BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1217
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1217
File number(s): MLG 969 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 20 December 2023 Catchwords: MIGRATION – application for review of Registrar’s decision – hearing de novo of applicant’s application for reinstatement of their substantive application for an extension of time in which to seek judicial review of decision of the second respondent – where applicant’s substantive application dismissed for non-appearance at callover hearing – where applicant’s reinstatement application dismissed by Registrar – where review of Registrar’s decision filed 27 days out of time – applicant’s request for an adjournment on day of hearing declined – found no reasonable excuse for applicant’s non-attendance at callover hearing – applicant’s substantive application filed 177 days out of time –found grounds of substantive argument are not reasonably arguably – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J(5), 36(2), 36(2)(a), 36(2)(aa), 430A(1), 430A(3), 441A(4), 476A(3)(a), 477(1), 477(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06(1)(c), 17.05(2)(a), 21.02(1), 21.04
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 14 December 2023 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Anastasi of Clayton Utz ORDERS
MLG 969 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWP18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review of a Registrar’s decision filed 5 December 2023 be dismissed.
2.The applicant pay the first respondent’s costs in an amount to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
The applicant seeks review of a Registrar’s Decision made on 1 November 2023 (Review Application).
The Application before the Registrar was an application in a case filed on 20 September 2023 (Reinstatement Application), in which the applicant sought reinstatement of his Application for an extension of time in which to seek judicial review of a decision of the second respondent filed 13 April 2018 (Substantive Application). The Registrar made orders that the applicant’s Reinstatement Application be dismissed and that the applicant pay the first respondent’s costs fixed in the sum of $2,435.81.
The applicant’s Substantive Application was dismissed on 29 August 2023 under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) consequent on the applicant failing to appear at the callover hearing on 29 August 2023.
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, the Reinstatement Application is to be heard afresh.
BACKGROUND
The applicant is a citizen of Malaysia.
On 24 February 2016 the applicant applied for a Protection (Subclass 866) visa (Visa). The applicant’s claims contained in his Visa application can be summarised as follows:
·he was unable to pay a debt to a bank and a loan shark because he needed to financially support and assist his families because of economic uncertainty. One of the guarantors for his wife was declared bankrupt;
·the loan to the loan shark was getting high and he could not pay as scheduled. The loan shark blackmailed him and threatened him with violence and he was living in fear so he decided to come to Australia to seek protection;
·if he returns to Malaysia the loan shark will find him and do violence to him to get their money back. They used verbal violence, blackmail and physical violence when he failed to pay back according to what they wanted;
·he tried to get help from his family and community but no one could help him;
·if he moves to another part of the country, they will burn his house and kill him;
·according to friends and families the loan shark is still looking for him and has visited his previous work and home bringing a knife and a gun;
·he had gone to the police but there was no reaction and they could not help him; and
·he is unable to relocate because the loan shark has many branches in every state in Malaysia.
On 24 June 2016 the Department of Immigration and Border Protection (Department) notified the applicant by email of the delegate of the Minister’s (Delegate) decision to refuse to grant the Visa.
Refusal of protection visa on 22 June 2016
On 22 June 2016, the Delegate refused the applicant’s application for the Visa. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal for the Visa was that the applicant did not satisfy s 36(2) of the Migration Act 1958 (Cth) (Act).
Application for review at Tribunal on 1 July 2016
On 1 July 2016, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision.
In the application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx63” (applicant’s phone number).
On 4 July 2016, the Tribunal sent the applicant confirmation of receipt of his application. In the correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.
On 5 July 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 28 July 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 28 July 2017 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter. On the same day, the applicant updated his residential address with the Tribunal.
On 13 September 2017 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 14 September 2017, the Tribunal attempted to send a copy of its decision and reasons to the applicant’s email address. In response, the Tribunal received an “undeliverable” error message. On the same day, the Tribunal unsuccessfully attempted to contact the applicant twice via his mobile phone to confirm his email address. On the same day, the Tribunal sent the applicant a copy of its decision and reasons via post to the applicant’s last known residential address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 13 September 2017 (Tribunal Decision).
