CJG19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1082
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CJG19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1082
File number(s): MLG 1895 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application –whether there was an adequate explanation for significant delay – whether there was an arguable case of jurisdictional error – extension of time application refused with costs Legislation: Federal Circuit and Family Court Act 2021 (Cth) ss 231, 232
Migration Act 1958 (Cth) ss 36, 65, 91X, 424, 430, 476, 477
Cases cited: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v SZLIX and Anor (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 34
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of last submission/s: 14 October 2024 Date of hearing: 14 October 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms M. Baras-Miller Solicitor for the First Respondent: Australian Government Solicitor Second Applicant: Submitting appearance, save as to costs ORDERS
MLG 1895 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJG19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 17 June 2019 for an extension of time in which to file the application for judicial review is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.38.
5.Pursuant to ss 232(1) and 231(1)(a) and (c) of the Federal Circuit and Family Court Act 2021 (Cth) (FCFCOA Act), these reasons for judgment are not published other than to the parties and their legal representatives until either further or other order of this Court.
6.Within 7 days of the date of this order, the parties are to jointly approach the chambers to Judge Cuthbertson in writing setting out any matter arising from the reasons for judgment which they consider might have the effect of enabling the identification of the applicant.
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 CUTHBERTSON
INTRODUCTION
On 17 June 2019, the applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 5 April 2018 (JR application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicant a protection visa (Subclass 866) (visa) under s 65 of the Act.
The JR application was filed out of time. Section 477(1) of the Act provides that an application to the Court for a remedy pursuant to s 476 must be made within 35 days of the date of the migration decision. The date of the migration decision in this matter is 5 April 2018: see s 477(3)(c) and 430(2) of the Act. In this case, the applicant filed his JR application in excess of fourteen months after the relevant date. The applicant has sought an extension of time in which to file his JR application (EOT application). The Minister opposes the EOT application.
This judgment is only concerned with the EOT application. For the reasons set out below, the EOT application is dismissed.
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (CB) 24). He arrived in Australia on 4 January 2016 pursuant to an electronic travel authority which was valid until 22 December 2016 (CB 33). By an application dated 22 July 2016 and received by the then-named Department of Immigration and Border Protection on 25 July 2016, the applicant applied for a protection visa (CB 11-87).
The applicant’s claim for protection in his visa application concerned a business venture he was engaged in with a friend involving the purchase and trading of gold bars that went sour. The applicant stated in the initial period things went smoothly and “they only wants the profit monthly”. In December 2014, the applicant made a payment of RM 191,000.00 for 1.6 kg of gold bars but was advised by the company there was a delay because of a supply problem. The applicant and his friend did not hear anything and after a few months, the applicant’s friend accused him of cheating. The applicant said his friend had “hired gangster and threaten to harm and push me and I come to Australia”. The applicant claimed that if he went back to Malaysia “they will threaten to harm and kidnap me. They also had hired a gangster to find me and they will force me to pay all their money” (CB 42).
The applicant further outlined he was threatened all the time even though he had paid every month using his own money. He also claimed to have made a police report but “they said this is beyond they power and the police report only a reference for law actions”. In response to the question “Did you move, or try to move, to another part of that country to seek safety?”, the applicant answered no, explaining he did not want to because his business was still operating and he was using his money to pay them first and for living (CB 43). The applicant also stated he did not think he would be able to relocate within Malaysia because “the gangster had a lot of informers around Malaysia and I feel unsecured no matter where I go” (CB 44).
On 13 October 2016, a delegate of the Minister (the delegate) refused to grant the applicant a visa (CB 92-107). The applicant was notified of that decision the same day (CB 88-91).
On 25 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 108-109). By letter dated 2 November 2016, the Tribunal acknowledged receipt of the application. The applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible (CB 111-112).
On 19 September 2017, the Tribunal wrote to the applicant inviting him to attend a hearing on 31 October 2017 to give evidence and present arguments relating to the issues arising in his case (CB 114-115). On 21 September 2017, the applicant sent a completed ‘Response to hearing invitation – MR Division’ form indicating he would be attending the hearing, did not require an interpreter and did not request the Tribunal to take oral evidence from another person (CB 118-120).
On 31 October 2017, the applicant appeared before the Tribunal (CB 121-123). The hearing record records the hearing commenced at 11:57 am and concluded at 1:29 pm. It also records that no further documents were received (CB 121).
On 5 April 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 127). The applicant was notified of the decision by email on 6 April 2018 (CB 125). The letter attached a document titled “MR25 Information about decisions – MR Division” (CB 126, Supplementary Court Book (SCB) 148-150). That document relevantly stated the following:
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.
The email address used to send the Tribunal’s decision to the applicant was the one provided by the applicant as his address for correspondence in his application for merits review (CB 109). That email address had also been used by the Tribunal to provide the invitation to the hearing (CB 113). It is also the email address provided to the Court as the applicant’s address for service.
THE APPLICATIONS FOR EXTENSION OF TIME AND JUDICIAL REVIEW
The applicant outlined the following grounds for his EOT application (CB 3-4):
I come from Malaysia and have been cheated by a Malaysian person who pretended to be an immigration expert. However, when my application was refused by AAT I had no idea that I could apply to FCC to appeal my review decision from AAT. I like to request to FCC to accept my application so that my matter could have chance to be heard and will have a chance to present myself at the FCC. Please accept this application so 1 could have fair outcome on this matter.
