BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 462
•21 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462
File number: MLG 759 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 21 May 2024 Catchwords: MIGRATION – Protection visa – Application for extension of time to commence judicial review application – Where there is a delay of 16 months – Where no satisfactory explanation for the delay – Where the “real chance” test under the refugee criterion and the “real risk” test under the complementary protection criterion import the same test – Where the Tribunal found that there was not a “real chance” or a “real risk” because the chance or risk of harm was remote or insubstantial if the Applicant returned to the receiving country – Where the proposed grounds of judicial review are not reasonably arguable – Application for extension of time dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 36, 414, 430A, 441A, 470 Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176,
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285, [2007] FCAFC 162
Minister forImmigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22, 572
MZABP v Minister for Immigration and Border Protection [2015] 242 FCR 585; [2015] FCA 1391
Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran vMinister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573, [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submissions: 21 May 2024 Date of hearing: 21 May 2024 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Roeger of Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG759 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
21 MAY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
2.The Applicant pay the First Respondent’s 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 CHAMPION
INTRODUCTION
The Applicant seeks an extension of time under s. 477(2) of the Migration Act 1958 (Cth) to seek judicial review of a decision of the Administrative Appeals Tribunal in which it refused to grant to him a protection visa. The Applicant filed his Originating Application some 16 months after the expiry of the 35-day time limit prescribed in s. 477(1) of Act.
The Applicant’s claim before the Tribunal was that he feared harm if he returned to Malaysia because he owed money to loan sharks who had assaulted and threatened him in the past.
Having traversed the relevant facts of the claim and made its findings as to those facts, the Tribunal first considered whether the Applicant qualified for the grant of the visa under s. 36(2)(a) of the Act (the Refugee Criterion). The Tribunal noted the Applicant did not advance that he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion being the reasons identified in s. 5J of the Act (CB160, [50]).
As to the complementary protection criterion, the Applicant advanced a claim which “clearly emerged from the material” (see, i.e., AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89) that there was a “real risk” that he would suffer “significant harm” (as those phrases appear in s. 36(2)(aa) of the Act) if he returned to Malaysia because he owed money to the loan sharks who had assaulted and threatened him in the past.
The Tribunal refused to grant a visa because, although it acknowledged that “there is a chance or a risk of some harm”, it was “not satisfied that chance or risk amounts to be more than remote or insubstantial in the applicant’s overall circumstances” (CB160, [50]; emphasis added). The Tribunal’s finding that there was a “remote or insubstantial” chance or risk of harm meant that it was not satisfied that there was “real chance” of serious harm as set out in s. 36(2)(a) and it was not satisfied that there was a “real risk” of significant harm under s. 36(2)(aa). As a result, the Tribunal refused to grant the protection visa. The “real chance” and real risk” test “import the same test” for the grant of a protection visa (BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465, [9] (Charlesworth J) citing Minister forImmigration and Citizenship v SZQRB(2013) 210 FCR 505; [2013] FCAFC 33, at [242]–[247] (Lander and Gordon JJ)).
MATERIAL BEFORE THE COURT
The Court made orders on 20 March 2019 permitting the Applicant to file an amended application and written submissions. The Applicant did not file and serve any amended application or written submissions in support of his grounds of review. As a result, I have proceeded on the basis of his application filed on 23 March 2018.
I admitted the Court Book into evidence (CB1–164) (Ex CE-1).
I also admitted a Supplementary Court Book (SCB165-167) into evidence (Ex CE-2).
The Applicant represented himself before me and had the assistance of an interpreter in the Malay/English languages.
SUMMARY
For the reasons set out below, I will dismiss the application for an extension of time.
BACKGROUND
The Applicant is a citizen of Malaysia.
On 31 March 2015 the Applicant arrived in Australia as a holder of visitor visa, valid until 1 July 2015.
On 21 May 2015 the Applicant applied for the protection visa (CB152).
On 31 July 2015 the delegate refused to grant the Applicant the protection visa. The delegate found that the Applicant’s claims were “vague and limited in detail”. The delegate continued that “in [the] absence of specific details” as to the loan, the amount that was borrowed and what the loan was intended for the claim “lack[ed] integrity and substance” (CB113). The delegate assessed the claim with reference both to the refugee criterion (s. 36(2)(a)) and the complementary protection criterion (s. 36(2)(aa)).
On 18 October 2016 the Tribunal affirmed the decision under review and refused to grant to the Applicant the protection visa (CB151–164).