At paragraph [4] of the Tribunal Decision, the Tribunal summarised the applicant’s claims. At paragraphs and [6] – [30], the Tribunal outlined the evidence given by the applicant at the hearing. At paragraphs [19] – [21] and [24], the Tribunal set out country information regarding illegal money lending in Malaysia and the police force and the judicial system in Malaysia.
At paragraph [45] of its decision, the Tribunal accepted that the applicant has accumulated a number of debts, that he was forced into bankruptcy by one of the banks in Malaysia, and that he has some very pressing issues concerning his personal finances and future financial status in Malaysia. However, the Tribunal made the following findings in support of its ultimate finding that the applicant does not have a well-founded fear of persecution if he returns to Malaysia now or in the foreseeable future:
·at paragraph [45], the Tribunal was not satisfied that the applicant would not be able to access the legal system in Malaysia to attempt to clarify his position regarding bankruptcy or consolidate his legitimate loans;
·at paragraph [46], the Tribunal accepted that while bankruptcy may make it difficult for the applicant to resume employment in Malaysia, this would not cause the applicant severe economic hardship such as to threaten his capacity to subsist;
·at paragraphs [48] – [51], the Tribunal accepted that while the applicant borrowed money from unlicensed money lenders and was approached and threatened by them, the Tribunal was satisfied that effective state protection was available to the applicant;
·at paragraph [53] the Tribunal found that the applicant did not face a real chance of serious harm in Malaysia for reason of his race, religion, nationality, political opinion or membership of a particular social group and, therefore, the applicant did not satisfy the criterion as set out in s 36(2)(a) of the Act; and
·at paragraphs [59] – [62], the Tribunal found that effective state protection measures were available to the applicant in relation to illegal money lending, and therefore, if the applicant returned to Malaysia, there would not be a real risk that he would suffer significant harm and thus did not satisfy the alternative protection provisions in s 36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the applicant the Visa.
On 16 October 2017, 26 November 2017, 26 February 2018 and 10 April 2018, the applicant applied to the Tribunal for review of the Delegate’s decision made on 22 June 2016. As the Delegate’s decision had already been the subject of a valid review by the Tribunal, the Tribunal no longer had jurisdiction in relation to the Delegate’s decision. On 10 April 2018 the Tribunal emailed the applicant informing him that it would not process any further documentation that appears to seek review of the same decision dated 22 June 2016.
PROCEEDINGS IN THIS COURT
On 13 April 2018, the applicant filed their Substantive Application seeking an extension of time in which to seek a judicial review of the Tribunal’s decision. In the Substantive Application, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence.
On 15 August 2023, the Court emailed the parties a notification of the callover hearing before a Registrar to be conducted by telephone on 29 August 2023 at 2.00pm. In the email correspondence from the Court, the parties were informed that if they missed the callover hearing and did not appear by telephone, their matter may be dismissed and costs ordered against them.
On 29 August 2023, the Registrar made Orders dismissing the Substantive Application for non-appearance pursuant to r 13.06(1)(c) of the Rules and that the applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
On 20 September 2023, the applicant filed the Reinstatement Application, together with an affidavit in support of the Reinstatement Application. On the same day, Orders were made in Chambers listing the matter for hearing of the Reinstatement Application on 24 October 2023 and for the filing of written submissions by the first respondent (Minister).
On 24 October 2023, parties were notified by email that the hearing of the Reinstatement Application had been adjourned to 1 November 2023 at 10.00am.
Reinstatement Application hearing on 1 November 2023
The Reinstatement Application was heard by the Registrar on 1 November 2023, with the Registrar dismissing the Reinstatement Application.