I have been in serious issued with my visa application as l believe that I have had strong case and AAT has delivered very poor decision and decision may be quashed by FCC. So please accept my application was I have poor immigration assistance from people in Melbourne and was not aware of the review options available.
The substantive grounds of review set out in the JR application are as follows (CB 4-5):
1. I arrived on visitor visa from Malaysia and made an application for Protection visa like many other Malaysians who are feeling Malaysia as law and order has its lowest and there is no protection for ordinary individuals. I left trouble in Malaysia when I came to Australia believing that I'll be happy and safe in this country however, Malaysian con people came across me again and robbed me my savings that l brought to Australia to live good life.
2. I met a fellow Malaysian fellow who advised that he has helped many Malaysian to settle in Australia and get PR and live fear free life. I was trapped and decided to use his services and paid him to make an application on my behalf.
3. I came to know when he applied my application which was refused by the DoHA as they believed I did not have strong claim but as far as I aware that I have had strong chance as my claim was genuine and I have had fear for my life in Malaysia.
4. Review application was made and I went to the AA T hearing to present my argument and AAT member has made numerous errors while deciding on my visa application decision. Member from the tribunal has min interpret (sic) Ministerial Direction No.56, made under s.499 of the Act and this led to my visa application decision to be affirmed by the case officer from AAT.
5. I would like to advise FCC that I had strong fear for my life in Malaysia as I was victim of loan shark and money l borrowed was not paid and I was threatened to pay back or lose my life. I left Malaysia as a last resort when complaints to police did not work and I was unable to pay back. I could not protect myself and so could the authorities.
6. DOHA has made a poor decision and when applied for late review AAT has also provided no regard to my potential situation in Malaysia upon return. I have been completely unfairly treated by AAT when they refused to accept my claims at the time of review. Further, AAT has paid no regard to myself being a victim of migration fraud where I lost my all savings and I even borrowed more money from my friends in Australia.
7. I would like to request to FCC to accept my application so that at least I will chance to present my matter so that I would like to request to FCC to accept my application and make new orders and replace orders made by AAT and remit this decision back to AAT for reconsideration.
8. Australia has obligation to protect people under refugee convention and I would like to use my right in Australia to be protected. Please accept my application and give me a chance to present this matter before the court as AAT has made numerous errors while deciding on my matter.
9. Please accept my application and give chance to present my matter before the court.
On 25 March 2024, procedural orders were made by a registrar of this Court to ready the matter for an extension of time hearing. Those orders included that the applicant file and serve on or before 12 April 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which he seeks to rely. No further materials were filed in accordance with those orders.
On 26 April 2024, the Minister filed an outline of submissions. The Minister also filed an affidavit affirmed by Mary Baras-Miller on 7 October 2024. That affidavit establishes the applicant has been sent a copy of the Court Book by post and email on 6 August 2021 and a copy of the Minister’s outline of submissions by email on 2 May 2024.
EXTENSIONS OF TIME – PRINCIPLES
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period provided by s 477(1) as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors which may be considered in the context of extension of time applications are not closed. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28, the High Court noted the broad terms of the discretion inherent in the phrase “necessary in the interests of administration of justice”. As a consequence, there are a range of permissible considerations relevant to the exercise of the discretion. It will be a matter for the judge hearing the extension of time application to determine which of that range of considerations make it necessary for an extension of time to be granted in a particular case: at [12]-[13], per Kiefel CJ, Gageler, Keane and Gleeson JJ; and [39]-[40], per Gordon, Edelman and Steward JJ.
The High Court in Katoa referred with approval to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 where his Honour identified the kinds of considerations which guide the exercise of the discretion to extend time. They are:
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the administration of justice as a result of the delay;
(d)the merits of the substantial application.
These factors provide guidance, promoting consistency in approach, but are not to be taken as exhaustive, or treated as a code: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [41] – [43], per Mortimer J.
Section 477(2) of the Act entrusts this Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed. As the merits of the proposed application are a permissible consideration, it is within this Court’s jurisdiction to have regard to that factor in such manner as it considers appropriate in the circumstances. Whether the assessment of the merits required is one undertaken at a “reasonably impressionistic level” or involves a more detailed analysis will depend on those circumstances: Katoa at [18]-[19], per Kiefel CJ, Gageler, Keane and Gleeson JJ. Finally, while the majority in Katoa held that in some cases the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending on other relevant factors, in other cases, for example where the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Katoa at [17]-[18]; see also [54], [62]-[63], per Gordon, Edelman and Steward JJ.
HEARING OF APPLICATION
The applicant appeared in person in this Court on 14 October 2024. He was unrepresented and assisted by an interpreter in the Malay language.
The applicant was taken to the materials before the Court, namely the JR application, the affidavit of the applicant (applicant’s affidavit) filed in support of the JR application dated 17 June 2019, the Court Book (received into evidence and marked 1R), a Supplementary Court Book (received into evidence and marked 2R) and the Minister’s submissions. The applicant’s affidavit does not address the reasons for delay. It states:
1. Decision made by AAT may be quashed
2. I have provided all the correct knowledge to my best ability and like to request to FCC to accept my application for review as I have been unfairly treated by AAT.
I explained the issues that I considered particularly relevant to the EOT application, including the length of and explanation for the delay and the merits of the JR application. I also explained that so far as his JR application was concerned, the Court was limited to deciding whether the Tribunal had committed a serious legal error (or jurisdictional error) when making its decision. I provided examples of common errors including a Tribunal taking into account irrelevant matters, failing to take into account relevant matters, not affording the applicant a proper opportunity to present his case or failing to afford the applicant procedural fairness.
