CYL18 v Minister for Home Affairs
[2023] FedCFamC2G 533
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYL18 v Minister for Home Affairs [2023] FedCFamC2G 533
File number(s): MLG 1598 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 June 2023 Catchwords: MIGRATION LAW – application for extension of time – consideration of whether a migration decision under s 477(3)(c) of the Migration Act 1958 has been made – whether second respondent failed to exercise its jurisdiction in making its decision – whether second respondent made a jurisdictional error – found an extension of time is required – found no reasonable explanation for delay – found it is not in the interests of the administration of justice that there be an extension of time Legislation: Migration Act 1958 (Cth) ss 36, 36(1A), 36(2)(a), 36(2)(aa), 36(2A)(c)-(e), 476A(3)(a), 477(1)-(2), 477(3)(c), 5(1), 5H(1)(a), 5J(1)(a), 5J(2), 5J(3), 5J(4), 5J(5)(b)-(c), 5J(5)(d)-(f), 91R
Migration Regulations 1994 (Cth) sch 2
Cases cited: BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 294
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Lesianawaiv Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA Trans 006
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZQRB (2013) 296 ALR 525; [2013] FCAFC 33
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 5 May 2023 Place: Melbourne Counsel for the Applicant: Mr Zanotti Stagliorio Counsel for the Respondent: Mr Barrington Solicitor for the Applicant: Wotton & Kearney Lawyers Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYL18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
23 JUNE 2023
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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 J YOUNG
INTRODUCTION
Before the Court is an Amended Application filed on 6 April 2023, under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek a judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 November 2016. The Tribunal affirmed the decision of a Delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa under s 65 of the Act.
The original Application was filed on 7 June 2018, 535 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 19 October 2015 on a UD-601 Electronic Travel Authority visa.
On 4 January 2016 the applicant applied for a Protection (Class XA) visa (Visa).
In summary, the applicant’s claims for protection were as follows:
(a)she left Malaysia because she was a member of Bersih – she joined this group because she disagrees with the Government’s activities and joined the riots to display that disagreement;
(b)if she returns to Malaysia she will be arrested, have her belongings confiscated, have her children’s allowances stopped, and suffer abuse in prison;
(c)she had a family business but the government has reduced and stopped her applications for projects, stopped allowances for her children, are tracking her, and have been to her parent’s home to ask questions about her;
(d)the authorities will not protect her – the police are looking for anyone who joined Bersih and may ask her for a bribe, take advantage of her as an exchange, or physically assault her; and
(e)she cannot relocate as she does not have enough money for a new home.
On 22 February 2016 a delegate of the Minister (Delegate) refused to grant the Visa.
On 2 March 2016 the applicant applied to the Tribunal for review of the Delegate’s decision.
On 24 October 2016, the applicant attended the Tribunal hearing as a self-represented litigant.
On 14 November 2016 the Tribunal affirmed the Delegate’s decision to refuse to grant the Visa.
The current proceedings
As stated above, the original Application was filed on 17 June 2018. In the original Application the applicant sought an extension of time.
Orders were made on 4 September 2019 listing the matter for an extension of time hearing on a date to be fixed.
On 1 February 2023 the applicant became legally represented and filed an Amended Application on 6 April 2023.
On 1 May 2023 Orders were made by consent allowing the applicant to file submissions in reply.
The hearing took place on 5 May 2023 by way of Microsoft Teams.
RELEVANT STATUTORY CONTEXT
The criteria for a protection visa are set out in s 36 of the Act and schedule 2 of the Migration Regulations 1994 (Cth). In summary, and as presently relevant, the applicant must be a person in respect of whom Australia has protection obligations as a refugee or on other “complementary protection” grounds.
Section 36(1A) of the Act provides as follows:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2)
At issue, is whether the applicant met the criteria in s 36(1A)(b) of the Act.
