DDC18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 698

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DDC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 698

File number(s):	MLG 1705 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	3 July 2023
Catchwords:	MIGRATION – Protection Visa – extension of time – where no arguable case that Administrative Appeal Tribunal decision affected by jurisdictional error – where excuse for late filing was not reasonable  – application refused
Legislation:	Migration Act 1958 (Cth): ss 5J, 36, 424A, 424AA
Division:	Division 2 General Federal Law
Number of paragraphs:	53
Date of last submission/s:	3 July 2023
Date of hearing:	3 July 2023
Place:	Brisbane
Counsel for the Applicant:	Self-represented litigant
Solicitor for the First Respondent:	Clayton Utz

ORDERS

MLG 1705 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DDC18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	3 JULY 2023

THE COURT ORDERS THAT:

1.The application filed on 15 June 2018 be refused.

2.The Applicant to pay the First Respondent’s cost of and incidental to the application fixed in the sum of $4,189.38.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex Tempore)

JUDGE VASTA

1. On 27 September 2017 the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to grant the applicant, DDC18, a protection visa.  On 15 June 2018 the applicant asked this Court to review that decision. 

2. As can be seen from the dates of the AAT making the decision and the applicant filing the application in this Court, the applicant was well and truly outside of the 35-day time limit within which to apply to review a decision of the AAT.  Because of that, this application is an application for an extension of time within which to file the application. 

3. In any application made to the Court to extend the time within which to file applications, there are three main areas that the Court looks at. 

4. Firstly, the Court looks at what is the reason for the late filing or what excuse is there for not filing on time.  The second thing the Court looks at is, what prejudice is there to the respondent to the application for extension of time.  And then, thirdly, the Court looks at whether there is an arguable case for the grant of relief in the substantive matter.

5. In this case the Minister of Immigration, Citizenship and Multicultural Affairs (“the Minister”) has properly conceded that the prejudice to the Minister in this application succeeding is not such that would militate against the application being successful.  The Minister concedes that the decision as to whether an extension of time is granted will be informed by the other two aspects; that is, the reason for the lateness of filing and whether there is an arguable ground for the substantive relief.

6. I will turn first to the question of whether there is an arguable case for the substantive relief.

7. The background to the matter is that the applicant is a citizen of Malaysia.  The applicant came to Australia in 2016.  In May 2016, the applicant applied for the protection visa.  On 7 September 2016, the delegate of the Minister refused to grant the visa.  The applicant applied to the AAT for merits review on 23 September 2016.  On 27 July 2017, the AAT issued an invitation to attend a hearing on 25 August 2017.  The applicant submitted the response to that invitation and then attended the hearing on 25 August 2017.  He was assisted by an interpreter.

8. On 27 September 2017, as I have noted, the AAT made its decision, and it was on 15 June 2018, as I have also noted, that the applicant filed his originating application. 

9. Having filed the application, the Registry had given the applicant a first court date of 18 September 2019.  That is some 15 months after the application had been filed.  The matter was dealt with in the Chambers of the Registrar with a consent order as to filing of material, however, the matter was simply given a listing at a date and time to be determined before a Judge who would also still be determined. 

10. The matter ended up being subsumed into the national docket. 

11. On 17 April 2023, the Registrar called the matter over, with the applicant and the Minister appearing by telephone, and the matter was given a date to be fixed. But that was soon set down as a hearing before me today, 3 July 2023. 

12. I should note that the applicant had said, in his application, that he did not require an interpreter, and the court records had noted that, and there was nothing said to Registrar Carney, on 17 April 2023, to indicate that an interpreter was required. 

13. Nevertheless, this means that it has taken now over five years since the applicant first filed his application for the Court to deal with the matter.  Given that it is an extension of time matter, it means that the matter is two months shy of being heard six years since the AAT made its decision. 