As noted, on 23 March 2018, the Applicant filed his application for an extension of time and his originating application in this court (CB1–8).
TRIBUNAL’S DECISION
The Tribunal accepted the Applicant’s claims as follows (CB157, [41]):
•The applicant ran a business in retailing food and that his family provided the applicant with the opportunity despite his lack of business experience and acumen;
•The applicant struggled in running his business; that he could not gain a loan from a licensed financial institution and he was too embarrassed to ask for his extended family’s financial assistance;
•The applicant accrued debt from an unlicensed money lender who is of Chinese ethnicity for his struggling business and that the amount was as claimed at 50,000 Malaysian ringgit (or about 15,600 Australian dollars);
•The applicant began paying the loan back to the unlicensed money lender for the first three months of the loan but found difficulties in repaying the loan after three months and up and til his departure in March 2015;
•The applicant was threatened and that his business was ‘disturbed’ as claimed but that applicant was not physically harmed;
•The applicant also accrued debts on a credit card;
•The applicant’s wife has a mortgage;
•Any members of the applicant’s immediate or extended family have not been threatened with harm or being killed over money owing to an unlicensed money lender in Malaysia.
The Tribunal rejected other aspects of the Applicant’s claims and found the Applicant’s claim that the loan shark had found him in his home town in Malaysia “highly implausible” (CB158, [46]). The Tribunal did “not accept the debt the applicant owes is being pursued by a criminal organisation with the capacity to discover the applicant anywhere throughout the applicant’s country of origin” (CB159, [47]). The Tribunal found that the Applicant had the capacity to pay his ongoing debts which it said were “accurately characterised as manageable” and not “characterised as substantial, crippling or overwhelming” (CB159, [48]).
It is worth setting out in full the Tribunal’s conclusion (CB160, [50]):
50. While the Tribunal accepts the applicant is of some interest to an ah long, loan shark or unlicensed moneylender whose ethnicity is Chinese Malaysian in his home country, it is not satisfied the applicant has a real chance of serious harm for any reason outlined in s 5J(1) of the Act or for any complementary protection reason. Firstly, the applicant did not advance that he was targeted or subjected to systematic discrimination for his ethnicity, his religion or any other reason outlined in s5J of the Act. Secondly the amount of money owing to a criminal or criminal organisation, based on the Tribunal’s findings can be characterised as manageable, and the applicant and his family has the demonstrated capacity to repay this amount. The Tribunal notes that the applicant’s family members, including his wife, have not been threatened and although there are some difficulties in returning to Malaysia to find work to pay for his family’s mortgage, credit card, living expenses and an manageable debt owing to an unlicensed moneylender, these challenges do not amount to serious harm or significant harm of harm. Thirdly, the Tribunal acknowledges that there is a chance or a risk of some harm, including physical maltreatment, in not repaying the illicit loan; however it is not satisfied that chance or risk amounts to be more than remote or insubstantial in the applicant’s overall circumstances including whereby the applicant has effective protection available to him, because of the manageable amount of debt owing and because the applicant and his wife have the capacity to generate two incomes. For these reasons, the Tribunal finds that the applicant does not face a real chance of persecution or a real risk of significant harm based on the accepted findings of the Tribunal.
[As written; emphasis added]
AN EXTENSION OF TIME
In support of his application for an extension of time the Applicant wrote the following in his Originating Application filed in the court on 23 March 2018:
1.I appeared at the Administrative Appeals Tribunal (AAT) to give evidence on 28 September 2016. I was not represented. After the hearing I went back to Mildura where I was working as a farmhand.
2.I did not receive any letter from AAT notifying me of the outcome of the hearing on 28 September 2016.
3.I carried on working at Mildura until 2017. I currently work as a farm hand at Bacchus March.
4.I discussed the AAT matter with my partner [name omitted] she then guided me to check on VEVO my visa status. It was only then I realised that I had no visa.
5.I then attended at the Department of Immigration and was granted a bridging E visa conditions.
6.I understand there is a delay in making this application for review but I genuinely do not have any knowledge of the appeal processes and was self-represented at the AAT.
7.I didn't know of my rights to appeal.
8.My bridging visa has expired.
9.I didn't receive any guidance from the AAT about information to attend at a community centres for assistance.
10.I have a good case and need another opportunity to present my case.
11.There is no prejudice to the Respondents if my application is allowed.
12.All I am asking is an opportunity to present my case. I believe there are merits in the appeal before the Court.
