CPT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 131
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CPT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 131
File number(s): MLG 1981 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 4 March 2022 Catchwords: MIGRATION – Proposed grounds of judicial review – decision of the Administrative Appeals Tribunal – first applicant citizen of Malaysia – second applicant citizen of Philippines – both applicants with Chinese ancestry – claims of racial discrimination – extension of time application – whether proposed grounds of review have sufficiently arguably merit
PRACTICE AND PROCEDURE – Application for extension of time – where delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of review have sufficiently arguable merit
Legislation: Migration Act 1958 (Cth) ss 476, 477 Cases cited: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 276
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
EKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 63
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Re Commonwealth and Another; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 23 February 2022 Place: Perth Applicants: The First and Second Applicants appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1981 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPT16
First Applicant
CPU16
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.The applicants’ application under s 477(2) of the Migration Act 1958 (Cth) filed on 15 September 2016 for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be dismissed.
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 LUCEV
Before the Court is an application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) by the first and second applicants, CPT16 and CPU16 respectively, filed on 15 September 2016, for an order for an extension of time (“Extension of Time Application”) within which to make an application for judicial review (“Proposed Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal and “Tribunal Decision” respectively) of 2 August 2016 to affirm an 8 April 2015 decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse CPT16, and his wife, CPU16, a Subclass 866 Class XA Protection visa (“Protection Visa”).
BACKGROUND
Pre-Extension of Time Application
The background to the Extension of Time Application is as follows:
(a)CPT16 is citizen of Malaysia: CB 13;
(b)CPU16 is a citizen of the Philippines: CB 54;
(c)CPT16 and CPU16 are married: CB 13 and 29;
(d)CPT16 and CPU16 first arrived in Australia on Tourist visas on 10 April 2010: CB 104 and 229 at [12];
(e)CPT16 and CPU16 claimed that:
(i)they feared harm in Malaysia on the basis of their race and that they would be discriminated against due to their Chinese ethnicity, that CPT16 was bashed due to his race and that CPU16 was threatened, asked to leave the country and was regularly assaulted: CB 19-21 and 35-37;
(ii)CPT16 started his own business in Malaysia in 2005 which collapsed, after which his business partner fled leaving CPT16 with the debts owing to the business’ suppliers: CB 230 at [29], and that CPT16 was assaulted by the suppliers and a protection racket gang, and the Malaysian police failed to assist him: CB 231 at [39] and 232 at [42];
(iii)CPT16 paid off CPU16’s debts associated with her obtaining a job she was put into, against her will, in Singapore: CB 230 at [30]; and
(iv)CPU16 feared harm in her country of birth (the Philippines) from the person who had murdered her father: CB 230 at [32];
(f)on 8 April 2015 the Delegate’s Decision was to refuse to grant the Protection Visa;
(g)on 14 April 2015 CPT16 and CPU16 applied to the Tribunal for review of the Delegate’s Decision: CB 114-116;
(h)on 23 June 2016 CPT16 and CPU16 were invited to attend a hearing before the Tribunal on 25 July 2016 (“Tribunal Hearing”): CB 125;
(i)CPT16 and CPU16 attended the Tribunal Hearing with their then migration agent and the Tribunal Hearing went for over an hour and a half: CB 131-133; and
(j)on 2 August 2016 the Tribunal Decision was to affirm the Delegate’s Decision.
Litigation History in this Court
The Extension of Time Application was filed on 15 September 2016 in the Melbourne Registry of this Court.