14. On behalf of the Court, I apologise to DDC18 for the inordinate delay in having his matter dealt with by the Court.  It is partly for that reason that I have decided to give my ruling today ex tempore.

15. The application for the visa that was given to the Department, in May 2016, was somewhat vague in detail.  Its claims included: that the applicant had departed Malaysia because an unlicensed money lender threatened to kill him;  that the applicant claimed that, due to the economic downturn and unemployment, he borrowed money from an unlicensed money lender to start a business, but he did not succeed in the venture;  that the applicant claimed that he was intimidated by the money lender to make weekly payments with high interest rates;  that the applicant claimed that the money lender came to his house, threatened him and damaged his house and car;  that the applicant claimed he was scared and no longer safe in his country; and that the applicant wanted a new life, peace of mind, comfort and safety, and thought Australia would provide him with new hope.

16. The applicant also claimed that the money lender would track the applicant down and find him if he returned to Malaysia, and also claimed that no one would help him in Malaysia because it is a personal problem.

17. The AAT noted a deal of country information about policing, especially as to the international reputation of the Royal Malaysian Police, and also looked at a deal of country information about Ah Long, or loan sharks, in Malaysia.  The upshot of that information was that the Royal Malaysian Police did have a good reputation with regard to its effectiveness, but did recognise that there were still problems with corruption, however, they were being dealt with by the Royal Malaysian Police itself.

18. The upshot of the information about loan sharks was that there was a problem with loan sharks, because they had loaned out about 40 million ringgits, the Malaysian currency unit, to financially strapped Malaysians, and that 80 per cent of those that it loaned money to were gamblers, and the rest were drug abusers, failed businessmen and those living beyond their means. 

19. The report said that police were tracking down members of unlicensed money lending syndicates through contact numbers printed in their advertisements, including fliers, posters, banners and business card, but there was a lack of cooperation from the public, especially those who had fallen victims to the syndicate, which created a barrier to prosecuting the Ah Long.  The information noted that the transactions were on a willing seller/willing buyer basis, but police could take action if loan sharks resort to violence or extortion to recover their money.

20. The applicant had told the AAT that he was a person who had finished secondary education and had then acquired a diploma in mechatronic engineering.  He said that he decided to go into a new business in wholesaling vegetables.  He acquired a loan of 10,000 ringgit, which is about A$3000, to assist with this, but the new venture only lasted three and a half months, and he was only ever able to repay 5000 ringgits.  The applicant told the AAT that the loan was for 12 months and that he had to repay 12,000 ringgits with 1000 ringgits owed each month;  however, the applicant said that he struggled to repay the debt, and the debt has now reached 30,000 ringgits.

21. The AAT had some problem in understanding how the debt of 7000 ringgits, which is the 12,000 that the applicant had to pay back minus the 5000 that he said that he had already paid back, could expand to 30,000 ringgits.  The AAT said that they questioned “the far-fetched nature of the calculation”.  The applicant could not provide a copy of the loan agreement, and he said that it was not given to him. 

22. The applicant did not claim that he was physically attacked or personally harmed when he was unable to make repayments, but said that his rental residency was attacked, and that the loan shark attempted to attack the house of the applicant’s parents.  The applicant said that local villagers banded together to protect the parents and the family.

23. The AAT asked the applicant if he had made a police report to protect himself.  The applicant responded that the police only act if something happens.  The AAT pointed out to the applicant that both his property and his family had been attacked. 

24. The AAT discussed with the applicant the country information about the police.  The applicant acknowledged to the AAT that the police do take seriously unlicensed money lending and threats to victims when they are reported, but the applicant claimed he had been too afraid to make a report.

25. The AAT said that normally a story such as that which the applicant had presented, would have a number of credibility failings, especially about the far-fetched claims and the lack of documentary evidence, but the AAT found that the applicant did not overly embellish his claims and so gave him the benefit of the doubt. 