Section 36(2), relevantly, provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mention in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Torture, cruel or inhumane treatment or punishment, and degrading treatment or punishment are defined in s 5(1) as follows:
"torture" means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
"cruel or inhuman treatment or punishment" means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
“degrading treatment or punishment" means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The meaning of refugee is set out in s 5H of the Act. Relevantly, s 5H(1)(a) provides that a person is a refugee if:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The meaning of well-founded fear of prosecution is set out in s 5J of the Act, relevantly, as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
IS AN EXTENSION OF TIME NECESSARY
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal’s decision was made on 14 November 2016. An Application for judicial review of that decision in this Court was required to be filed by 19 December 2016. The original Application for judicial review was not filed until 7 June 2018.
Accordingly, the original Application was made 535 days after the expiry of the statutory timeframe.
Is an extension of time necessary?
The applicant submits that an extension of time is not necessary.
The applicant submits that a migration decision as contemplated by s 477(3)(c) of the Act has not been made because the Tribunal failed “to give adequate reasons for its decision and to refer to the evidence on which its findings were based” and as a consequence time has not commenced for the purposes of s 477(1). The applicant relies upon the comments of Kennett J in BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 294 at [16] (BLD20) where his Honour said:
I prefer to leave the resolution of that question to a case in which it is necessary. A negative answer would seem capable of having significant and arguably unintended consequences. It might mean that any failure by the Tribunal to give adequate “reasons” for its decision, or (for example) to refer to the evidence on which its findings were based, would not only cause time not to run for the purposes of s 477(1), but result in a “decision” not being “made” at all in the light of s 430(2).
I reject that submission and for the following reasons consider that in the present case an extension of time is necessary.
Firstly, the matter before Kennett J was whether the date of the “corrigendum” to the Tribunal’s written statement was the “date of the migration decision” for purposes of s 477. The matter before his Honour was not therefore analagous to the matter before this Court. Secondly, the comments of Kennett J were obiter and do not establish any binding principle that an applicant does not need an extension of time where the reasons for a decision are inadequate. Further, noting the use of the word “might” by his Honour, it is clear that these comments are not expressed as a conclusion. Thirdly, the applicant does not suggest that the reasons given by the Tribunal in the Tribunal’s decision are inadequate; rather, as set out below, the applicant submits that the Tribunal erred by failing to consider certain claims of the applicant.
SHOULD THE COURT BE SATISFIED TO GRANT AN EXTENSION OF TIME?
Necessary in the interests of the administration of justice
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819 (Katoa) at [12] the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant “but on the broader interests of the administration of justice.”
The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive application.
[1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 [40]
In the Amended Application filed 6 April 2023, the applicant specified the following grounds as to why they say it is necessary in the interests of the administration of justice to extend time (without alteration):
(1)The appellant is not seeking, for instance, a mere tourist or student visa. Rather, she lodged a protection visa application which, taken at its highest upon remittal to the Tribunal, would lead to protection from harm. And that is so in circumstances where the Tribunal itself found the applicant to be a single mother who would continue to be exposed to sexual harassment, discrimination, extorsion and corruption if returned to Malaysia. Such types of conduct, especially sexual harassment, are strongly condemned in Australia. Not to grant a time extension would deprive the applicant of ever having such conduct assessed by the Tribunal by reference to the relevant types of harm which Australia protects from.
(2)The merits of the applicant’s case are not merely reasonable, but also strong.
(3)Only two grounds of review are pleaded in the amended originating application, the first of which is of very narrow compass.
(4)The grounds of review involve what should be incontrovertible facts and a straight-forward application of settled law to the facts.
(5)This case provides the Court with an opportunity to remind the Tribunal, the Immigration Assessment Authority, the Ministers for Immigration and Home Affairs, their delegates and lawyers of what the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB (2013) 296 ALR 525; [2013] FCAFC 33 does and does not stand as authority for, as per the ruling of the plurality of the High Court in DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10 at [18] and [24].
(6)The applicant has conducted herself in the proceedings as efficiently possible.
