BZE25 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 773
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZE25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 773
File number(s): MLG 2880 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 28 May 2025 Catchwords: MIGRATION LAW – extension of time of 428 days required – substantial delay – Applicant’s attempts to file application 233 days out of time – interpreter slang – grounds of review seek impermissible merits review – no reasonable prospects of success – extension not granted – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36 and 477 Cases cited: Bahanko v Sterjov and Others [2008] FCAFC 30; (2008) 166 FCR 415
DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZZGC v Minister for Immigration & Border Protection [2015] FCA 842
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of last submissions: 30 April 2025 Date of hearing: 10 April 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2880 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZE25
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSITRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time for the filing of the Application lodged on 25 September 2018 is refused and the Application be otherwise dismissed.
2.The Applicant pay the Minister’s costs fixed in the sum of $4,189.38.
3.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
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 BINGHAM
By an application filed in this Court on 25 September 2018 (Application) the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 20 June 2017 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) (Tribunal’s Decision). The Application was filed 428 days outside of the 35-day time limit prescribed in s 477(1) of the Migration Act. The Applicant therefore requires an extension of time to seek review of the Tribunal’s Decision.
BACKGROUND
The Applicant is a citizen of Malaysia. The Applicant arrived in Australia on 3 June 2016 as a holder of an electronic travel authority visa.
The Applicant applied for the Visa on 24 August 2016 (Visa Application).
The Applicant’s protection claims were:
(a)“Political and economical status of my country”.
(b)“The country currency decrease dramatically”.
(c)Malaysia was “unaffordable and [he was] poor”.
At the time of the Visa Application sections 36(2)(a) and 36(2)(aa) of the Migration Act provided that the following criteria must be met by an applicant for a protection visa in that the applicant must be
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (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.
Section 36(2A) of the Migration Act sets out the meaning of the phrase ‘significant harm’ which includes a non citizen: being arbitrarily being deprived of their life, that the death penalty will be carried out on them, will be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
The term refugee is defined in section is 5H(1) as, for the purposes of this matter:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Sections 5J(2)-(6) and 5K-LA provide additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out.
Delegate’s Decision
On 4 January 2017 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).
The Delegate found that the Applicant did not meet the relevant criteria for the grant of the Visa namely s 36(2) of the Migration Act. The Delegate was not satisfied that there is a real chance of persecution in Malaysia for one or more of the reasons mentioned in s 5J(1)(a). The same conclusion was reached with respect to whether there is a real risk the Applicant will suffer significant harm as required by s 36(2)(aa) of the Migration Act.
Application for review to the Tribunal
On 17 January 2017 the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal. An acknowledgment of application letter was sent to the Applicant on 18 January 2017. In that letter the Tribunal invited the Applicant to provide material or written arguments for the Tribunal’s consideration.
On 10 April 2017 the Applicant was invited to attend a hearing on 9 May 2017. This correspondence required the Applicant to complete a response form to confirm attendance and attach any additional information should the Applicant have new material he wished the Tribunal to consider. The Applicant completed a response form indicating he would attend the hearing and sent it back to the Tribunal on 1 May 2017. No new material was provided by the Applicant.
On 9 May 2017 the Tribunal hearing was held (Tribunal Hearing). The Applicant attended with the assistance of a Malay interpreter. The Tribunal gave the Applicant until 18 May 2017 to provide documents in support of his application. The Applicant provided translated documents on 23 May 2017 which related to a debt to Rakyat Bank.
On 20 June 2017 the Tribunal affirmed the Delegate’s Decision and notified the Applicant. On 7 March 2018 the Applicant requested documents, including the Tribunal’s Decision, from the Tribunal.
TRIBUNAL’S DECISION
The Tribunal had regard to the written protection claims in the Visa Application and observed that no interview was held before the Delegate. Two additional claims were raised by the Applicant at the Tribunal Hearing. The claims pressed by the Applicant at the Tribunal Hearing were:
(a)Malayasia’s political and economic status;
(b)Malayasia was unaffordable and he was poor;
(c)Malayasia’s currency decreased dramatically;
(d)He had ties with HINDRAF[1]; and
(e)He owned a significant debt to Rakyat Bank.
[1] The Hindu Rights Action Force which is a Malaysian Hindu-activist right-wing non-governmental organisation.
