CCF19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1033
•16 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCF19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1033
File number: MLG 1628 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 16 October 2024 Catchwords: MIGRATION – protection visa, protection visa denied, judicial review application, applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – no satisfactory explanation for the delay – very weak prospects of success of the substantive application – not satisfied it is necessary in the administration of justice to grant an extension of time – application for extension of time dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J(1)(a), 36(2), 36(2)(a), 36(2)(aa), 36(2B)(b), 425, 425A, 477(1), 477(2), 477A(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2 pt 2
Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169
Manna v Minister for Immigration and Citizenship [2013] FCA 400
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAUG v Minister for Immigration & Border Protection [2017] FCCA 771
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 16 September 2024 Date of hearing: 18 September 2024 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr McDonald Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1628 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCF19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
16 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application to extend the period within which to make an application for judicial review 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 Gostencnik
The applicant, a citizen of Malaysia, arrived in Australia on 1 April 2014: Court Book (CB) 23. Some 16 months later, on 31 August 2015, the (then) Department of Immigration and Border Protection received the applicant’s application for a Protection (Class XA) (Subclass 866) visa: CB1-CB45. In summary, the applicant claimed she borrowed money from loan sharks but when the interest on the loan significantly increased, she refused to pay and the loan sharks became violent: CB34. The applicant claimed she was beaten and sexually harassed, and she feared being found and forced to work as a “sex servant” to settle her debt if she returned to Malaysia: CB34-CB36. The applicant claimed that local authorities could not protect her because “most of the loan sharks are their client[s]” and the loan shark leaders “bribe the authorities to make this business legal”: CB36.
A delegate of the (then) Minister for Immigration and Border Protection refused the visa application and a notification of the delegate’s decision was sent to the applicant by email on 8 July 2016: CB51. The delegate was not satisfied the applicant was a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (Act): CB67, and was satisfied that the applicant could obtain protection from Malaysian authorities such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b) of the Act: CB68. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk she would suffer significant harm: CB68. Consequently, the delegate concluded that the applicant was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act: CB55.
On 20 July 2016, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB70-CB76. Receipt of the application was acknowledged in correspondence from the Tribunal dated 22 July 2016: CB96. By correspondence dated 24 July 2017, the Tribunal invited the applicant to attend a hearing scheduled for 10 August 2017: CB109. The correspondence also requested the applicant read and complete an enclosed ‘Response to hearing invitation - MR Division’ form to confirm attendance at the hearing, and to use the form to provide or attach any additional or new information the applicant wanted the Tribunal to consider: CB110. The applicant attended the hearing where she presented arguments and gave evidence with the assistance of a Malay interpreter: CB123, CB148 at [19].
On 8 June 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB145, and by correspondence dispatched by email on 13 June 2018, the Tribunal informed the applicant of the decision and provided the applicant with a copy of the Tribunal’s Statement of Decision and Reasons (Decision) and a fact sheet: CB140-CB156.
The Tribunal set out at [1]-[8] of the Decision some introductory matters, criteria and mandatory considerations pertaining to protection visas. Background matters are set out at [10]-[21]. At [13] the Tribunal summarised the applicant’s claims as follows:
•The applicant claimed she owed money to loan sharks and she claimed that the applicant could repay the first month of payments but when it came to the middle of the repayments the interest went up by 400 per cent;
•The applicant claimed that when she refused to pay the loan, the loan sharks became angry and started to beach [sic] her and sexually harass her;
•The applicant claimed that as the harassment to worse they were forced to run away and hide.
•The applicant claimed she fears they will find her and force her into prostitution to settle her debts and that [sic] claimed she will be killed if she sought help;
•The applicant did not relocate within Malaysia because she was too afraid the loan shark would keep watching her and control her phone; and
•The applicant claimed that the loan sharks have bribed the authorities and cannot protect her and that she cannot relocate within Malaysia because ‘they’ are all over the country.
An assessment of the applicant’s claims begins at [22] of the Decision. At [29] the Tribunal observed that, overall, the applicant’s written claims lacked detail and the applicant’s oral evidence was unsupportive and lacked consistency. At [32]-[34], the Tribunal set out the applicant’s evidence about the circumstances and extent to which the applicant became indebted to loan sharks, and the threats made to force the applicant into sexual servitude. The Tribunal noted that the applicant claimed she required a loan when she established a business with a business partner; that her business partner had purchased too much stock and the rent was too high which led to a loss in the business; that the situation led to her borrowing 3000 Malaysian ringgits from a loan shark, “ah long”; the applicant was forced to pay 300 ringgits plus interest daily; that ah long increased the interest rates and repayment amounts; and as sales from the business did not cover the cost of the loan repayments, she ended up owing 10,000 Malaysian ringgits.
