CVH21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 396
•24 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
CVH21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 396
File number: MLG 2084 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 24 March 2025 Catchwords: MIGRATION - Judicial review – application to extend the time for filing – where application approximately 590 days out of time – principles and factors considered – application to extend time for filing refused. Legislation: Migration Act 1958 (Cth) ss 417, 477(1), 477(2), 477A(2)(a), 477A(2)(b) Cases cited: BAE23 v Minister for Home Affairs [2023] FCA 1152
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
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] HCA 28
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 66 Date of hearing: 5 March 2025 Place: Melbourne Advocate for the Applicants: In Person Counsel for the Respondents: Mr McDermott Solicitor for the Respondent: Mills Oakley ORDERS
MLG 2084 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVH21
First Applicant
CVI21
Second Applicant
CVJ21
Second ApplicantCVK21
Fourth ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
24 MARCH 2025
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 18 August 2021 be dismissed.
4.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 December 2019 (‘Application’). In its decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants’ protection visas (‘visas’)(Court Book (‘CB’) 271).
The Application was made to the Court outside the time period prescribed by s 477(1) of the Migration Act 1958 (‘Act’). The Applicants seek an extension of time in order to enable them to pursue the Application. Time may be extended in accordance with s 477(2) of the Act.
For the reasons that follow, I have decided to dismiss the Application.
BACKGROUND
The Applicants are Vietnamese nationals. The First Applicant in this proceeding is the mother of the Second, Third and Fourth Applicants. The Second Applicant in this proceeding is the youngest child of the First Applicant and her son (the fourth applicant on the protection visa application CB 5). The Third Applicant in this proceeding is the middle child of the First Applicant, her daughter (the third applicant on the protection visa application at CB 5). The Fourth Applicant in this proceeding is the eldest daughter of the First Applicant (the second applicant in the protection visa application CB 5). I refer to the applicants collectively in these reasons as the ‘Applicants’.
The First Applicant last arrived in Australia on 7 April 2010 on a bridging visa, having previously entered and exited Australia on a Prospective Marriage Visa (CB 173). The Applicants applied for the visas on 26 September 2014 (CB 144).
On 8 May 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicants the visas (CB 168).
On 17 May 2017, the Applicants applied to the Tribunal for review of the delegate's decision (CB 188).
The Applicants were on 5 September 2019 invited by the Tribunal to attend a hearing on 24 September 2019 to give evidence and present arguments. In the invitation, the Tribunal advised that it was unable to make a favourable decision based on the information the Applicants had provided. The Applicants were advised to provide any written submission or witness statement to the Tribunal by 17 September 2019. The Applicants were informed that they needed to advise as soon as possible if they were unable to attend the scheduled hearing date. Further, the Applicants were informed that if they did not attend the scheduled hearing, the Tribunal may make a decision on review without taking any further action to allow or enable the Applicants to appear before them.
On 9 September 2019, the Applicants requested that the hearing be rescheduled. On the same day, the Tribunal wrote to the Applicants advising them of the new hearing date of 26 September 2019. Further correspondence followed from the Applicants which resulted in the hearing ultimately being rescheduled to take place on 30 September 2019.
On 30 September 2019, the Applicants attended the hearing before the Tribunal. On 2 October 2019, the Applicants’ legal representative submitted a post-hearing submission to the Tribunal (CB 261).
On 2 December 2019, the Tribunal affirmed the decision not to grant the Applicants the visas.
The Applicants filed the Application in this Court on 18 August 2021. The Application was accompanied by an affidavit from the First Applicant filed 18 August 2021. Before me, the Applicants relied on the Application, the affidavit of the First Applicant, and an email dated 8 September 2013. Despite having the opportunity to do so, they did not file any amended application or written submissions. They appeared unrepresented, assisted by an interpreter and made oral submissions. The Minister relied on his oral submissions and written submissions. The Minister also prepared a Court book that I have had regard to.
