DDF18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 38
•21 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38
File number: MLG 1709 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 21 January 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – extension of time – significant delay – not satisfied that it is in the interests of the administration of justice to extend time – application for an order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 (Cth) may be made is dismissed Legislation: Migration Act 1958 (Cth) ss 36, 36(2)(a), 36(2)(aa), 36(2B), 424(3)(b), 424A(1), 424A(1)(a), 426A, 426A(1A)(a), 426A(1A)(b), 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b), 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 2
Migration Regulations 1994 (Cth) sch 2, cl 888.221
Cases cited: BBU15 v Minister for Home Affairs [2019] FCA 1324
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship & Anor v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12
Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9
Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391
SZBYR v Minister for Immigration and Citizenship
[2007] HCA 26; 147 CLR 297SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
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] HCA 28; 276 CLR 579
VAF v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 123; 436 FCR 549
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 22 November 2024 Dates of hearing: 27 November 2024 and 17 December 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1709 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDF18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
21 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day period within which an application for judicial review of a migration decision of the (then) Administrative Appeals Tribunal may be made is dismissed.
2.The applicant pay the first respondent’s costs 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: 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 Gostencnik
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 21 April 2014: Court Book (CB)16, CB41, as the holder of a Visitor (Subclass 601) (Electronic Travel Authority) visa. The applicant’s visitor visa ceased on 20 July 2014, and he remained in Australia as an unlawful non-citizen: CB41. On 16 October 2014, the applicant applied for a Protection (Class XA) (Subclass 866) visa: CB1-CB27, CB31, and was granted an associated (Subclass 030) (Bridging C) visa: CB41. In that application, the applicant claimed to fear harm from gangsters who were a business competitor attempting to shut down his business. He claimed that in May 2013, three gangsters threatened to kill him if he did not close his business, that he feared for his life and could not seek protection from Malaysian authorities because the “[gangsters] have connection[s] with political people”: CB18-CB22.
On 6 March 2015, a delegate of the (then) Minister for Immigration and Border Protection sent a letter to the applicant by post requesting additional information or documents as outlined in a ‘Request for Information – Detailed Information’ form: CB31-CB33, and informed the applicant that his application may be decided on the papers if he does not produce further evidence within 28 days of the date he is taken to have received the letter enclosing the request form. The applicant did not produce further information or documents, nor attempt to contact the (then) Department of Immigration and Border Protection. Therefore, the Minister’s delegate proceeded to make a decision on the papers: CB43.
On 9 July 2015, the delegate refused the visa application, and notification of that decision was sent to the applicant by post: CB34-CB46. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk he will suffer significant harm, and the applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act) and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant subsequently applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB48-CB49. The Tribunal acknowledged the review application on 12 August 2015: CB50-CB51, and on 6 September 2016, the Tribunal invited the applicant to attend a hearing scheduled for 4 October 2016 to give evidence and present arguments relating to the issues in his case: CB54-CB55. The applicant was advised in the correspondence that the Tribunal had considered the material before it but was unable to make a favourable decision based on that information alone. The applicant was informed that if he does not attend the scheduled hearing, the Tribunal may make a decision on the review without further notice: CB55, CB69. The correspondence attached an information sheet and requested the applicant complete and return an enclosed ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing. The applicant was also invited to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB56-CB62.
The applicant was sent SMS hearing reminders on 26 September 2016 and 3 October 2016 respectively: CB63, but he did not attend the scheduled hearing. The applicant did not complete and return the ‘Response to hearing invitation – MR Division’ form, nor did he provide the Tribunal with any additional information or documents: CB63, CB69. The applicant did not contact the Tribunal to apply for an adjournment or to otherwise explain his non-attendance at the hearing: CB69. By its decision made on 7 October 2016, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa: CB67. The applicant was notified on 10 October 2016 by email transmission: CB66, which attached a Statement of Decision and Reasons (Decision) and information sheet: CB67-CB75. The information sheet contained the following information:
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.
Immigration assistance
Our website ( and provides a list or organisations that may be able to provide immigration assistance or referrals to other services.
The information sheet explained that the applicant could apply to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision and that he must do so within 35 days of the date of that decision: CB74. The information sheet also alerted the applicant to the Tribunal’s website where he could find a list of organisations that may be able to provide immigration assistance or referrals to other services: CB74.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out at [1]-[7] of the Decision the application for review and the relevant protection visa criteria by reference to s 36 of the Act, Sch 2 to the Regulations and Ministerial Direction No.56 made under s 499 of the Act. The Tribunal also noted that it was required to consider policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Refugee Law Guidelines and country information prepared by the Department of Foreign Affairs and Trade to the extent that it is relevant to the decision under consideration.
