CSZ18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 748
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSZ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 748
File number: MLG 1459 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 21 August 2024 Catchwords: MIGRATION LAW – Protection visa – Application for an extension of time to commence judicial review proceeding – Adequacy of explanation for delay – Applicant’s proposed ground of review not reasonably arguable – No utility in granting an extension – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 5LA, 36, 477
Federal Circuit and Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 29.05
Cases cited: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submissions: 13 August 2024 Date of hearing: 13 August 2024 Applicant: In person Solicitor for the First Respondent: Mr Orchard of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1459 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSZ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for an extension of time is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $4,189.
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 CHAMPION
WHAT IS THE ISSUE?
The issue for decision is whether the court should exercise its discretion under s. 477(2) of the Migration Act 1958 (Cth) to extend time for the Applicant to bring her application for judicial review of a decision of the Tribunal not to grant her a protection visa (Visa).
The Tribunal’s decision was made on 8 March 2018. The 35-day time limit s. 477(1) of the Act prescribes expired on 13 April 2018. The Applicant commenced this proceeding on 28 May 2018, some 46 days out of time.
WHAT IS THE RELEVANT BACKGROUND?
On 18 August 2016, the Applicant, a citizen of Malaysia, arrived in Australia.
When the Applicant appeared before the Tribunal, the Applicant said that “what had been written and submitted to the Department were not her actual claims.” She requested, and the Tribunal consented, to a course whereby she replaced the original claims with “new claims” (Reasons, [21]-[22]). The Tribunal recorded her evidence as to her “new claims” before the Tribunal as follows (Reasons, [22]):
a. The applicant's husband was a Christian who agreed to convert to Islam in order to marry the applicant.
b. The conversion of the applicant's husband to Islam occurred in 2013 and the applicant later that year married her husband.
c. The conversion was opposed by the husband's family who did not approve of the applicant as a wife for their son.
d. The husband's family did not attend the wedding.
e. The applicant's husband since the marriage has refused to pray at a mosque and has refused to undertake any form of Islamic religious instruction. This refusal on the part of the applicant's husband, caused tensions for the applicant with her family and in particular her parents who wanted a ' ... true believer of Islam ... ' as their son-in-law.
f. The attitude of the applicant's husband towards his new religion while in Malaysia caused ' ... fights ... ' to break out between the applicant and her husband.
g. The applicant also told of tension between her husband and his family and in particular, his father who threw his son out of his house and refused to have anything to do with him.
h. Many members of the husband's family have disowned him and refuse to have any dealing with him.
i. The applicant was also abused by her husband's family who consider her not a ' ... good wife' for their son.
j. The applicant's dispute with her husband's family was never reported to the local police even though they were threatening because the police would treat the matter as a family affair and refuse to intervene.
k. It was then decided to relieve the pressure on the marriage to leave Malaysia and come to Australia to begin a new life.
l. While in Australia, the applicant and her husband seldom fight about religious issues. She has allowed her husband to do as he wishes.
m. The applicant could not recall when asked whether her husband was attending church in Australia or a mosque except she told the Tribunal he was free to do whatever he wished with regards to his religious belief.
n. The applicant fears that if she was to return to Malaysia in the future, it would cause tensions to arise between her and her husband because of the religious issue and those tensions could result in separation and divorce.
o. Also, there is the problem of finances to be considered if the applicant returned with her husband to Malaysia. While in Malaysia, her husband worked a number of ' ... odd jobs ... ' but was unable to provide for the family a sufficiently good standard of living.
p. Australia has been good in a number of ways her husband and the applicant both work and there are no tensions.
q. The applicant works as a car caster at Nissan, in Dandenong South, Victoria and earns AUD$23.00 per hour, on casual basis.
r. If the applicant returns to Malaysia her problems with her husband will again surface and have great consequences for her.
The Tribunal said at [24] of its reasons that “the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility”. It is not necessary to rehearse in detail those credibility issues in these reasons for judgment. In her proposed grounds of review, the Applicant does not seek to impugn any of the Tribunal’s credibility findings adverse to her on the basis that they amount to jurisdictional error.
In its reasons at [26], the Tribunal dealt with a “first” issue that the Applicant claimed that her “husband had converted to Islam in order to marry her and this had caused a disruption between the families”. Also, in its reasons at [26], the Tribunal identified a “second” issue that the Applicant claimed that her husband’s parents “had threatened her (but she had never reported the threats to the local police because the police … would treat them as a ‘family matter’ and not ‘intervene’”. As to these issues, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution under s. 5J(2) of the Act because “effective protection measures” as defined in s. 5LA of the Act were available to her in Malaysia as the receiving country. The Tribunal’s relevant finding at [26] was as follows:
The Tribunal considers on the evidence before it that this protection is durable and effective and that the applicant could access it if she wished.
As to a “third” issue the Applicant claimed (Reasons, [27]):
that her husband although he had converted to Islam refused to follow the religious teachings and customs of that faith and this was frowned upon by her family and caused arguments between her and her husband.
The Tribunal did not find this claim as credible. It was “not convinced” that her husband’s conversion from Christianity to Islam “was causing severe disruption in her relationship.” Further, the Tribunal did not accept that “the applicant’s husband or the applicant by her association with him would suffer any state disapproval because of [the husband] not wishing to pray at a mosque” or not following the religious teachings of Islam. The Tribunal concluded that the Applicant did not have a well-founded fear of persecution because of her marriage to her husband who had converted from Christianity to Islam in accordance with s. 5J(1)(a), (b) or (c) of the Act.
