BJB19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1262
•11 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1262
File number(s): MLG 946 of 2019 Judgment of: JUDGE FARY Date of judgment: 11 August 2025 Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s36(a) or (aa) –Delegate’s decision to refuse the grant of Protection (Class XA) (Subclass 866) affirmed – whether in interests of administration of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1954 (Cth) s 5J(1), s 5H, s 36, s 47(1), s 65(1), s 425, s 425A, s 474, s 476, s 476A, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2, Div 2 of Pt 3 of Sch 2
Migration Regulations 1994 (Cth) cl 866.1 – 866.6 of Sch 2
Cases cited: Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Perera v Minister for Immigration &Multicultural Affairs (1999) 92 FCR 6
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 403 ALR 604
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 7 August 2025 Date of hearing: 7 August 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr Anastasi, Clayton Utz Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 946 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJB19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
11 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum 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 FARY
INTRODUCTION
By way of Application filed on 2 April 2019, the applicant (Applicant) seeks an extension of time to seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 27 February 2017 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The Application was filed outside of the prescribed 35 day timeframe pursuant to section 477(2) of the Migration Act. The Application was filed approximately two years out of time. As a result, the Applicant requires an extension of time to prosecute her Application.
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she is a person in respect of whom Australia has protection obligations as outlined in s36(a) or s36(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 7 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 7 August 2025, Order 3.
ISSUE IN DISPUTE
The issue in dispute is whether it is in the interests of the administration of justice that the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal’s Decision be extended pursuant to s 477(2).
BACKGROUND
The Applicant is a citizen of Malaysia.
On 21 December 2015, the Applicant applied for the Visa, the subject of this proceeding.[2] The Applicant’s claim for protection was that of fear of harm due to an arranged marriage she would be forced into by her parents if she were to return to Malaysia. The Applicant claimed that the man she was to marry was involved with drugs, loan sharks, gangsters and she feared he would sell her into prostitution.[3]
[2] Court Book (CB) 1-48.
[3] CB 36-38.
On 17 March 2016, a Delegate of the Minister refused the Visa on the basis that the Applicant was not a person in respect of whom Australia had protection obligations.[4] The Applicant was notified on date same (Delegate’s Decision).[5]
[4] CB 56-66.
[5] CB 49-52.
On 19 March 2016, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[6] A copy of the Delegate’s Decision was attached to the Review Application.
[6] CB 67-68.
On 20 January 2017, the Applicant was invited to attend a hearing before the Tribunal on 27 February 2017.[7]
[7] CB 104-106.
On 27 February 2017, the Applicant attended the Tribunal hearing with the assistance of an interpreter.[8]
[8] CB 114-116.
On 28 February 2017, the Tribunal notified the Applicant of its decision dated 27 February 2017 affirming the Delegate’s Decision.[9]
[9] CB 118, 122-24.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 121 to 124 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [8].
Relevantly, the Tribunal noted that at the hearing, the Applicant informed the Tribunal that “everything in her protection visa application is made up”.[10]
[10] CB 123.
The Tribunal did not accept that the Applicant had a well-founded fear of persecution as set out in s 5J of the Migration Act.[11]
[11] CB 126.
The Tribunal affirmed the Delegate’s Decision not the grant the Applicant the Visa. The Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa).[12]
[12] CB 126.
PROCEEDINGS IN THIS COURT
On 2 April 2019, the Application was filed in this Court, outside the 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
The Applicant seeks an extension of time to apply for judicial review of the Tribunal’s Decision pursuant to s 477(2) of the Act.
On 23 June 2021, Orders were made by Registrar Carney of this Court for the First Respondent to file and serve a copy of the Court Book by 18 August 2021. For the Applicant to file and serve, 28 days before the final hearing: any amended application with proper particulars, any Supplementary Court Book, written submissions, and any further evidence. That the First Respondent file and serve written submissions 14 days before the final hearing. For the First Respondent’s name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. For the matter be listed for hearing of the application for an extension of time and, if granted, final hearing.
On 12 August 2024, Orders were made by Registrar Lindsay of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs. That the Orders made by Registrar Carney on 23 June 2021 be vacated. That the matter be listed for an extension of time hearing. That the Applicant file and serve on or before 21 August 2024: any amended application in respect to the extension of time hearing, any written submissions, any further evidence. That the First Respondent file and serve on or before 11 September 2024: any amended response in respect to the extension of time hearing, any written submissions, any further evidence. The Court noted that the First Respondent was to provide the Applicant a further copy of the Court Book by email.
This matter was heard on 7 August 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 2 April 2019; and
(b)The Affidavit of the Applicant sworn and filed 2 April 2019.