The HINDRAF and the debt to the Rakyat Bank claim were new claims raised at the Tribunal Hearing and not in the Visa Application. The Tribunal considered the Applicant’s claim that he was involved with HINDRAF. The Tribunal found that the Applicant attended one rally by mistake and had no ongoing interest in HINDRAF or politics in general.
The Tribunal considered the Applicant’s claim relating to owing a debt. The Tribunal found it implausible that the Applicant would not have mentioned the debt, given its size, to the person who assisted him in preparing his Visa Application. The Tribunal noted that the Applicant did not know with any precision the amount of the debt. The Tribunal was not satisfied that the Applicant owed a debt other than his mortgage to Rakyat Bank.
The Tribunal considered the Applicant’s claim that he was unable to get a permanent full-time job in Malaysia or that he would receive a lower salary. The Tribunal accepted that poverty rates were higher for Indians in Malaysia than other groups but did not accept that the Applicant would have faced persecution in the past for reasons of his ethnicity or that there was a real chance of facing such harm in the foreseeable future, or that this claim would amount to a real chance of serious harm.
The Tribunal was not satisfied that any of the Applicant’s claims amounted to a real chance of significant harm.
The Tribunal held that the Applicant does not meet the criteria in s 36(2)(a) or the complementary protection criterion under s 36(2)(aa). Further, it was held that the Applicant does not have a well-founded fear of persecution pursuant to s 5J or faces a real risk of suffering significant harm as defined in s 36(2A). The Delegate’s Decision was affirmed.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 25 September 2018, 428 days outside the time by prescribed by s 477 of the Migration Act which is 35 days from the date of the Tribunal’s Decision.
The Applicant’s pseudonym was changed on 20 February 2025.
On 19 May 2020 and 20 February 2025 Orders were made for the filing of material. The Applicant did not file any material in accordance with these Orders. The Affidavit of Service of Emma Louise Hubball filed on 2 April 2025 deposed to service of the Minister’s material via email to the Applicant at his nominated email address.
This matter was heard on 10 April 2025 in person at the Melbourne Registry (Hearing). The Applicant appeared with the assistance of a Tamil interpreter. The Minister was represented by a solicitor.
I confirmed with the Applicant that he understood the interpreter and that he was willing to proceed that day with the assistance of the interpreter. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court. I asked the Applicant to address me on the reasons for the delay and the merits of his substantive Application.
The Applicant relied upon the following documents:
(a)The Application;
(b)The Affidavit of the Applicant affirmed 12 September 2018 and filed 25 September 2018; and
(c)The documents emailed by the Applicant to my Chambers on 10 April 2025.
The Minister relied upon:
(a)The Response filed on 1 November 2018;
(b)The Outline of Submissions filed on 27 March 2025;
(c)The List of Authorities filed 10 April 2025; and
(d)The Minister’s Further Submissions filed on 30 April 2025.
A Court Book was filed by the Minister in this matter on 2 December 2019.
EXTENSION OF TIME
Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the ‘migration decision’. The Tribunal’s Decision is a migration decision made on 20 June 2017. The Applicant was required to file his application for review no later than 25 July 2017.
The Applicant filed the Application outside the 35 days prescribed s 477(1) and requires an extension of time under s 477(2) of 371 days. 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 Applicant relied on the following grounds for the extension of time:
1.I admit that I was late to sent because at the time, I did not know that I can appeal with federal circuit court.
2.I admit after I know that I can appeal that time and I was late to make appeal because I had financial issue to pay the fee.
3.I admit was unable to hire, a lawyer because of the very high cost.
Section 477 of the Migration Act does not prescribe criteria by which to determine the “interests of the administration of justice”: see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’; ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (DHX17) at [76].
CONSIDERATION
The delay
The Application was filed 428 days out of time. The extent of the delay is substantial.
I asked the Applicant why there had been a 428 day delay in filing his Application. The Applicant explained that he did not understand English and had attempted to file an application but it was rejected by the Court. The Applicant said he was given 35 days after the Tribunal’s Decision and had attempted to file an application during this time. The Applicant said further that he believed he had correctly filed the judicial review application, but it came back incomplete. He also submitted that he had paid the filing fee after the filing of the application was approved. In reply submissions the Applicant said he had a document at home relating to the initial attempts at filing the judicial review application. I made Orders for the Applicant to email to my Chambers the documents that he was referring to, and gave the Minister time to provide submissions on those documents. The Applicant then having an opportunity to provide submissions in reply.
