CHN19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1118

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CHN19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1118

File number(s):

MLG 1823 of 2019

Judgment of:

JUDGE CORBETT

Date of judgment:

7 November 2024

Catchwords:

MIGRATION – Application for judicial review and extension of time – protection visa – prospects of success - whether acceptable reason for delay - whether interpretation deficiencies constituted reviewable error – onus of proof – allegation of third-party conduct - whether in the interests of administration of justice to extend time- application dismissed.

Legislation:

Migration Act1958 (Cth), ss 5AAA, 5H(1)(a), 5H(1)(b), 5J, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 477(1), 477(2), 477(2)(b), 477

Migration Regulations 1994 (Cth), Sch 2

Cases cited:

Appellant 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230

GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9

SZKDC v Minister for Immigration and Citizenship [2008] FCA 164

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Tran v Minister for Immigration and Border Protection [2014 FCA 533

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28: (2022) 276 CLR 579

WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726

WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075

Division:

Division 2 General Federal Law

Number of paragraphs:

67

Date of last submission/s:

22 October 2024

Date of hearing:

22 October 2024

Place:

Melbourne

Solicitor for the Applicant

The applicant appeared in person

Solicitor for the Respondents

Ms Griffiths-Mark, Clayton Utz

ORDERS

MLG 1823 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHN19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CORBETT
DATE OF ORDER:	7 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the second respondent is amended to Administrative Review Tribunal.

2.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.

3.The application for an extension of time pursuant to s 477(2) of the Migration Act1958 (Cth) is dismissed.

4.The applicant pay the first respondent’s costs of and incidental to the proceeding 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 CORBETT

1. The applicant seeks an extension of time pursuant to s 477(2) of the Migration Act1958 (Cth) (the Act) within which to seek judicial review of a decision of the second respondent (Tribunal) made on 11 December 2017. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (subclass 866) visa (Visa).

2. The application for judicial review was filed 514 days after the date prescribed by s 477(1) of the Act.

3. To obtain an order extending the time within which to file an application, the Court must be satisfied that it is necessary in the interests of the administration of justice to make an order for an extension (s 477(2)(b) of the Act).

4. Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing and designated exhibit “R1”.

   BACKGROUND

5. The applicant is a citizen of Malaysia. He arrived in Australia on a Tourist visa on 17 August 2016 (CB 69).

6. On 21 October 2016, the applicant applied for the Visa. In his application for the Visa the applicant identified the following reasons for claiming protection (CB 36) (verbatim):

   Because of political and financial issues

7. When asked at question ninety of the Visa application form: What do you think will happen to you if you return to the country? (CB 36) The applicant said (verbatim):

   I will be facing financial issues because of unemployment

8. On 10 March 2017, a delegate of the Minister notified the applicant of the decision to refuse to grant the Visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 65-86).

9. On 17 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 87-8).

10. On 18 March 2017, the Tribunal acknowledged receipt of the application for review and invited the applicant to provide evidence or written arguments to the Tribunal as soon as possible (CB 112-3).

11. On 19 October 2017, the Tribunal invited the applicant to attend a hearing on 17 November 2017, to be held in Sydney (CB 120).

12. On 17 November 2017, the applicant attended a hearing of the Tribunal at Sydney and was assisted by an interpreter fluent in the English and Malay languages (CB 128-9).

13. On 11 December 2017, the Tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the Visa (CB 133-144) (Decision). The decision was sent to the applicant with a “fact sheet” which provided information about the Decision and the following paragraph regarding the judicial review process (CB 135):

    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.

14. On 12 June 2019, the applicant filed an application for judicial review with this Court (CB 146–150). The application was supported by an affidavit affirmed by the applicant on the same day (CB 152–3). In that affidavit the applicant said (CB 152) (verbatim):

    (1)I AM THE APPLICANT OF THE PROCEEDING

    (2)I AM CONSIDER THAT DAY ARE GRAND, FOR AN APPLICANT FOR REVIEW IN THIS COURT. NOW PRODUCED AND SHOWN TO ME DECISION RECORD (A) AND NOTIFICATION OF DECISION (B)

15. In the application for review, the applicant sought an extension of time on the following grounds (CB 147) (verbatim):

    (1)I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME

    (2)I ALSO VAN NOT TO PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT. SO TO MAKE SURE I IN LAWFUL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.