Application for review of a Registrar’s decision filed on 5 December 2023
As already set out, the Review Application presently before the Court is an Application for a review of the Registrar’s decision, which was filed by the applicant on 5 December 2023, and that Review Application is to be conducted as a hearing de novo.
The applicant relies upon his affidavit filed on 20 September 2023 in support of the Reinstatement Application.
The Minister relies upon its written submissions filed on 17 October 2023 and the affidavit of Mr Joseph McDonald filed on 17 October 2023.
The hearing took place on 14 December 2023.
The applicant is self-represented and was assisted by an interpreter in the Malay and English languages.
Late filing of application for review of a Registrar’s decision
I first address the late filing of the Review Application.
Rule 21.02(1) of the Rules provides that an Application for review of a Registrar’s decision must be made within 7 days. Rule 21.02(2) provides that time may be extended in a proceeding by the Court “on any terms that the Court … thinks fit”.
The Registrar’s decision was made on 1 November 2023. An Application for review of that decision in this Court was therefore required to be made no later than 8 November 2023. The Review Application was not made until 5 December 2023.
Accordingly, the Review Application was made 27 days after the expiry of the statutory timeframe.
The Minister opposed any extension of time in this matter.
At the hearing, I granted an extension of time for the filing of the Review Application. My reasons for that decision are as follows.
At the hearing, the applicant said that the reason for the late filing was that the Review Application was prepared and submitted by a migration agent who informed him that he had 28 days to file the Application for review of the Registrar’s decision. He said that he contacted the migration agent on 2 November 2023.
The Review Application does not indicate that it was prepared and submitted by a migration agent. Rather, it states that it has been prepared by the applicant. Notwithstanding that, for the present purposes, I am prepared to accept the applicant’s evidence as to the preparation of the Review Application and that he was informed by the migration agent that the relevant time frame for filing was 28 days. I am also prepared to accept that the applicant contacted the migration agent regarding review of the decision on 2 November 2023, being the day after the Registrar’s decision, and in so doing acted expeditiously to ascertain and exercise his rights of review. Accordingly, I am satisfied that there is an acceptable explanation for the delay. Further, the delay is not excessive, the applicant acted expeditiously to ascertain his right of review and there is no prejudice to the Minister other than costs. As such, I am satisfied it is appropriate for the time for filing the Review Application to be extended.
Adjournment request
Following the grant of an extension of time for the filing of the Review Application, the applicant sought an adjournment to seek legal representation.
The Minister opposed the adjournment request.
At the hearing, I declined to grant an adjournment. My reasons for that decision are as follows.
Firstly, these proceedings were commenced on 13 April 2018 and therefore have been on foot for in excess of five and one half years. Further, the Delegate refused the applicant’s Visa on 24 June 2016 and the Tribunal confirmed that decision on13 September 2017. Accordingly, the applicant’s migration status was at issue for some six years before the Order dismissing the Substantive Application was made on 29 August 2023. The applicant has therefore had an extended period of time in which to seek legal representation.
Secondly, at no time in the preceding approximately five years has the applicant been, or indicted that he sought to be, legally represented. This is despite there being a number of hearings before and applications made to this Court.
Thirdly, the Registrar gave his ex-tempore decision on 1 November 2023, some 6 weeks before the hearing of the Review Application. The applicant’s evidence is he contacted the migration agent on 2 November 2023 regarding review of the Registrar’s decision. The Review Application was made on 5 December 2023. The applicant therefore knew he wished to exercise his right of review and had some six weeks before the hearing of that Application to obtain legal representation and did not do so. Further, there is no evidence before the Court that the applicant took any steps to seek legal representation in that period (or indeed, at any other time). Additionally, on the applicant’s own evidence he engaged a migration agent to act for him in the Review Application and therefore had the benefit of advice and assistance in relation to the Review Application.
Finally, for reasons articulated later in this judgment, I am not persuaded that granting an adjournment would have any utility.