(7)No prejudice to the Minister is apparent to the applicant.
(8)Not extending time would deprive a protection visa applicant of a right of appeal.
(9)The Tribunal made no adverse credibility findings against the applicant.
(10)The delay here of approximately 18 months should be considered in light of the above 9 factors and the fact that the applicant has a reason for the delay, namely that she did not understand until shortly before filing the originating application that she could seek judicial review of the Tribunal’s decision.
Delay and explanation
The delay is significant, being a period of 17 months and 19 days, or 535 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38]. In Katoa the majority observed that “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Katoa at [18].
In the original Application filed on 14 November 2016, the applicant specified only one ground for review (without alteration):
I admit that I was late to sent becouse at that time I did not have enough finance to come to court and hire lawyer
In the affidavit filed 6 April 2023, the applicant states that she received the Tribunal’s decision on 14 November 2016.[2] She says that after that the Tribunal’s decision (without alteration):
[2] at [5]
a. I was scared to ask anyone for help in relation to my immigration status.
b. I was worried about going out in public and getting caught as I had no visa.
c. I did not want to expose myself to immigration or the Police as I had no visa.
d. I did not know that I could do anything about the AA T decision.
e. I was stressed and anxious.
f. I could not sleep well.
g. I started to keep to myself.
h. It was a really hard time for me.
i.I did not have any mental strength to seek help to deal with my immigration status.
j.I had no information on what to do and no one to talk to about my immigration status.[3]
[3] at [7]
She says that on the evening of 14 November 2016 she spoke to her housemate, saying she did not have a visa and “had been refused again”. She says her housemate advised her to seek advice from a lawyer.[4] The applicant’s evidence is that she did not have enough money for a lawyer.[5] In June 2018 the applicant was referred by a friend to a man, who is not a lawyer, who assisted her to lodge the Application. She says that this was the first time she became aware that she could “potentially do something to become legal.”[6]
[4] at [8]
[5] at [9]
[6] at [13]
The truthfulness of this explanation for the delay is not challenged by the Minister.
The applicant has not offered a plausible or acceptable explanation for the lengthy delay in making this Application.
Firstly, it is well established that an inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for the delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37], (WQRJ).
Secondly, although the evidence of the applicant that she could not afford to obtain legal representation was not challenged, it is the applicant who must satisfy the Court that it is in the interests of the administration of justice for time to be extended. The evidence the applicant adduced as to this matter was sparse. She adduced no evidence of her income, expenses or financial circumstances at the time. She adduced no evidence of whether she was working. In these circumstances, I accept the submission that the evidence adduced to the Court falls short of establishing that the applicant could not, at any time prior to 7 June 2018, afford to obtain legal assistance in relation to challenging the Tribunal’s decision.
Thirdly, it is appropriate to take into account that impecunious litigants often commence applications in this Court for review of decisions of the Tribunal within the statutory limitation period: WQRJ at [37].
Fourthly, the applicant’s evidence is that she received the decision on 14 November 2016 and understood that the decision was adverse. Attached to the Tribunal’s decision was an information sheet headed “Information about decisions – MR Division”. That information sheet informs the applicant that a review may be sought within 35 days of the date of the decision. It also provides the following information:
Immigration assistance
Our website ( [and] provides a list of organisations that may be able to provide immigration assistance or referrals to other services.
The applicant adduced no evidence that she sought or made any enquiries as to obtaining legal representation, approached community legal services, applied for legal aid, accessed the Tribunal’s website or sought any other immigration assistance. Accordingly, the applicant had information available to her as to her ability to have the decision reviewed and was provided with resources to enable her to do so. Notwithstanding this, the applicant took no steps to seek legal advice or representation or obtain any other assistance for a period of approximately 17 months. The matters set out in paragraph [7] of the applicant’s affidavit do not provide a satisfactory explanation for this. Further, in light of the above matters, the applicant’s evidence that it was upon lodgement of the Application that she first became aware that she “could potentially do something to become legal” cannot be accepted.
