AUJ18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 843
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUJ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 843
File number: MLG 450 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 9 September 2024 Catchwords: MIGRATION – protection visa – applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – applicant’s reasons for the delay were not satisfactorily explained – grounds of judicial review poorly particularised - very weak prospects of success of the substantive application – not satisfied it is in interests of the administration of justice to grant an extension of time -application for extension of time dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 36B, 46, 424AA, 477, 499 Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 22 August 2024 Date of hearing: 22 August 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Ms J Birman Counsel for the Second Respondent: The second respondent filed a submitting appearance Solicitors for the Respondents: Australian Government Solicitor ORDERS
MLG 450 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUJ18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIR
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application for an order to extend the 35-day period within which the applicant’s judicial review application may be made is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
On 22 February 2018 the applicant applied to the then Federal Circuit Court of Australia for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). That decision was made on 14 December 2017 and affirmed a decision of a delegate of the then Minister for Home Affairs refusing to grant the applicant a protection (Class XA) (subclass 866) visa. An application to the Court for review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Migration Act 1958 (Cth) (Act). The applicant made the application 35 days after the time prescribed.
Section 477(2) of the Act permits the Court, by order, to extend the 35-day period as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is so satisfied. The applicant’s application for an extension of time specifies the following grounds (reproduced verbatim):
(1)Applicant was sick during the decision period and could not attend day today (sic) work.
(2)Applicant was seeking legal help to file court application.
On 23 May 2024, Registrar Cummings conducted a callover of the matter by Microsoft Teams conference which was attended by the applicant. Registrar Cummings made several orders including an order requiring the applicant to file and serve written submissions, any amended application with proper particulars of the grounds of application and additional evidence on which the applicant sought to rely, at least 28 days before the hearing. A Notice of Listing for an extension of time hearing specifying 10:00 am on 22 August 2024 as the hearing time and date was posted to the applicant on or about 3 July 2024. The applicant has not filed or served any submissions, amended application or additional evidence.
The applicant is a Malaysian national: Court Book (CB) 22, having first arrived in Australia on 4 December 2014 as the holder of a UD-601 Electronic Travel Authority visa which expired on 5 March 2015: CB121. The applicant remained in Australia from 5 March 2015 to 20 March 2015 as an unlawful non-citizen: CB121. On 20 March 2015, the applicant made an invalid protection visa application. The application was invalid because the applicant failed to meet the requirement to provide personal identifiers pursuant to s 46(2A) of the Act: CB54.
In that protection visa application, the applicant claimed that he and a friend each borrowed RM 30,000 from a well-known money lender who was known as “a don named Siva” and was in “the gangster group 21”. The money was borrowed “to do business” but the “business went bankrupt”. Neither the applicant nor his friend was able to repay the debt and interest and were threatened by the money lender. The applicant’s friend ran away to Johor, but Siva found out and murdered him and threw his body into the river. The applicant claimed he was “whacked severally (sic)” and fled Malaysia as he feared for his life that he would be murdered like his friend and abused mentally and physically: CB30-CB41, CB172 at [40].
The applicant made a valid application for a protection visa on 21 November 2016: CB57-CB93, CB166 at [2]). In that application the applicant claimed to have been running his own carwash business since 2007. He took a ‘private financial’ loan. Because of poor economic conditions, custom fell away, and he had to close his car wash business. He was unable to repay the loan amount outstanding. The applicant’s debt increased because he was late with repayment. The applicant said he received a warning that he would be killed, and he was beaten by a ‘gangster group’ hired by the money lenders who had blocked the road, stopped his car and pulled him out of the car. He said he suffered injuries to his body, head and face. The applicant fled Malaysia because he still owed money to that same lender, and they had promised they would find him and kill him. He had heard that one of his friends had been killed and his body thrown in the river, and he feared the group would do the same thing to him: CB 88-CB90, CB167-CB168 at [12].