The Tribunal also considered the alternative complementary protection criterion under s. 36(2)(aa) of the Act. The Tribunal found at [30] that “the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s. 36(2B)(b)”.
At [30] the Tribunal said:
Overall, the Tribunal is satisfied that if in the future, the applicant's family or other members of the applicant husband's family threaten or attempt to harm the applicant or her husband, there are mechanisms in the Malaysian legal system, including a reasonably effective State police force (that the country information demonstrates is active and committed to taking action in relation to the claimed fear) that means the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s. 36(2B)(b)
The Tribunal concluded at [31] that the Applicant did not meet the refugee criterion in s. 36(2)(a) and was “not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa) of the Act.”
WHAT ARE THE RELEVANT LEGAL PRINCIPLES?
I may extend time under s. 477(2) if it is “needed”, not just desirable, in the interests of justice. In exercising my discretion as to whether to extend time, “there are no mandatory considerations” (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28, [12]; [62]). In Tu’uta Katoa, the plurality held:
So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
The plurality in Tu’uta Katoa at [17] said that “the interests of justice are likely to be advanced by granting the extension of time to an application with some merit, depending, of course, on other relevant factors” (emphasis added). As to whether I should confine my consideration of the merits to an “impressionistic” assessment or consider the merits in greater depth, I may have regard to the merits in “such manner as… appropriate in the circumstances” (Tu’uta Katoa, [19]).
An explanation for delay
Even though rule 29.05(2)(c) of the Federal Circuit And Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) provides that, if an applicant seeks an extension of time, an application must be supported by an affidavit including “the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the court to grant an extension” the Applicant has not filed any affidavit of this kind.
The Tribunal had made its decision on 8 March 2018. The Applicant submitted that her previous agent erred on her behalf by lodging a second application for review of the delegate’s primary decision with the Tribunal on 19 March 2018, rather than filing a judicial review application this court to challenge the Tribunal’s decision made on 8 March 2018 as required.
The Applicant referred the Court to a second Tribunal decision dated 30 April 2018. It was apparent from this second Tribunal decision that the Applicant had indeed lodged a second review application with the Tribunal on 19 March 2018. By its second decision dated 30 April 2018, the Tribunal noted that because it had already performed its statutory duty to review the delegate’s decision under the Act the delegate’s decision was no longer a reviewable decision (Tribunal Decision, 30 April 2018, [3].) At least to some extent – this error in directing a second application to the Tribunal rather than commencing a judicial review application of the Tribunal decision the Applicant wished to challenge in this court – explained the delay between 8 March 2018 up until 30 April 2018 when the publication of Tribunal’s second decision provided a clear communication to the Applicant that she had no further review rights in the Tribunal. The Applicant moved with reasonable promptness after 30 April 2018 by commencing a judicial review application on 28 May 2018.
Although there are deficiencies in the explanation because the agent who made the alleged error is not identified and there is scant evidence as to how the error came to occur, because there is an intelligible explanation for the delay in terms of a misdirected second application to the Tribunal rather than to the court and the delay was not inordinate, if the underlying application had some merit, I may have been minded to extend time.
The First Respondent did not claim that it suffered any prejudice if an extension of time were granted. The mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]).
The merits of the application
I turn next to consider the merits of the judicial review application as far as is necessary on the application to extend time. The Applicant’s single ground of review is as follows (as written):
1. The Tribunal did not make its decision on 8 March 2018 according to the law, in that
i)The Tribunal committed jurisdiction error by taking into account irrelevant considerations.
Particular
(a)Paragraphs 28, the Tribunal referred to the applicant does not faces a real chance of persecution in Malaysia.
(b)The applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
The Court made orders on 7 August 2019 that the Applicant file and serve “at least 28 days before the hearing” any amended application with proper particulars of the grounds of the application and written submissions. The Applicant has not filed an amended application with proper particulars of the grounds or written submissions.
It is not possible to meaningfully engage with the Applicant’s single ground of application. The Applicant has not identified the “irrelevant considerations” she alleges the Tribunal took into account. None are apparent.
The reference to paragraph [28] of the Tribunal’s records in that ground of judicial review does not assist. Paragraph [28] of the Reasons sets out the Tribunal’s conclusion that the Applicant is not a person to whom Australia owes protection obligations under s. 36(2)(a) of the Act. The Tribunal considered relevant considerations in previous paragraphs, not in paragraph [28].
In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598-599, Mortimer J (as she then was) distinguished between a weak case and a hopeless case on an application to extend time. Her Honour wrote that it: “will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless” (emphasis added) (MZABP, [63]; cited in Tu’uta Katoa, [15]). Even if it may be appropriate to extend time on a weak case, there will be no utility in extending time on a case which is not reasonably arguable. Mortimer J continued that on an extension of time application:
the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'
Accepting the distinction between a “weak” case and a “hopeless” case, on the material before me, there is no utility in granting an extension of time because it is appropriate to use language such as not “reasonably arguable” or not having “reasonable prospects of success” in describing the Applicant’s proposed ground of jurisdictional review.
CONCLUSION
I will make an order, as the First Respondent requested, amending the First Respondent’s name to “Minister for Immigration, Citizenship and Multicultural Affairs”.
I will dismiss the application for an extension of time. I will order that the Applicant pay the First Respondent’s costs fixed in the sum of $4,189.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 21 August 2024
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