13.If an extension of time is not granted I have to leave Australia immediately and cannot exercise my legal right to appeal. There is no prejudice to the Respondents whatsoever but I will be severely prejudice in that I cannot appeal and will have to depart Australia. I will be severely prejudice because I have a right to appeal. I will be prejudice because I have a right to be heard and I have not exhausted all my rights to appeal.
[As written]
Legal principles as to the grant of an extension of time
Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if it is “necessary in the interests of the administration of justice”. The grounds on which an extension may be granted are not limited but the discretion must be exercised judicially. I may look at a “myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent … and the merits of the underlying application” (Tu’uta Katoa v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573, [2022] HCA 28, [12]).
“Typically the longer the delay, the more persuasive the explanation needs to be” (Tran vMinister for Immigration and Border Protection [2014] FCA 533, [38]). Further, “If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’” (Tu’uta Katoa, [18]).
On an extension of time application, “it will seldom be in the interests of the administration of justice to grant leave [for an extension of time] where an appeal has little or no prospects of success…” (MZABP v Minister for Immigration and Border Protection [2015] 242 FCR 585; [2015] FCA 1391, [62]). It is appropriate to consider at a “reasonably impressionistic level” whether the proposed grounds are “arguable,” “reasonably arguable” or “sufficiently arguable” or have “reasonable prospects of success” so as to warrant the grant of an extension of time (MZABP, [63]). There will be no error if a court engages in more than an impressionistic assessment of the merits (Tu’uta Katoa, [18]).
The length and explanation for delay
The application was filed on 23 March 2018, approximately 16 months after the 35-day time limit. The delay is of a lengthy duration.
Non-notification of the Tribunal’s decision
The Applicant says that he did not receive notification from the Tribunal of the outcome of the hearing on 28 September 2019 (ground 2). He says that he had no knowledge of appeal processes and was self-represented (grounds 6 and 7). He says further that he did not receive any guidance from the Tribunal to attend a community centre for assistance (ground 9).
The First Respondent submitted (and I accept) that by email dated 19 October 2016 (the day after the decision was made) the Tribunal notified the Applicant of its decision in compliance with its statutory obligations under ss. 430A(1) and 441A of the Act. The Tribunal notified the Applicant of its decision by email to the last email address provided in connection with the review (CB149). It attached to its email standard information including that: “If you wish to apply for review, you must do so within 35 days of the date of our decision” (SCB166).
Further, I accept the accuracy of the Tribunal’s case notes dated 20 October 2016 (two days after the decision) which record that the Tribunal advised the Applicant in an interpreted telephone call that he would need to contact this court as to the process of judicial review and that the Tribunal provided him with a telephone number to do so. The Tribunal’s case notes dated 20 October 2016 (2 days after the decision) also record (and I accept as accurate) that the Applicant relayed to the Tribunal that he had “received the Tribunal’s notification letter and decision record” (CB147). The Applicant submitted to me that he did not remember this conversation.
I do not accept that the Applicant did not know about the Tribunal’s decision. As a result, I do not accept a contention that he did not know of the Tribunal’s decision as constituting a satisfactory explanation for the delay.
Ignorance of review rights and/or lack of legal advice
Even if I accept that the Applicant did not know of his rights of judicial review (and I do not), ignorance of time limits and the appeal process is not a satisfactory explanation for delay (SZNYE v Minister for Immigration and Citizenship [2010] FCA 500, [8]–[9]).
Similarly, although the court provides some latitude to self-represented litigants, a lack of legal representation is not an acceptable explanation for delay in this case (Manna v Minister for Immigration and Citizenship [2013] FCA 400, [17]).
Prejudice
The First Respondent alleges no prejudice if an extension of time were granted. Mere absence of prejudice is not sufficient to warrant the grant of an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86, [6]).
The merits of the substantive application
The Applicant proposes 5 grounds for judicial review, as follows:
1.The Tribunal erred in its exercise of jurisdiction by denying the applicant procedural fairness.
Particulars
The Tribunal failed to provide an interpreter in the Bahasa Malaysia language at the hearing.
The applicant was provided with an interpreter in the Bahasa Indonesia language at the hearing instead of Bahasa Malaysia.
The applicant was denied an opportunity to present evidence as he does not speak and understand Bahasa Indonesia.
2.The decision of the Tribunal is affected by jurisdictional error as it failed to comply with Section 414 of the Migration Act 1958 (the Act).