As the applicant did not attend the hearing, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s 426A of the Act (as then in force). Upon the limited evidence before the Tribunal and the inability to exhaust or further inquire into the applicant’s claims, the Tribunal concluded that the decision under review should be affirmed: Decision at [8], and reasoned the bases for its conclusion at [9]-[28]. At [14] the Tribunal set out its reasons for proceeding to determine the review application in the applicant’s absence. In substance, the Tribunal reasoned that the applicant had not engaged with the Tribunal’s process. He was told the information before the Tribunal was insufficient, he was asked to provide further information, but he did not. He was invited to attend the hearing and reminded of the hearing on two subsequent occasions but failed to attend. He did not contact the Tribunal to explain his non-attendance and he was told that if he did not attend, the review application may be determined on the basis of the material before the Tribunal.
The Tribunal noted at [19] of the Decision that the applicant was invited to attend the hearing because his claims were “vague and undetailed.” At [20]-[22] the Tribunal notes that had the applicant attended the hearing, the applicant would have been questioned about:
(a)the individuals who were allegedly harassing, threatening and assaulting the applicant; whether the assaults were connected to his restaurant business; and whether he reported this to the local authorities: at [20];
(b)what the applicant believes would happen to him if he returned to Malaysia and his views on the independent country information: at [21]; and
(c)his knowledge or belief that gangsters allegedly have connections to political people; and why the local authorities cannot protect him: at [22].
The Tribunal expressed significant concerns about the applicant’s claims: Decision at [24], and noted at [25] it was not satisfied that:
(a)three gangsters threatened to kill the applicant if he did not shut down his business;
(b)the applicant ran a restaurant business which was a business competitor to other neighbouring businesses;
(c)the next door neighbour kept coercing the applicant to move out;
(d)the applicant’s front house was splashed with blood; and
(e)several men stopped the applicant, who proceeded to punch him and took out a small knife; however, the applicant managed to escape the altercation before shortly departing to Australia.
At [25]-[28] of the Decision, the Tribunal concluded it was not satisfied there was a real chance:
(a)the applicant faced serious harm if he returned to Malaysia, either at the time of the decision or in the foreseeable future: at [25];
(b)the applicant will face persecution if he returns to Malaysia: at [26]; and
(c)as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that the applicant will suffer significant harm: at [27]-[28].
As a result, the Tribunal was not satisfied the applicant met the refugee criterion, nor that he was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act: Decision at [29]-[32], and affirmed the delegate’s decision not to grant the applicant a protection visa: CB72.
CONSIDERATION
On 15 June 2018, the applicant applied to the Court for judicial review of that decision as well as an extension of time. An application to the Court for review of a decision by the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Act. The Tribunal made its decision on 7 October 2016, and the final day to make the application was 11 November 2016. The applicant therefore made the application 581 days after the time prescribed had lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if satisfied that it is necessary in the interests of the administration of justice to do so.
As the applicant was not represented before the Court, at the commencement of the hearing of this application I explained to the applicant that as his judicial review application was made outside of the time prescribed in the Act, the issue before the Court would be to consider whether it is necessary in the interests of the administration of justice to extend the period within which the application could be made. I explained by reference to Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579, discussed further below, the correct approach to the exercise of the Court’s discretion whether to extend time and some of the matters that the Court considers relevant in assessing whether extending time is necessary in the interests of the administration of justice, including the extent and reason for the delay, whether there is any prejudice to the first respondent and the merits of the substantive judicial review application.
The applicant’s grounds in support of an extension of time specify the following (reproduced verbatim):
1.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.
2.The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
In Tu'uta Katoa Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “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”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because 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”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36], [55]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; 286 FCR 556 at 566, [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].
Extent and reason for the delay
The extent of the delay – 581 days – is significant and the longer the delay, the more persuasive the explanation needs to be. So much may be accepted: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]; BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7].
During the hearing, the applicant explained that although he received the Decision and the information attached by email, he did not pay the Decision and information any heed. The applicant explained that approximately three months after receiving the Decision, a “friend” who was experienced in making judicial review applications to the Court told the applicant that he could seek review of the Tribunal’s decision in the Court, the time within which he could do so and that he was already late. The applicant’s friend told the applicant that he would help the applicant prepare an application to the Court but only if the applicant paid a fee of $1,500.00 in cash. The applicant said that it took him some time to secure the funds required and when he did, he paid his friend, and his friend prepared the application on the applicant’s behalf and the application was then lodged with the Court. Beyond the bare assertion, the applicant produced no evidence by way of affidavit from him or his friend to verify the allegation nor any evidence of making the payment such as a receipt or written acknowledgement.