CONSIDERATION
Length of delay and explanation
As noted above, the application for judicial review was filed 14 months after the Tribunal’s decision, or 403 days out of time. This is a significant delay. The applicant’s explanation in his EOT application is that he had no idea he could apply to a court to appeal the Tribunal’s decision. He has not filed any affidavit material to explain the delay. He told the Court during the hearing that he had tried to obtain assistance from someone to explain what to do. He said he was unable to contact the person who he says helped him with his visa application and the review to the Tribunal, although he had paid him money. A friend gave the applicant the number of another person who may have been a migration agent. He does not recall the person’s name. He said the ‘migration agent’ filled out the details in the application and affidavit that was filed with the Court soon after the applicant contacted him. The applicant says that occurred around the time the documents were lodged with the Court. He otherwise does not properly explain what happened in the 13 or so months prior to making contact with the person who ultimately assisted with the JR and EOT applications.
The Minister submits significant delay should weigh heavily against the grant of an extension of time. To the extent that the applicant says his delay was a result of him being ‘cheated’ by a person pretending to be a migration expert, he has not provided any corroborating evidence or further particulars to support this claim. The only detail about this claim appears in Ground 2 and 6, where the applicant says he met a Malaysian person who claimed he had helped other Malaysians get permanent residency in Australia, and that he ‘lost all his savings’ paying for this person’s services. The Minister noted the applicant provided more information during the hearing. The information did not explain the delay between his attempts to get assistance from the person who had helped him initially and the person who ultimately assisted him with his applications to this Court. No part of his explanation suggests that either individual did anything which would prevent the applicant from filing his own application.
The Minister submitted third party fraud is a serious allegation which must be distinctly pleaded and proved: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 34 at [15]. In the absence of any independent, corroborative evidence, the applicant’s general claims are insufficient to establish that his delay in bringing his application was a result of fraudulent conduct by a third party.
To the extent the applicant’s explanation relies on his ignorance of his review rights and the process for applying, the Minister submitted it is well settled that it is the applicant’s responsibility to inform himself of those rights and any applicable time limits: SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [43]. Claimed ignorance of a right to seek judicial review or of the relevant statutory process is not a sufficient explanation for a failure to apply within time: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]. In any event, the relevant details were set out in the fact sheet sent to the applicant by the Tribunal with its reasons for decision. The Minister submits that the applicant’s explanation for the very significant delay is unsatisfactory. It was submitted both the extent of the delay and the inadequate explanation should weigh heavily against the extension of time being granted.
I agree with the Minister’s submissions. While I have sympathy for the difficulties faced by an unrepresented visa applicant navigating the migration system, the delay in this case was very significant. The applicant has not explained the entirety of the delay. The explanation he has provided is not adequate. This weighs heavily against the granting of an extension of time.
Prejudice
The Minister conceded in their written submissions that no substantive prejudice would be suffered if an extension of time was granted. It was submitted, however, it was in the interests of justice that prescribed time limits are adhered to so as to ensure a predictable and orderly conclusion to appeal processes.
Given the length of delay in this case, the prejudice to the interests of justice more generally do assume some importance. The absence of specific prejudice to the Minister is not a sufficient reason of itself to grant an extension of time: Hunter Valley at p. 349. In my view, this factor is ultimately a neutral one in the circumstances of this case.
Merits
The applicant says the Tribunal’s decision contained ‘numerous errors’, the Tribunal failed to comply with Ministerial Direction 56 when making its decision, treated him unfairly by refusing to accept his claims and failed to recognise he was the victim of migration fraud. The Minister submits the substantive application does not enjoy sufficient merit such as would warrant an extension of time being granted. Before proceeding to consider the applicant’s grounds of review and the parties’ submissions as to the merits of the judicial review application, it is helpful to set out the decisions made below.
Delegate’s Decision
On 13 October 2016, a delegate of the Minister (the delegate) refused to grant the applicant a visa (CB 88-107). The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as set out in ss 36(2)(a) or (aa) of the Act. The delegate also found he was not the member of the same family unit as a non-citizen in respect of whom the Minister was satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (ss 36(2)(b) and (c) of the Act).
In the course of assessing the applicant’s claim against the refugee criterion, the delegate stated (CB 105):
22. I note that the applicant has outlined his situation in minimal detail. Although he provided some documents to support his application, most of the documents are in language other than English. There appears to be a police report (in foreign language) and documents showing his involvement with a printing business where he was a manager according to his application (Q. 84 of form 866C). The applicant has made some conflicting claims throughout his application. He claims that he cannot relocate because he has a running business, yet he left the country to travel to Australia. He also claims that he made regular monthly payments to his friends, and he still does so from his business in Malaysia. I have difficulty accepting that his friends, who left the business with him and were satisfied with their monthly share of the profit, have an issue with delayed supply of the gold when they are receiving their monthly payments from the applicant. I also note that the supply of gold was delayed in December 2014. The applicant has made no mention of what happened since then, whether or not the gold was supplied since then.