16. The applicant identified the following grounds of review in the application for judicial review (CB 148) (verbatim):

    (1)AS LONG AS THE HEARING SESSION TOOK PLACE, I WAS DISSATISFIED WITH THE INTERPRETER BECAUSE SHE OF POOR LANGGUAGE USE. ALSO SHE FROM INDONESIA AND I FROM MALAYSIA, OUR USAGE AND DIALECT DIFFER FROM THE POINT OF UNDERSTANDING.

    1.1      THIS OCCURS IN PARAGRAPH 11, IN THE LAST LINE. “HE INDICATED HE HAD NOT BEEN HARMED OR MIS-TREATED IF HE RETURN TO MALAYSIA”. WHILE I SAY “YES, I AM THREATENED.

    (2)I ALSO MENTIONED TO THE MEMBER DURING THE HEARING SESSION. I HAVE A PARTNER (LGBTQ) AND HE PLANS TO KEEP US TOGETHER. BUT MEMBER DOES NOT WANT TO TAKE INTO ACCOUNT MY EXPLANATION. SAME LIKE THE TRIBUNAL MEMBER DEPRIVE ME OF PROCEDURAL FAIRNESS AND FAILED TO DO HER DUTY.

    (3)THE TRIBUNAL MEMBER RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER TRIBUNAL CASE.

17. On 9 July 2019, the Minister filed a Response to the application for judicial review. In response the Minister identified that the application was not made to the Court within 35 days of the date of the Decision and that an extension of time under s 477(2) was required. Furthermore, that the Decision was not affected by jurisdictional error (CB 164-5).

    TRIBUNAL DECISION

18. In the Decision, the Tribunal identified the criteria for a Protection visa required by ss 36(2)(a), 36(2)(aa), 36(2)(b) or 36(2)(c) of the Act. The Tribunal also identified the relevant criteria in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal considered the requirements of ss 5H(1)(a), 5H(1)(b) and 5J of the Act (CB 138).

19. The Tribunal then considered the PAM3 policy guidelines prepared by the Department of Immigration in accordance with Ministerial Direction No 56, made under s 499 of the Act.

20. In the Decision, the Tribunal referred to the applicant’s onus to establish claims for protection under s 5AAA of the Act (CB 139 [9]).

21. The Tribunal then considered the evidence in the applicant’s Visa application form and the applicant’s evidence at the hearing (CB 139 [11]). The Tribunal noted that the applicant said in his application form that if he returned to Malaysia, he would face financial issues because of unemployment. The Tribunal also noted that the applicant had not been harmed in Malaysia and did not think he would be harmed or mistreated if he returned to Malaysia.

22. In the Decision, the Tribunal recorded (CB 139 [13]):

    I put to the applicant that it thus did not appear he was a refugee or owed complementary protection. The applicant responded that the big issue was financial support for his family. He said his families’ wages were not enough to support the family. I noted that the protection visa was not a working visa or visa for people merely seeking to earn an income. The applicant replied that he understood but asked whether he could stay in Australia.

23. Furthermore, the Tribunal recorded the following exchange (CB 140 [16]:

    Asked whether he had any further evidence in relation to why he was a refugee or owed complementary protection, the applicant replied that he wanted to find out how to extend his visa. I put to the applicant that it seemed he was neither a refugee nor owed complementary protection but that he came to Australia to work. He replied that work was very hard in Malaysia and not enough to support his family.

24. The Tribunal then affirmed the decision under review not to grant the Visa (CB 140 [17], [24]). For the sake of completeness, the Tribunal also considered “country information” pertaining to Malaysia and was not satisfied that the applicant would be unable to find employment in Malaysia (CB 140 [19]- [21]).