The explanation or reason given for the delay is thus two-fold. First, the applicant contends that he was not aware of the time limit prescribed to apply for judicial review of the Decision to the Court. Second, he did not have the financial means to commence this proceeding any earlier. Ultimately, the applicant is responsible for ascertaining and accessing any review rights available to him, and any time limits to the exercise of those rights. To the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant’s ignorance of the time limit for a review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]. But here, as earlier noted, the information sheet attached to the Tribunal’s correspondence notifying him of the Tribunal’s decision alerted the applicant to his right to seek review and the relevant time within which the right may be exercised. Even taking into account the fact that the information sheet was in English, and the applicant requires the assistance of an interpreter, a diligent litigant would have sought assistance to have the content of the Decision, and the information sheet translated or explained. Rather than doing that, the applicant explained he simply did not pay the Decision and information any heed. In the circumstances, the lack of knowledge alleged does not provide a satisfactory or acceptable explanation for the delay. Moreover, it could not do so for the substantial delay in the period following the applicant’s friend telling him there was a time limit and it had already passed.
As to the applicant’s contention that his financial capacity explains the delay because he needed time to accumulate the funds to pay his friend for assistance, there is no evidence before the Court about the nature and extent of the applicant’s financial position; or how his financial position affected his capacity to file a judicial review application in time; or how the financial issues are said to explain the period of delay. There is also no evidence about how the applicant’s financial circumstances changed to allow the current application to be made at all. Much less is there any evidence that the applicant’s friend exists or that the transaction asserted took place. Generally speaking, an applicant’s financial circumstances or difficulties alone will be an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]; GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25]. The applicant has not provided any evidence about what other steps he took to obtain assistance, nor has he explained why he did not consult one of the organisations on the Tribunal’s website for immigration assistance as suggested in the Tribunal’s information sheet accompanying the Decision. Consequently, I do not accept the applicant’s financial circumstances or the need to pay his friend for assistance about which there is no evidence, provides a satisfactory explanation for the delay.
During the hearing, the applicant explained that he did not engage with the process before the delegate and later before the Tribunal because he “was scared to answer their questions” and lacked the confidence to attend to answer questions. To the extent that the apprehension alleged is said to explain the delay in making an application to the Court, it does not explain the lengthy period of the delay and is inconsistent with his explanation that the lack of funds explained the delay. It may be inferred from the lack of funds explanation that if the applicant could have accessed the funds sought by his friend much earlier, the application would have been made earlier. Thus, fear or apprehension had nothing to do with the delay.
The delay is significant, and I consider both the extent of the delay and the absence of any satisfactory explanation for the delay as weighing against a conclusion that it is necessary in the interests of the administration of justice to extend time.
Prejudice
The first respondent correctly concedes that there is no prejudice that would be suffered by the Minister in the grant of an extension of time, however, the absence of prejudice is insufficient to warrant the grant of an extension: Hunter Valley at 348-349 and SZTRY at [6]. It must also be accepted that the broader interests of the administration of justice, including the expectation of other litigants awaiting hearings in this Court, does not permit a late claim for review to proceed, especially where there is no factual foundation: see Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62]. And as the first respondent correctly points out, there is a significant public interest in “public law matters being resolved in a timely and efficient manner”: Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24 at [14] and the first respondent has a legitimate interest in the timely disposal of applications for visas: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [42].
Merits
Turning then to the merits of the application. During the hearing I explained to the applicant the nature of the Court’s judicial review jurisdiction. I explained that the Court may only grant relief if the applicant establishes the Tribunal’s decision is affected by jurisdictional error. I explained that the High Court of Australia recently explained the nature of jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law... no decision at all’ and is in that sense ‘void’”. The High Court noted that jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion; and
(h)failing to observe some applicable requirement of procedural fairness.
I explained to the applicant that although I would not be determining the substantial merits of his judicial review application in assessing whether to allow an extension of time, I will consider the merits of the judicial review application in more than an impressionistic way as explained above in Tu'uta Katoa at [18].
The applicant’s grounds of application are as follows:
1.The Tribunal misconstrued the risk of significant harm as set out in s36(2B) of the Migration Act 1958.
The Tribunal construed erroneously the existence of risk to life of significant harm to the applicants upon they returns (sic) to Malaysia.
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with provisions of the Migration Act.
3.The Tribunal has failed to investigate applicant’s claim, especially the grounds of persecution in Malaysia.
4.The second respondents failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, make no attempt to, and did not, comply with the requirements set out in section 424A of the Act.