23. The applicant did not make any attempt to relocate permanently to another part of Malaysia citing his running business. As mentioned earlier, I am not able to consider the evidence he has provided related to his work as the evidence is not translated. However, I note from his application that he was working in a printing business as a manager. He did not claim that he is an owner of that business or he has another business apart from where he worked as a manager. Therefore, I am not prepared to accept his claims that he will be unable to relocate elsewhere. The applicant has demonstrated work experience in the graphics and printing industry. He has also demonstrated extensive travel experience. There remain other areas of Malaysia than the applicant’s home town that he could safely and lawfully access and reside in, and be beyond the reach of this alleged gang. I note further in this regard that Malaysia has a population of over 28.3 million [CX271596 (A.12)]. It is not likely that the gang members would have the ability to find him anywhere he may go in Malaysia; especially in more populated and urbanised cities.
24. The country information set out above indicates that the Malaysian authorities – including the RMP and judiciary – are reasonably effective in combating organised crime and protecting persons within their jurisdiction from criminal harm. While there is some corruption within the system, and the applicant claims that police did not want to get involved with the gangsters, there is nothing before me to indicate that police are complacent with gangsters in general and the State would be unable or unwilling to protect the applicant in his particular circumstances.
25. Notwithstanding the above, I find on the information before me that he would receive effective protection from the RMP and judiciary in Malaysia against any threats he faces from his friends or criminal gangs.
The Tribunal’s decision
In its statement of decision and reasons (CB 128-145), the Tribunal first set out the criteria for protection visas (CB 128, [3]-[7]). The Tribunal noted it had taken account of departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56 (CB 128-129, [8]).
The Tribunal summarised the applicant’s claims at the time of application (CB 129, [11]-[12]). The Tribunal recorded that during the course of the hearing, the applicant submitted the following oral claims (CB 130-131, [15]):
•In 2014, to supplement his printing company, he decided to go into business to purchase gold from [Business A]. He on-sold the gold for a profit on the open market;
•The enterprise was progressing until one day it ceased. He received no gold. This was due to the market price which was increasing and due to a problem with the supplier;
•He paid for 1.6 kilograms in gold but it was not issued to him;
•He was dealing with an intermediary who was an agent who acted between him and [Business A];
•His friends who had their own businesses wanted to join his scheme so they could share the profits. While they were involved the applicant was in charge of the whole operation;
•The company issued the applicant a lawyer’s letter to say the company would not be able to provide the product (gold) worth RM192,000 and they would refund him his money within 6 to 12 months. To date they have not done so;
•He reported the matter to the police but they did nothing. The police told him he had been caught up in a big high profile matter. They told him it might have involved gangsters and politicians. RM2 billion had been invested by various persons. Due to the large amount and due to the involvement of gangsters and politicians, the police were not in a position to resolve the case and closed it;
•His agent issued a summons against [Business A]. He did not have evidence with him to demonstrate that he was part of the action to be taken against [Business A] but he would submit it to the Tribunal later;
•While waiting for the refund of RM192,000 his investor friends kept pushing him to pay up. They then threatened to kill him and to send gangsters to burn down his shop;
•The applicant told them he was not going anywhere and that he had a recovery plan to pay them in full but some were not happy with this suggestion. He still had his printing business;
•One of the investors was in dire financial straits and had family problems and to help him out the applicant took out a loan of MR50,000 from a bank to assist him;
•He kept the business and was making repayments but they continued to pursue and harass him. His wife was handling the printing business while he was in Australia. She is now in Australia on a Student visa with one of their two adopted children;
•His wife was also threatened in Malaysia;
•They decided to sell everything – the business included on 20 July 2016 for 135,000 Ringgit. In this way he was able to make re- payments to his co-investors. Everything was paid off;
•The applicant still has a loan of 50,000 Ringgit with a bank which he is paying off. He had nothing left in Malaysia. He wanted to make a new life in Australia. His wife has been studying here. He planned to bring his two children here to start a new life;
•The applicant has been working in Australia on a farm even though he has been refused work rights;
•He wanted to protect his family from harm;
•Someone had taken a photo of him in Australia. It had been sent to his wife through Whatsapp to tell his wife when she was in Malaysia to let them know that they were aware that the applicant was working in Australia;
•It would be difficult to restart his work in Malaysia as a printer because his reputation among his customers had been ruined – “they” (presumably investor friends) told his customers that he was a scam artist. At university he had been known as an icon of entrepreneurship because he started his business while still studying. Now his reputation was damaged, including among his friends;
•He would find it difficult to find work in Malaysia. The economy was not doing well;
•the cost of living was going up and wages were going down. He could not move to Penang or any other city because competition for jobs was fierce;
•Investors from China were purchasing Malaysian assets and companies and they discriminated against Malaysian workers preferring to employ Chinese people;
•Housing was unaffordable. He and his family lived with either his parents or his mother-in-law or sometimes he slept at his business as it was easier;
•His fear was that he could not get a job and that the GST had made business difficult and less profitable.
The Tribunal recorded it referred the applicant to relevant country information regarding the Malaysian economy (CB 132-134, [16]-[20]). It also referred to an article relating to the gold scam the applicant claimed to be involved in (CB 134, [21]).
The Tribunal noted some general principles regarding the assessment of credibility and fact finding (CB 134-135, [22]-[25]) before making the following findings:
26. The Tribunal has some difficulties with the applicant’s narrative and considers there are many gaps in his account. His account of the gold trading business was at times vague and when the Tribunal asked him to provide independent documentary evidence that he had been involved in any action against the [Business A] company, he was not able to do so even though he undertook to give that information to the Tribunal.