On 15 March 2017 a Melbourne based Registrar of this Court made the usual first orders requiring, among other things, CPT16 and CPU16 to file and serve certain documents, including submissions, 28 days before hearing and programming the matter for hearing of the Extension of Time Application, and if time be extended, final hearing on a date to be advised, before a now retired Melbourne based Judge of this Court (“Registrar’s Orders”). Subsequently:
(a)on 27 March 2018 the parties were emailed by the Chambers of Judge Kirton in the Melbourne Registry of this Court to advise that the matter had been set down for hearing on 23 October 2019;
(b)on 8 July 2018 the parties were emailed by Judge Kirton’s Chambers to advise that the hearing had been adjourned to a date to be fixed;
(c)on 5 March 2020 the parties were emailed by the Melbourne Registry of this Court advising that the matter had been relisted for hearing on 25 May 2020 (but without nominating a Judge for the hearing);
(d)on 1 April 2020 the Melbourne Registry emailed the parties and advised that the matter was previously listed for hearing in error and setting a new hearing date of 29 May 2020 (but again without nominating a Judge for the hearing);
(e)on 19 May 2020 the 29 May 2020 hearing was vacated due to the COVID-19 pandemic and adjourned for hearing on a date to be fixed;
(f)on 25 June 2020 the parties were emailed by the Chambers of Judge Mercuri in the Melbourne Registry of this Court to advise that the matter had been relisted for hearing on 28 October 2020; and
(g)on 22 September 2020 the parties were emailed by the Chambers of Judge Mercuri to advise that the 28 October 2020 hearing had been adjourned to a date to be fixed.
The above delays in listing this matter for hearing were through no fault of the parties. As the Chief Judge of this Court observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court [where this matter was originally filed and listed] has a large backlog”. The position was seemingly much the same in November 2019 when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “delays in the Melbourne Registry of this Court … would mean that it would be likely that the Application would not be heard for some two to three years if transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy. More recently, the Court has observed that “there are several thousand migration judicial review applications which have been filed in the Melbourne Registry of this Court and which have not presently been allocated to a Judge of the Court for hearing”: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 276 at [27] per Judge Lucev.
In mid-June 2021 the matter was re-allocated to the Perth Registry of the Court, and on 16 June 2021 the parties were emailed by the Chambers of Judge Kendall, the Court’s National Migration Law Judge, to advise that the matter had been listed for hearing before Judge Lucev in the Perth Registry on 23 February 2022. That hearing date was re-affirmed at a directions hearing, and in an order made, on 23 July 2021. The hearing proceeded on 23 February 2022.
TRIBUNAL DECISION
The Tribunal:
(a)found CPT16 was a national of Malaysia and CPU16 was a national of the Philippines, and accordingly assessed their claims against Malaysia and the Philippines respectively: CB 229 at [22]-[23];
(b)accepted CPT16’s and CPU16’s accounts as to the debts they had incurred: CB 230 at [29] and [31];
(c)accepted CPU16’s account of the death of her father: CB 231 at [34];
(d)accepted CPT16’s and CPU16’s explanation that their migration agent assured them they could provide all of their evidence at the Tribunal Hearing and, as such, gave greater weight to the evidence presented by them at the Tribunal Hearing: CB 231 at [36];
(e)accepted that the account presented at the Tribunal Hearing by CPT16 was the complete account of his fears, CPT16 having clarified at the Tribunal Hearing that his fears were not about being assaulted or bashed because of his race on return to Malaysia but of being assaulted by his business suppliers, and that the Protection Visa application form prepared by his migration agent was not done with the level of accuracy and detail he thought it should have been, and that he had been told to wait until the Tribunal Hearing for his fears to be heard: CB 231 at [38];
(f)accepted that CPT16’s fear of assault from business suppliers, and also from a protection racket gang, was genuinely held, but found that CPT16 did not face a real chance of persecution in relation to this fear given that:
(i)the events had occurred ten years previously;
(ii)the attack on CPT16 was opportunistic in nature;
(iii)CPT16 had since returned to his home town and did not face additional threats; and
(iv)any future risk of harm was speculative: CB 231 at [40] and [41];
(g)accepted that CPT16’s home town is not a big city and accepted it as likely that were he to return his presence would become known: CB 231 at [40];