Fifthly, the applicant did, ultimately, lodge the Application without legal representation or advice. She therefore could have done so within the statutory time frame.
The very lengthy delay and the absence of a satisfactory and acceptable explanation for it weigh strongly against the grant of an extension of time.
Prejudice
The Minister concedes that it would not suffer any specific prejudice if an extension of time were to be granted.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I consider this to be a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the executive are made lawfully. The merits of the substantive grounds relied upon by the applicant will of course be relevant to this, which are considered below.
It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the Applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal.
I accept that a refusal to grant an extension of time would result in the applicant returning to their country of nationality which is a circumstance they say they fear and that this is a matter weighing in favour of the grant of an extension of time.
Merits of the substantive application
While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time. Further, having found that the delay is both lengthy and without an acceptable explanation the applicant may be required to show that her case is strong or even “exceptional”: Katoa at [18]
There are two grounds for review, however ground two contains multiple limbs.
Ground one
By Ground one, the applicant contends that the Tribunal made a jurisdictional error in that it failed to consider a clearly articulated claim that the applicant feared harm by reason of her membership of a political party (Bersih) (as opposed to her attendance at a Bersih rally in 2012) which opposed the Malaysian government. The applicant submits that the Tribunal assessed only the effect of the applicant’s participation in the rally in 2012.
Ground two
By Ground two the applicant contends that the Tribunal failed to exercise it jurisdiction in relation to s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant submits that the Tribunal failed to exercise it jurisdiction in relation to s 36(2)(a) by:
(a)failing to consider whether the sexual harassment and discrimination, which it found that the applicant would face in Malaysia by reason of being a single/divorced woman and single mother:
(i)amounted to “serious harm” for the purposes of s 5J(5)(b)-(c), only considering the types of harm referred to in s 5J(5)(d)-(f); and
(ii)might amount to serious harm apart from the types of harm identified in s 5J(5), noting that that definition is not exhaustive
(collectively Ground two, Limb one);
(b)wrongly referring to s 91R, when that provision had been replaced by s 5J of the Act and therefore addresses the wrong criterion (Ground two, Limb two).
The applicant submits that the Tribunal failed to exercise it jurisdiction in relation to s 36(2)(aa) by failing to consider whether any discrimination based on sex or other status and extortion which it found that the applicant would face in Malaysia by reason of being a single/divorced woman and single mother amounted to:
(c)torture pursuant to s 36(2A)(c) of the Act (Ground two, Limb three); and
(d)cruel or inhuman treatment or punishment pursuant to s 36(2A)(d) of the Act (Ground two, Limb four); or
(e)degrading treatment or punishment pursuant to s 36(2A)(e) of the Act (Ground two, Limb five).
CONSIDERATION
Submissions
The applicant made lengthy submissions as to the merits of the substantive application, including submissions in reply. I do not propose to respond to each and every of the applicant’s submissions, however I have carefully considered all the submissions made.
Ground one
In the Tribunal’s decision, the Tribunal summarised the applicant’s claims, amongst others, as follows:
She left Malaysia because she did not feel protected since she joined Bersih;[7]
Ever since she joined Bersih she has not voted for the government party;[8] and
…the government is aware she had joined Bersih…[9]
[7] Tribunal decision at [10], first bullet point
[8] Tribunal decision at [10], first bullet point
[9] Tribunal decision at [10], second bullet point
At the hearing, the Minister conceded that in her application for a protection visa the applicant said that she joined Bersih.