At [35]-[37] and [39] of the Decision, the Tribunal expressed concerns about the applicant’s evidence and her credibility. The Tribunal noted:
(1)the applicant was unable to explain why her business partner was not held to account for the loan, at least in part;
(2)there was no documentary evidence to support the claim and as the applicant was a businesswoman and graduate of a business management diploma, some written evidence, such as a loan agreement, might reasonably be expected;
(3)the applicant did not seek assistance from relatives, which in the circumstances of a threat of sexual servitude, would reasonably have been expected;
(4)the applicant’s claim that the Royal Malaysia Police (RMP) would be uninterested in loan shark activities or lacked empathy towards threats of forced sexual servitude was inconsistent with the available country information about the RMP and its activities;
(5)the applicant was unable to explain how such a small amount of debt ballooned into a larger amount or why she was unable to repay the small amount of 10,000 Malaysian ringgits (about 3,300AUD) either by remaining in Malaysia or moving to Australia;
(6)the applicant’s husband sent money to his brother but had not helped his wife with her indebtedness;
(7)the applicant's delay in making a protection visa application was relevant in assessing the genuineness of the claimed fear of persecution; and
(8)the applicant’s explanation for the delay – lack of awareness and financial capacity – was not accepted.
The Tribunal reasoned at [39] of the Decision that when these matters were considered cumulatively, it was unable to give the applicant the benefit of the doubt and it did not regard the applicant’s claims as credible. Specifically, at [41]-[42], the Tribunal did not accept that:
(1)the applicant or her former business partner had accrued any debts of any amount owing to a loan shark or ah long;
(2)the applicant accrued these debts because of poor business decisions or economic conditions;
(3)the applicant had been threatened or harmed by an unlicensed money lender or debt collector;
(4)the applicant was threatened with physical violence, forced sexual servitude or prostitution to repay the fabricated debt; and
(5)the applicant, her family and her husband lacked the financial capacity to assist.
The Tribunal concluded at [45] of the Decision that the applicant did not have any genuinely held fears of persecution for any reason outlined in s 5J(1)(a) of the Act. At [46]-[47], the Tribunal concluded the applicant did not have a well-founded fear of persecution, and was not a refugee within the meaning of s 5H, and so was not a person in respect of whom Australia had protection obligations by reason of s 36(2)(a) of the Act.
At [48]-[50] of the Decision, the Tribunal considered whether the applicant is a person in respect of whom Australia has protection obligations, because there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Malaysia, there is a real risk the applicant will suffer significant harm. It is apparent based on the earlier discussed credibility findings, the Tribunal considered the applicant’s claims for protection were contrived for migration purposes, and it was not satisfied that there was any real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Malaysia.
Consequently, as the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB153 at [54]-[57].
Some 345 days after the applicant was notified of the Tribunal’s decision, on 24 May 2019, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of that decision as well as an extension of time. An application to the Court for review of a decision by the Tribunal must be made within 35 days of the date of the Tribunal's decision: s 477(1) of the Act. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if an application for that order has been made in writing, specifying why the applicant considers that it is necessary in the interests of the administration of justice to do so, and the Court is so satisfied. The applicant's grounds in support of an extension of time specify the following (reproduced verbatim):
1.The reason i need to extend the given timeframe, is due to financial, language issues and lack of familiarity regarding judicial review application process.
2.The language barrier made it harder for me to find a job and that is part of reason in relation of my financial issues. Financial issues make me submit the application out of time frame due it take a time to make a saving for this application.
3.In Addition, the language barrier made it hard for me to collect the accurate information for the application process. Most information is gained through from friends, in which some information is not accurate and it tooks time for me to collect the accurate information and for me to make the best decision on what i should do to get the reappealing of my application. Hence, that is part of the reason on why i’m not submitting the form in given time frame.
4.In relation, lack of familiarity regarding judicial review application process make difficult to do this application because some people told me that i need to hire a lawyer for application. Until one day i’ve met my friends to assisted me with the application. He also told me that i can reappeal my application to FCC by myself instead of hiring a lawyer. thus, that what made me to drag my application until the given time frame.
5.Due to obstacles that i’m facing i would like to reappeal my application to FCC for reconsideration and for the extension of my application time frame.
The proper approach to the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2) was explained by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 as follows:
10.The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11.At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12.On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13.In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14.Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "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" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15.The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16.Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19.It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(citations omitted).
