AUJ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 355
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 355
File number(s): BRG 200 of 2019 Judgment of: JUDGE COULTHARD Date of judgment: 17 March 2025 Catchwords: MIGRATION – Protection (subclass 866) visa – application for reinstatement of application for judicial review – whether reasonable excuse for non-appearance at hearing – whether reasonable excuse for delay in bringing application for reinstatement – whether reasonably arguable grounds of review – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(2)(a)
Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)
Migration Act 1958 (Cth) ss 36(2), 36(2)(a), 36(2)(aa), 476(1)
Cases cited: ALL18 v Minister for Home Affairs [2018] FCCA 3492
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
BQS17 v Minister [2022] FedCFamC2G 13
DHW18 v Minister for Home Affairs [2018] FCCA 2992
FBS18 v Minister for Home Affairs [2019] FCAFC 196
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 27 February 2025 Date of hearing: 27 February 2025 Place: Brisbane Applicant: The applicant appeared in-person. Solicitor for the First Respondent: Ms White - Sparke Helmore. Second Respondent: The second respondent filed a submitting appearance save as to costs. ORDERS
BRG 200 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUJ19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The application for reinstatement of the proceedings in this matter is dismissed.
4.The applicant is to pay the first respondent’s costs, fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
The applicant made an application for judicial review to this Court of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (“the delegate”) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa. The application was set down for final hearing on 1 April 2020.
The applicant did not appear. The application was dismissed by a judge of this Court on 1 April 2020 pursuant to rule 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) because of the non-appearance of the applicant.
The applicant now applies to this Court for reinstatement of the application for judicial review. It is that application which is presently before the Court for determination.
BACKGROUND
Before turning to consider the application for reinstatement, it is useful to set out some of the background to the proceedings and this application.
The applicant is a citizen of Malaysia. The applicant came to Australia on a tourist visa issued on 12 May 2015 which was valid until 12 May 2016 (Court Book (“CB”) 21). On 27 July 2015, the applicant’s then husband made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (CB 1-62). The applicant made her application for the visa as a dependent of her then husband. She did not make any protection claims of her own (CB 30-32).
On 21 June 2016, the delegate refused to grant the applicant’s husband a protection visa on the basis that the delegate was not satisfied that the applicant’s then husband met the relevant criteria for the grant of the visa on the basis that he was not a person in respect of whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) (“the Act”). The delegate refused to grant the applicant the visa on the basis that she was not a member of the same family unit of such a person (CB 112-118) (“delegate’s decision”).
On 12 July 2016, the applicant and her then husband applied to the Tribunal for a review of the delegate’s decision (CB 119-120).
On 28 February 2017, the applicant sent an email to the Tribunal stating that she had separated from and divorced her husband. She said that she was now married to another person and was pregnant. She said that wanted to “apply for my visa to be continued as I am unable to go back to my country for now”.
On 27 September 2017, the Tribunal sent an email to the applicant advising her that it had received her email of 28 February 2017 and that considering her divorce, the Tribunal had proceeded to separate the cases and assigned her case a new number. Attached to the email was a letter of 27 September 2017 acknowledging receipt of the application for review and advising the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 122-124).
On 3 December 2018, the Tribunal invited the applicant to provide, by 17 December 2018, information about her claims regarding a Protection (Class XA) visa (CB 128-129).
On 16 December 2018, the applicant responded to the Tribunal’s invitation stating that she is married, has a child and cannot work to support herself as she needs to take care of her child. The applicant attached a marriage certificate (CB 130-133). The applicant did not provide any information about her claims regarding a Protection (Class XA) visa.
On 7 January 2019, the Tribunal invited the applicant to attend a hearing on 23 January 2019 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 135-136).
On 23 January 2019, the applicant attended the hearing (CB 141-143). The applicant was assisted by an interpreter in the Malay and English languages (CB 141). The Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 150-153).