27. Just as the applicant has submitted paperwork in relation to his printing businesses and his qualifications, the Tribunal considers that it would not have been unreasonable to expect the applicant to have submitted credible evidence, such as bank receipts, that supported his account that he had been involved in a large scam whereby people paid money up front, before receiving gold to on-sell on the open market.
28. The Tribunal also invited the applicant to provide any evidence of him communicating about his financial problems with others on social media but he stated that he had not discussed the matter via his Facebook or on any other fora. The applicant attempted at hearing to locate on his phone evidence of interactions with those he owed money to his investor friends who were allegedly a part of his scheme. The applicant stated that there was something on the Facebook page of the Muslim Consumer Association but his specific circumstances were not mentioned, even though the Tribunal noted that his case involved a significant amount of money.
29. The Tribunal is also unclear, for example, why the applicant would not have provided the letter from [Business A]’s lawyer stating that they would refund the applicant the RM192,000 within 6-12 months, which would have gone some way to show that he was owed such significant sums. This would have assisted the Tribunal accept that co/joint investors were harassing him to re-pay money they had invested in the scheme.
30. The Tribunal considers that since the hearing held on 31 October 2017, the applicant has had ample opportunity to make his case.
31. At hearing the Tribunal advised the applicant that it had found an article in the Straits Times dated September 2016, referring to the police arresting the chairman (nicked named Tok Belagak) of a gold trading company for allegedly scamming an investor of more than RM80,000 in 2014. The applicant then seemed to appropriate the case to himself and advised that he was aware of Tok Belagak, among others relevant to the case. The Tribunal noted that the sum owed to him by the gold scammers ([Business A]), being RM192,000, was a far greater amount than RM80,000 so it would have thought that his case would have received some media coverage and attention by the law enforcement authorities. The applicant stated that some cases were unreported. He was one of several victims who had been scammed. He thought they had arrested the lynchpin in the case but then he was set free.
32. The Tribunal has doubts about the applicant’s account that he ever entered into a business in which he was purchasing gold from [Business A] for on-selling as the Tribunal has not been able to find any country information that would refer specifically to the applicant’s case involving RM192,000. Nor has it been able to locate information concerning a scam involving [Business A]. The article involving Tok Belagak makes no mention of the applicant’s claimed predicament. Even accepting that his circumstances were simply not reported, the applicant’s account of his friends having become involved in the scheme, and who later pursued him, was vague and general. For example, when the Tribunal asked the applicant to explain precisely how the scheme operated, he gave a vague answer about him being in charge of the operation and that he divided the profits with these friends. This is even though when the Tribunal asked the applicant whether his friends had put up money for the scheme, he stated that he used his own money to purchase the gold. From the applicant’s account it is unclear what role his friends precisely may have had in the scheme.
33. The Tribunal has had regard to the little evidence that was submitted in relation to his case in the form of a police report which appears to corroborate the applicant’s account of him having lost money because he had purchased gold which was not forthcoming. The Tribunal asked the interpreter to translate the contents of the report dated 4 March 2015, which stated that on 3 December 2014 at 15:00 hours, the applicant made a cash deposit of RM84,000 to a Malay agent’s account, for the purposes of buying gold. The gold was supposed to be delivered a week after payment but he did not receive anything. The applicant contacted the agent to ask him what had happened and he was told that the head of the company had gone to the Holy Land on a pilgrimage. When the head of the company returned from his pilgrimage he did not respond. The head of the company instead had his lawyer issue a letter saying he would return the applicant’s RM 192,000, equivalent to 1.6 kilograms of gold with other payments for outstanding amounts.
34. The Tribunal cannot be certain of the provenance of the report, however, taking it at face value, the report appears to be a contemporary one. For this reason the Tribunal places weight on this police report as setting out the factual events of the applicant’s case, and despite the Tribunal’s concerns with the lack of other supporting evidence, it is prepared to accept the facts as set out in his police report that:
•The applicant became involved in a scheme selling gold and is owed around RM192,000 because the gold he had paid for did not materialise; and
•The applicant has repaid (barring the RM50,000 loan to the bank) any monies outstanding to co-investors.
35. The applicant’s account hereon strains credulity however.
36. The applicant stated that the police were uninterested in his case and told him there was nothing to do because politicians and gangsters were involved. However, the country information shows that in the case of the matter involving Tok Balagak the authorities did take an interest and had made an arrest. The applicant at hearing attempted to state that it was the fact that the amount he had lost was so significant that they were not prepared to become involved but the Tribunal does not accept this to be the case. The applicant’s own evidence that the lynchpin was arrested appears to contradict his evidence that the police did nothing, even though he then qualified his statement to say that in fact the police let the lynchpin go. The applicant also stated that the Muslim Consumer Association had become involved even though he claimed they were unable to resolve the issues.
37. The Tribunal also put to the applicant pursuant to s.424AA of the Migration Act that he had told the Tribunal at hearing, when asked what he feared on return to Malaysia, that he had stated that he had RM50,000 to pay the bank in Malaysia for the loan and that he wanted to start a new life with his family in Australia. He no longer feared gangsters who might kill him or kidnap him. In his application, however, he had made references to fearing that his coinvestors would threaten and kidnap him to force him to re-pay all the money. He wrote that he feared returning to Malaysia because a gangster had been hired to kidnap him. At the time of application he had also stated that his printing business was still running.
38. The Tribunal noted that the information he provided to the department contradicted some of the evidence he provided to the Tribunal at hearing and, that if the Tribunal relied on the information, it would not accept his claims that he will be persecuted on return to Malaysia now or in the reasonably foreseeable future, because he was now claiming that all his debts (barring the RM50,000) to his co investors had been paid off, and it was unclear what he feared.