The Applicant emailed multiple pieces of correspondence from the Court to the Applicant dated 16 March 2018, 22 March 2018, 6 April 2018, 20 April 2018 and 18 May 2018 which were subsequently provided by the Court to the lawyers for the Minister. I have summarised the content of that correspondence:
(a)The Applicant submitted an application on 15 March 2018 and the Court rejected the application on 16 March 2018 as it annexed a blank affidavit and did not name any respondents. The Court provided information to the Applicant as to what he needed to provide to file an acceptable migration judicial review application.
(b)The Applicant submitted an application via mail on 22 March 2018 which was rejected on the same date as the Applicant had sent through an Application for Bridging Visa. The Court sent the Applicant the correct forms for a judicial review application and supporting affidavit for completion by the Applicant.
(c)The Applicant submitted an application to Registry on 4 April 2018 which was rejected on 6 April 2018 for being incomplete.
(d)The Applicant submitted an application on 18 April 2018 which was rejected on 20 April 2018 for being incomplete. The Court advised the Applicant what information the Applicant needed to provide.
(e)The Applicant submitted an application on 18 April 2018 which was rejected on 18 May 2018 for being incomplete. The Court advised the Applicant what information he needed to provide.
(f)The Applicant was sending his application and documents by post to Registry not filing the documents by e-Lodgment.
The Minister submitted that the delay is extreme and the explanation is not sufficient to justify an extension of over 400 days as the Application, if filed in time and rejected, would reasonably be expected to have been a month or two late. The Minister submitted that ignorance of time limits is not a satisfactory explanation and observed that the Tribunal had enclosed a Form MR25 when its decision was provided to the Applicant.
The Minister contended that no evidence was before the Court regarding the Applicant’s alleged financial hardship or the Applicant seeking legal advice.
The Minister submitted that there was no evidence regarding the Applicant’s attempts to file and that even if the Applicant’s forms were initially rejected it would not taken over 400 days and therefore the Applicant’s explanation is not plausible.
I consider that the delay in this case is without excuse. Being a litigant in person “brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards reasonably expected when a litigant exercises a right to access the Court and its process whether at first instant or on appeal”.[2] In this case the delay is excessive.
[2] Bahanko v Sterjov and Others [2008] FCAFC 30; (2008) 166 FCR 415, [6].
The Tribunal’s Decision was dated 20 June 2017. The Applicant was to file a judicial review application on or before 25 July 2017. The Applicant’s first documented attempt to file an application was 15 March 2018. Even at this date an extension of time of 233 days would have been required.
There is no explanation from the Applicant as to why he only commenced attempting to file the Application in March 2018 nor is there any explanation of what occurred between April 2018 and 25 September 2018 when the Application was filed and accepted by the Court.
The length of the delay and the fact that no reasonable excuse could be offered by the Applicant weighs heavily in favour of dismissing the Application.
Prejudice to the Minister
The Minister acknowledged that the Minister is not specifically prejudiced, but is prejudiced in a general sense because there is a significant public interest in resolving matters in a timely and efficient manner. There is little prejudice to the Minister, save for the costs of having to defend an application.
The considerations with respect to this factor weighs in favour of the grant of an extension of time, however the lack of prejudice to the Miniter does not in itself justify the grant of the extension of time.
Reasonable prospects of success
Importantly, I am to consider whether the Application is “sufficiently arguable” to warrant the grant of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review: In DHX17, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], the Court observed, at [68], that:
68[…] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]
(Emphasis added)
A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18].
The question before the Court is whether any of the grounds are ‘arguable, ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.
The grounds of judicial review in the Application provided as follows (Grounds of Review):
1. What I saying while hearing with aat is a true. (Ground 1)
2. I have tell everything what I was experienced my life in Malaysia. (Ground 2)
3. I was ask protection and will go back someday. (Ground 3)
[…]
1.The Tribunal make a decision 2016/2017, without looking the evidence same like when applicant in oral interview tribunal totally like not understand what I feel like. (Ground 4)
2.The interpreter not good translate when I explain to tribunal the interpreter. (Ground 5)
3.I will go back someday when my economy was stable and had enough saving money to start new life. (Ground 6)
(Bold and in italics added. Otherwise as written)
The Application does not seek a writ of mandamus directed to the Tribunal requiring it to determine the Application according to law. I explained the technical deficiency to the Applicant. The Minister did not oppose the amendment of the Application.
I took the Applicant to his Grounds of Review and explained that the merits of his Application concern whether and how the Tribunal made a serious error, or ‘mistake’. The Minister contended that that Grounds of Review do not contain sufficient merit to warrant a grant of leave.