On 24 January 2019, the Tribunal notified the applicant that the Tribunal had made the decision to affirm the delegate’s decision (CB 146) and on 20 February 2019 the Tribunal sent the applicant a copy the Tribunal’s reasons for decision (CB 147-153).
Proceedings were commenced in this Court pursuant to s 476(1) of the Act for review of the Tribunal decision by application filed on 27 February 2019 (CB 168-173). The applicant filed an affidavit in support of the application to which was annexed a copy of the Tribunal’s decision.
On 10 April 2019, a Registrar of this Court made procedural orders. The applicant was ordered to file and serve by 31 May 2019 any amended application on which she seeks to rely giving complete particulars of each ground of review and to file and serve any affidavit material containing additional evidence on which she seeks to rely relevant to the grounds of review. The applicant was also ordered to file and serve any written submissions in support of the application for review 14 days prior to the hearing. The matter was adjourned for final hearing to 31 October 2019. The applicant did not comply with any of those orders.
The matter came before Judge Egan on 31 October 2019. The applicant appeared in person on her own behalf assisted by a Malay interpreter. The final hearing of the matter was adjourned to 1 April 2020. Judge Egan also made procedural orders requiring the applicant to file and serve on or before 21 November 2019 an amended application containing detailed particulars of the grounds of review on which the applicant intends to rely at the final hearing and to file and serve written submissions on or before 28 November 2019. A notation on the Court’s orders provides that the Court explained to the applicant, through her interpreter, the necessity for the applicant to seek advice concerning the contents of the order and to comply with it. It was further explained to the applicant that if she arrived at the final hearing on 1 April 2020 and made a submission that she did not understand the order or her responsibilities to comply with the order, then that submission would not be accepted by the Court as an excuse. The applicant did not comply with either of the procedural orders.
The applicant did not appear at the hearing scheduled for 1 April 2020. Judge Egan dismissed the application pursuant to Rule 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) because of the absence of the applicant. On 8 April 2020, Judge Egan published written reasons for his decision. A copy of those reasons is annexed to the applicant’s affidavit affirmed on 13 May 2024 and filed on 13 May 2024 in support of the application for reinstatement.
APPLICATION FOR REINSTATEMENT
On 13 May 2024, the applicant filed an application in the proceedings seeking reinstatement of the application for judicial review. In the application for reinstatement, the applicant seeks (without alteration):
1.An order that the judicial review application be heard.
2.An order that the delay in filing this application be condoned.
3.An order that the order of the Federal Circuit Court be quashed.
4.A writ of mandamus directed to the Administrative Appeals Tribunal (AAT) or Minister, requiring them to determine the Appellant’s application according to law.
5.An injunction restraining the Minister by himself or by his Department, officers, delegates, or agents from relying upon the decision of the AAT.
6.Any appropriate relief Honourable Court may think so fit.
On 3 December 2024, procedural orders were made vacating all extant programming orders and listing the reinstatement application for hearing on 27 February 2025. Orders were made permitting the applicant to file and serve an amended application for judicial review, written submissions in support of the reinstatement application and any additional evidence on which she seeks to rely. The applicant did not file an amended application nor did she comply with the order with respect to the filing and service of written submissions.