(h)accepted that the police failed to assist CPT16 when he reported the harassment from the suppliers and protection racket gang: CB 232 at [42];
(i)put to CPT16 Department of Foreign Affairs and Trade (“DFAT”) country information that:
(i)suggests ethnic Chinese face low levels of discrimination, in particular in gaining entry into university and the civil service in Malaysia; and
(ii)his “profession”, as an independent tradesman, was not identified as being considered as an area for discrimination,
to which CPT16 responded that “discrimination starts from the government”: CB 232 at [43];
(j)based on DFAT country information:
(i)found that the lack of action on the part of the police was related to poor training, lack of discipline or corruption, as opposed to any reasons of race: CB 232 at [45] and [47]; and
(ii)did not accept that any lack of protection from the Malaysian government was due to CPT16’s ethnicity: CB 232-233 at [48];
(k)having considered CPT16’s claims individually and cumulatively, did not accept that CPT16’s fears were based upon a real chance of persecution on return to Malaysia: CB 233 at [49], and based on its findings that CPT16 did not meet the real chance test and the real risk test, the Tribunal also found that CPT16 did not meet the threshold for believing that were he to return to Malaysia he would suffer significant harm: CB 233 at [50];
(l)found, with respect to CPU16’s written claims which solely identified claims against Malaysia, that she could eliminate her risk of persecution by returning to the Philippines of which she is a citizen, and on that basis she did not hold an existing right to enter Malaysia. It did not consider her claims against Malaysia and only considered her fears of returning to the Philippines: CB 233 at [51];
(m)accepted that CPU16’s fear of harm from the man who she believed killed her father was genuine: CB 233 at [52], however it did not accept that the accused murderer would have an interest in CPU16 upon her return to the Philippines, given she had admitted that her mother, who pursued the prosecution against the accused, had not been harmed: CB 233 at [53]. The Tribunal accepted CPU16’s evidence that the accused murderer may not remember her if she were to return to the Philippines, and given there was no evidence that she had been threatened directly by the accused murderer, eight years had passed since the acquittal of the accused murderer, and none of her family members had been harmed in that time, it did not accept that CPU16 faced a real chance of persecution on return to the Philippines: CB 233-234 at [54]-[55];
(n)did not accept that CPU16 would face a well-founded fear of persecution from those who facilitated her trip to work unwillingly in Singapore on the basis of the evidence that CPT16 had paid the debts said to be owed by CPU16: CB 234 at [56]; and
(o)based on its anterior findings, was not satisfied that CPU16 faced a real risk of significant harm on return to the Philippines: CB 234 at [57].
EXTENSION OF TIME APPLICATION
Grounds
The grounds of the Extension of Time Application are as follows (without alteration):
1.THE MIGRATION AGENT NEVER INFORM US THAT WE HAVE ONLY 35 DAYS TO APPEAL IN FEDERAL CIRCUIT COURT.
2.MIGRATION AGENT NEVER PAY OUR RRT{REFUGEE REVIEW TRIBUNAL) POST DECISION FEE.
3.SOMEONE TOLD US THAT WE HAVE 70 DAYS TO APPEAL TO THE FEDERAL CIRCUIT COURT.
Basis for an extension of time
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act.
The Court may order an extension of the prescribed 35-day period to seek judicial review of the Authority Decision if:
(a)an extension of time application is made in writing specifying why it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(a); and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(b).
Application in writing – specifying why
The Extension of Time Application includes written reasons specifying why it might be said that it is in the interests of the administration of justice to extend time for the filing of the Proposed Judicial Review Application.
Whether in the interests of the administration of justice
Law
In considering the law with respect to extending time in which to make an application for judicial review under the Migration Act regard must be had to the judgments of the High Court in Re Commonwealth of Australia and Another; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority, CLR at 553 per McHugh J;
(b)
the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period:
Brisbane South Regional Health Authority,CLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority, CLR at 553 per McHugh J.
With the above statements of principle in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act include, but are not necessarily limited to, the following:
(a)the extent of the delay
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)the merits of the Proposed Judicial Review Application,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Delay
There is a delay of nine days in excess of the 35 day time limit imposed by s 477(1) of the Migration Act.