On 3 February 2017, the delegate refused the applicant a visa: CB121 at [1], because the delegate was not satisfied the applicant would be targeted for one or more of the reasons set out in s 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion): CB124 at [22], and because the applicant could obtain the protection of the Malaysian authorities such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b): CB130 at [29].
By application to the Tribunal on 3 March 2017, the applicant sought review of the delegate’s decision: CB131-CB132 and appointed a registered migration agent and lawyer from Warna Legal as his representative and authorised recipient: CB132. He also provided the Tribunal with a copy of the delegate’s decision record: CB166 at [3]. By correspondence dated 27 September 2017 the Tribunal invited the applicant to provide by 1 November 2017, a written submission setting out all claims made and maintained and a witness statement setting out the applicant’s evidence proposed to be given at a hearing: CB139. By separate correspondence also dated 27 September 2017, the applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 9:30 am on 8 November 2017: CB141. An application for an adjournment of the hearing because the applicant’s representative had to travel urgently overseas was granted and the hearing rescheduled to 9:30 am on 21 November 2017: CB147-CB154.
The applicant attended the hearing on 21 November 2017 with his representative, at which he gave evidence and presented arguments: CB160, CB166 at [4]. The applicant was aided by an interpreter in the Tamil and English languages: CB160, CB166 at [4] and the Tribunal also heard evidence given by the applicant’s partner and his sister: CB166 at [4].
The Tribunal’s written Statement of Decision and Reasons records that at the hearing the applicant claimed:
(1)he had operated a small truck transport business and a carwash on the same site: CB169 at [19];
(2)he borrowed RM 30,000 in July 2013 from a business acquaintance called ‘Jeeva’ because he wanted to get another truck to develop his business: CB169 at [20]-[21];
(3)he could not repay the money, and in November 2014 was told he owed RM 8-10,000 in accrued interest: CB169 at [24]; and
(4)one day the man who loaned him the money and ‘a few people who looked like gangsters’ caught him, demanded RM 60,000, and hit him and made threats to kill him: CB169 at [24].
The applicant also provided the Tribunal with a copy of a Malaysian business registration document, which stated that he was the sole proprietor of a business named Hemandarshini Enterprise, which was registered on 3 August 2005 and operated from 27 July 2005 until 26 March 2010: CB168 at [18]. That document states that the information “is at 31-10-2017 11:05:10” and lists the status of the business as ‘EXPIRED’: CB 168 -169 at [18]. The applicant claimed Hemandarshini Enterprise was the truck transport business to which reference is made above, and that the carwash business, which he operated on the same site, had no name: CB169 at [19].
The Tribunal’s written Statement of Decision and Reasons also records that the Tribunal:
(1)set out the criteria for a protection visa: at [5]-[9] and the considerations required by Ministerial Direction 56 made pursuant to s 499 of the Act: at [10];
(2)summarised the applicant’s claims as set out in his protection visa application: at [12];
(3)set out the applicant’s evidence given during the hearing at: [13]-[24];
(4)made a credit finding that the applicant was not a credible witness: at [33];
(5)made the adverse credit finding because the Tribunal considered there were significant inconsistencies between the claims made by the applicant in his two visa applications and those made at the hearing: at [34];
(6)found that inconsistencies included the money lender’s identity, the loan’s purpose and the harm, if any, the applicant had suffered from the money lender: at [34]-[38];
(7)did not accept that the applicant:
(a)borrowed RM30,000 in July 2013 from a business associate who was also an unauthorised money lender or that he was unable to meet the monthly repayments on this loan;
(b)was assaulted; or
(c)was threatened that he would be killed by the unauthorised money lender and/or his agents: at [33];
(8)as provided for in s 424AA of the Act, put to the applicant claims from the 20 March 2015 application for comment by the applicant at the hearing: at [40];
(9)considered the applicant’s explanation that he had paid someone to prepare the 20 March 2015 application but found it unconvincing: at [40];
(10)considered the applicant’s explanation did not indicate why there are such significant differences in his various accounts of what he claims happened to him: at [40];
(11)accepted that there might be some differences in the detail of his accounts, but it did not accept that the accounts would be substantially different, in key details such as whether the applicant was in business alone or with a friend, whether he borrowed money from a business associate or from a gangster ‘Don’, whether a friend was killed and if so, whether that occurred in Klang in Selangor state or hundreds of kilometres away in Johor, and whether or not (and why) the applicant sought assistance from the police: at [40];