When the reinstatement application came on for hearing, the material before the Court was:
(a)the application for judicial review filed on 27 February 2019;
(b)the applicant’s affidavit filed on 27 February 2019 in support of the application for judicial review;
(c)the first respondent’s response;
(d)the first respondent’s written submissions in relation to the application for judicial review;
(e)the application for reinstatement filed on 13 May 2024;
(f)the applicant’s affidavit filed on 13 May 2024 in support of the application for reinstatement;
(g)the affidavit of Xylie Tran affirmed on 4 September 2024 and filed on behalf of the first respondent on 4 September 2024 affirming that on 2 April 2020 the first respondent’s solicitors sent an email to the applicant at the address for service listed on the application for judicial review (“applicant’s address for service”) attaching a letter from the first respondent’s solicitors and a copy of Judge Egan’s order of 1 April 2020 and annexing that email (“Tran Affidavit 4 September 2024”);
(h)the affidavit of Xylie Tran affirmed on 11 September 2024 and filed on behalf of the first respondent on 11 September 2024 affirming that on 2 May 2019 the first respondent’s solicitors sent an email to the applicant’s address for service attaching a letter from the first respondent’s solicitors and a copy of the Court Book and annexing a copy of that email; and affirming that on 5 September 2024 the first respondent’s solicitors had sent an email to the applicant’s address for service attaching a copy of the first respondent’s submissions filed on 4 September 2024 and annexing a copy of that email (“Tran Affidavit 11 September 2024”);
(i)the affidavit of Xylie Tran affirmed on 18 February 2025 and filed on behalf of the first respondent on 19 February 2025 affirming that on 2 May 2019 the first respondent’s solicitors sent an email to the applicant’s address for service attaching a letter from the first respondent’s solicitor to the applicant and a copy of the Court Book filed on 2 May 2019 and annexing that email; and affirming that on 5 September 2024 the first respondent’s solicitor’s sent to the applicant an email to the applicant’s address for service attaching a letter to the applicant and a copy of the first respondent’s submissions filed on 4 September 2024 and annexing a copy of that email (“Tran Affidavit 18 February 2025”);
(j)the first respondent’s written submissions in relation to the application for reinstatement filed on 4 September 2024; and
(k)the Court Book.
Before the hearing commenced, the Court asked the applicant whether she had these documents with her. The applicant confirmed that she had with her all the above documents except for those listed in (a) to (d) above. The Court Book was made an exhibit in the proceedings.
The applicant appeared by Microsoft Teams. She was unrepresented. The applicant had the assistance of an interpreter in the Malay and English languages. The applicant was given the opportunity to make oral submissions in support of her application for reinstatement and in reply to the first respondent’s submissions in respect of the application for reinstatement.
The Court’s power to set aside the order dismissing the application is contained in rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which provides that:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;
…
The power to reinstate a proceeding dismissed for non-appearance by a party is discretionary. In exercising that discretion, the Court is required to determine whether reinstatement is in the interests of justice (FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] per Flick, Robertson and Lee JJ). In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J held (at [7]) that the discretion requires the consideration of three factors, and whether, on balance, they tend for or against reinstatement. Those three factors, which are non-exhaustive, are:
a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
c) whether the applicant has a reasonably arguable prospect of success on the substantive application.
The Court has taken the approach of considering those factors in determining whether it should exercise the discretion to reinstate the application for judicial review.
The Court explained to the applicant that before it was a hearing of an application to determine whether the order dismissing her application for judicial review, because of her absence at the final hearing, should be set aside and her application for judicial review reinstated. The Court explained to the applicant that it would first consider the reason why the applicant did not attend at the hearing and whether there was a satisfactory excuse for her not doing so; and second whether the applicant had a reasonably arguable case on the merits of her grounds for judicial review so that there was utility in setting aside the order dismissing her application for judicial review. The Court explained that this required the Court to consider at a threshold level whether the Tribunal had made a legal error in affirming the delegate’s decision. The Court explained that it would also consider the applicant’s explanation for the delay in bringing the application for reinstatement.
Delay in seeking reinstatement and explanation for absence at the final hearing
The Court has first considered the delay in bringing the application for reinstatement. The application for judicial review was dismissed on 1 April 2020. The application for reinstatement was not filed until 13 May 2024.
The Court agrees with the first respondent’s submission that the delay in filing the application for reinstatement is “extreme” (first respondent’s written submission on the reinstatement application (“FRS”) [9]). The first respondent submitted that given the absence of a reasonable excuse for the applicant’s non-attendance at the final hearing (discussed below) the applicant’s case ought to meet an exceptional threshold before the application is granted (FRS [9] referring to Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (“Katoa”) at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ).