In this case the delay is not, of itself, significant. If it were to be accompanied by an appropriate explanation it would not weigh against the granting of the Extension of Time Application. For the reasons set out below, however, there is no appropriate or adequate explanation for the delay, even of nine days, and therefore the delay does weigh against the granting of the Extension of Time Application.
Explanation for the delay
No affidavit has been filed by CPT16 or CPU16 explaining the delay or why an extension should be granted.
The reasons proffered in the Extension of Time Application seek to blame others for the delay. First, CPT16 and CPU16 assert that it was their migration agent who failed to inform them of the time limit, but they do not explain what steps they took to ascertain the relevant time limit, and from whom they did so, and if they did when they did it, or even when or how it was that they eventually found out that there was a time limit, and what steps they then took to file the Extension of Time Application incorporating the Proposed Judicial Review Application. Second, CPT16 and CPU16 assert that their migration agent did not pay what is described as a “post-[Tribunal] decision fee”, but whether or not such a fee was paid is irrelevant to the timing of the filing of the Extension of Time application. Third, CPT16 and CPU16 assert that some unnamed person told them they had 70 days to appeal. As with the first proffered explanation, there are no particulars of this assertion, and in the absence of such particulars, the fact that some unnamed person told them that they had 70 days to appeal does little to explain the delay. It is also relevant to note that CPT16 and CPU16 were represented by a migration agent to whom the Tribunal Decision was sent: CB 224-225. The responsibility, however, lay with CPT16 and CPU16 to ascertain their review rights and any applicable time limits: SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108. Ignorance of procedure and time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J where the Federal Court observed as follows:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
In the above circumstances the Court considers that CPT16 and CPU16 have failed to provide a satisfactory explanation for the delay.
Prejudice
Even if the Minister were, as was submitted by the Minister, to suffer no prejudice, other than costs, if the Extension of Time Application were to be granted, the mere absence of prejudice to the Minister is not enough to justify an order to extend time: Hunter Valley Developments, FCR at 348-349 per Wilcox J.
In the circumstances, prejudice is a factor which does not weigh against granting the Extension of Time Application.
Proposed Judicial Review Application – grounds - whether the grounds have sufficient merit
Grounds
The following are the grounds of the Proposed Judicial Review Application (without alteration):
1.TRIBUNAL FAILED TO TAKING CONSIDERATION OF MY RELEVANT MATERIAL AND CONSIDERATION ABOUT THE FEAR OF HARM. FROM MALAYSIAN POLICE WAS UNWILLING TO PROVIDE SUFFICIENT
2.PROTECTION AGAINST THE PROTECTION RACKET GANGS AND THE THREATENING SUPPLIER.
3.TRIBUNAL FAILED TO TAKING CONSIDERATION OF MY RELEVANT MATERIALS AND CONSIDERATION ABOUT THE FEAR OF HARM FROM PHILIPPINES DUE TO MY FATHER MURDER CASE.
Although numbered as three grounds, grounds 1 and 2 of the Proposed Judicial Review Application are, self-evidently, a single ground, and there are therefore two grounds in the Proposed Judicial Review Application.
Law
In considering whether a case has sufficient arguable merit to warrant an extension of time, the Court will generally not investigate fully the merits of the substantive case, but rather have regard to the grounds on an “impressionistic level”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J; see also EKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 63 at [39]-[41] per Judge Lucev (and the various High Court and Federal Court authorities there cited).