The Minister relied upon:
(a)The Response, filed 30 April 2019;
(b)The Minister’s Outline of Submissions filed 11 September 2024;
(c)The Affidavit of Service of Kate Laurice Buckley affirmed on 5 August 2025; and
(d)List of Authorities dated 4 August 2025.
Both parties relied on the Court Book.
The Application contains the following grounds for extension of time (Grounds for EOT):
1. I was unaware I could file an application at federal court.
2. I did not have a lawyer and advice.
3. See attached affidavit.
(Words as written).
The Application contains the following grounds of review (Grounds of Review):
I had provided evidences to support my application but the delegate refuse to grant me a protection visa saying I did not provide detailed evidences and I was not owed protection obligation due to my vague and undetailed evidence.
I had also told the delegate during my hearing that if i return to Malaysia I would be in fear with my life.
During the Tribunal hearing on the 27.02.2017, an interpreter was provided in malay and English language but I did not understand what was informed to me.
Therefore the decision made by the tribunal not to grant me a protection visa is unfair to me.
(Words in bold added otherwise as written).
APPLICANT’S SUBMISSIONS
No written submissions were filed by the Applicant.
In oral submissions, the Applicant informed the Court that the reason why she was seeking an extension of time was because she wanted to stay in Australia legally.
I asked the Applicant as to the reason for not filing her Application within the required timeframe and she replied “I did not know how to file”. The Applicant stated that this changed when she met a person who assisted her with the Application. She said that this occurred “after two years”.
On the question of prejudice to the Applicant by reason of a refusal to grant an extension, she responded “I won’t be able to work”.
Further, on the question of the public interest, the Applicant said that she worked in fruit packing which she said was of public benefit.
On the question of the merits of the substantive Application, the Applicant stated that she wanted to stay in Australia legally. As to the allegation of misinterpretation, the Applicant submitted that she “felt” that “she was telling the interpreter something and the interpreter was saying something else.” She could not give any detail as to what was misinterpreted “because it was so long ago”. The Applicant did not dispute the substance of what was recorded in the Tribunal’s Decision concerning making up the details in her Visa application.
RESPONDENT’S SUBMISSIONS
Application for extension of time
The Applicant applied for judicial review approximately two years out of time.
The Minister notes that s 477(2) of the Migration Act allows the Court to grant an extension of time if satisfied that it is necessary in the interests of the administration of justice to do so. The Court will generally consider the merits of the substantive Application (usually at an impressionistic level). Other relevant factors may include:
(a)the extent and reason for the delay; and
(b)whether there is any prejudice to the Minister.
Although there is no prejudice to the Minister in the granting of the extension of time, mere absence of prejudice to the Minister is insufficient to warrant the grant of an extension.
The Minister submits that the Applicant’s Affidavit fails to elaborate on the Applicant’s reasons for delay in applying for judicial review. There is no claim in writing that the Applicant failed to receive the letter notifying her of the Tribunal’s Decision. The Applicant has not filed any evidence to substantiate her claim that she did not know she could apply for review, or evidence of any attempts to obtain legal representation or advice. In any event, the Minister notes that lack of funds or legal advice is not an acceptable reason for delay. The Minister notes that the Applicant was provided information on her review rights.[13]
[13] CB 119.
The Minister submits it is not in the interests of the administration of justice to grant an extension of time, particularly where the Application for judicial review has little prospects of success.
Application for judicial review
The Applicant’s Grounds of Review appear to challenge the quality of the interpreting service at the Tribunal hearing. The Applicant has not provided further evidence to support this claim. Absent particularisation and evidence, the Minister submits that the Grounds have no prospect of success.
The Minister submits that the Tribunal otherwise complied with its procedural fairness obligations under s 425 and s 425A of the Migration Act. The Tribunal’s Decision to dismiss the Review Application was as a result of the Applicant’s evidence that she feared no harm on return to Malaysia.
The Minister submits that the Tribunal’s Decision is free from error and as such the Application for an extension of time to seek judicial review should be dismissed.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[14]
[14] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The Court neither consider the merits of the decision nor remakes it.[15] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[16]
[15] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[16] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT) at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[17] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[18] Different kinds of error may overlap.[19] The categories are not closed.[20]
[17] Plaintiff S157/2002.
[18] LPDT at [3].
[19] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[20] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[21] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[22] It has been described as an “undemanding” standard.[23]
[21] LPDT at [7].
[22] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[23] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Protection Visas (Subclass 866)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[24] as defined by s 5J.
[24] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONSIDERATION
The Applicant applies pursuant to s 477(2) of the Migration Act to extend the time provided for in s 477(1) of the Act for review of the Tribunal’s Decision.