RELEVANT PRINCIPLES
The Court's power to set aside the orders made on 29 August 2023 is contained in r 17.05(2)(a) of the Rules which relevantly 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;
Whether or not to grant the Reinstatement Application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50] (FBS18).
In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of certain factors which his Honour listed as:
(a)first, whether there is a reasonable excuse for the party’s absence;
(b)secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.
The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...
CONSIDERATION
Explanation for non-attendance
The applicant’s explanation for his non-attendance at the callover hearing on 29 August 2023 is set out in his affidavit filed in support of the Reinstatement Application on 20 September 2023. In his affidavit, the applicant deposes to being unaware of the callover hearing, and thus his non-appearance was unintentional. In support of this claim, the applicant submits that he updated his email address directly with the Department of Home Affairs on 4 July 2022 as his residential address had changed, but acknowledges that he did not inform the Minister’s representative or file a notice of change of address for service with the Court. Accordingly, he did not receive notification of the callover. The applicant’s evidence is that he mistakenly believed that the Department of Home Affairs would update his details with the Court and the legal representatives for the first respondent.
In his affidavit, the applicant deposes that he found out that his bridging visa was expiring from his employer on 8 September 2023, and subsequently that his proceeding had been finalised by contacting the Court on 11 September 2023.
The evidence before the Court is that:
(1)on 4 July 2016, the Tribunal sent the applicant confirmation of receipt of his application and in that correspondence, the applicant was advised of the need to keep the Tribunal updated with regard to his contact details;
(2)on 2 July 2018, the Minister’s representative informed the applicant by both email and post of his obligation to update his contact details with the Court and included the necessary link in the event the applicant needed to obtain a ‘Notice of Address for Service’ form;
(3)on 15 August 2023, the Court notified the applicant of the callover hearing utilising the email address on the Court file;
(4)on 18 August 2023, the Minister filed and served, by email and post, a notice of change of address for service. On 4 September, after the matter had been dismissed, this letter was returned to sender; and
(5)on 25 August 2023, the Minister’s representative emailed the applicant, utilising the email address on the Court file, reminding him that he needed to appear. Upon receipt of a bounce back email on the same date, the Minister’s legal representatives sent a letter to the applicant’s last known postal address, enclosing the details of the callover hearing. The Minister’s representatives provided this correspondence to the Court by email on 28 August 2023.
I accept the applicant’s evidence that he was unaware of the callover and, in that sense, his non-attendance was not intentional. However, in circumstances where the applicant had been advised of the need to keep the Court informed of his contact details, had been provided with a link to the ‘Notice of Address for Service’ form and was correctly notified by both the Court and the first respondent of the callover, I do not consider that the applicant has provided a reasonable explanation for his non- attendance at the callover hearing on 29 August 2023. His mistaken belief that the Department would update his details with the Court and the respondent does not provide a satisfactory explanation. This weighs against reinstatement.
Prejudice
The Minister did not contend, correctly in my view, that it would suffer any particular prejudice if the Substantive Application were reinstated, other than as to costs.
However, I do not consider the absence of prejudice to weigh in favour of reinstatement. Rather, I consider it to be a neutral consideration.
Prospects of success of the Substantive Application
The applicant applied for an extension of time in which to seek judicial review of the Tribunal’s decision on 13 April 2018.
Section 477(1) of the Act requires that an application to this Court for judicial review be made within 35 days of the date of the migration decision. The Tribunal’s decision was made on 13 September 2017. An application for judicial review of that decision in this Court was required to be filed by 18 October 2017. The application for an extension of time to seek judicial review was not filed until 13 April 2018. Accordingly, the application was made 177 days after the expiry of the statutory timeframe.
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 (Katoa) at [12] the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant “but on the broader interests of the administration of justice.”
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15). In that decision, Jagot and Halley JJ found at [40] that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive application.