During the hearing, the applicant was unable to explain or elaborate on these grounds. As earlier noted, the applicant said his friend prepared the application for him.
The applicant contends by ground 1 that the Tribunal misconstrued the risk of significant harm pursuant to s 36(2B) of the Act, and risk to life upon the applicant’s return to Malaysia. The applicant has not particularised this ground, despite an Order made by Registrar Bird on 18 September 2019 which allowed the applicant to, inter alia, file and serve any amended application with proper particulars of the grounds of the application.
The Tribunal noted in its Decision that it had significant concerns regarding the claims of the applicant, and in the absence of being able to make further inquiries by reason of the applicant’s non-appearance, the Tribunal reasoned that his claims – based on the limited evidence available to it – were “vague and undetailed”: Decision at [19]-[20]. The Tribunal had regard to and considered the complementary protection criteria which is contained in s 36(2)(aa) of the Act. The Tribunal did not accept the underlying claims made by the applicant. At [25] the Tribunal records that it was not satisfied that:
(a)three gangsters threatened to kill the applicant if he did not shut down his business;
(b)the applicant ran a restaurant business which was a business competitor to other neighbouring businesses;
(c)the next door neighbour kept coercing the applicant to move out;
(d)the applicant’s front house was splashed with blood; and
(e)several men stopped the applicant, who proceeded to punch him and took out a small knife; however, the applicant managed to escape the altercation before shortly departing to Australia.
The Tribunal observed at [28] of the Decision that:
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from gangsters, the next door food business owners or anyone else for reasons of his membership of a group of successful business owners or any other reason if he returns to Malaysia, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. Having found above that the Tribunal is not satisfied that the applicant has suffered harm as claimed, nor has the fears he claims, and that there is no real chance that the applicant will face persecution for any reason, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
Section 36(2B) of the Act is in substance a deeming provision which arises in the context of the complementary protection criterion in s 36(2)(aa), providing that if there exists a certain state of affairs therein enumerated then there is taken not to be a real risk the applicant will suffer significant harm. It was not here engaged because the substantial claims going to s 36(2)(aa) were not accepted and there was no need to consider the circumstances described in s 36(2B).
It is not the Tribunal that misconstrued s 36(2B) of the Act. Ground 1 as framed misunderstands s 36(2B). The remainder of the matters raised by ground 1 amount to no more than a complaint about the result. Absent further information, which the applicant did not provide because he failed to respond to the invitation to provide information and to attend the hearing, it was entirely open to the Tribunal on the material before it to reject the applicant’s claims as vague and undetailed. For these reasons, I do not consider that ground 1 has any reasonable prospect of success.
By ground 2, the applicant contends that the Tribunal did not have jurisdiction to make the decision because it did not reach “reasonable satisfaction” in accordance with the Act. Again, the applicant has not particularised this ground nor explained why this might be so. To the extent that the applicant takes an issue with the Tribunal’s merits conclusion, the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh, Gummow JJ.
As earlier noted, the Tribunal told the applicant it could not decide the review favourably to him on the material it had to hand. It therefore asked for more information or documents, explained what these were and invited the applicant to a hearing. The applicant did not provide any additional information or documents, and he did not attend the hearing. The Tribunal was entitled to assess the information before it about the applicant’s claims as “vague and undetailed”. In the circumstances, it was empowered to act under s 426A of the Act (as then in force) and it was open to the Tribunal to have been satisfied that the material before it provided an insufficient basis to find for the applicant. This ground also does not have any reasonable prospect of success.
By ground 3, the applicant contends the Tribunal failed to investigate the applicant’s claim, especially on the grounds of persecution in his home country. The duty imposed on the Tribunal by the Act is a duty to review: Minister for Immigration and Citizenship & Anor v SZIAI [2009] HCA 39 at [25]. A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review and such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction: SZIAI at [25]; Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at 453 [189] and the authorities cited therein. But the Tribunal has no obligation to conduct an inquiry to discover whether the applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36], [49], neither is it under any duty to make the applicant’s case for him: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; nor to make any further inquiries or obtain information beyond that which is provided by the applicant: SZIAI at [25].
At [16] of the Decision, the Tribunal notes:
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable to examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
The Tribunal dealt with the information and evidence that was available before it at the time, and arrived at its decision for the reasons that it gave. The applicant was ultimately responsible to make out his case before the Tribunal. As the Tribunal noted at [20]-[22] of the Decision, had the applicant attended the hearing he would have been questioned about:
(a)the individuals who were allegedly harassing, threatening and assaulting the applicant; whether the assaults were connected to his restaurant business; and whether he reported this to the local authorities: at [20];
(b)what the applicant believes would happen to him if he returned to Malaysia and his views on independent country information: at [21]; and
(c)his knowledge or belief that gangsters allegedly have connections to political people; and why the local authorities cannot protect him: at [22].