    PROCEEDINGS IN THIS COURT

25. On 4 April 2024, a Registrar of this Court ordered the applicant to file and serve on or before 19 April 2024 any amended application with proper particulars of the grounds of his application for judicial review, written submissions and any additional evidence on which the applicant seeks to rely. The Court also noted that the applicant may wish to provide evidence to the Court of what was said at the hearing before the Tribunal in the form of a transcript. This was because the applicant complained about the competency of the interpreter used at the Tribunal hearing (ground one of the application for judicial review).

26. There was no further affidavit or evidence filed with the Court by the applicant to support the application for an extension of time or the grounds of review.

27. The interlocutory hearing of the applicant’s application for an extension of time under s 477(2) of the Act took place on 22 October 2024 at Melbourne. The applicant appeared in person and was assisted by an interpreter fluent in the English and Malay languages.

28. The Minister was represented by Ms Griffiths–Mark, solicitor.

29. The Court confirmed that the applicant received the Court Book and the outline of written submissions filed on behalf of the Minister.

30. The Court explained to the applicant that because the application for judicial review was filed outside the 35-day time limit fixed by the Act, the applicant must first apply for an extension of time within which to commence the proceeding. The applicant was required to explain the reason for his delay and also satisfy the Court that it was necessary in the interests of the administration of justice to make an order extending time.

31. It was explained to the applicant that when considering the interests of the administration of justice, the Court is required to consider the merits of his application for judicial review and to decide whether the applicant has an arguable case for review.

32. The applicant was invited to put before the Court any further evidence or documentation upon which he sought to rely in support of his application for an extension of time. The applicant did not wish to rely on any further material.

33. The applicant was then asked to explain why he should be granted an extension of time.

34. The applicant said that the reason for delay was because he did not have any money to apply to the Court. He also had no knowledge of Court processes and relied heavily on a friend to assist him.

35. The applicant was asked whether he applied to the Court for a waiver of the filing fee and the applicant replied that he did not. The applicant was then asked if he had any documents or evidence to show that he had no money in December 2017 with which to pay the filing fee, and the applicant again replied that he did not. The applicant was asked to explain why the Court should review the decision of the Tribunal and to identify any errors that the applicant wish to rely upon in the Decision. The applicant said he did not know how to answer that question.

36. The applicant was then asked, “what did the Tribunal get wrong”? The applicant’s response was “I can’t recall”. The applicant was directed to page 148 of the Court Book which was a copy of the grounds of application for judicial review. He was directed to the three grounds of review and asked to explain those grounds and what he wished to say about the Tribunal’s decision. The applicant responded that he did not know how to answer the question because it happened a long time ago and he could not recall what had happened.

37. The applicant was then asked if there was anything about his case that the Court needed to know. The applicant said that he had put a claim to the Tribunal that his sexual orientation was not accepted in Malaysia and that he could not return there. When asked if he explained that to the Tribunal at the hearing he said, “Yes I did”.

38. The applicant was then taken to his application for the Visa (CB 36). He was asked about the reasons for protection he noted in question 89 of that form where the applicant said that he left Malaysia “because of political and financial issues”. The applicant was also directed to his answer to question ninety in the application form; what do you think will happen to you if you return to Malaysia? The applicant’s answer was “I will be facing financial issues because of unemployment”. The applicant then volunteered information that he had paid someone to fill out the application form on his behalf. When asked who that person was, the applicant answered, “I don’t know that person and they have already gone back to Malaysia”. The applicant said he was referred to that person by a friend. The applicant was then directed to question six on the application form where he was asked whether he received assistance in completing the form (CB 14). The answer to that question was “No”. The applicant said he did not know why that answer had been given.

39. The applicant was unable to otherwise assist the Court on the merits of his application for judicial review and submitted nothing further to support his application for an extension of time.