ADJOURNMENT
Initially before me, the First Applicant sought an adjournment of the hearing. She told me that her eldest daughter had been operating a business for seven years and she wanted to prepare and submit evidence in relation to the business operation. She said that she required more time to do this. The First Applicant also said she wanted the opportunity to put on evidence that showed the efforts her family had made to settle in Australia, including to work and study in Australia. The First Applicant indicated that neither she nor the other applicants had any literacy in the law, and that they had been scammed by previous lawyers and therefore required more time.
Following the Court dealing with other issues in the proceeding, I returned to the question of the adjournment. The First Applicant then indicated she was willing to proceed with the case but that if the Court required additional information, then she would seek time to supply that. I indicated I could not say at that stage whether any further information would be required or whether I would permit the provision of further information. Following a further exchange, the First Applicant confirmed that she wanted the matter to proceed and that she did not press her request for an adjournment.
Although it was ultimately not pressed, I would have refused to grant any adjournment in this matter.
The Applicants did not before me expand on the submission that they had been ‘scammed’ by their lawyers. In the Application, in support of their application to extend time, the Applicants claimed that they had not filed proceedings in this Court because they had thought that a referral was made by their previous lawyers under section 417 of the Act, and they were not informed of the option of filing an application in this Court. For reasons which I set out later, I do not accept the explanation proffered by the Applicants for delaying filing the proceedings in this Court. Moreover, the evidence that the Applicants were able to point to does not establish that they have been scammed by their lawyers such that they now require, or should be given further time to prepare for these proceedings. Further, the Applicants have known about their matter since they filed the Application, so have had time to consider the matter and obtain legal advice.
Furthermore, these proceedings were commenced in August 2021, over three years ago. The Applicants have had ample opportunity to arrange representation. I note that lawyers appear to have come on the record for the Applicants at some point after the commencement of proceedings, and that they filed a notice of withdrawal on 31 December 2024. The Applicants have had since that time to instruct lawyers. Moreover, they have known at least since the last hearing before me on 29 January 2025 that the final hearing was today, and have had that additional time to instruct lawyers. They have not done so. No submissions or evidence were received as to the identity of any lawyer that the Applicants were contemplating briefing, or that briefing of such lawyers was imminent. Further, case management considerations including the appropriate use of judicial time and this Court’s notorious backlog of migration cases mean that the matter should proceed.
THE APPLICATION TO EXTEND THE TIME FOR FILING
The decision of the Tribunal was made on 2 December 2019. Pursuant to s 477(1) of the Act, an application made to this Court must be filed within 35 days of the date of the relevant decision. The Application was filed on 18 August 2021. The Application is therefore around 590 days out of time. The Minister opposes the grant of an extension of time.
Principles
Under section 477(2) of the Act, the Court may extend the 35-day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The expression ‘in the interests of the administration of justice’ is not defined in the Act.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (‘Katoa’), a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [12] with respect to the similar provision at sections 477A(2) of the Act:
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
(footnotes omitted)
Further, at [13], the majority noted and endorsed the well-established guiding principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles identify the following matters as requiring consideration:
(a)the extent of the delay;
(b)the explanation of the delay;
(c)any prejudice to the respondents;
(d)the interests of the public at large; and
(e)the merits of the substantive application. It is appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’ (Katoa at [17]; CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 [19]).
In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, Mortimer J at [63] considered that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time ‘may be expressed by the use of language such as whether the ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”’.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J discussed the history and rationale for limitation periods. At pages 9 and 10 of his judgment, His Honour stated:
‘In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced" But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.’
(citations omitted)
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 (‘Marks’), the High Court of Australia (McHugh J) was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating at [13] and [16] that the case would need to be ‘exceptional’ before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
‘Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.’
I now turn to consider the Application.