The extent of the delay, which is 310 days, is lengthy. The applicant’s reason or explanation for the delay is threefold. First, the applicant contends her financial circumstances contributed to the delay. She contends that language barriers made it difficult to obtain employment and it took her some time to save so that she could make her application. Although Registrar Cummings made orders allowing the applicant to file, inter alia, written submissions and additional evidence by 19 April 2024, the applicant did not file any material. There is no evidence of the applicant’s financial circumstances or how those circumstances contributed to the lengthy delay in making the judicial review application. Nor did she provide an explanation of any steps taken to raise funds. Additionally, the applicant does not appear to have made any enquiries about waiver of Court filing fees. In any event, speaking generally, an applicant’s financial difficulties, without more, would not provide a sufficient excuse or explanation for the delay or justification for an extension of time: GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25]; QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12].
Second, the applicant says that language barriers made it difficult to obtain accurate information about the application process. The applicant specified in her protection visa application, in answer to the question, “Which languages do you speak, read or write (including English)?”, that she could speak, read and write in both Malay and English, although she would need a Malay interpreter if called for an interview: CB18. As part of the correspondence from the Tribunal dated 13 June 2018 in which the applicant was notified of the Tribunal’s decision, the applicant was provided with a document headed ‘Information about decisions – MR Division’: CB142-CB144. The document contains the following information:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
Immigration assistance
Our website ( and provides a list of organisations that may be able to provide immigration assistance or referrals to other services.
The applicant explained that she read and understood the information but she relied on her “friends” for information about the process and she did not consult the Tribunal’s website to seek assistance from any of the listed organisations in making an application to the Court. The applicant said that the information she gained through her friends was sometimes not accurate and it took time to collect the accurate information to enable her to decide what to do when making the application. That the applicant relied on her friends rather than accessing available qualified assistance is unfortunate, but it does not satisfactorily explain the delay. The applicant could have, but did not, take the reasonable step of consulting one of the organisations listed on the Tribunal’s website. She was plainly made aware of the time limit attached to making a judicial review application to the Court. Accordingly, I do not consider that any language barriers faced by the applicant sufficiently or satisfactorily explains the lengthy period of delay. Moreover, a language barrier of itself will not explain a delay in applying to the Court: WZAUG v Minister for Immigration & Border Protection [2017] FCCA 771 at [28].
Third, the applicant says that her lack of familiarity with the judicial review application process made it difficult to make the application because “some people” told her that she needed to hire a lawyer. As already noted, the applicant did not consult any of the organisations listed on the Tribunal’s website for assistance. The applicant said she consulted Refugee Legal about her “work rights” but did not consult that organisation about making an application to this Court following the Tribunal’s decision. The applicant said she did not attempt to obtain legal assistance pro bono nor consult any community legal service. Just as ignorance of the time within which a judicial review application must be made, will not, without more provide a satisfactory explanation for a delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38], so too a “lack of familiarity” with the judicial review application process, without more, will not satisfactorily explain the delay. In addition, while some latitude may be allowed to unrepresented litigants, an inability to engage a lawyer alone will not provide a satisfactory explanation for a delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] and the authorities cited therein.
Overall, I am not persuaded that any of the reasons proffered by the applicant, alone or in combination, provide a satisfactory explanation for the delay in the instant case. Consequently, both the extent of the delay and the absence of a satisfactory explanation for it weigh against a conclusion that it is necessary in the interests of the administration of justice to make an order extending time.
The first respondent properly concedes that there is no prejudice to the first respondent in the granting of the extension of time that could not be addressed through an order for costs. However, the first respondent contends, and I agree, that mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
Turning to the merits of the applicant’s judicial review application which sets out six paragraphs said to be the applicant's grounds of review, the first paragraph does not contend any error but merely states that the applicant would like to “reappeal to [the Court] to reopen [her] case”. The second paragraph does not contend any error but merely restates the applicant’s claim of risk of significant harm if she returns to Malaysia. Paragraph three contends that although the Tribunal was aware of the significant harm claimed, it made the “wrong decision” but does not explain why that is so. The fourth paragraph contends the Tribunal did not treat the applicant fairly, but it does not specify any particulars. The fifth paragraph contends the Tribunal was aware that the applicant could not be protected in Malaysia by local authorities, but the Tribunal still did not accept her application and the Tribunal did not use its discretion which was “clearly unfair”. Paragraph six states that the applicant has applied to the Court for a “change of decision” and contends that her life will be endangered if she returns to Malaysia, and that the Tribunal did not take this into consideration.