In the Substantive Application filed 13 April 2018, the applicant specified the following grounds as to why he says it is necessary in the interests of the administration of justice to extend time (without alteration):
1.I already take a Immigration Agent (Ozimasterem) but now when I ask about my visa they didn’t reply my email
2.I only know my visa nearly expired when HR at my workplace told me
3.Before this time I don’t know what to do when my visa expired
Delay and explanation
The delay is significant, being a period of 177 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38]. In Katoa the majority observed that “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’”: Katoa at [18].
At hearing the applicant first contended that the Substantive Application was made in time. Ultimately, however, the applicant agreed that the Substantive Application was filed out of time. The applicant offered no explanation for the late filing of the Substantive Application, saying he did not know why the Substantive Application was not made until 13 April 2018. The applicant said that he made the Substantive Application after being advised by his employer that his Visa was about to expire.
Accordingly, the applicant has offered no explanation, let alone a plausible or acceptable explanation, for the lengthy delay in making the Substantive Application.
The applicant does not contend that he was unaware of the Tribunal’s decision. However, for completeness, I note that the material before the Court is that on 14 September 2017 the Tribunal attempted to send a copy of its decision and reasons to the applicant’s email address but received an “undeliverable” error message. However, the further material before the Court is that on the same day, the Tribunal sent the applicant a copy of the decision notification letter, its decision and reasons via post to the applicant’s last known residential address, being the address the applicant provided the Tribunal with on 28 July 2017. Accordingly, the Tribunal complied with s 430A(1) of the Act by notifying the applicant of the decision by post, in accordance with s 441A(4) of the Act. Further, attached to the Tribunal’s decision notification letter was an information sheet headed “Information about decisions – MR Division” which notified the applicant of his review rights and the statutory timeframe.
Prejudice
I have earlier addressed the existence and nature of any prejudice that might flow to the other party from the reinstatement and extension, and I refer to and repeat those comments.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the executive are made lawfully. The merits of the substantive grounds relied upon by the applicant will of course be relevant to this, and those are considered below.
It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal.
I accept that a refusal to grant an extension of time would result in the applicant returning to his country of nationality which is a circumstance he says he fears and that this is a matter weighing in favour of the grant of an extension of time.
Merits of the Substantive Application
While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time. Further, having found that the delay is both lengthy and without an acceptable explanation the applicant may be required to show that his case is strong or even “exceptional”: Katoa at [18].
The Substantive Application contains the following grounds for judicial review (without amendment):
1.I am requesting due to I am not satisfied with the decision of AAT it is because I have provided my evidence and I felt I have been neglected by AAT
2.I requesting due to I am no really satisfied with the translation from interpreter
3.I have not received any email from ‘AAT’
Ground 1
To the extent that Ground 1 expresses dissatisfaction with the Tribunal’s decision, the applicant seeks impermissible merits review. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
At the hearing the applicant submitted that the Tribunal did not consider his case carefully. In particular, the applicant submitted that the Tribunal did not consider his bankruptcy claims. That submission must be rejected.
The Tribunal addresses the applicant’s evidence regarding his bankruptcy at numerous points in its decision, including at paragraphs [9], [10], [11], [12], [13] and [44]. At paragraph [45] – [47] the Tribunal said:
The Tribunal accepts that the applicant has accumulated a number of debts, the amount of which remains unclear and that he was forced into bankruptcy by one of the banks in Malaysia. The Tribunal accepts that the applicant has some very pressing issues concerning his personal finances and future financial status in Malaysia, however there is nothing he presented to the Tribunal to suggest that he would not be able to access the legal system in Malaysia and attempt to clarify his position regarding bankruptcy or consolidate his legitimate loans through the legal system. In saying this, the Tribunal is guided by the DFAT assessment of the Malaysian judicial system which according to the country information the ability for individuals to seek legal redress through the Malaysian courts is mixed…However, the majority of cases in Malaysian civil courts are processed with the rule of law and legal procedure.