39. The applicant declined a break and stated that he had faced these problems but the circumstances had now changed. It had been a long time since he came to Australia. He had made a decision to protect his family from harm. In 2016 someone had taken a picture of him while working and it had been sent to his wife, even though the applicant was not able to produce evidence of this. The applicant claimed at hearing that he told his wife to delete the message from the photographer on Whatsapp allegedly sent to her to frighten her. The Tribunal does not accept that any such photograph was taken by any person in Australia of the applicant in 2016 connected to his gold trading enterprise who wanted to threaten him by sending the photograph to his wife who was overseas at the time. Furthermore, the Tribunal noted that the photograph may have been taken by immigration officials given he was working unlawfully. His claims that in 2016 someone was clandestinely photographing him because of money owed to his co-investors, contradicts his claims in 2017 that he now had nothing to fear from the gangsters who allegedly wanted to kill and kidnap him, because he had paid off his co-investors.
40. The Tribunal has serious concerns about the applicant’s claims that gangsters had ever been after him to kill him and kidnap him, or that they had threatened to burn down his shop (presumably business) because he had not paid co-investors; money they had lost due to the gold not having been issued. The Tribunal found the applicant’s evidence in this regard implausible. The applicant’s own wife continued to operate his printing business in his absence for a while in Malaysia, and continued to live there with their two adopted children (both aged 2 years). Furthermore, during the hearing the applicant stated that during his wife’s studies in Australia, she returned to Malaysia.
41. The Tribunal does not accept that if gangsters were in pursuit of the applicant to kidnap or kill him at any time, and had threatened his wife in Malaysia, the applicant’s wife would have exposed herself to such danger by returning to Malaysia.
42. The applicant’s credibility is further marred in terms of the claims to have been pursued by gangsters and considers that these claims have been fabricated for the purposes of the applicant achieving a migration outcome. The Tribunal asked the applicant whether his wife had also filed a Protection visa application and the applicant stated that she had not. The applicant at hearing stated that he wanted to declare that his wife came to Australia on a Student visa purporting to be a single woman. She had not told the Department of Home Affairs that she was married to the applicant.
43. Asked why they would not have been truthful about their relationship, the applicant stated that he was concerned that had they been honest about her marriage, she may not have been permitted to enter the country in the first instance. While the applicant’s response may go some way to explaining why they had not disclosed their marital status to the department, it does not explain why, after on arrival in Australia, his wife had not lodged a Protection application had her family had a well-founded fear of persecution. The applicant explained that she had come to Australia on a student visa because she had concerns that she might be rejected had she come together with her husband on a Visitor visa or any other visa. Nonetheless, there would have been nothing to prevent the applicant’s wife, Ms Siti Nur Hidayah, (name provided by the applicant) filing her own claims or joining her husband’s claims once she was in Australia.
44. The Tribunal considers that the applicant’s wife in coming to Australia as a student who purported not to be married, and the fact she has not lodged any protection claims undermines the applicant’s own claims that there is a real chance that his family will suffer serious harm of any sort were they to return to Malaysia now or in the reasonably foreseeable future.
45. Further, in order for the applicant’s wife to be able to study in Australia she would have had to demonstrate access to funds to be able to study and that she was a genuine student. This would indicate that contrary to the applicant’s claims that they had few resources left in Malaysia, the family was able to fund travel costs and study costs for various members of the family.
46. The Tribunal places adverse weight on the fact that the applicant’s wife has been able to return to Malaysia with ease and finds that it is consistent with both she and her husband and her family not having a well-founded fear of persecution on return to Malaysia. The applicant also stated that he wanted to be the one to bear the problems and did not want his family to become involved in his claims. The Tribunal finds, however, that the applicant’s wife joining the applicant’s claims or putting them forward independently would have assisted to support the applicant’s claims that his family will face serious harm on return to Malaysia – rather than detract from them.
47. The matter also undermines the applicant and his wife’s credibility in terms of not being transparent with the immigration authorities about their true relationship, and casts doubt on the vague and unsupported claims that he was being pursued by gangsters who wanted to kidnap and kill him and burn down his shop.
48. The Tribunal also notes that the police report makes no mention of him being pursued by gangsters who wanted to kill him and kidnap him. The Tribunal would have thought that these were significant matters that at some point the applicant would have wanted to report to the police even if he did not do so in conjunction with the above report, dated 4 March 2015.
49. The applicant’s previous claims to fear gangsters who wanted to kidnap and kill him at the time of application are not consistent with current claims that he now no longer fears the people because he has paid off debts to the co- investors. The Tribunal would have thought that, had the applicant or his family ever had serious threats made against them by gangsters who wanted to kidnap and kill the applicant, the family head, and that had they ever held fears for their lives, those fears would simply have dissipated because he had now paid off his debts.
50. For all of these reasons the Tribunal rejects the applicant’s claims that:
•The police refused to investigate the loss of RM192,000 by the applicant;
•His co-investors at any time pursued him for their money, to the point they hired gangsters to kidnap and kill him and that they threatened to burn down his shop;
•Such gangsters exist;
•His wife was threatened by gangsters or anyone else in Malaysia in relation to the gold scam;
•The applicant could not relocate because the gangsters had connections all over Malaysia;
•His reputation in Malaysia is significantly damaged to the point he would not be able to conduct business of any sort there again;
•His reputation in Malaysia was destroyed in the community and his friends because he was perceived as a scammer;
•The applicant was photographed in 2016 in Australia and the photograph was sent to his wife in Malaysia to somehow unsettle her.