The Grounds in the Application
In the Application, the Applicants contend the Court should grant the extension of time for the following reasons:
1.On 2 December 2019, the Administrative Appeals Tribunal affirmed the decision not to grant my family Protection visas
2. I found there were jurisdictional errors in the Tribunal Decision Record
3.Instead of lodging the review application to the Federal Circuit Court, the lawyer, without a proper consultation with my family, has referred my case directly to the Department of Immigration and Border Protection (now Department of Home Affairs) for consideration by the Minister pursuant to s.417 of the Migration Act on 19 December 2019
4.As the lawyer has omitted to submit the review application of my family's case to the Federal Circuit Court, we have missed out the timeframe to lodge our judicial review application the 35 days of the date of the migration decision
5.We consider that it is necessary in the interests of the administration of justice for the Court to grant an extension (refer section 477(2) of the Migration Act).
The First Applicant filed an affidavit in support of the Application. Nothing in the affidavit deals with the delay in the filing of the Application.
Consideration
I now turn to consider the matters relevant to the question of whether the time for filing of the Application should be extended.
Length of the Delay
The length of the delay in this case is significant, around approximately 590 days. I note the observations of Justice McHugh in Marks that the case would need to be exceptional before the time for filing was increased by many months. In my view, the length of the delay represents a significant obstacle for the Applicants.
Explanation of the Delay
In the Application, the Applicants claim that instead of lodging an application for review in this Court, a lawyer they engaged referred the case directly to the Department for consideration by the Minister under section 417 of the Act. The First Applicant made oral submissions to the effect that she had relied on lawyers and that the late filing of the Application in this Court was due to an oversight or omission of their lawyers.
The Second Applicant sought to expand on the submission made by the First Applicant. In seeking to address the late filing of the Application, he stated as follows:
Your Honour, I would like to talk about the filing, the time, of the time, why it was late. Like my mother said, we have been through many lawyers. When we received the, basically, rejection of the protection visa, it was through a lawyer called Tu Bannon. She has now lost her licence. Back then, she referred us to a lot of lawyers, so she referred us to someone called Karen.
I asked the Second Applicant whether he had letters or correspondence from these lawyers. In response, he produced an email from Thu Bannan dated 8 September 2013, in which Thu Bannan appears to request information from the Applicants. No other information was forthcoming.
The evidence produced by the Applicants does not explain the delay in filing the Application. The email from Thu Bannan predates the making of the application for the visas, the application to the Tribunal, and the commencement of the proceedings in this Court. It does not provide an explanation for why the Applicants delayed in commencing proceedings in this Court.
It is apparent from the Court Book that the Applicants engaged Christopher Levingston & Associates to assist with their visa application, and to assist them before the Tribunal. Despite the length of time that Mr Levingston was apparently engaged by the Applicants, they do not identify him as the person who failed to make the application to this Court, or who failed to advise them to make the application in this Court. Instead, when asked, they identify Ms Bannan who was apparently involved with the family in some way many years before the visa application and the Tribunal proceedings.
In short, there is no evidence to support the purported explanation for the delay in filing. The identity of the lawyer who purportedly made the application to the Minister under section 417 of the Act is not identified. The Applicants did not produce the application made under section 417 of the Act. The Applicants have not identified when they became aware of the purported referral, or when they became aware of the need to file an application in this Court, or how long they waited to file an application in this Court after finding out they could file an application.
In the circumstances, I do not accept the purported explanation for the delay in filing the application in this Court. I find the Applicants do not have an explanation for the delay.
Prejudice to the Respondents
The Minister did not assert that he would suffer any form of prejudice. That is appropriate. Any prejudice the Minister might suffer could be cured by an order for costs. I will therefore not have any regard to prejudice suffered by the Minister.