26. The AAT accepted, then, that the applicant did borrow about 10,000 Malaysian ringgits for the reasons that he claimed.  The AAT accepted that this money was borrowed from an unlicensed money lender of Chinese ethnicity.  The AAT accepted that the business venture was unsuccessful.  And the AAT accepted that the applicant struggled to make all his repayments.

27. The AAT, though, said that it did not accept the far-fetched claim, which they branded as “fanciful”, that the debt had now risen to 30,000 ringgits.  The AAT found that the applicant owed a small amount of debt and not a large, considerable or crippling amount.  The AAT said that the applicant embellished the specific amount he owed to augment what they termed “his otherwise vaguely written claims for protection”. 

28. The AAT accepted that the money lender did threaten the applicant with harassment and harm and threatened him by damaging property.  The AAT accepted that the applicant was not physically ill-treated by the money lender or anyone working for him.  The AAT accepted that the applicant’s family were threatened on one occasion but not harmed due to the local village demonstration of solidarity with the family of the applicant.  The AAT accepted that the applicant did not make a police report because of his genuinely personally-held fears after being warned.  But the AAT did not accept that the applicant did not make a complaint because the police would not take action following a complaint.

29. The AAT said that, on balance, they accepted that the applicant had been harassed and threatened in the past because he owes a small amount of money to a criminal of Chinese ethnicity in an unlicensed money lending syndicate.  The AAT said that, if the applicant were to return to Malaysia in the reasonably foreseeable future, there was a chance of the threats continuing and the threats involved significant physical ill-treatment. 

30. However, the AAT said that the Ah Long was not targeting the applicant because of his ethnicity or because of his religion or for any other reason that is mentioned in section 5J(1)(a) of the Migration Act 1958 (“Cth”) (“the Act”). The only reason that the applicant would be targeted would be because he is indebted to the money lender. For that reason, the AAT said that the applicant did not satisfy section 5J(1) of the Act.

31. The AAT said that even if that section could be said to have been satisfied, the applicant would not have a well-founded fear of persecution because there were effective protection measures available to the person in the receiving country as per section 5J(2) of the Act. That protection would come from the police. The AAT again noted that police take seriously complaints made to them about illicit money lenders and that the Royal Malaysian Police have a reasonable international reputation for integrity.

32. The AAT had discussed with the applicant the prevalence of media reports that there are arrests, charges and prosecution against money lenders and other criminal organisations involved in illicit money lending and related violence.  The AAT found that this information undermined the applicant’s claim that the availability of effective protection was not open to him.  The AAT, therefore, found that the applicant did not satisfy the refugee criteria. 

33. The AAT then looked at the complementary protection criterion.  Using the same logic, the AAT had to look at whether there was a risk of significant harm to the applicant if he were to be removed from Australia back to Malaysia. 

34. The AAT noted that there would not be a real risk of significant harm under the legislation if the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen would suffer significant harm.  Having regard to the country information, the AAT found that the applicant did not meet the complementary protection criteria.

35. At paragraph 53 the AAT said that they had, for completeness, looked at all other aspects of the applicant’s situation to see whether they could have founded a real chance of serious harm for any reason mentioned in section 5J(1)(a) of the Act. The AAT considered that there were no other such factors. For those reasons the AAT affirmed a decision to not grant the applicant a protection visa.

36. The grounds of the application before this Court are set out in the originating application. 

37. Ground 1 was that the AAT misconstrued the risk of significant harm as set out in section 36(2B) of the Act. Having just gone through that, it would not seem that this is a ground that has any true merit. The ground continued that the AAT construed erroneously the existence of risk to the life of, or significant harm to, the applicant upon return to Malaysia. Again, having just gone through what the AAT said, it does not seem that this ground has much merit to it.

38. The second ground was that the AAT had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act.  It would seem to me that, again, having looked at what the AAT actually said, that the AAT’s reasonable satisfaction was not met, and that conclusion was one that was open to the AAT on the evidence before it. 

