upon the validity of the certificates, thereby complying with the Tribunal’s procedural fairness obligations: Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38.
AMM21 did not dispute the validity of the certificates and the Tribunal, therefore, then considered whether to exercise the discretion to disclose to AMM21 the documents the subject of the certificates. The Tribunal did not do so because:
(a)in migration matters, there was an important public interest in maintaining confidentiality of information provided, especially so where information was provided with an expectation of confidentiality: CB 379 at [62]-[63]; and
(b)the “gist” of the information contained in the documents had been put to AMM21 for comment and response by the Tribunal: CB 379 at [63].
Where:
(a)the statutory scheme contemplates that disclosure of information will be the exception to the rule: and
(b)AMM21 was able to respond to the substance of the documents without disclosing them,
the reasons given by the Tribunal for not disclosing the information are rational and reasonable reasons for the Tribunal to decline to exercise the discretion to release the information, and it was therefore within the Tribunal’s area of decisional freedom to refuse to exercise the discretion to release the information.
It is also apparent from the content of the letter written to comply with obligations under s 424A of the Migration Act that the substance of the information the subject of the certificates was not material to the Tribunal Decision, in that no reference is made to the identified allegations made against AMM21. Accordingly, the non-disclosure of the documents the subject of the certificates, even if considered a denial of procedural fairness or unreasonable, could not have realistically deprived AMM21 of a successful outcome.
Conclusion on merits of the Proposed Judicial Review Application
For the reasons set out at [26]-[60] above, the grounds of the Proposed Judicial Review Application are not reasonably arguable and, therefore, do not warrant the grant of the Extension of Time Application.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)the length of the delay (83 days) and the lack of a satisfactory explanation for the delay weigh significantly against the grant of the Extension of Time Application; and
(b)the three grounds of the Proposed Judicial Review Application are not reasonably arguable, and no other reasonably arguable jurisdictional error is discernible in the Tribunal Decision, and the lack of a reasonably arguable jurisdictional error means that it would not be in the interests of the administration of justice to grant the Extension of Time Application,
and it therefore follows that there will be an order that the Extension of Time Application be dismissed.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ v Minister for Immigration and Border Protection and Anor [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 23 June 2022

File number(s):	PEG 45 of 2021
Judgment of:	JUDGE LUCEV
Date of judgment:	23 June 2022
Catchwords:	MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – whether proposed grounds of review reasonably arguable PRACTICE AND PROCEDURE – Extension of time – factors – whether substantial delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of review reasonably arguable
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 423A, 424AA, 424A, 426A, 438, 476, 477
Cases cited:	ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 BQQ15 v Minister for Home Affairs [2019] FCAFC 218 Brar v Minister for Immigration and Border Protection and Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588 CXS18 v Minister for Home Affairs [2020] FCAFC 18 CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 DLE16 v Minister for Home Affairs [2019] FCA 136 DNN18 v Minister for Home Affairs & Anor [2018] FCCA 2926 Duwai v Minister for Immigration and Border Protection [2014] FCA 1141 EMT18 v Minister for Home Affairs [2019] FCA 1501 EMT18 v Minister for Home Affairs [2019] FCCA 660 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469 Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185 Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 44; (2021) 390 ALR 590 MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 MZZRO v Minister for Immigration & Anor [2014] FCCA 882 NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 Sharma v Minister for Immigration & Anor [2018] FCCA 1382 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 SZQFS v Minister for Immigration & Citizenship [2011] FCA 1244 SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 SZTES v Minister for Immigration & Border Protection [2015] FCA 719 SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Tran v Minister for Immigration & Border Protection [2014] FCA 533 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 WZANW v Minister for Immigration and Citizenship and Anor [2009] FMCA 1075 WZARX v Minister for Immigration & Border Protection [2014] FCA 423 WZASQ v Minister for Immigration and Border Protection and Anor [2013] FCCA 1726 WZAWB v Minister for Immigration & Anor [2016] FCA 1345; (2016) 309 FLR 398 Zentai v O'Connor & Ors (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division:	Division 2 General Federal Law
Number of paragraphs:	64
Date of last submission/s:	3 March 2022
Date of hearing:	3 March 2022
Place:	Perth
The Applicant:	Appeared in person
Counsel for the First Respondent:	Ms M. Scott
Solicitor for the First Respondent:	Australian Government Solicitor
For the Second Respondent:	Submitting appearance, save as to costs

PEG 45 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AMM21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	23 JUNE 2022