In considering the applicant’s claims in relation to his bankruptcy the Tribunal does not consider this issue constitutes serious harm. In making this assessment the Tribunal has considered the non-exclusive list of matters that may constitute serious harm as contained in s.5J(5) (see attached). It is not suggested and nor does the Tribunal accept that the act of bankruptcy or the consequence that may follow constitute a threat to the applicant’s life, liberty, significant physical harassment or mistreatment and the Tribunal so finds. Nor does the Tribunal accept that the act of bankruptcy will cause the applicant severe economic hardship such as would threaten his capacity to subsist or deny him the capacity to earn a livelihood of any kind. In making this assessment the Tribunal accepts that although bankruptcy may make it difficult to the applicant to resume employment, it does not accept that it will prevent him from being employed at all such as would threaten his capacity to subsist. The Tribunal notes the applicant’s evidence that he was working in Malaysia until he left and has been able to find employment in Australia and there is no reason why he could not do so on his return to Malaysia. The Tribunal is not satisfied that should the applicant find employment in Malaysia that his lower earning capacity compared to Australia or his bankruptcy mean that he faces a real chance of significant harm capable of amounting to persecution.
For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution for any reason relating to his bankruptcy or any outstanding bank loans.
Accordingly, Ground 1 discloses no reasonably arguable jurisdictional error on the Tribunal’s behalf.
Ground 2
By Ground 2 the applicant submits that he was not satisfied with the translation provided by the interpreter at the Tribunal hearing. This ground is completely unparticularised. At the hearing the applicant submitted that there were three incidents where the translation of his evidence at the Tribunal hearing was misinterpreted. However, he could not identify what those instances were or the phrases or words which were misinterpreted. Further, the transcript of the Tribunal hearing is not before the Court. In addition, at the hearing the applicant said that he knew there had been a misinterpretation of his evidence as could understand English. In those circumstances, it is difficult to see why the applicant would not have objected to the alleged interpretative errors at the time. There is nothing in the Tribunal’s decision to indicate this occurred.
Accordingly, on the evidence currently before the Court, Ground 2 discloses no reasonable arguable jurisdictional error on behalf of the Tribunal.
Ground 3
By Ground 3 the applicant contends that he had not received “any email” from the Tribunal.
At the hearing, the applicant was unable to articulate which email he says he did not receive, saying he did not know what was referred to in Ground 3.
On the evidence before the Court, as set out above, the only email not received by the applicant from the Tribunal was the email that the Tribunal sent on 14 September 2017 attaching a copy of its decision and reasons to the applicant’s email address. As also set out above, the Tribunal complied with s 430A(1) of the Act by notifying the applicant of the decision by post, in accordance with s 441A(4) of the Act. On 14 September 2017, the Tribunal sent the applicant a copy of its decision and reasons via post to the applicant’s last known residential address. In any event, any failure of the Tribunal to notify the applicant of its decision does not invalidate the decision: s 430A(3) of the Act.
Accordingly, Ground 3 discloses no reasonably arguable jurisdictional error on behalf of the Tribunal
Other ground
At hearing, the applicant submitted that he provided a significant amount of information regarding his personal circumstances to the Tribunal but the Tribunal did not take it into account, instead relying on newspaper articles and information from the media and in so doing erred.
I reject that submission.
Firstly, the applicant did not articulate or particularise what personal information the Tribunal is said not to have considered. If the applicant is referring to information concerning his bankruptcy, I refer to and repeat my comments set out at paragraph [76] above.