No submissions from CPT16 or CPU16 as to merits
On 15 March 2017 the Registrar’s Orders were made by consent providing CPT16 and CPU16 an opportunity to file an amended Extension of Time Application and Proposed Judicial Review Application and written submissions. On 23 July 2021 the Court as presently constituted made orders at a directions hearing that set aside the relevant orders in the Registrar’s Orders and made further orders that any amended Extension of Time Application and Proposed Judicial Review Application, further affidavits, Supplementary Court Book and written submissions be filed and served by 23 September 2021 (“Court’s Orders”). CPT16 and CPU16 did not file or serve any documents in accordance with the Court’s Orders, and there are therefore no written submissions from them as to the merits of the Proposed Judicial Review Application. Following an appropriate explanation as to the factors to be considered on an Extension of Time Application, and as to the nature of jurisdictional error, and the necessity to establish a sufficiently arguable case that the Tribunal Decision was affected by jurisdictional error, CPT16 and CPU16 were invited to make submissions at the hearing of the Extension of Time Application. Such submissions as were made did not address matters relevant to jurisdictional error in the Tribunal Decision, but rather went to impermissible merits review of the Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the desire of CPT16 and CPU16 to stay in Australia.
Proposed ground 1
In relation to proposed ground 1 of the Proposed Judicial Review Application (numbered 1 and 2 in the Proposed Judicial Review Application), the Tribunal considered the claims made, and relevant material relating to those claims, including the claim that the Malaysian Police were unwilling to provide protection from suppliers and the protection racket gangs: CB 232-233 at [42]-[48]. Relying on DFAT country information the Tribunal found that any possible mistreatment, or lack of protection, from the Malaysian Police was not and would not be due to reasons of Chinese ethnicity: CB 232 at [45]. Further, the Tribunal found that CPT16 did not face a real chance of persecution on account of the protection racket gangs, and so the issue of state protection in relation to that claim did not arise: SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 at [26] per Reeves J. There is nothing which would suggest, on a reasonably impressionistic level, that the Tribunal Decision was affected by jurisdictional error by reason of consideration of the matters referred to in proposed ground 1 of the Proposed Judicial Review Application.
Proposed ground 2
In relation to proposed ground 2 of the Proposed Judicial Review Application, the Tribunal considered CPU16’s claims and relevant material in relation to the alleged fear of harm due to her father’s murder case but found that she did not face a real chance of harm on this basis: CB 230-231 at [32]-[33] and 233-234 at [52]-[55]. There is nothing which would suggest, on a reasonably impressionistic level, that the Tribunal Decision was affected by jurisdictional error by reason of consideration of the matters referred to in proposed ground 2 of the Proposed Judicial Review Application.
Generally
The Tribunal’s findings were open to it on the evidence before it for the reasons it gave. That CPT16 and CPU16 may disagree with findings made in the Tribunal Decision is not indicative of error in the Tribunal Decision, and it is not for this Court to review the merits of the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusion – whether the grounds have sufficient merit
For the reasons outlined at [24]-[27] above the two proposed grounds in the Proposed Judicial Review Application lack sufficient arguable merit for the Court to grant the Extension of Time Application.
Jurisdictional error otherwise
As the Federal Court observed in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev) in circumstances where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Tribunal. The oral submissions made by CPT16 and CPU16 did not go to the question of arguable jurisdictional error in the Tribunal Decision, or any arguably identifiable error at all, and, if anything, can only be characterised as seeking merits review of the Tribunal Decision, which is not permissible on an application for judicial review: see [24] above, and there is otherwise nothing in this matter which would appear, assessed on a reasonably impressionistic basis, to indicate that any jurisdictional error was made by the Tribunal, and therefore no other jurisdictional error is reasonably apparent in the Tribunal Decision.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)albeit that the delay is relatively short, the delay taken together with the lack of an adequate explanation for it, weighs against the granting of the Extension of Time Application;
(b)a reasonably impressionistic examination of the two proposed grounds of the Proposed Judicial Review Application reveals that they lack sufficient arguable merit to warrant an order extending time under s 477(2) of the Migration Act; and
(c)otherwise, assessed on a reasonably impressionistic basis, no arguable jurisdictional error is apparent in the Tribunal Decision.
Having regard to its conclusions the Court has determined that it ought not to exercise its discretion to grant the Extension of Time Application. It follows that there will be an order dismissing the Extension of Time Application.
Due to the dismissal of the Extension of Time Application it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent:
BZABK v Minister for Immigration and Citizenship[2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 4 March 2022
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