While the Minister is not personally prejudiced, in BAE23 v Minister for Home Affairs [2023] FCA 1152 at [24], Jackson J noted that absence of prejudice is not sufficient to justify an extension of time:
On prejudice, the Minister submits that there is prejudice to the Minister because of the public interest in the timely and effective disposal of litigation in public law, where delays in dealing with visas are to be avoided if possible. I accept that is a factor that should be given weight. Perhaps it is unlikely to be determinative in many cases, but it is relevant. It is also trite that a mere absence of prejudice is not sufficient to justify an extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349. The matter of prejudice to the Minister does not weight in the applicant's favour.
I take these matters into account.
The merits of the Application
The Applicants made a number of submissions as to the circumstances in which they found themselves in Australia and the commitment they have to the country. The First Applicant spoke of coming to Australia to be married and bringing her children with her. She spoke eloquently about the difficulty she experienced in the marriage and how she was treated, how her husband had used the marriage to increase his Centrelink benefits, and how he eventually left her for another woman. She expressed many times that she did not understand what she had done wrong and why she now faces issues while her former husband, who has caused all of the pain she has endured, remains untouched. She spoke of her commitment to Australia, how three generations of her family now live here, how the Second Applicant has committed himself to study, and how her daughter runs a business. She expressed a desire to remain living in Australia. Her submissions were supported by the Second Applicant and the Fourth Applicant who each addressed the Court.
The circumstances leading to the situation where the Applicants found themselves alone in Australia is distressing. It is difficult not to feel some sympathy for a mother and her then young children who come into this country on the promise of a new life only to find themselves abandoned and left to make their own way. Despite their difficult circumstances, the Applicants have indeed made their own way over many years. They have made a life for themselves in Australia and have contributed to society. It is remarkable what they appear to have done, and they are to be commended for this. The unfortunate position that confronts the Court, however, is that the Court does not have the power to grant the Applicants a visa. The Court cannot make an order permitting them to stay simply because they have overcome adversity, made their own way, lived here for some time and become settled in Australia. The role of the Court in this matter is limited to assessing whether the Tribunal committed a jurisdictional error. More particularly in the context of this case, the Court’s role is to assess whether the Applicants have a sufficiently arguable case that the Tribunal has committed jurisdictional error such that the time for filing should be extended. Regrettably, none of the matters referred to in the paragraphs above give rise to a sufficiently arguable case that the Tribunal has committed jurisdictional error.
The Grounds of Review in the Application are as follows:
1.Based on the Decision Record of the Administrative Appeals Tribunal, we found the Tribunal has breached the rules of natural justice in making its decision
2.In our oral evidence at the hearing, the Tribunal had misinterpreted the evidence of our claims
3.The Tribunal failed in its duty to have regard to relevant information provided by my family. Instead, the Tribunal fell into error by preferring its own view of my family 's risk to return to Vietnam and the Tribunal failed to take into consideration the tremendous psychological effect of my children should we be forced to return to Vietnam
4.In disregarding our claims and evidence, the Tribunal took into account irrelevant considerations in arriving at its decision. The Tribunal's decision is therefore affected by jurisdictional error.
At the outset, I note that Grounds 1, 2 and 4 above are not particularised. That is a sufficient basis upon which those grounds of review may be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Ground 1 complains of a breach of the rules of natural justice. It is difficult to see how this ground is sufficiently arguable. In the absence of particulars, and attempting to identify and take each of the various matters in turn:
(a)the Applicants were notified of the reasons for the decision of the delegate on 8 May 2017. The delegate determined, inter alia, that she was not satisfied the Applicants had a real chance of being persecuted for a reason set out in the Refugees Convention. All of this was known to the Applicants at the time they made an application for review to the Tribunal;
(b)the Applicants were invited to attend a hearing before the Tribunal and were provided with all of the relevant details for the hearing;
(c)the Applicants were invited to tender evidence and make submissions to the Tribunal; and
(d)the information ultimately relied on by the Tribunal in reaching its conclusions was either Country Information, information submitted by the Applicants for the purposes of their application, or information collected during the process that led to the decision under review. The Tribunal was not required to put such information back to the Applicants for comment.