(12)was concerned by the applicant’s ‘vague, disjointed, confused and inconsistent’ evidence regarding his business activities, including that:
(a)his visa application made no mention of his trucking business;
(b)his claim to have borrowed money in 2013 was inconsistent with his business registration, which listed his company as ‘expired’ from 2010; and
(c)he was unable to name any business or businesses located near his claimed business: at [42]-[45];
(13)found the applicant’s account of the truck purchase ‘implausible’, and considered that aspects of the applicant’s claims were made up in response to the questions from the Tribunal: at [47];
(14)found the evidence given by the applicant’s partner and his sister unpersuasive: at [49], noting that:
(a)the applicant’s partner spoke in vague and generalised terms: at [49]; and
(b)the applicant’s sister gave an implausible account of having witnessed the applicant being beaten, yet she did not call the police or take any other measure to ensure his safety: at [50];
(15)concluded the evidence given by the applicant’s witnesses were concocted in concert with the applicant and not a true account of actual events: at [54];
(16)concluded the evidence considered cumulatively was disjointed, of poor quality, inconsistent and unconvincing: at [55] and did not accept that the applicant:
(a)had an outstanding debt because he borrowed RM 30,000 in July 2013 from a business associate who was also an unauthorised money lender or
(b)was unable to repay the aforementioned loan; or
(c)was assaulted in November 2014 by an unauthorised money lender and/or his agents; or
(d)was threatened that he would be killed if he did not settle the debt in full by the following month; or
(e)that since arriving in Australia, people came to his former residence asking after him and threatening that he will be killed if found: at [55];
(17)concluded that the applicant does not face a real chance of serious harm or a real risk of significant harm from an unauthorised money lender and/or their agents, including being killed, should he return to Malaysia now or in the foreseeable future: at [56];
(18)was not satisfied:
(a)that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act: at [57];
(b)that there is a real risk that the applicant would suffer significant harm from an unauthorised money lender and/or their agents, or anyone else, for any reason, as a necessary and foreseeable consequence of being removed from Australia to Malaysia; at [58]: and
(c)the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa): at [58].
The applicant’s application for judicial review of the Tribunal’s decision was made on 22 February 2018. As earlier noted, the time limit for making an application for review to the Court is 35 days. The applicant requires an extension of time, his application having been made some 35 days after the time for making the application had passed.
The application sets out two grounds for an extension of time. These grounds are earlier set out.
Despite the orders made by Registrar Cummings made on 24 May 2024, the applicant did not file nor serve any material responsive to those orders.
As mentioned earlier, s 477(2) of the Act permits the Court, by order, to extend the period within which an application may be made as it considers appropriate if satisfied that it is necessary in the interests of the administration of justice to do so. Considerations that are relevant to the exercise of the Court’s discretion are well established and uncontroversial.
The correct approach to the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision applicable to the Federal Court of Australia in s 477A(2) was explained by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 as follows:
10.The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11.At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12.On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13.In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14.Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15.The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16.Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19.It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken. [Footnotes omitted]
The period of the delay is 35 days and not particularly lengthy. The applicant did not provide any evidence to support his claim that he was sick during the “decision period”, or why any sickness under which he suffered at the time prevented him from making his application within the time prescribed or at any time during the period of delay. Moreover, at the hearing of the extension of time application, the applicant recanted any suggestion that he was sick or that any illness caused or contributed to the delay. The applicant said he was not sick, but he consulted a friend (whose name the applicant supplied) – with whom the applicant at that time lived – about the Tribunal’s decision. The applicant maintained that his friend said he would take care of it and eventually, on the same day as this application was made, the friend took the applicant to see a lawyer at “Warna Legal”.