51. The Tribunal finds that these claims that he and his family feared for their lives are not consistent with the applicant’s wife’s movements to and from Malaysia, and her not declaring to the department that she was a member of the applicant’s family unit and had similar protection claims to the applicant. Rather this conduct is consistent with the family attempting to achieve a migration outcome.
Having made those findings, the Tribunal considered whether the applicant had a well-founded fear of persecution on return to Malaysia. In light of its rejection of the applicant’s evidence that he had been pursued by gangsters on account of owing money to co-investors, it found there was not a real chance the applicant or his family will face serious harm now or in the reasonably foreseeable future on return to Malaysia on that account (CB 139-140, [52]-[54]). These findings flowed to a conclusion that the applicant did not meet the complementary protection criterion on this account (CB 140, [56]).
In respect of the applicant’s other claims, the Tribunal accepted he owed a bank RM 50,000 but did not accept this loan will lead to a real risk of significant harm on account of him not being able to repay it. It considered the applicant’s background to be such that he would be highly employable in Malaysia and had previously experienced success in running a business there. On that basis it was not satisfied the applicant would suffer serious or significant harm on return to Malaysia on account of his financial circumstances. Consequently, it found the applicant did not meet the refugee or complementary protection criteria on this account either (CB 140-141, [57]-[69]).
The grounds of review
The applicant’s submissions
The applicant was asked to explain what the Tribunal did wrong. I also took him to the specific matters set out in his JR application.
He said it was his ‘agent’ who said he needed to lodge the excuses and reasons for the application to the Court. He did not think the Tribunal made a mistake, but that he needed a protection visa to support his living. He did not know what errors the Tribunal made.
I asked the applicant to explain the reference to ‘loan sharks’ in his JR application given there was no reference to him having borrowed money from such a source in his visa application or in the Tribunal’s reasons for decision. While the Tribunal decision records the applicant’s evidence was that he had paid his co-investors back with the proceeds of a bank loan and from the proceeds of the sale of his business, he told the Court that was not the case. He said that while he sold the business for RMB 135,000, he only received RMB 100,000. The balance of the amount paid to his co-investors was sourced from loan sharks. He thought the amount borrowed was RMB 42,000. He was unclear whether he provided this information to the Tribunal but acknowledged it was not mentioned in his application to the Department.
I asked the applicant what he told the Tribunal about being the victim of migration fraud. He says he did mention to the Tribunal that he had been cheated by the agent. He said the agent had written all the information for him to present to the Tribunal. I asked how he was cheated. He said they promised he would get a visa, and that they would come with him to the Tribunal hearing but they did not attend. He said they did not explain anything. I asked him if there was anything in his applications to the Court, the Tribunal or the Department that was not correct. He said there was not. He thought that if he had a proper agent in his case, it may have led to a different outcome. I asked him if he asked the Tribunal to adjourn the hearing. He said he did not remember.
The Minister’s submissions
The Minister submitted that a delay of 16 months required a case to be ‘exceptional’ for an extension of time to be granted citing Gageler J in Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89. The Minister submits that the grounds of review do not establish jurisdictional error in the Tribunal’s decision.
In respect of ground 4, the Minister submitted the applicant does not particularise what errors he said the Tribunal made, or whether and how these errors affected the Tribunal’s jurisdiction. As to Ministerial Direction 56, it required a decision-maker to have regard to the Refugee Law Guidelines issued by the Minister’s Department, Complementary Protection Guidelines, and country information prepared by the Department of Foreign Affairs and Trade (DFAT) for the purpose of assessing a person’s protection status. The Tribunal correctly recognised that it was required to take the Guidelines and DFAT country information into account in making its decision, and its reasons record that it expressly did so (CB 128-129, [8]). The Tribunal also made extensive reference to the DFAT country information report for Malaysia and drew the applicant’s attention to the report and other information at the hearing (CB 132-133, [16]-[18]).
As to ground 6, the Minister submits the Tribunal was entitled to reject the applicant’s evidence as part of its fact-finding function: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282. The applicant has not otherwise particularised how the Tribunal’s assessment of his evidence constituted unfair treatment towards him, and the Minister submits that no such conclusion can be drawn.
In respect of the applicant’s suggestion that he raised the issue of migration fraud with the Tribunal, the Minister submits the Tribunal’s record of the applicant’s evidence should be preferred. The claim the Tribunal failed to consider this factor cannot succeed. The Minister repeated the submission that third party fraud is a serious allegation which must be distinctly pleaded and proved: SZFDE at [15]. It was further submitted that where migration agent fraud is alleged, the applicant will also need to establish that the migration agent’s conduct rises above mere negligence, inadvertence or incompetence (which itself does not give rise to jurisdictional error): Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33]. Nothing has been said by the applicant to suggest that any conduct of a migration agent rises above the level of negligence, incompetence and inadvertence. In circumstances where the applicant has filed no supporting evidence, it was submitted that general, unparticularised assertions are incapable of proving, to the requisite standard, that the Tribunal’s decision on his review application was affected by third party fraud. It was noted the applicant indicated on his visa application he did not receive assistance in preparing it (CB 47) and did not nominate a third-party representative on his review application form (CB 109).
