Atv18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FedCFamC2G 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 82

File number(s): SYG 454 of 2018

Judgment of: JUDGE STREET

Date of judgment: 24 September 2021

Catchwords: MIGRATION – Administrative Appeals Tribunal – Application for a Protection Visa – application for an extension of time under s 477 of the Migration act 1958 (Cth) – where the application was filed 42 days out of time – whether the applicants provided satisfactory explanation for delay – whether an extension of time is necessary in the interests of the administration of justice – application for extension of time dismissed.

Legislation: Migration Act 1958 (Cth) ss 5J(1)(c), 36(2)(a), 36(2)(aa), 476, 477 and 477(2)(a).

Division: Division 2 General Federal Law

Number of paragraphs: 39

Date of hearing: 27 July 2021

Solicitors for the Applicant: In person.

Counsel for the Respondents: Mr T Reilly.

Solicitors for the Respondent: Mills Oakley.
ORDERS

SYG 454 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ATV18

First Applicant

ATW18
Second applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINSTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

24 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.
2.The applicants pay the first respondent’s costs fixed in the amount of $3,737.00

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 STREET:

This is an application for an extension of time for the bringing of proceedings seeking a constitutional writ under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 December 2017, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ protection visas.
The first applicant is the wife of the second applicant. Both applicants were found to be citizens of Malaysia and their claims were assessed against that country.
The proceedings in this Court were commenced on 21 February 2018, 42 days after the 35 day period. At the commencement of the hearing, the Court explained to the first applicant the nature of the application for an extension of time. It is apparent that the originating application complies with the requirements of s 477(2)(a) of the Act.
This is not a case where any particular prejudice is asserted by the respondents. Accordingly, the two issues are whether the applicants have provided satisfactory explanations for the delay, and whether, at an impressionistic level, the merits of the applications satisfy the Court that it is necessary, in the interest of the administration of justice, to make an order extending time.
In summary, the applicants claim to fear harm by reason of a family disagreement, and fear that family members will force them to separate if they return to Malaysia. The applicants claim that they left Malaysia because they married without permission of the husband applicant’s family.
The applicants arrived in Australia on 3 March 2017 as holders of Electronic Travel Authority visas. Both applicants applied for protection visas (“the Visas”) on 29 May 2017.
On 27 September 2017, the delegate found that the first applicant failed to meet the criteria for the grant of the Visa. On 27 September 2017, the delegate found the second applicant’s application for the visa failed to meet the criteria under the Refugee Convention and failed to meet the criteria in relation to complementary protection.
The applicants lodged an application for review on 11 October 2017. The applicants were invited to attend a hearing on 5 December 2017. The letter inviting the applicants to attend the hearing explained that the Tribunal was unable to make a favourable decision on the information available before it. On 5 December 2017, the applicants attended the hearing before the Tribunal to give evidence and present arguments.
THE TRIBUNAL DECISION
The Tribunal accepted that the husband’s father believed his own father was killed by way of a magical spell cast upon him by the applicant’s wife’s grandfather and that there was anger in the relationship between the applicant husband’s son and the applicant wife. The Tribunal accepted, in those circumstances, that the applicants have a real chance of suffering serious harm if they return to their home area in Malaysia.
The Tribunal referred to country information and found that the applicants fear harm for reason of their membership of a particular social group. The Tribunal identified the applicants as having a real chance of suffering harm for reason of membership of a particular social group in their home region, being a particular place for the husband applicant and a particular place for the wife applicant.
The Tribunal was not satisfied the applicant wife has a real chance of suffering harm for not wishing to wear a veil in Malaysia.
The Tribunal then turned to consider whether the applicants could safely relocate within Malaysia. The Tribunal referred to what was said in the protection visa form by the first applicant and by her husband in which he said:
If I seek safety from another part of the country, the result will be the same. Authority will give us the same solution, and they’re not helping us at all.
The first applicant further alleged that they had:
“ tried to seek safety and protection from them and they do nothing but asked us to get a solution by ourself”.
The Tribunal referred to the applicants’ claim that they married against the families’ wishes, and in particular, the applicant husband’s and that they travelled to a particular location in south Malaysia and remained there for about two weeks, and that the husband had said that the father had caught them. The Tribunal sought to explore how they managed to escape, and the applicant husband conceded they were not caught. The Tribunal recorded that a friend telephoned the second applicant and told him his father, and some community members who supported his father, were coming to get them. The second applicant was not sure of whether his own father actually knew where he and his then new wife, were staying in the particular location, but he did not want to take any chances, and so they departed for Australia.
The Tribunal referred to country information in relation to the size and population of Malaysia, as well as country information that Malaysians can, and do freely, relocate internally.
The Tribunal identified not being able to locate any information as to how and whether families may be able to trace people within Malaysia.
The Tribunal referred to corruption, but took into account that there was no claim that the applicant’s families have any contacts with crime gangs or associations with the police.
The Tribunal then referred to the electoral roll that does not identify an actual street address.
The Tribunal discussed how the second applicant’s father found that they had travelled to a particular location, and the second applicant indicated that he feared it may have been through members of the community. The Tribunal noted that the second applicant subsequently conceded that his friend in Malaysia could have passed information on to persons in Malaysia about his whereabouts, and they may have passed that information on to his father.
The first applicant said that she would suffer psychological harm in Malaysia and was fearful of the abuse she may be subjected to. The Tribunal noted that the abuse could be avoided by not contacting respective families, and that the applicants both subsequently agreed they had not contacted their families for almost one year. After considering all the evidence, the Tribunal was not satisfied that any psychological harm that may be suffered by the first applicant in particular constituted serious harm.