Unlike the bringing of an application for judicial review, there is no statutorily set time limit for the bringing of an application for reinstatement. Nevertheless, the Court agrees with the comments made by Judge Given (at [55]) in BQS17 v Minister [2022] FedCFamC2G 13 that there is some overlap between the relevant discretionary factors to be considered and that the authorities concerned with extensions of time applications can be apposite (referring to AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752). As Judge Given observed, an extraordinary period of delay can be the determinative factor in refusing to exercise a discretion, even if the underlying application has merit and that the longer the delay, the more persuasive the explanation must be (at [55] referring to Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J).
The applicant’s affidavit filed in support of the application for reinstatement seeks to address the reason why the applicant has taken a little more than four years to bring this application. Under the heading ‘Reason for Delay’ the applicant states (without alteration):
9. I have not received my Judicial review application decision until sometime.
10. I was not aware about filing Federal Court Application in time.
11. I was going through difficult time in my family life.
12. I am living separate from my partner and raising my only child by myself.
13. Recently, one of my friends told me that someone can file application late.
14. Due to my ignorance, lack of support and not understanding Australian laws I am late in filing this application.
15.Please condone delays and consider my application for judicial review.
16. I like to request Honourable Court consider my circumstance and mistake made by the Administrative Appeals Tribunal and condone my delay and allow my appeal to be head and decision in my favour.
The applicant says (in para [9]) that she did not receive the judicial review application ‘until sometime’. The Court has understood that the applicant is referring to the order of Judge Egan on 1 April 2020 dismissing the applicant’s application for judicial review. The applicant was unable to provide any evidence as to when it was, she said she was served with a copy of the order of Judge Egan or what was intended by ‘until sometime’. In the absence of any other evidence, the Court accepts the evidence of the first respondent that the applicant was served with a copy of Judge Egan’s order by email to her address for service on 2 April 2020 (Tran Affidavit 4 September 2024). The applicant’s address for service on the application for judicial review remains the applicant’s address for service.
The applicant’s affidavit otherwise provides the following as the explanation for the delay:
(a)The applicant was ignorant of any time limit for the filing of an application for reinstatement and did not know that an application could be filed late until a friend recently told her (paras [10]; [13]; [14]); and
(b)She was going through a difficult time in her family life and was living separately from her partner and raising her child by herself (paras [11]; [12]).
As stated above, there is no statutorily imposed time limit for the filing of an application that an order made in the absence of a party be set aside. The Court invited the applicant to make submissions as to why it took her just over four years to bring this application. The applicant told the Court that after the application for judicial review was dismissed, she and her husband stayed in Australia illegally. The applicant then explained that she had problems with her husband because of which she “escaped” to Sydney. The applicant said that she could not remember when this was but thought it was in December 2022 or 2023. After arriving in Sydney, the applicant said that she had difficulties settling in. The applicant said that a friend told her in 2024 that she could file for reinstatement. The applicant did not provide any other information as to the reasons for the significant delay in filing the application for reinstatement.
The Court considers the applicant’s explanation to be unsatisfactory.
As to the applicant’s failure to attend the hearing, the applicant’s affidavit does not explain why she did not attend the final hearing on 1 April 2020. The affidavit only addresses – to the extent that it does – why the application for reinstatement was filed a little over four years after the dismissal.
The Court invited the applicant to make submissions as to the reason why she did not attend the hearing. The applicant said that she had sent an email to the Court explaining why she did not attend the hearing. The applicant said that she sent this email on 27 May 2024 and attached it to an affidavit on 27 May 2024. The only affidavit on the Court file is that which the applicant filed with the application for reinstatement on 13 May 2024 and which is referred to above. As noted, the affidavit does not explain why the applicant did not attend the hearing but only seeks to address the delay in filing the application for reinstatement. The applicant then told the Court that her husband was aggressive and that he would not let her go to court. She said that if he found out that she attended the hearing he would have locked her inside the house. The applicant also said that because of the COVID-19 pandemic she did not have any work and so could not afford to travel to Brisbane for the hearing.