In respect of the applicant’s claim that money had been borrowed from loan sharks, the Minister submits there was no evidence that such a claim was ever presented to the Tribunal. The Tribunal’s decision should be preferred in this regard also.
Discussion
The applicant essentially conceded the Tribunal did nothing wrong when deciding the review. That is an appropriate concession. In my view, the Tribunal articulated in unexceptional terms the relevant criteria for the grant of a protection visa. It expressly noted it had reference to the matters required to be considered pursuant to Ministerial Direction 56. There is nothing in the Tribunal’s decision to suggest it misinterpreted that direction or failed to have regard to it. I can discern no error in that regard.
A failure by the Tribunal to respond to a substantial, clearly articulated argument relying on established facts constitutes a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]-[25], per Gummow and Callinan JJ. That obligation is not limited to expressly articulated claims but extends to reviewing the delegate’s decision on a basis which clearly arises on the materials before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]-58], [61] per Black CJ, French and Selway JJ. The applicant did not assert the information he put before the Tribunal included the allegation that he borrowed money from loan sharks. That allegation did not clearly arise from the material before the Tribunal. It was not referred to in the visa application, the material submitted to the Tribunal prior to the review hearing nor is there evidence it was the subject of the applicant’s oral claims during that hearing. Consequently, that claim did not and was not required to form part of the Tribunal’s consideration. No jurisdictional error is established in this regard.
The plurality of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 explained at [24] (footnotes omitted) that the Tribunal was required to:
read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decisionmaker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker.
In my view, this is precisely what the Tribunal did in this case. The Tribunal’s decision demonstrates the Tribunal actively engaged with the evidence presented to it and the other material it was required to have regard to. It explained its reasons for accepting and rejecting aspects of the applicant’s evidence. It identified the claims expressly made by the applicant and others which arose from the material. The claims it considered which fell into the latter category concerned the alleged applicant’s economic circumstances if returned to Malysia: CB 140-141, [57]-[69]. The Tribunal also clearly explained by reference to the material before it why it found the applicant did not meet the criteria for the visa. It is not reasonably arguable that the Tribunal’s conclusions were outside the bounds of “rationality and reasonableness”: Plaintiff M1/2021 at [25]. They appear to be open on the evidence.
The Tribunal’s decision and hearing record disclose the applicant was assisted by an interpreter and given an opportunity to present evidence to the Tribunal and make arguments. It is not reasonably arguable that the Tribunal failed to conduct a hearing in accordance with its obligations under the Act.
As to the applicant’s allegations of migration fraud, to the extent that allegation was explained, it seemed to encompass the following issues:
(a)the ‘agent’ had promised the applicant he would get a visa;
(b)the applicant had paid the ‘agent’ what to him was a significant amount of money;
(c)he had expected the agent would accompany him to the Tribunal hearing; and
(d)the agent had not explained the process to him adequately.
The applicant does not suggest that the information included in his visa application with the assistance of the agent or the evidence he provided to the Tribunal was incorrect. He also says the information referred to in the JR and EOT application, also prepared with the assistance of a third person, was correct. There is no suggestion in the Tribunal’s decision that the applicant requested an adjournment.
Ultimately, there is nothing raised by the applicant to suggest there was a fraud committed by a third party such that it disabled the Tribunal from properly discharging its statutory functions when conducting the review of the delegate’s decision: SZFDE at [51]-[52], per curiam; Minister for Immigration and Citizenship v SZLIX and Anor (2008) 245 ALR 501; [2008] FCAFC 17 at [33], per Tamberlin, Finn and Dowsett JJ. The Tribunal was not prevented from hearing and determining the review on its merits.
Conclusion on merits
The applicant’s ground of review and matters raised during the course of the hearing of the EOT application do not identify any arguable case of jurisdictional error on the part of the Tribunal. I have also considered the Tribunal’s decision and have not been able to identify any arguable grounds of jurisdictional error. This weighs heavily against granting an extension of time.
CONCLUSION
The absence of a satisfactory explanation for the significant delay in filing the JR application and lack of any arguable case of jurisdictional error are such that I conclude it is not in the interests of the administration of justice to grant the applicant an extension of time in this matter.
The applicant’s application for an extension of time in which to file their JR application is dismissed.
The Minister sought costs in the fixed sum of $4,189.38 which is the scale amount for matters which conclude at an interlocutory hearing. The applicant did not dispute such an order was appropriate if his EOT application was unsuccessful although he advised he would require time to pay any order for costs. I am satisfied it is appropriate to award costs to the Minister in this matter and that the scale amount represents a reasonable sum.
Accordingly, I order the applicant pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $4,189.38.
I am concerned there are some distinctive features to the applicant’s claims for protection and the evidence he has produced which, if published, may have the potential for him to be readily identified in breach of s 91X of the Act. Consequently, I also make orders giving the parties an opportunity to consider the reasons for judgment, confer and provide in writing details of the matters which they consider may have the effect of enabling the applicant to be identified. I will then consider what, if any, amendments need to be made to the decision prior to its publication. To that end, I make the following orders:
5.Pursuant to ss 232(1) and 231(1)(a) and (c) of the Federal Circuit and Family Court Act 2021 (Cth) (FCFCOA Act), these reasons for judgment are not published other than to the parties and their legal representatives until either further or other order of this Court.
6.Within 7 days of the date of this order, the parties are to jointly approach the chambers to Judge Cuthbertson in writing setting out any matter arising from the reasons for judgment which they consider might have the effect of enabling the identification of the applicant.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 29 October 2024
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