The Tribunal turned to country information that indicates persons can safely relocate within Malaysia. The Tribunal was not satisfied that the applicants’ families had political or other connections that may assist them to locate the applicants should they relocate within Malaysia. The Tribunal was satisfied the applicants can safely relocate within Malaysia.
The Tribunal was not satisfied there was any other reason why the applicants would have a real chance of suffering serious harm should they relocate within Malaysia. The Tribunal found that the applicants could safely relocate within Malaysia, and found that the applicants did not face a real chance of persecution that relates to all areas of Malaysia within s 5J(1)(c) of the Act.
The Tribunal was not satisfied the applicants have an adverse profile that would give rise to a chance that they would suffer serious harm on return to Malaysia, including for the reason of being failed asylum seekers.
The Tribunal was not satisfied the applicants have a real chance of persecution for a prescribed ground in all of Malaysia. The Tribunal was not satisfied the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention and found the evidence did not meet the criteria in s 36(2)(a) of the Act.
The Tribunal then turned to complementary protection, and in relation to relocation, turned to consider whether it would be reasonable for the applicants to relocate, and took into account the findings that the Tribunal had made.
The Tribunal referred to country information in relation to the circumstances in Malaysia and the Malaysian economy. The Tribunal referred to discussing with the applicants whether they could safely relocate within Malaysia, and whether they would be afforded state protection. The Tribunal noted that, although repeatedly asked why it would be unreasonable for them to relocate within Malaysia, the applicants did not say that employment, education, language or health would make it unreasonable for them to relocate.
The Tribunal found that the country information did not support that it would be unreasonable for the applicants to relocate. The Tribunal referred to the applicants’ ability to travel to, and reside in, Australia with their language, history and culture. The Tribunal found it was reasonable for the applicants to relocate within Malaysia. The Tribunal was satisfied the applicants can safely and reasonably relocate within Malaysia.
The Tribunal was not satisfied there are substantial grounds for believing as a necessary and reasonably foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk the applicants will suffer harm.
The Tribunal found the applicants did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
BEFORE THE COURT
The applicants’ originating application provides an explanation for the delay that the first applicant was self-representing, and due to a lack of money, was unable to get legal advice. The first applicant, in substance, repeated the same explanation, and that it wasn’t until she got a friend to help her, that she lodged her application.
Counsel for the first respondent submitted that the explanation for the delay was unsatisfactory, and that there was, in particular, no explanation as to why the applicant could not have got assistance from the friend earlier. The Court accepts the first respondent’s submissions that the explanation for the delay is unsatisfactory.
THE GROUNDS
The Court then turns to the issue of the merits at an impressionistic level and the Grounds in the application, which are as follows:
Ground 1
At point 34 of the decision record the RRT found that I was able to relocate safely in. Malaysia. The RRT found that my family did not have the political or other connections needed to locate me in another area of Malaysia. At point 19 of the decision record the RRT evidence was given that my husband's father was religious and very strong in the community. The RRT did not further investigate my husband's fathers' connections inorder to make the finding at point 34.
Ground 2
At point 21 and 24 the RRT accepted that I will face serious harm upon return to Malaysia. At point 29 of the decision record evidence was given relating to the fact that my husband's father and some supporting community members were able to find me after I had relocated to a different area in Malaysia. The RRT did not take into that I was previously found when I relocated in its assessment of my option to relocate.
GROUND 1
The first applicant sought to advance submissions in support of why there is an arguable case of relevant error, raised by Ground 1. The applicant took the Court to both paragraphs 19 and 34 of the Tribunal’s reasons. It is apparent that the reference in paragraph 34 to political or other connections was a finding made after taking into account country information in considering whether the applicants’ family could find the applicants if they relocated.
The adverse finding was a logical and rational one, which was open to the Tribunal. The applicants’ disagreement with that adverse finding does not identify an arguable case of relevant error. The reference to the husband’s father’s religion and strong community is in substance an invitation to engage in impermissible merits review. There is no easily ascertainable, critical fact that was identified that could give rise to any reasonable argument of a duty to make such an inquiry. No arguable case at an impressionistic level is disclosed by Ground 1.
GROUND 2
It is apparent from the Tribunal’s reasons, that the Tribunal did seek to explore with the applicants why it was not reasonable for them to relocate, and that they did not say that employment, education, language or health would make it unreasonable for them to relocate. The Tribunal also referred to the explanations as to why they could not relocate in the protection visa applications.
No arguable case of error is disclosed at an impressionistic level by Ground 2.
CONCLUSION
The Court does not regard the applicants’ explanation for the delay satisfactory, and at an impressionistic level, is of the view that the merits are insufficient to make necessary an extension of time in the interests of the administration of justice.
The Court is not satisfied that it is necessary, in the interests of the administration of justice, in these circumstances, to make an order extending time under s 477 of the Act.
Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.
Associate:
Dated: 24 September 2021

File number(s):	SYG 454 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	24 September 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – Application for a Protection Visa – application for an extension of time under s 477 of the Migration act 1958 (Cth) – where the application was filed 42 days out of time – whether the applicants provided satisfactory explanation for delay – whether an extension of time is necessary in the interests of the administration of justice – application for extension of time dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5J(1)(c), 36(2)(a), 36(2)(aa), 476, 477 and 477(2)(a).
Division:	Division 2 General Federal Law
Number of paragraphs:	39
Date of hearing:	27 July 2021
Solicitors for the Applicant:	In person.
Counsel for the Respondents:	Mr T Reilly.
Solicitors for the Respondent:	Mills Oakley.

SYG 454 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ATV18 First Applicant ATW18 Second applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINSTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021