Before the Tribunal, the applicant’s evidence was she feared returning to Malaysia as a consequence of attending the Bersih rally to protest against the government in April 2012 and that as a consequence of attended the rally she faces problems.[10]
[10] Tribunal decision at [15]
Her further evidence at paragraph [17] of the Tribunal’s decision was as follows:
The applicant said that she is not a member of any organisation which supports the Bersih movement. She wanted to participate as an individual because she does not support the government who abuse their power. The only organisation she was involved with was an organisation that supports single mothers which was in 2005. This organisation runs courses in massage, cookery and pottery and also helped children
The country information considered by the Tribunal included the following in relation to Bersih:
According to the Bersih website:
Bersih is a civil society movement based in Kuala Lumpur and comprising 84 non-government organisations. (...) This coalition of civil society soon appropriated for its name a word in Bahasa Malaysia that means “clean”, “sweep” or “wash”. (...) Bersih is a vital part of Malaysia because it seeks to give the country an electoral system that delivers a fundamental democratic right to its citizens – an electoral process that delivers fair and free general elections.
Therefore, on the information before the Tribunal, Bersih is a movement comprised of organisations. The applicant’s evidence was that she was not member of any organisation which supports the Bersih movement. Her evidence was that the only organisation in which she was involved was an organisation that supports single mothers and that occurred in 2005. Further, the applicant’s evidence was that she feared returning to Malaysia as a consequence of attending the rally in 2012 and not because she was a member of Bersih.
Accordingly, before the Tribunal the applicant did not make a claim to fear harm from her membership of Bersih. Bersih is a movement comprised of organisations and the applicant clearly articulated that she was not a member of any organisation which supported Bersih.
Ground one discloses no reasonably arguable jurisdictional error on behalf of the Tribunal.
Ground two, Limb one
In relation to s 36(2)(a), the Tribunal said:
(a)from the evidence given by the applicant at the hearing, it appears her main concern is her financial capacity to provide for her children and family;[11]
(b)DFAT assesses that women in Malaysia face a high risk of societal and official discrimination and despite increased legal protections, sexual harassment is a barrier to women’s participation in the workforce although the Malaysian government had taken several steps to address this issue;[12]
(c)it accepted the applicant’s evidence that it is difficult and frustrating as a single woman and mother running a business to support her family while trying to compete for government contracts;[13]
(d)it accepted the applicant’s evidence that she has experienced sexual harassment by government officials in return for accepting her application for tenders;
(e)country information confirmed that bribery and corruption was a pervasive problem in Malaysia;[14]
(f)the evidence given by the applicant in relation to corruption and bribery is consistent with independent country information and that bribery paid to officials is common.[15]
[11] Tribunal decision at [38]
[12] Tribunal decison at [40]
[13] Tribunal decision at [41]
[14] Tribunal decision at [43]
[15] Tribunal decision at [45]
At [45] the Tribunal said:
The Tribunal accepts that if she were to return to Malaysia, the applicant will continue to face discrimination and sexual harassment as a single/divorced woman and single mother trying to run her own business. The Tribunal also accepts the applicant will also face the problem of bribery and corruption in her dealings with government officials as this appears to be entrenched as common practice in doing business with government, despite efforts by the Malaysian government to combat this. The Tribunal, however does not consider that this amounts to serious harm as required by s.91R(1)(b).
The Tribunal found that:
(a)the applicant had been divorced and single for some years;
(b)about one-third of the Malaysian population are single women and the government had encouraged women into the work force;
(c)social stigma associated with being a single/divorced woman and mother was decreasing as divorce increased;
(d)the applicant had access to basic services and the capacity to earn a livelihood;
(e)the applicant would not be denied access to these services by reason of her race, religion, nationality, membership of a particular social group or political opinion;
(f)the applicant may experience some financial hardship upon her immediate return to Malaysia but she had the skills and experience to find employment;
(g)the financial hardship the applicant may experience will not be significant harm such as to amount to serious harm; and
(h)the applicant will have capacity to subsist should she return to Malaysia.
The Tribunal concluded that the applicant did not have a well-founded fear of persecution in Malaysia and her fear of persecution for the purposes of s 5J(1)(a) was unfounded. Accordingly, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under s 36(2)(a).