It appears that Warna Legal helped the applicant prepare his application to this Court and facilitated its filing by facsimile: CB2-CB5 – header. Warna Legal appear also to have been acting for and accepting service in respect of the application until 20 March 2018, when the applicant filed a notice of address for service setting out that service was henceforth to be effected at his home address and that he was now acting in person.
The Tribunal’s records indicate that at the Tribunal hearing the applicant was represented by a solicitor from Warna Legal: CB160, CB166 at [4]. The Tribunal’s Statement of Decision and Reasons were sent to the applicant’s then solicitor at Warna Legal, and the applicant appears to have received notice of the Tribunal’s decision in the post sent from his then solicitors.
The applicant did not speak with his solicitors about the Tribunal’s decision or about any steps he could take to have the decision reviewed. Instead, the applicant spoke to his friend and sought his help. The applicant’s friend could not immediately help but said he would take care of it.
Why it is that the applicant did not consult his solicitor about the decision is not satisfactorily explained. Nor is there any evidence that the applicant sought any updates from his friend about how his friend was taking “care of it.” The applicant also said that during the period following the Tribunal’s decision he was depressed, but he provided no evidence of any medical diagnosis to that effect much less any evidence about how any such condition affected his capacity to make an application to this Court within the prescribed time or how any condition contributed to or explained the delay period or any part of it.
In short it seems to me the applicant simply failed to take any sufficient steps to inform himself about what may be done to challenge the Tribunal’s decision. He left the legwork to his friend. He did not consult the lawyers who had acted for him during the Tribunal process and by the time he was taken to those same lawyers by his friend, the time for making an application had well passed.
Contrary to the second ground for an extension of time advanced by the applicant – that he was seeking legal help to file a Court application – there is no evidence that he took any steps to seek legal help. The applicant did not contact the lawyers who had acted for him before the Tribunal and who had sent the applicant the Tribunal’s Statement of Decision and Reasons. At the hearing of the extension of time application, the applicant accepted that between the time that he received the Tribunal’s Statement of Decision and Reasons from Warna Legal and the date on which his friend took him to see Warna Legal, that he took no step to seek legal help. The applicant said that this was because he did not “know where to look for legal help”. This explanation stretches the bounds of credulity. A good and obvious starting point would have been to consult Warna Legal – that firm had acted for him in the Tribunal and was familiar with his case.
Even considering that the applicant does not speak English, or at least not sufficiently to navigate Court and Tribunal processes, none of the various explanations for the delay proffered by the applicant are persuasive, and they do not satisfactorily explain the delay or any part of it. Moreover, to the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant’s ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]. Here, for the reasons explained, there is nothing more.
Thus, although the delay period is relatively short, the reason for it is not satisfactorily or credibly explained and so taken together, these matters weigh against the grant of an extension of time.
The first respondent accepted there is no prejudice which cannot be ameliorated by an award of costs if the applicant were to be granted an extension. But the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
Turning next to the merits of the substantive application for judicial review, the grounds proposed to be advanced are twofold. First, that the Tribunal did not afford the applicant procedural fairness. Second, that the Tribunal applied the wrong legal test. During the hearing of the applicant’s extension of time application, the applicant told the Court that he had not prepared the judicial review application grounds. The applicant said that everything had been completed by the earlier mentioned lawyers and he was asked to sign the application. The applicant said that he trusted his lawyers. He was unable at the hearing to properly engage with or elaborate on the proposed review grounds and instead sought to relitigate aspects of the merits of his protection visa application. The proposed grounds themselves are not particularised.