Particulars
The delegate (reviewer) was under a duty to accord the applicants procedural fairness when determining whether to recommend the applicants are or are not entitled to protection.
The duty to accord procedural fairness required the delegates to notify the applicants that one of the issues the delegate intended to consider was whether the applicants met the criterion specified in s 36(2)(aa) of the Act.
The delegate failed to properly notify the applicants whether the applicant will be considered as a refugee under the 1951 Refugees Convention or under the complementary protection.
The delegate failed to invite the applicants to comment and present evidence before refusing the protection visa applying SZSRX v Minister for Immigration & Anor [2014] FCCA 2447
3.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal failed to apply the “real chance” test
Particulars
The Tribunal failed to consider if the Applicant will suffer serious harm from the loan sharks.
4.The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied ss5 and 36(2) (aa) of the Act.
Particulars
The Tribunal although accepts there are some wounds which meets the criteria in s36 (2) (aa) as necessary and foreseeable consequence of being removed from Australia to Malaysia failed to consider there is a real risk that the applicants will suffer significant harm.
5.That decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal breached its obligations pursuant to section 36(2)(aa) of the Migration Act 1958 by not considering the complementary protection ground and failing to put the Applicant on notice of the issues dispositive to its decision.
Particulars
Real risk of significant harm was not considered.
The Tribunal made a finding the amount of debt owing to the loan shark is manageable without any basis.
The Tribunal did not give consideration to each separate aspect of the claimed fear of persecution.
Proposed ground 1: failure to provide an interpreter in the Bahasa Malaysia language
Proposed ground 1 is an allegation that the Tribunal denied the Applicant procedural fairness by failing to provide an interpreter in the Bahasa Malaysia language.
In his application to the Tribunal on 23 August 2015, the Applicant requested a “Malay” interpreter (CB117). In his response to the Tribunal’s hearing invitation, he said he needed an interpreter in the “Malay language” (CB134). The Tribunal’s hearing record set out that an interpreter was provided in the “Malay” language (CB139).
The Applicant in fact submitted before me that there was no relevant difference between a reference to an interpreter in “Bahasa Malaysia” language and an interpreter in the Malay language. The Applicant has not demonstrated that he has a reasonably arguable case that any interpreting issue caused the Tribunal’s statutory function to miscarry.
Proposed ground 1 is not sufficiently arguable to warrant the grant of an extension of time.
Proposed ground 2: the Tribunal failed to comply with s. 414 of the Act
Proposed ground 2 is that the Tribunal failed to comply with s. 414 of the Act and discharge its statutory function to conduct a merits review of the delegate’s decision.
The Applicant particularises proposed ground 2 by reference to an allegation (among others) that he was not notified “whether the application will be considered under the 1951 Refugees Convention or under the complementary protection” framework (particulars [2(c)]).
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 is authority for the proposition that in the absence of steps taken by the Tribunal to notify an applicant to the contrary, the Applicant is entitled to assume the issues the delegate considered dispositive are the issues relevant under review. In this case, the delegate had considered the Applicant’s loan shark claims under both s. 36(2)(a) (the Refugees Convention) and s 36(2)(aa) (the complementary protection criterion). If the decision-maker was satisfied that the Applicant was a person to whom Australia owed protection obligations under either of those alternative criteria (subject to some carve-outs not presently material), it had to grant the visa. The issue before both the delegate and the Tribunal was whether there was a “real chance” or a “real risk” of the relevant harm if the Applicant returned to Malaysia. Procedural fairness remains a practical matter. The Tribunal put the Applicant on notice that the dispositive issue was the risk of harm from loan sharks. There was no issue of a denial of procedural fairness because the Tribunal did not bring the dispositive issues to the attention of the Applicant.
It is evident on the face of the reasons that the Tribunal asked questions and received answers as part of its inquisitorial process as to whether there was a “real chance” or “real risk” of harm from loan sharks to the Applicant if he returned to Malaysia because of loan sharks. There was no shifting of issues between the delegate’s decision and the Tribunal’s decision. For completeness, I also note that I accept the First Respondent’s submission that the Tribunal is not required “to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go” (Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285, [2007] FCAFC 162, [88]).
Finally, although I acknowledge that ground 2 (particular (d)) refers to the decision of SZSRX v Minister for Immigration [2014] FCCA 2447 it was not apparent to me how this decision was relevant to any ground the Applicant wished to advance.