    MINISTER’S SUBMISSIONS

40. Ms Griffiths-Mark tendered the Court Book which was marked exhibit “R1” and sought to rely on an affidavit of Jackson Clyde Macaulay affirmed 26 April 2024, which was tendered and marked as exhibit “R2”. In that affidavit Mr Macaulay affirmed that on 10 September 2019, an officer of the Department obtained a copy of the audio recording of the Tribunal hearing. Mr Macaulay said that he listened to the recording and whilst he did not understand the Malay language, he heard the following exchange in the English language:

    TRIBUNAL: Mr (Name of Applicant) can you tell me, have you been able to understand the interpreter so far?

    [INTERPRETED]

    APPLICANT: Yeah.

    TRIBUNAL: Do you have any objections to using this particular interpreter? Is there any reason you feel you would not be able to give your evidence properly using this particular interpreter?

    [INTERPRETED]

    APPLICANT: It’s okay.

41. Mr Macaulay also said in paragraph six of his affidavit that in the course of listening to the audio recording of the Tribunal hearing, he did not hear any mention of the applicant’s sexual orientation or his LGBTQ relationship.

42. Ms Griffiths-Mark also relied on the outline of written submissions filed on behalf of the Minister dated 26 April 2024. The Minister opposed the application for an extension of time and said that the delay of 514 days was extreme. The Minister relied on the often-cited decision of the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28: (2022) 276 CLR 579 (Tu’uta Katoa) regarding the proper exercise of the power to extend time in s 477(2) of the Act.

43. It was properly conceded that there was no prejudice to the Minister in granting an extension of time however, the mere absence of prejudice to the Minister is insufficient to warrant the grant of an extension.[1]

    [1] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

44. It was submitted that the Court has considered much shorter delays such as 74 and 54 days to be substantial and likely fatal to an application for an extension of time where there is no acceptable reason for delay.[2] The decision of Wigney J in Tran v Minister for Immigration and Border Protection [2014 FCA 533 at [38] was relied upon for the proposition that in general, the longer the delay, the more persuasive the explanation needs to be.

    [2] WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].

45. The only explanation given by the applicant for the delay in this case was a lack of funds and this was not an acceptable reason for delay.[3]

    [3] GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25] (per Collier, Rangiah and Derrington JJ) (GOK18).

46. The Minister’s primary submission was that it was not in the interests of the administration of justice to extend time in this case. Further, it was submitted that the application for judicial review had little prospects of success.

47. Ms Griffiths-Mark then addressed each of the grounds of review in the application for judicial review. The evidence of Mr Macaulay was relied upon in relation to ground one, where the applicant complained that there had been a misinterpretation of his evidence by the interpreter at the Tribunal hearing on 17 November 2017. It was submitted that the applicant bears the onus of proof in establishing that his evidence was misinterpreted and that the errors in interpretation be material to the outcome of the decision.[4]

    [4] Appellant 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] (Appellant 119/2002).

48. It was submitted that the applicant had not discharge this onus and had provided no evidence that the interpreter present at the Tribunal hearing incorrectly translated any of the applicant’s statements. Further, there was nothing erroneous about paragraph eleven of the Decision, because the Tribunal was clearly referring to the application form completed by the applicant and not the evidence given at the Tribunal hearing. There was no error in that regard.

1. In relation to grounds two and three of the application for judicial review, there was no proof of the failure to consider the applicant’s claim to be in an LGBTQ relationship. There is no evidence that relationship or reason was every disclosed to the Tribunal either before or at the hearing and that claim was not included in the Visa application form. Further, it was not recorded in the Decision and there was no apparent reference to it in the audio recording of the hearing referred to in Mr Macaulay’s affidavit.

2. There was no failure to afford the applicant procedural fairness. The Tribunal complied with its procedural fairness obligations by inviting the applicant to attend the hearing, which he attended and gave evidence to. In doing so, the Tribunal based the Decision on information provided by the applicant in the course of review (s 424A(3)(b) of the Act). The Decision does not disclose any information that does not relate to the applicant’s case nor did the Tribunal appear to rely upon information from some other case or judicial review application. The assertions in ground three of the application for judicial review were vague, unparticularised and not supported by any evidence.

3. The Minister submitted that the application for an extension of time should be denied and that the applicant had not established, by credible evidence, that it was necessary and in the interests of the administration of justice to extend time on this occasion.