The applicant submits that the inference to be drawn from the absence of any reference in the Tribunal’s reasoning to the reasons to the matters referred to in s 5J(5)(b) and (c) is that the Tribunal failed to consider such matters. Further, the applicant submits that the “generic” reference to ss 5J(2)-(6) at paragraph [6] of the Tribunal’s decision and setting out the provisions in Attachment 1 to the Tribunal’s decision, is insufficient to dispel the inference that the Tribunal failed to consider s 5J(5)(b) and (c).
I reject those submissions and decline to draw the inference sought. Firstly, contrary to the submissions of the applicant, I consider the express reference to s 5J(2)-(6) and the inclusion of those provisions at Attachment 1 to the decision, demonstrates that the Tribunal was aware of and considered the forms of harm articulated in s 5J(5)(b) and (c). Secondly, the sexual harassment and discrimination claimed by the applicant as a single woman trying to run her own business is expressly accepted by the Tribunal at [45] of the Tribunal’s decision and addressed at the commencement of paragraph [46] of the Tribunal’s decision. Thirdly, the applicant’s evidence was that in running her business she had to deal with people who demanded she sleep with them or pay a bribe and that she could not afford to keep paying bribes. Accordingly, the sexual harassment and discrimination claimed by the applicant was the demand for sexual favours or the payment of a bribe. The risk of harm therefore arose from the payment of the bribe. In this context, the economic forms of harm expressly referred to in the Tribunal’s decision are the only forms of harm potentially relevant to the payment of a bribe. Accordingly, I accept the Minister’s submission that the better inference to be drawn is that the Tribunal did not expressly address in its reasons the other forms of harm contained in s 5J(5)(b) and (c) because it did not consider them material: Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at [69].
As to whether the sexual harassment and discrimination suffered by the applicant might amount to some other form of harm, no such other harm clearly emerges from the material. A decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [25].
For completeness, I reject the submission of the applicant that a bribe, with the alternative choice of sexual favours, is capable of satisfying serious harm in the form of “significant physical harassment of the person”, or “significant physical ill treatment of the person”. Firstly, the applicant offers no authority for this proposition. Secondly, I am unable to see how a bribe comprises any physical component as contended.
Ground two, Limb two
As set out above, at [45] the Tribunal erroneously referred to s 91R. However, I reject the submission that as a consequence the Tribunal addresses the wrong criterion. The definition of serious harm in s 91R includes the same examples as those found in s 5J(5): AEK16 v Minister for Immigration and Border Protection [2017] FCA 625 at [26]. As to the applicant’s submission that materiality need not be established where the decision maker addresses the wrong criterion, firstly, for the reasons set out above, the Tribunal did not address the wrong criterion. Secondly, the applicant’s reliance on the dissent of Nettle J in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 is misconceived. The majority’s judgment is to the contrary and has been affirmed by the High Court.[16]
[16] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, at [29]-[30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, at [44]-[46] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, at [31]-[32] (Kiefel CJ, Gageler, Keane and Gleeson JJ); and Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, at [30]-[33] (Kiefel CJ, Keane and Gleeson JJ).
Ground two, Limb three
As to Limb three of Ground two, the applicant submits that the Tribunal failed to consider whether the bribes the applicant would have to pay, the sexual harassment she would be subjected to or otherwise jeopardising the applicant’s livelihood and income, amounted to torture. The applicant submits that those matters are so capable. As I understand it, the torture which the applicant says the Tribunal ought have considered is “the inherent coercion and intimidation of giving the applicant the choice of the lesser of three evils (acceding to sexual harassment, paying bribes or else jeopardising her income and thus the livelihoods of her three minor children and family).” The applicant submits that coercion is inherent in sexual discrimination and it therefore cannot be said that a claim of inherent coercion was not made.