As the first respondent’s solicitor submitted at the hearing, this was the first time that the applicant has put on any evidence as to why she did not attend the hearing. Despite the procedural order requiring her to do so, the applicant has not filed any evidence explaining why she did not attend the final hearing. The first respondent pointed the Court to the following matters which it was submitted the Court should take into consideration in considering whether the applicant had a reasonable excuse for not attending the hearing:
(a)The applicant had five months’ notice that the matter was set down for hearing. The applicant had appeared at the hearing on 31 October 2019 when the matter was set down for final hearing on 1 April 2020;
(b)Prior to the hearing on 1 April 2020, the applicant did not engage with the Court or the first respondent about her inability to attend the hearing;
(c)The claims the applicant now makes as to why she was unable to attend the final hearing involve serious allegations of domestic violence which are not the subject of any evidence;
(d)The applicant has had multiple opportunities to file evidence since filing the application for reinstatement but has not done so. The first respondent submitted that those opportunities were when orders were made on 25 July 2024, on 13 September 2024 and on 3 December 2024.
Given the extent of the delay of a little over four years, the first respondent submitted that it was reasonable to expect the applicant put on evidence as to the reasons why she did not attend the final hearing.
It is difficult for the Court to accept the applicant’s explanation without the benefit of sworn evidence particularly in circumstances where the applicant has had the opportunity to provide that evidence. Of course, if the applicant was the victim of domestic violence, and this violence prevented her from, or was in factor in preventing her from, attending the hearing this would be a reasonable excuse for not attending the hearing. However, the Court does need to decide about this because the Court is of the view that even if the applicant had a satisfactory explanation for not attending the hearing, it would not exercise its discretion to set aside the dismissal. This is because the Court considers that the applicant does not have a reasonably arguable case on the grounds of review set out in the application for judicial review. This is discussed below.
Prejudice which might flow to the other party
The first respondent accepts that there is no specific prejudice to the first respondent and that any prejudice could be cured by an award of costs (FRS [13]). However, the first respondent submitted (FRS [13]) that there is a significant public interest in the finality of administrative decision making and that this interest should not be overlooked in circumstances where the visa application was lodged in July 2015; the application for judicial review was lodged over five years ago; and was dismissed by this Court over four years ago.
The Court agrees but does not consider it necessary to express a final view on the point given that the Court considers, as discussed below, that the applicant does not have a reasonably arguable case on the grounds of review set out in the application for judicial review.
Whether reasonably arguable prospects of success on the substantive application
The Court considers that it is appropriate to assess the merits of the application for judicial review at an impressionistic or threshold level and in that regard has adopted the approach taken in cases concerning applications for extension of time which cases are apposite (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (Katao at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
Before turning to consider the grounds of review, it is necessary to set out a summary of the Tribunal’s Decision affirming the delegate’s decision. The procedural steps leading up to the hearing have been set out above.
The Tribunal identified that the issue in the case was whether the applicant is entitled to Australia’s protection either because she is a refugee or has made claims that would result in her receiving complementary protection ([9]). The Tribunal summarised the criteria for a protection visa in the Act and referred to the mandatory considerations ([3]-[8]). The Tribunal accepted that the applicant is a citizen of Malaysia ([10]).
The Tribunal said that it put to the applicant at the hearing that she had been a dependent on her previous husband’s application for a protection visa and that she had not made her own claims separate to his. The applicant confirmed to the Tribunal that this was the case ([11]). The Tribunal reminded the applicant that it had written to her asking her to set out her claims for protection and that in her response she had told the Tribunal that she had a child and could not work to support herself and that her current husband is working to support her and the child ([12]).
The Tribunal put to the applicant that it had to decide whether she met the criteria for the grant of a protection visa and that to be granted a protection visa she must be either recognised as a refugee or be a person entitled to complementary protection ([13]). The Tribunal explained those definitions to the applicant ([13]). The applicant said that she understood ([14]).