Secondly, it is clear from the Tribunal’s decision that it did consider the applicant’s personal circumstances:
(1)at paragraph [4] the Tribunal sets out the applicant’s claims;
(2)at paragraphs [6] – [7] the Tribunal sets out the applicant’s evidence regarding his marital, family and work history;
(3)at paragraphs [9]- [12] the Tribunal sets out the applicant’s evidence regarding his financial circumstances, including that he had taken out a loan with an unlicensed money lender, that he had been threatened by the money lender, had been declared bankrupt in 2010 and had his house sold by the bank, had taken out further loans with loan sharks, had credit card debts and loans with other banks and was being pursued by the bank notwithstanding his bankruptcy and that he did not know how much money he owed to the loan sharks;
(4)at paragraph [13] the Tribunal sets out the applicant’s evidence that he had not made any arrangements to repay his debts and that in Malaysia he is unable to work and earn enough to support his wives and children;
(5)at paragraph [14] the Tribunal sets out the applicant’s evidence that he received many threats in Malaysia from loan sharks and felt he was not safe, that the loan sharks called him and found him when he moved house and left notes threatening to kill him. It records that the applicant’s evidence is that he had not reported any of these threats to the police or otherwise complained to the police, he would not because he would be asked why he borrowed from loan sharks in the first place and he had friends in a similar situation in 2014 and the police took no action;
(6)at paragraph [15] the Tribunal sets out the applicant’s evidence that he moved four times but the loan sharks found him each time, called him and left notes threatening to kill him, that each time he took out a loan the loan sharks took a photograph of him and he had to provide payslips, electricity bills and a thumb print and that the bank was still trying to get money from him;
(7)at paragraph [16] the Tribunal sets out the applicant’s evidence that his main reasons for not wanting to return to Malaysia are because of the loan sharks and because he would not be able to support his family; and
(8)at paragraph [18] the Tribunal sets out that the applicant said he could not relocate because the loan sharks would find him and if he was working the bank would chase him.
At paragraphs [19] and [21] the Tribunal referred to certain media articles regarding loan sharks and illegal money lenders and at paragraph [24] to country information in relation to police in Malaysia.
As set above, at paragraph [45] of its decision the Tribunal accepted that the applicant has accumulated a number of debts, that he was forced into bankruptcy by one of the banks in Malaysia, and that he has some very pressing issues concerning his personal finances and future financial status in Malaysia. However, the Tribunal concluded that that the applicant did not have a well-founded fear of persecution if he were to return to Malaysia now or in the foreseeable future, for the following reasons:
(1)at paragraph [45], the Tribunal was not satisfied that the applicant would not be able to access the legal system in Malaysia to attempt to clarify his position regarding bankruptcy or consolidate his legitimate loans;
(2)at paragraph [46], the Tribunal accepted that while bankruptcy may make it difficult for the applicant to resume employment in Malaysia, this would not cause the applicant severe economic hardship such as to threaten his capacity to subsist;
(3)at paragraphs [48] – [51], the Tribunal accepted that while the applicant borrowed money from unlicensed money lenders and was approached and threatened by them, the Tribunal was satisfied that effective state protection was available to the applicant;
(4)at paragraph [53], the Tribunal found that the applicant did not face a real chance of serious harm in Malaysia for reason of his race, religion, nationality, political opinion or membership of a particular social group and, therefore, the applicant did not satisfy the criterion as set out in s 36(2)(a) of the Act; and
(5)at paragraphs [59] – [62], the Tribunal found that effective state protection measures were available to the applicant in relation to illegal money lending, and therefore, if the applicant returned to Malaysia, there would not be a real risk that he would suffer significant harm and thus did not satisfy the alternative protection provisions in s 36(2)(aa) of the Act.
Accordingly, in light of the above, I consider it clear that the Tribunal did consider the applicant’s personal circumstances and did not, as asserted by the applicant, only rely on newspaper articles and information from the media. However, for the reasons set out above concluded that the applicant did not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act.
For completeness, I discern no error in the approach or reasoning of the Tribunal.
It follows that the further ground advanced by the applicant at hearing also has no reasonable prospect of success.
DISPOSITION
For the above reasons, the Application for Review of a Registrar’s decision must be dismissed.
At the hearing neither party addressed the Court as to costs. I shall order that the applicant pay the Minister’s costs in an amount to be fixed if not agreed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 20 December 2023
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