In the circumstances, Ground 1 is not sufficiently arguable.
Ground 2 is not particularised. In submissions, however, the First and Second Applicants contended that the Tribunal made an error when it referred to the First Applicant as a ‘practising Catholic’ or member of the Catholic faith. The Second Applicant stated that the First Applicant had never been a Catholic. The First Applicant stated that she did not convert to Catholicism. These submissions were made by the Applicants apparently having regard to what the Minister set out at paragraph 16(d) of his written outline of submissions.
The following matters should be noted about the Applicants’ submission.
First, in discussing whether there was a prospect of the Applicants being persecuted on religious grounds, the Tribunal considered at [52] – [54] of its reasons whether the Fourth Applicant was a Catholic or had converted to Catholicism. The Tribunal said nothing about whether the First Applicant was a Catholic or had converted to Catholicism. To the extent the Applicants contended otherwise before me, they are in error (noting that this error was in turn based on an error in paragraph 16(d) of the Minister’s written submissions which the Applicants appear to have relied on and sought to respond to).
Second, to the extent the Tribunal considered whether the Fourth Applicant may have been a Catholic who may suffer persecution, the information about her religious beliefs was contained within a psychological report dated 9 September 2019 that was sent to the Tribunal by the representative of the Applicants. Paragraph [32] of the psychologist’s report (CB 249) refers to the Fourth Applicant being married at a Catholic Church in Melbourne with the psychologist noting that the ‘[Fourth Applicant] shared that she joined [P’s] Catholic faith and was baptised accordingly’. The Tribunal was therefore acting on and considering the information that the Applicants themselves (seemingly the Fourth Applicant) had placed before the Tribunal.
Third, at paragraphs [52]- [54], the Tribunal was careful to note that no express claim had been raised about persecution on religious grounds [at [52]. The Tribunal was careful to note that in the application for the visas, the Fourth Applicant had said she was a Buddhist. The Tribunal was careful not to make any finding that the Fourth Applicant was a Catholic. In paragraph [52], the Tribunal noted that the psychological report 'appears to indicate that [Fourth Applicant] is now a Catholic and was married in a Catholic ceremony to her husband in Australia in December 2015'. At paragraph [54], the Tribunal prefaced its remarks by stating ‘even if [Fourth Applicant] is now a practising Catholic’. Further in that paragraph, the Tribunal went on to find there was not evidence to suggest that the Fourth Applicant would face a real chance of suffering persecution involving serious harm on return to Vietnam ‘as a consequence of her [possible] Catholic faith’. The Tribunal therefore considered the information before it. The Tribunal did not misinterpret or misconstrue or misunderstand the information before it.
For these reasons, and because the Ground is not particularised, Ground 2 is not sufficiently arguable.
Within Ground 3, the Applicants take issue with what they say is a failure by the Tribunal to take into consideration the psychological effect on the Second to Fourth Applicants of being forced to return to Vietnam. The First Applicant also made an oral submission to the Court to this effect.
As I have noted above, the Applicants submitted a psychological report to the Tribunal. The Tribunal dealt with issues relating to the health of the Applicants at paragraphs [55]-[59] of its reasons. The Tribunal expressly referred to the psychological report at paragraph [55]. At [56], the Tribunal noted that the psychologist report identified that the First Applicant and her children exhibited symptoms consistent with clinical depression and clinical anxiety with symptoms of family trauma. At [58], the Tribunal accepted that the Applicants suffer from health conditions including mental health issues. The Tribunal also accepted that the uncertainty surrounding the visa status of the Applicants was a cause of significant emotional distress for them. The Tribunal then considered that Australia’s healthcare standards were higher than those in Vietnam. After referring to Country Information, at [59], the Tribunal stated it was not satisfied that the Applicants would be unable to access medical services or obtain treatment in Vietnam. Ultimately, at [59], the Tribunal found that the Applicants were not at risk of suffering serious or significant harm in respect of their health condition should they return to Vietnam in the foreseeable future.