Section 477(1) of the Migration Act provides that an application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476A(1)(b) or (c) of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
Section 477(2) of the Migration Act provides the Federal Circuit and Family Court of Australia (Division 2) may, by order, extend the 35 day period as the Court considers appropriate if an application for an order extending the time is made 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 satisfied that it is necessary in the interests of the administration of justice to make the order.
The time prescribed by the legislative provision should not be ignored.[25] Those time limits are set “with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act”.[26]
[25] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550.
[26]WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [41]-[44].
The Court should not grant an extension unless it satisfied that it is in the interests of the administration of justice to exercise the discretion to do so. Factors relevant to the exercise of the discretion to extend time include:[27]
(a)the length of the delay and the explanation for it;
(b)any prejudice to the respondent by the delay;
(c)impact on the applicant of a refusal to grant an extension;
(d)the public interest; and
(e)the merits of the substantive application.
[27] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (per Wilcox J at 348-349); compare Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).
Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[28] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[29]
[28] Jess v Scott (1986) 12 FCR 187 at 195.
[29] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].
Absence of prejudice is not sufficient, in itself, to justify an extension of time.[30]
[30] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579, the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the Court,[31] which may include an “impressionistic” assessment.
[31] Katoa at [19].
I turn then to the Applicant’s Application for an extension of the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal’s Decision.
The length of delay in the present case is around 2 years, which is “substantial” in the context of a statutory time period of 35 days.
The Applicant’s explanation for the delay in filing the Application for review of the Tribunal’s Decision is set out in her affidavit in the following terms:
I was unaware I could file an application to federal court. I did not have a lawyer and advice I could go to court. during my hearing with the tribunal on the 27.02.2017 I did not understand what was spoken to me by the interpreter. I am attaching my tribunal decision record together with my affidavit.
I do not consider that either these matters or the matters put in oral submissions constitute a satisfactory explanation for the substantial delay of around 2 years. The fact that the Applicant was not legally represented is not itself a sufficient reason for the delay. Not meeting the person who ultimately assisted the Applicant to make an application for an extension of time, until around 2 years had elapsed, is also not a sufficient reason. As was the case in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[32] the delay here is “extraordinary and not adequately explained”.
[32] [2021] FCA 736.
The prejudice to the Minister by the delay in filing the Application for review is not particularly significant in the instant case, but he has a “legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas”.[33]
[33] WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (WQRJ) per Derrington J (at [42]).
The prejudice to public interest as a result of the delay is that the default, again, is not particularly significant in the instant case, nevertheless, the consequent additional burden on the system is not a matter that can be ignored in a context where there is a significant backlog of cases, and a compelling need for the just and efficient resolution of cases. As a general proposition, the efficient management of cases is advanced by adherence to time limits. There is also a public interest in the “prompt disposition of administrative matters”.[34]
[34] WQRJ per Derrington J (at [41]).
The prejudice to the Applicant by refusing an extension is that her Application for judicial review will not be heard on its merits. Given the nature of her underlying Application, this is significant. Against this, I shall have regard to the merits of the underlying Application in exercising my discretion under s 477(2) of the Migration Act.
I turn then to the merits of the underlying application.
The Grounds of Review are:
I had provided evidences to support my application but the delegate refuse to grant me a protection visa saying I did not provide detailed evidences and I was not owed protection obligation due to my vague and undetailed evidence.
I had also told the delegate during my hearing that if i return to Malaysia I would be in fear with my life.
During the Tribunal hearing on the 27.02.2017, an interpreter was provided in malay and English language but I did not understand what was informed to me.
Therefore the decision made by the tribunal not to grant me a protection visa is unfair to me.
The main matter raised by the Grounds of Review is the allegation of misinterpretation. All that is said of substance on this topic is that “an interpreter was provided in Malay and English language but I did not understand what was informed to me”.
The difficulty with the Grounds of Review is that no attempt has been made to identify what was misinterpreted. It is little more than an assertion of misinterpretation.
The function of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker”, and that the interpreter “provides the means for communication between the applicant, the tribunal and other participants in the tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end”.[35]
[35] Perera v Minister for Immigration &Multicultural Affairs (1999) 92 FCR 6 at [24].
Whether a departure from proper “standards of interpretation” renders a hearing unfair depends upon the circumstances of the case.[36] An interpreter must “convey the substance of what is said” to an applicant so that he or she, in turn, can “communicate the substance of his or her case and to respond to the issues raised”.[37] It is critical that the essential elements of what was said by the appellant are communicated to the tribunal.[38]
[36] SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (SZRMQ) at [5].
[37] Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at [28].
[38] SZRMQ at [90].