I reject those submissions. First, a claim of torture was never advanced by the applicant before the Tribunal. A decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [25]. Secondly, the Tribunal’s decision must be considered in light of the basis on which the application was made not upon an entirely different basis which may occur to an applicant or an applicant’s lawyer at some later stage in the process: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (Gleeson CJ). Thirdly, I reject the submission that a claim of ‘inherent coercion’ clearly arises on the applicant’s material. Whether a claim ‘clearly emerges’ does not require any constructive or creative activity by the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]. As set out above, the sexual harassment and discrimination claimed by the applicant was the demand for sexual favours or the payment of a bribe to enable her to run her business. The Tribunal considered the “evils” relied upon by the applicant and found that being made to pay a bribe or being required to find another job, did not amount to serious and significant harm. At paragraph [45] and [46] the Tribunal said:
The Tribunal accepts that if she were to return to Malaysia, the applicant will continue to face discrimination and sexual harassment as a single/divorced woman and single mother trying to run her own business. The Tribunal also accepts the applicant will also face the problem of bribery and corruption in her dealings with government officials as this appears to be entrenched as common practice in doing business with government, despite efforts by the Malaysian government to combat this. The Tribunal, however does not consider that this amounts to serious harm as required by s.91R(1)(b).
The applicant has been divorced and single for some years and independent country information indicates that about one-third of the Malaysian population are single women and the government has encouraged women into the workforce. The independent country information indicates that the social stigma associated with being a single/divorced woman and mother was decreasing as there has been an increase in divorce in Malaysia. The applicant’s evidence is that she has been living with her parents for some years and has stable accommodation. She has also worked and been financially independent prior to arriving in Australia, although this has become harder in the current economic climate of Malaysia. The Tribunal also notes that the applicant is highly educated. The Tribunal finds that access to basic services and the capacity to earn a livelihood are available to the applicant. The Tribunal also finds that the applicant would not be denied access to these services for reason of her race, religion, nationality, membership of a particular social group or political opinion. She may experience some financial hardship on her immediate return to Malaysia but she does have skills and experience to find employment. The Tribunal understands that rates of pay and employment conditions for various jobs in Malaysia differ to those in Australia however the Tribunal finds that the financial hardship the applicant may experience will not be significant harm such that it will amount to serious harm.
Accordingly, I accept the Minister’s submissions that the Tribunal did not find there was any inherent coercion because the Tribunal did not find that in the applicant finding another job she would jeopardise her or her children’s livelihoods.
Ground two, Limbs four and five
I reject Limbs four and five of Ground two for the reasons set out above. No claim was made before the Tribunal that discrimination based on sex or other status and extortion which the applicant would face in Malaysia by reason of being a single/divorced woman and single mother amounted to cruel or inhuman treatment or punishment pursuant to s 36(2A)(d) of the Act or degrading treatment or punishment under s 36(2A)(e) of the Act.
Accordingly, Ground two, Limbs one to five discloses no reasonably arguable jurisdictional error on behalf of the Tribunal.
Other considerations
As to the other matters advanced by the applicant as to why it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period which have a not been already addressed above, I firstly reject the contention that only two grounds of review are pleaded, with the first being of very narrow compass.
Ground 2 comprises five limbs and the applicant takes issue with much of the Tribunal’s reasoning. Secondly, whilst I accept that the applicant’s affidavit material before this Court was not challenged and the Tribunal’s reasons are set out in the Tribunal’s decision, I am unable to see how this renders the Application to involve “incontrovertible facts” and “a straight forward application of the settled law to the facts” or advances the applicant’s proposition that an extension of time is necessary in the interests of the administration of justice.
Finally, as to the reliance by the applicant on Lesianawaiv Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA Trans 006 (Lesianawai), no reasons for Gleeson J’s orders granting an extension of time have been published and none were given orally when the orders were made. In those circumstances, I do not consider Lesianawai to be of assistance. Further, as conceded the applicant, each application for an extension of time is to be determined on its own facts.
CONCLUSION
The Application in this case is 535 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an Application for judicial review. The Application is dismissed.
The Application will be dismissed with an Order that the applicant pay the first respondent’s costs as agreed or in an amount to be fixed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 June 2023
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