   CONSIDERATION

4. The applicant’s explanation for the delay in filing the application for judicial review is unsatisfactory. The Full Court of the Federal Court of Australia in GOK18, citing QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] and SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 [12] said at [25]:

   Generally speaking, a party’s financial circumstances or difficulties alone are an insufficient excuse for delay and will not provide a justification for an extension of time…

5. In this case, there is no evidence to verify the applicant’s financial circumstances at the time of the Decision, at the time the application was required to be filed (i.e. 35 days after the Decision) or at the date of commencing this proceeding. There was no evidence of an application to the Court for financial relief in respect of the issuing fee and no explanation given as to why the applicant’s financial circumstances suddenly changed at the time of filing the application for judicial review in June 2019. The delay of 514 days is excessive and inexcusable without more.

6. The Court has also considered the merits of the substantive application for judicial review and whether it has any prospects of success (viewed impressionistically) (Tu’uta Katoa at [17]-[18] per Kiefel CJ, Gageler, Keane and Gleeson JJ).

7. When asked by the Court to explain the grounds of review, the applicant could not recall or identify any errors in the Decision. The grounds alleged in the application for judicial review were dissatisfaction with the interpreter, failure to consider the applicant’s sexual orientation and reliance on unspecified “incorrect information”.

8. The applicant does not clearly identify any aspect of his evidence before the Tribunal that was misinterpreted by the interpreter. Further, the onus is upon the applicant to establish material errors in translation (see Appellant 119/2002 at [17] per Mansfield and Selway JJ). The applicant does not say that the standard of interpretation was so inadequate that the applicant was effectively prevent from giving evidence or which may have materially affected the conclusions of the Tribunal.

9. The applicant claims that he told the Tribunal that his sexual orientation was the reason for his application for protection, but the evidence of Mr Macaulay, which is not contested, is to the contrary and Mr Macaulay’s transcription from the audio recording of the Tribunal hearing confirms the applicant’s satisfaction with the interpreter provided.  

10. The evidence of Mr Macaulay is that there was no mention of the expression “LBTGQ” or of the applicant’s same sex relationship, in the audio recording of the Tribunal hearing. There is no evidence produced by the applicant to the contrary. There is no mention of the applicant’s sexual orientation in the Decision, the Visa application form, or the applicant’s affidavit in support of the application for judicial review (CB 1-48).

11. The applicant declared his Visa application form to be true and correct (CB 40). The applicant also declared that he completed the application form without assistance (CB 14) and the grounds for protection were limited to political and financial issues (CB 36-8). At the hearing before this Court, the applicant claimed that another person completed the application form on his behalf however he could not identify that person, nor did he identify in an affidavit or otherwise the instructions given to that person when completing the application form.

12. The allegation that the Tribunal considered incorrect information is vague. The Decision does not reveal that the Tribunal considered any incorrect information or make reference to any other case before the Tribunal. The applicant was unable to assist this Court in relation to this ground or explain why it was included in the application.

13. Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the reasoning in the Decision. No discernible error could be identified.

14. The Court is not persuaded by the applicant’s proposed grounds of review, assessed on a reasonably impressionistic level, or the applicant’s explanation for delay. It is not necessary and in the interests of the administration of justice to grant an extension of time on this occasion. The application for extension of time is dismissed.

15. At the conclusion of the hearing before this Court on 22 October 2024, the solicitor for the Minister sought the Minister’s legal costs of and incidental to the interlocutory application in the sum of $4,189.38. That sum is in accordance with the scale in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and is fair and reasonable.

    
    

    ORDERS

16. As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) the name of the second respondent is changed to the Administrative Review Tribunal.

17. The name of the first respondent should also be changed to Minister for Immigration and Multicultural Affairs.

18. The application for an extension of time pursuant to s 477(2) of the Act is dismissed.

19. The applicant pay the first respondent’s costs of and incidental to the proceeding fixed in the sum of $4,189.38.

I certify that the preceding sixty-six (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:

Dated:       7 November 2024