In SZRMQ, Allsop CJ stated (at [9]):
It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The Applicant’s Grounds of Review stand in stark contrast to what was recorded in the Tribunal’s Decision:[39]
According to her protection visa application the applicant is Malay Sunni Muslim born in 1980 in xx, xx. She arrived in Australia on xx xxxx 2015 on a visitor visa. She had previously visited Australia on xx xxxx 2014. She claims that she left Malaysia because her parents forced her to get married to a man they chose. He pretended to be a good man in front of her parents but she did not want to marry him because she knew that this man is a drug addict and involved with loan sharks and gangsterism. She is afraid that he will sell her to be a prostitute. One of her friends already got trapped with him and now she is a prostitute. She decided to save her life by cheating her parents that she and her sister were going for further study.
The applicant further claimed in her visa application that if she returns to Malaysia, that man and his friend will find her because they are still searching for her sister. She tried to move to xx, xx but the man was still searching for her. She is stuck with staying with her parents who are forcing her to marry this man.
However, at the hearing the applicant advised that a friend of hers completed her protection visa application for her and that everything in her protection visa application is made up. She stated that if she applied for a protection visa and her friend wrote these claims for her because the applicant wants to remain in Australia legally.
The tribunal explained the criteria for a protection visa to the applicant and asked her several times if she had any fears of returning to Malaysia or any reason why she thinks she would be harmed upon her return there. She stated that she did not have any fears. She wants to remain in Australia because it is fun to live here, everything is the best and everyone respects each other. She stated that these were the only reasons she wants to remain. It was explained to the applicant that if she stated that the claims in her visa application were false and that she had no fears of returning to Malaysia, then she did not appear to meet the criteria for being owed protection. She indicated that she understood.
On the applicant’s own evidence that these claims are false, the tribunal does not accept any of the claims made in her protection visa application, including that she left Malaysia because her parents were forcing her to marry a man who was a drug addict and involved in gangsterism and loan sharks and whom she feared would sell her into prostitution, that one of her friends had previously been ‘trapped’ by this man and sold into prostitution or that the applicant saved her life by cheating her parents by telling them she and her sister were going to Australia for further study. Given the applicant’s evidence, the tribunal also rejects the applicant’s claims that she tried to relocate to xx but the man was still searching for her or that if she returns to Malaysia that man and his friend will find her because they are still searching for her sister.
[39] CB 123-124 [12]-[16].
It is hard to reconcile these findings, particularly the matters attributed to the Applicant by the Tribunal, with the Applicant’s allegation of misinterpretation. While at final hearing, and in the absence of evidence, the Court is “entitled to accept that [Tribunal’s] decision records as accurately reflecting the matters to which it refers as taking place at the hearing”,[40] the context of the present Application is the discretion to extend time pursuant to s 477(2) of the Migration Act. Accordingly, I do not treat the Tribunal’s Decision as decisive.
[40] Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62.
I am entitled to form an “impressionistic” view of the Applicant’s Grounds of Review for the purpose of the exercise of discretion under s 477(2) of the Migration Act. In the absence of particulars specifically identifying misinterpretation, or detailed evidence on that topic, and in the context of the Tribunal’s findings concerning the Applicant’s evidence and submissions, I draw the conclusion that the Applicant’s Grounds of Review have no substantive merit.
Finally, I note that given the jurisdiction of this Court, any reference to errors in the Delegate’s Decision would be misplaced. If the Applicant’s reference to “my vague and undetailed evidence” was an attempt to seek merits view, that also, would be misplaced. Further, the scope for jurisdictional error in the present case, where the Applicant acknowledges that the claims were “made up”, and the Tribunal determined the case on that basis, is limited.
Having regard to the matters set out above, particularly the very significant length of the delay, the absence of a satisfactory explanation for that delay, and the lack of apparent merit, I am not satisfied that it is in the interests of the administration of justice that the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal’s Decision be extended.
CONCLUSION
As the Applicant has not succeeded in her Application pursuant to s 477(2) of the Migration Act to extend the time provided for in s 477(1) of the Migration Act, the Application must be dismissed.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $7,467, being the scale amount for a final hearing that was applicable when the Applicant first applied for judicial review.[41] Because this is an application for an extension of time, the applicable (current) scale amount is $4,189.38.[42] I am satisfied that it is appropriate to make an Order in the amount of $4,189.38 having regard to the scale and the extent of work undertaken as evidenced by the court file.[43] While I may have been minded to make an order greater than scale having regard to the work involved in an Application under s 477(2) of the Migration Act, I am not prepared to do so without some further evidence as to the actual work undertaken.
[41] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[42] Item 3 of Part 2 of Schedule 2.
[43] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 11 August 2025
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