He did not attend, nor did he provide additional information as requested. That the Tribunal did not investigate or interrogate his claims boils down to his failure to engage with the Tribunal’s processes. No arguable case of jurisdictional error is disclosed by ground 3.
Ground 4 contends the Tribunal did not comply with the requirement under s 424A of the Act by failing to give to the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, nor did it issue any written invitation under s 424A.
Section 424A of the Act (as then in force) provided the following:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The type of “information” that is required to be put to the applicant as derived from s 424A(1)(a) was considered in VAF v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 123; 436 FCR 549 at [24], as follows:
. . . the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
And in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 147 CLR 297 the High Court said that:
. . .[h]owever broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence: at [18].
The Tribunal told the applicant that the information it had was insufficient to find in his favour. That information was the applicant’s claims in his protection visa application and supporting documents, which were provided to the delegate. Whilst the Tribunal had significant concerns regarding the claims of the applicant, it is not apparent that there was any other information on which the Tribunal relied; nor was there any information that was required to be put to the applicant in accordance with s 424A of the Act. As such, the information the Tribunal considered fell under the exception of para (ba) of s 424(3), whereby s 424A(1) does not apply to information:
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department …
This ground therefore does not have any reasonable prospect of success.
Consistent with his model litigant obligations, the first respondent raised the judgment in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975, as relevant to assessing whether the Tribunal’s decision is attended by jurisdictional error. In DNK17, Horan J concluded that it was legally unreasonable in the circumstances for the Tribunal to have exercised its discretion to decide the review application rather than dismissing it. The relevant circumstances were that the Tribunal did not provide reasons why it chose to exercise the power in s 426A(1A)(a) of the Act rather than (b). The first respondent submitted that the facts in this matter were distinguishable from those in DNK17.
In DNK17, although the appellant had ultimately failed to appear at the hearing, he made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the adjourned hearing. I do not consider that DNK17 stands for any general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b) of the Act, to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. Sometimes those reasons will be obvious or may be reasonably inferred from the circumstances. Ultimately the whole of the circumstances, taking into account the nature and purpose of the power exercised, will determine whether the exercise of power in a particular circumstance was unreasonable.
As earlier noted, at [14] of the Decision the Tribunal set out its reasons for proceeding to determine the review application in the applicant’s absence. In substance, the Tribunal reasoned that the applicant had not engaged with the Tribunal’s process. He was told the information before the Tribunal was insufficient, he was asked to provide further information, but he did not. He was invited to attend the hearing and reminded of the hearing on two subsequent occasions but failed to attend. He did not contact the Tribunal to explain his non-attendance and he was told that if he did not attend, the review application may be determined based on the material before the Tribunal. While there is no express reasons for choosing to exercise s 426A(1A)(a) power rather than (b) of the Act, it may reasonably be inferred that the Tribunal considered the applicant has not, and was not, going to engage with the process. This against the backdrop of also knowing he did not engage with the delegate. I therefore consider that the reasons given for exercising the power also provide sufficient reasons for electing to exercise that power rather than dismissal under s 426A(1A)(b). These reasons have an evident and intelligible basis for exercising the power under s 426A(1A)(a) rather than (b). Therefore, I do not consider a contention that jurisdictional error by reason of the unreasonable exercise of s 426A(1A)(a) power has any sufficient prospects of success.
As the first applicant was unrepresented before the Court, I have also reviewed the Tribunal's decision and the material in the CB filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
As should be evident, I do not consider any of the proposed grounds of review raised by the applicant have any reasonable prospects of success and that any argument based on DNK17 does not have any sufficient prospects of succeeding. In these circumstances, the absence of merit in the substantive application weighs against a conclusion that it is necessary in the interests of the administration of justice to extend time.
Save for the absence of prejudice, as all of the other relevant matters considered weigh against the applicant, I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time pursuant to s 477(2) of the Act.
The application for an extension of time is refused.
Costs
The first respondent sought an award of costs in the amount of $4,189.38 in the event the application for an extension of time failed. The applicant did not advance any cogent reason why in that event a costs order in the amount sought should not be made. Considering the history of this matter, the result, the work involved as disclosed from the filings and that the amount sought is consistent with the amount currently fixed by item 2, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), I consider the applicant should pay the first respondent’s costs fixed in the amount of $4,189.38.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 21 January 2025
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