I do not see that proposed ground 2 is reasonably arguable.
Proposed grounds 3, 4 and 5: The Tribunal failed to consider whether the Applicant would suffer serious harm or significant harm
Proposed grounds 3-5 may be conveniently considered together.
As to proposed ground 3, the Applicant submits that the Tribunal failed to apply the “real chance” test. I do not consider that this ground is reasonably arguable. There may be a “real chance” or “real risk” of harm even though the chance or risk of the fear or risk eventuating is less than 50 per cent (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22, 572). There will not be a real and substantial basis for the risk or fear if the risk or chance is “remote” or insubstantial” (CB160, [50]). I detect no reasonably arguable error in the Tribunal’s application of the “real chance” test. The Applicant’s grievance is as to the merits, namely that the Tribunal found that the chance or risk of harm was something less than a “real chance” or “real risk”, not that the Tribunal failed to apply the “real chance” test.
Proposed ground 4 is that the Tribunal “misconstrued or misapplied” the “real risk of significant harm test” set out in s. 36(2)(aa) (the complementary protection criterion).
The full passage of the Tribunal’s consideration of this issue was set out at [54]–[56] (CB160–161) of its reasons as follows:
54. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
55. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm based on the applicant’s claims, if he returns to his home in Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as required by s.36(2)(aa).
56. Having considered the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s36(2)(aa).
[Emphasis added]
The Tribunal was entitled to refer and rely upon relevant findings as to the refugee criterion under s. 36(2)(a) in considering the complementary protection criterion under s. 36(2)(aa) (DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10, [27]). The Tribunal’s finding that there was not a “real chance” of serious harm for the purposes of the refugee criterion and that it was not satisfied that the “chance or risk amounts to be more than remote or insubstantial” (CB160, [50]) was a relevant finding to which the Tribunal was entitled to refer and rely upon (as it did at [54] above) in its conclusion that there was not a “real risk” of significant harm for the purposes of the complementary protection criterion.
The Tribunal was correct to observe that the “real risk” test under the complementary protection criterion imposes the same standard as the “real chance” test applicable to the assessment of a well-founded fear in the Refugee Convention definition (SZQRB, above). I detect no reasonably arguable error as to proposed ground 4.
Proposed ground 5 is that “the Tribunal breached its obligations pursuant to s. 36(2)(aa)… by not considering the complementary protection ground and failing to put the applicant on notice of the issues dispositive to its decision”. I do not consider that proposed ground 5 is reasonably arguable so as to warrant the grant of an extension of time. In the passage set out above, the Tribunal brought its mind to bear on the claims advanced or the claims which clearly emerged from the materials as it was required to do as to whether there was a “real risk” of significant harm under the complementary protection criterion (see, i.e., Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17, [24]–[25]).
As to the contention that the Tribunal failed to put the Applicant on notice of dispositive issues, I have set out above my reasons as to why the High Court’s decision in SZBEL is not of assistance to the Applicant.
The particulars to proposed ground 5 include an allegation that the Tribunal made a finding that the “amount of debt owing to the loan shark is manageable without any basis” (particular 5(b), emphasis added).
Contrary to those particulars, the Tribunal set out the basis for its finding. It found that the debt was manageable given that it amounted to approximately AU$20,000, “the applicant and his wife have the capacity to generate two incomes” (CB160, [50]), his “wife… has a reasonably well paying job” (CB159, [48]), and the “applicant’s own family has been supportive in supporting the applicant financially for much of his adult life” (CB159, [48]). These factors cumulatively — a relatively modest debt and familial financial support — formed the “basis” for the Tribunal’s finding that the debts was “manageable” and “would not be characterised as substantial, crippling or overwhelming” (CB159, [48]). With reference to those findings above, the Applicant’s contention that the finding was made “without any basis” is not reasonably arguable. The Applicant does not contend in proposed ground 5 that that the basis the Tribunal articulated for its finding that the debt was manageable was not legally reasonably open to it.
The Applicant has not persuaded me that proposed ground 5 is reasonably arguable, so as to warrant the grant of an extension of time.
DISPOSITION
In circumstances in which the delay is lengthy, there is no satisfactory explanation and the Applicant’s case is not “strong” (Cf. Tu’uta Katoa, [18]) it is not in the interests of justice to extend time.
I will dismiss the application for an extension of time. I will order that the Applicant pay the costs of the First Respondent fixed in the amount of $4,189.38.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 21 May 2024
3
19
1