39. The third ground is that the AAT has failed to investigate the applicant’s claim, especially the grounds of persecution in Malaysia.  The short answer to that is that it is not for the AAT to investigate anything.  Rather, it is for the applicant to prove his claim to the satisfaction of the AAT.  There seems to be little merit in that ground.

40. The fourth ground is that the AAT failed to comply with the mandatory requirement under s. 424A to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review. Whilst that may be a section of the Act, the section does not apply if that information is country information.

41. Secondly, the AAT went through in quite thorough detail with the applicant what it was about that information that would undermine the applicant’s claim. Whilst section 424A and 424AA were not engaged because this was country information, it would seem that, even if it had been engaged, the AAT had well and truly met its obligations.

42. The applicant himself could not expand on those grounds, candidly admitting to me that those grounds were written by someone else who was assisting him.  His submissions to me, as to why the AAT had made an error, was that money lenders are very dangerous and, in effect, the AAT has underestimated the danger.  The applicant said that police cannot protect people 24 hours a day. 

43. In the end, all those submissions simply amounted to the fact that the applicant did not agree with the fact finding of the AAT, but that cannot establish a jurisdictional error.

44. What was more concerning to me was that the applicant, in his oral submissions to me, said that he had made a complaint to the police in Malaysia, but they did nothing because they could not be around 24 hours a day and, that by the time they got there, the money lenders had left the vicinity.  This is a totally different factual scenario to that which he made before the AAT. 

45. But, in any event, it does not change the fact that there really is no arguable case that the AAT had made a decision that is infected by jurisdictional error.

46. I turn, then, to the reason that the applicant did not file the application on time.  In the actual application, the applicant wrote:

    I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.

47. It is difficult to understand how the applicant would not be aware of the time limit for judicial review.  The letter that was sent to him, with a copy of the decision of the AAT, said quite clearly the following, which is reproduced at CB 165.  It is headed Review of Decisions:

    Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.

48. As was said during the course of the hearing, the applicant had until 1 November 2017 to file his application in this Court, and he did not do so until 15 June 2018, some seven and a half months after the deadline had passed.

49. When making his oral submissions today, the applicant told me this, that “someone had lied to me” as to when he could file and what he could to.  I asked him who this person was.  The applicant said that his ex-housemate had a friend whom he thought could help him.  The applicant said he approached this person and told him that the AAT had just made a decision that he would not get a protection visa.  He said that this person, who was a friend of his ex-housemate, said that he would help the applicant, but he said to the applicant that the applicant would have to pay him.  The applicant did pay him and never saw him again.  He said that he did not know all the details, but after trying to get in touch with this person again and again, it was then that he decided that he needed to put in the application.

1. This was the first time that this excuse had been proffered.  It was certainly not the subject of the applicant’s application.  The affidavit, which was also filed by the applicant on the same date of his application, did not talk about this aspect at all. When it was that the matter was before Registrar Hird in Chambers by consent, then there was nothing in any communication to the Court or to the Minister that this was the true situation.  And, certainly, when the applicant was before Registrar Carney on 17 April 2023, there was nothing said that the applicant had something else to say.  In fact, it was only when I asked him as to what else he wanted to tell me about why the matter was filed out of time that he mentioned this other person.

2. Of course, the tale itself has no particularity in it.  There is no mention of who the ex-housemate is or who this other person is.  There is no evidence of any payments to the person through bank records or anything else.  There is no police report or any other complaint that had been made by someone who has, obviously according to the applicant, defrauded him. 

3. The amount of time, that is seven and a half months, is a very long time.  I do not accept the excuse that has been given.  When I take into account the fact of the excuse, and the fact that the applicant does not have an arguable case that the substantive relief should be granted, it would seem to me that I should not, in the exercise of my discretion, grant the application for extension of time. 

4. Having regard to all of the matters, I refuse the application for extension of time with costs fixed in the sum of $4189.38.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       3 July 2023