The Tribunal asked the applicant why she did not want to return to Malaysia. The applicant told the Tribunal that she was married and had a child now. She told the Tribunal that she faced no risk of harm, she just wanted to stay in Australia. The Tribunal asked the applicant if she feared persecution or harm in any way if she returned to Malaysia and she told the Tribunal that she did not. The applicant told the Tribunal that economically it would be difficult for her as she did not have a car or a home ([15]). The Tribunal told the applicant that in the absence of any further evidence it would affirm the delegate’s decision and asked the applicant if she wanted to say anything further. The applicant said that she and her current husband could return to Malaysia and asked the Tribunal if she could take her child with her ([17]).
The Tribunal concluded that the applicant made no claims to fear returning to Malaysia for a convention-related or for any other reason and that she did not claim to face a real chance of persecution for any reason, nor does she claim that there is a real risk that she would suffer significant harm if removed from Australia to Malaysia ([18]). The Tribunal said that it was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and that it was also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) ([19]-[20]). The Tribunal noted that there was no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) and who holds a protection visa and that accordingly the applicant does not satisfy the criterion in s 36(2) ([21]).
As noted above, despite the procedural orders permitting her to do so, the applicant did not file an amended application setting out particulars of the grounds of review. Despite the procedural orders requiring her to do so (on 31 October 2019 and 3 December 2024), the applicant has not filed any submissions in support of her application for judicial review. In those circumstances, the Court tends to agree with the first respondent’s observation that the Court cannot be satisfied that the applicant would dutifully prosecute her application for judicial review were it to be reinstated (FRS [6]). However, it is not necessary to express a final view on the point given that the Court considers that the applicant does not have a reasonably arguable case on the grounds of review set out in the application for judicial review.
The grounds of review set out in the application are (without alteration):
Ground One:
THE DECISION WAS TAKEN WITHOUT PROOF
Ground Two:
DECISION HAS LAWFUL ERRORS.
As noted, despite procedural orders, the applicant has not made any attempt to particularise the grounds of review set out in the application. With respect to ground two, the Court assumes that the applicant intends to say that the Tribunal’s Decision has ‘unlawful’ errors.
At the hearing, the Court read out to the applicant (with the assistance of the interpreter) the two grounds of review in the application for judicial review and asked the applicant to explain the grounds. The applicant said that she had been assisted by a friend and had told her friend about the grounds but could not now recall what she told that friend. The Court asked the applicant to explain what errors she now thought the Tribunal had made. The applicant replied that she ‘did not know the error’; that she could not answer the Court’s question; that her friend had assisted her with the application. The applicant referred to her present situation that she has a child and a baby that is seven months old.
The Court agrees with the first respondent’s submissions that the grounds of review are unmeaningful. The first respondent submitted that the grounds should fail on that basis alone (FRS [24] referring to WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969) and referred to decisions in which ground one has previously been held by this Court to be “hopeless” in that it could not possibly establish that the decision of the Tribunal is affected by jurisdictional error” (FRS [24] referring to DHW18 v Minister for Home Affairs [2018] FCCA 2992 at [22]) and that ground two has been previously held by this Court to be a “bald assertion of legal error in its current form and without particulars, it is meaningless” (FRS [24] referring to ALL18 v Minister for Home Affairs [2018] FCCA 3492 at [18]).
The Court has carefully read the Tribunal’s decision and is unable to discern any jurisdictional error. In circumstances where the applicant told the Tribunal that she did not fear persecution or harm in any way if she returned to Malaysia, the Court is of the view that the Tribunal could not have made any other decision but to affirm the decision of the delegate.
The Court concludes that the grounds of review in the application are not reasonably arguable.
Accordingly, the Court does not exercise its discretion to reinstate the application for judicial review.
CONCLUSION
For the reasons given above, the application for reinstatement is dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 17 March 2025
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