When the above matters are considered, it is apparent that the Tribunal took into consideration the psychological evidence presented by the Applicants, including the effect on them of a return to Vietnam.
The Applicants raised orally before me some other matters they say the Tribunal failed to appreciate. It is appropriate to deal with them now.
The First Applicant submitted that the Tribunal did not understand that her children's proficiency in the Vietnamese language was poor. The Second Applicant went further and stated that the Tribunal found he could speak and read Vietnamese, however the truth of the matter was that he cannot read Vietnamese. I understood the Applicants to submit these matters were not taken into account by the Tribunal.
The Tribunal recorded at [39] of its reasons, various submissions of the Second Applicant. Among other things, it recorded his concern that he ‘could not go to school in Vietnam because he did not know how to read or write Vietnamese’. The Tribunal considered and weighed this issue. Ultimately at [42] of its reasons, the Tribunal concluded that ‘while I accept the second named applicants may face some difficulties in readjusting to life back in Vietnam, I find there is nothing on the evidence or the available country information to indicate or suggest that this would arise to the level of serious or significant harm'. Plainly then, the Tribunal was aware of the language difficulties and other difficulties faced by the Second to Fourth Applicants, and took those into account in reaching its decision.
The First Applicant made an additional submission that the Tribunal had failed to take proper account of the circumstances that had led to her being in Australia, in particular, that she came here to be married. The Second Applicant made a similar submission. The Tribunal was aware of the circumstances under which the First Applicant claimed to have arrived in Australia, including her impending marriage: see paragraphs [22]-[24] of the Tribunal’s reasons. It was also aware that the marriage had broken down: see [24] of the reasons. Moreover, it was aware that the First Applicant and the Fourth Applicant may be seen to be, or imputed to be, single mothers. Even though no claim was made by the Applicants to that effect, the Tribunal considered at [43]-[51] whether the First and Fourth Applicants were single mothers. It ultimately was not convinced that the Fourth Applicant would be considered a single mother. It found that the First Applicant was a single mother. It also found that neither the First or Fourth Applicant faced a real chance of serious harm upon return to Vietnam for reasons relating to being a single mother or being perceived as a single mother (at [51]). The Tribunal did not fail to consider these matters.
Finally, I understood the First Applicant to contend that the Tribunal failed to take account of the fact that her degree in medicine was 30 years old. The Tribunal was plainly aware of when the First Applicant completed her degree in medicine. At [22] of the reasons, the Tribunal recorded that the First Applicant ‘returned to Vietnam in 1993, and began working as a nurse before completing further studies to become a medical doctor’. Moreover, the Tribunal was aware that subsequent to becoming a doctor, the First Applicant commenced running her own café business (at [23]). The Tribunal then took these matters into account. At [36], the Tribunal accepted that it may be difficult for the Applicants to re-establish their lives in Vietnam for a number of reasons, but was not satisfied that any difficulties they experience would amount to serious or significant harm.
For the above reasons, Ground 3 is not sufficiently arguable.
Ground 4 is not sufficiently arguable. The Applicants did not advance any oral submission specifically related to Ground 4, and I am not able to identify any oral submission they made which can be said to relate to Ground 4. The ground is unparticularised. In the circumstances, Ground 4 is not sufficiently arguable.
For all of the above reasons, the Applicants do not have a sufficiently arguable case.
Finding on extension of time
When all of the above matters are taken into account, including the length of the delay, explanation for the delay, prejudice and the merits of the case, I find that it is not in the interests of the administration of justice for time to be extended. Accordingly, the only appropriate order is that the application to extend time be dismissed.
CONCLUSION
The Applicants have been entirely unsuccessful. The Minister seeks costs according to scale fixed in the sum of $4,189.38. In all the circumstances, it is appropriate to order costs to the Minister in the amount of $4,189.38 to be paid by the Applicants jointly.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 24 March 2025
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