As earlier noted, the Tribunal considered, but did not accept the applicant’s claims and explained its reasons for so doing. This included her claims about the significant harm she feared if returned to Malaysia and her concerns about the Malaysian authorities. Therefore, to the extent the applicant contends that her claims about the risk of significant harm if returned to Malaysia or her claims about the Malaysian authorities being unwilling or unable to provide protection were not considered, those contentions must be rejected. The Tribunal considered the claims but rejected them. The applicant has not articulated a cogent basis upon which the Tribunal’s rejection might be said to be erroneous.
Save for that part of the Tribunal’s reasoning in which the Tribunal opines that - it might reasonably be expected that the applicant, a businesswoman and graduate of a business management diploma, would have written evidence of the loan, such as a loan agreement - the remaining bases for rejecting the claims appear sound and logical, and provide a probative basis for the Tribunal’s conclusion. In other words, the conclusion to which the Tribunal came appears open on the material before it. However, the notion that there might be a written loan agreement with “a loan shark” in a country where the practice is unlawful, is respectfully, farfetched. That said, the absence of any other documented evidence supporting or pointing to the need for the loan (such as bank statements from records of the business or a statement from her former business partner), which the Tribunal noted, was relevant to its assessment of the applicant’s claims. The one poor example to which the Tribunal pointed, in the context of all the matters it cited, was not material. The applicant's claims made in the visa application, appear to have been considered and addressed, with the Tribunal appearing to permissibly reject all the applicant’s claims.
The applicant was not able to explain why the Tribunal had been unfair, other than she had hoped for a different outcome. The Tribunal appears to have complied with its procedural fairness obligations. As earlier noted, the Tribunal invited the applicant to attend a hearing in accordance with ss 425 and 425A of the Act, which the applicant attended, and gave evidence and presented arguments aided by a Malay interpreter. The Tribunal appears to have made its decision on the same basis as the Minister’s delegate, namely finding the applicant was not owed protection obligations under s 36(2) of the Act. The Tribunal's concerns about the applicant's delay in lodging the visa application was also addressed by the delegate: CB66-CB67 at [23]. The applicant was therefore on notice of the issues arising in relation to the decision under review.
It is not evident on the material that the Tribunal denied the applicant procedural fairness.
During the hearing of the extension of time application, the applicant said that she did not dispute the Tribunal’s decision and that she did not contend error on the part of the Tribunal. The applicant said if she was given a further hearing before the Tribunal, she would try to present as much evidence as she could. She said that it never crossed her mind to dispute the Tribunal’s decision, but she regrets not grabbing the opportunity at the time to run a better case.
These sentiments are consistent with some of the applicant’s grounds of review. They amount to no more than a plea to be given an opportunity to run a better or new case before the Tribunal. But the Tribunal does not commit jurisdictional error because it did not consider an argument or claim that was not made, or evidence that was not adduced before it. None of the matters raised by the applicant as grounds for the application or during the hearing sound in an arguable case of jurisdictional error.
Furthermore, the proposed review grounds contained in the application are not particularised. This is despite an order made by Registrar Cummings on 4 April 2024 requiring the applicant to file and serve any amended application with proper particulars of the grounds of the application. The lack of particulars would provide a basis on which the Court might dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969; AQN15 v Minister for Immigration and Border Protection [2016] FCA 571; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13]. Finally, because the applicant was unrepresented before the Court, I have reviewed the Tribunal's Decision and the material in the Court Book filed by the first respondent with an eye to identifying jurisdictional error beyond dealing merely with the applicant’s proposed review grounds, but I have not identified any arguable case of jurisdictional error.
For these reasons, the merits of the substantive judicial review application are very weak and this also weighs against a conclusion that an order for an extension of time is necessary in the interests of the administration of justice. There are no other matters raised by the applicant, or matters of which I am aware, which should be considered in assessing whether to allow an extension of time.
As should be evident, the extent of the delay, the absence of a satisfactory explanation for it and the very weak merits of the substantive application weigh heavily against a conclusion that it is in the interests of the administration of justice for the Court to grant the applicant an extension of time to make her judicial review application. This is so despite the absence of any prejudice to the first respondent. Consequently, I am not persuaded that it is necessary in the interests of the administration of justice for the Court to grant the applicant an extension of time.
The application for an extension of time will be dismissed.
The first respondent sought costs in the amount of $4,189.38, if the applicant was unsuccessful. The applicant did not advance any cogent reasons why in that event she should not be ordered to pay costs, or that she should only be required to pay a lesser sum than that sought. Given the history of this matter and its conduct in this Court, I consider the applicant should pay the first respondents costs. I consider the amount sought, which is equivalent to that available under the Migration Costs Scale in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at an interlocutory hearing, is reasonable and appropriate in the circumstances.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 16 October 2024
0
12
2