An enquiry whether procedural fairness has been denied focusses attention on what should be provided in the circumstances of a case to ensure the decision is made fairly: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [28]-[30]. Put another way the ultimate question is whether there has been unfairness not whether some expectation has been disappointed: WZARH at [59]-[61]. Having reviewed the procedure adopted by the Tribunal, by correspondence dated 27 September 2017, the Tribunal invited the applicant to provide a written submission setting out all claims made and maintained and a witness statement setting out the applicant’s evidence proposed to be given at a hearing: CB139. By separate correspondence also dated 27 September 2017, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments: CB141. During the hearing the applicant gave evidence and presented arguments: CB166 at [4]. He also led evidence from his partner and his sister: CB166 at [4]. The applicant was assisted by an interpreter during the hearing and as already noted he was represented at the hearing by a solicitor from Warna Legal: CB166 at [4].
I am therefore satisfied that the Tribunal complied with the procedural fairness obligations set out in Part 7, Div 5 of the Act. Moreover, at various times during the hearing the applicant was given an opportunity to explain that which the Tribunal regarded as inconsistencies in his evidence and elements of the applicant’s evidence which the Tribunal considered lacked plausibility: for example, see CB173 at [43] and [44], CB174 at [45]-[47] and CB175 at [48]. In view of the above, considering the steps taken and the procedure adopted by the Tribunal, the applicant’s lack of English, that he was aided by an interpreter and that he was legally represented, it appears there was no unfairness to the applicant and that the Tribunal’s decision was made fairly in all the circumstances.
As to the unparticularised allegation that the Tribunal applied the wrong test, the Tribunal understood it was conducting a merits review. At [5]-[9] of the Tribunal’s Statement of Decision and Reasons the Tribunal correctly set out the criteria under the Act for the issue of a protection visa. The relevant provisions of the Act are also reproduced in an attachment to the Statement of Decision and Reasons. At [10] the Tribunal, again correctly, identified the import of Ministerial Direction No. 56 of the Tribunal’s consideration of the merits of the applicant’s protection visa application. At [56] the Tribunal concluded that it did not accept the applicant faced a real chance of serious harm or a real risk of significant harm from an unauthorised money lender and/or their agents should he return to Malaysia in the foreseeable future, and it did not consider that the applicant would require the protection of the Malaysian authorities. These conclusions are directed to answering questions posed when considering the applicant’s protection visa application. Similarly, the conclusions at [58] are so directed.
It is not evident on the material that the Tribunal applied the wrong legal test.
The grounds of review proposed to be advanced, are for the reasons discussed, very weak.
For completeness, I make three further observations.
First, as I have already observed, the proposed review grounds are not particularised. This is despite an order made by Registrar Cummings on 23 May 2024 requiring the applicant, inter alia, to file and serve any amended application with proper particulars of the grounds of the application. The lack of particulars would provide a basis on which the Court might dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969; AQN15 v Minister for Immigration and Border Protection [2016] FCA 571; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326.
Second, the Tribunal’s critical findings turned on its assessment that the applicant was not a credible witness. The Tribunal’s reasoning advanced in support of its credibility finding appears to me to have a logical and probative basis and appears reasonable in the circumstances. Although no issue is raised in the judicial review application about the Tribunal’s credibility findings, any attempt to impugn the those faces serious hurdles.
Third, as the applicant is unrepresented before the Court, I have reviewed the Tribunal's written Statement of Decision and Reasons and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error and beyond merely dealing with the proposed grounds of review the applicant seeks to advance. I have not identified any arguable case of jurisdictional error.
For these reasons, I agree with the first respondent’s contention that there is insufficient merit in the substantive application to justify the granting of an extension of time and so the merits of the application weighs against so doing.
There are no other matters raised by the applicant, or matters of which I am aware, which should be considered in assessing whether to allow an extension of time.
In the circumstances, the absence of a satisfactory explanation for the delay and the weak prospects of success of the substantive application weigh heavily against a conclusion that it is in the interests of the administration of justice for the Court to grant the applicant an extension of time to make the application. This is so despite the absence of any prejudice to the first respondent or the numerically short period of the delay. Consequently, I am not persuaded that it is in the interests of the administration of justice for the Court to grant the applicant an extension of time.
The application for an order extending the 35-day period within which the applicant’s judicial review application may be made is dismissed.
I will hear the parties on costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 9 September 2024
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