Ground 1
The Applicant submitted that he was explaining to the Tribunal his family and financial problems, and about the racial discrimination in Malaysia.
The Applicant also raised an issue with respect to the Malay interpreter that was assisting the Applicant at the Tribunal hearing. I will deal with this issues relation to the interpreter when considering the merits of Ground 5.
The Minister submitted that Ground 1 invites impermissible merits review and cannot succeed.
I agree with the submissions of the Minister that what is being sought is impermissible merits review. There are no reasonable prospects of success with respect to Ground 1.
Ground 2 and 3
The Minister submitted that these Grounds only contain statements that are not proper grounds of judicial review.
The Applicant said that he will return to Malayasia when his children complete their studies here in Australia. He also said that he is older and he would like working rights in this country. I explained that it is not my role to grant the Applicant a visa.
I agree with Minister submission on Grounds 2 and 3, they are statements and not grounds of judicial review. There are no prospects that the Applicant will be successful on these grounds.
Ground 4
The Applicant said that the Tribunal did not believe him and the refusal to believe him is the mistake the Tribunal made.
The Minister submitted that Ground 4 is difficult to understand and if the Applicant is contending that the Tribunal mischaracterised or misunderstood his evidence, then it is not apparent on the material and in any event seeks impermissible merits review.
It is apparent that the Applicant seeks a merits review. There are no reasonable prospects of success with respect to this ground.
Ground 5
Ground 5 concerns the interpreter before the Tribunal.
The documents in the Court Book record that the Applicant had requested a Malay interpreter before the Tribunal. The Applicant submitted that Malay Bahasa and Indonesian Bahasa is different and that he was provided with an Indonesian Bahasa interpreter. The Applicant explained that Malaysian slang and Indonesian slang are different.
In response to a question from me the Applicant confirmed that he understood Malaysian. I asked the Applicant what his first language is and the Applicant said it is Tamil. When I asked him why a request was made for a Malay interpreter before the Tribunal he submitted that a Malaysian man who knew English well had assisted in completing forms and requested a Malay interpreter.
The Applicant did not have an appointed representative before the Tribunal. The Applicant provided a completed response to hearing invitation form on 1 May 2017.
The Minister submitted that the Applicant has not explained or identified the issues with the standard of interpretation. The Minister further submitted that issues with interpretation were not raised at the Tribunal Hearing or to the Tribunal.
The Minister submitted that there is no evidence about a third-party completing forms or nominating a Malay interpreter. The Minister noted that the Applicant attended the Tribunal Hearing by himself and had an opportunity at the hearing to raise with the Tribunal any issues with the interpreter. It was also noted that there did not seem to be any representative nominated in the matter.
There is no indication on the material before me that the standard of interpretation effectively prevented the Applicant from giving evidence nor was it alleged that there were errors of interpretation were material to the decision of the Tribunal.[3] There is nothing in the Tribunal’s Decision that would indicate that the Applicant complained to the Tribunal regarding the quality or effectiveness of the interpreter or that he and the interpreter did not understand each other. In these circumstances I am of the view that this ground is not sufficiently arguable.
[3] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (Allsop CJ), [9] and [24].
Ground 6
Ground 6 is a statement from the Applicant in which he asserts that he will go back to Malaysia ‘someday’ when the economy stabilises and he has enough savings to start a new life.
The Applicant explained that his sons are studying at university and once his sons complete their studies and begin working he will be able to leave Australia and return to Malaysia. The Applicant submitted that the Tribunal was in error when it did not consider that he intends to return to Malaysia.
The Minister submitted that the claim set out in this ground was not raised with the Tribunal and would undermine his claim that he requires protection by way of a permanent visa to not return to Malaysia.
I agree with the submission of the Minister. There is no jurisdictional error identified in this ground. There are no reasonable prospects of success that the Applicant will be successful on this ground.
CONCLUSION
Taking into account the length of the delay, the lack of a reasonable excuse for the delay and the limited prospects of success of all the Grounds of Review, I am not satisfied that it is in the interests of the administration of justice to extend the time for filing of the Application. The extension of time is not granted and therefore the Court has no jurisdiction to review the Tribunal’s Decision. The Application must be dismissed.
The Minister sought costs according to scale for an interlocutory hearing, which is prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $4,189.38.
Orders will be made accordingly.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 28 May 2025
0
8
1