DRN19 v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 1408

•

1 September 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DRN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1408

File number: MLG 3275 of 2019
Judgment of: JUDGE GOSTENCNIK
Date of judgment: 1 September 2025
Catchwords: MIGRATION – Protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – extension of time – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied that it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed
Legislation:

Freedom of Information Act 1982 (Cth)

Migration Act (Cth) div 4, pt 7, ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2A), 36(2C), 368A, 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 3
Cases cited:

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41, 288 FCR 218

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280

DZADC v Minister for Immigration & Citizenship (No 2) [2012] FMCA 778, 131 ALD 463

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, 274 FCR 646

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22, 191 CLR 559

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, 183 FCR 575

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, 93 FCR 220

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12

MZZYV v Minister for Immigration and Border Protection [2016] FCA 957

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470

Parker v The Queen [2002] FCAFC 133

Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579
Division: Division 2 General Federal Law
Number of paragraphs: 65
Date of last submission/s: 15 July 2025
Date of hearing: 10 June and 17 July 2025
Place: Melbourne
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: Mr C McDermott
Solicitors for the First Respondent: Mills Oakley
Counsel for the Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 3275 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DRN19

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GOSTENCNIK

DATE OF ORDER:

1 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The applicant’s 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.

2.The applicant pay the first respondent’s costs fixed in the sum of $6,800.00.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

Judge Gostencnik

INTRODUCTION

  1. In December 2016, a delegate of the (then) Minister for Immigration and Border Protection refused the applicant’s application for a Protection (Class XA) (Subclass 866) visa. The former Administrative Appeals Tribunal (Tribunal) reviewed the delegate’s decision and decided the review adversely to the applicant by affirming the decision under review. The applicant applied to the (then) Federal Circuit Court for judicial review of the Tribunal’s decision 8 days after the 35-day period for making such an application had lapsed. The issue before the Court is whether an order under s 477(1) of the Migration Act (Cth)[1] (Act) extending time should be made.

    [1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.

  2. For the reasons explained below, the application for an order extending the 35-day period within which an application under s 477(1) of the Act may be made is refused and the application will be dismissed with costs.

    BACKGROUND

  3. The applicant is a citizen of Vietnam who arrived in Australia on 2 July 2008 on a Tourist (Subclass 676) visa. After numerous departures and the grant of various visas, the applicant applied for a Protection (Class XA) (Subclass 866) visa on 13 April 2016. The applicant claimed that his daughter was targeted by a criminal mafia organisation which recruits young girls as prostitutes to entertain “high class business people”. The applicant claimed that his daughter refused to work for the organisation and was persecuted by members of the organisation. After his daughter’s departure from Vietnam, the applicant claimed to receive anonymous calls from members working for the criminal organisation asking for his daughter’s whereabouts, and that if she didn’t report herself to them, the organisation would take action against the applicant. The applicant claims that he cannot seek protection from local authorities because the police are corrupt, and that he is unable to relocate within Vietnam because the organisation has a network with other mafia groups and would be able to locate him. The applicant appointed a registered migration agent as an authorised recipient and, in support of his application, enclosed various links and media articles, including: an article headed, ‘Brides for sale: trafficked Vietnamese girls sold into marriage in China’, published in The Guardian on an unknown date; and an article headed, ‘David Cameron vows to tackle trafficking of Vietnamese children’, published in The Guardian on 29 July 2015.

  4. On 25 May 2016, the (then) Department of Immigration and Border Protection acknowledged receipt of the applicant’s visa application and advised that it had been assessed as a valid application. On 27 June 2016, the applicant withdrew his migration agent as an authorised representative and advised that all correspondence should be dispatched to him directly. On 18 November 2016, the Department invited the applicant to attend an interview scheduled for 30 November 2016 to discuss the applicant’s visa application and his protection visa claims. The applicant attended the scheduled interview.

  5. On 2 December 2016, the Minister’s delegate refused the applicant’s visa application and a copy of the delegate’s decision record was transmitted to the applicant by post. The delegate found significant elements of the applicant’s testimony to be “vague, generalised and lacking in specific detail”, and had “cause for concern about the veracity and plausibility of his claim for seeking protection in Australia”. The delegate did not find the applicant to be a satisfactory witness and was convinced that the applicant either embellished or entirely fabricated his claims. The delegate was satisfied that the applicant was not a refugee under s 5H of the Act, the harm claimed was not significant harm for the purposes of s 36(2A), and there were no substantial grounds for believing that there was a real risk the applicant would suffer significant harm pursuant to ss 36(2)(a) and (aa). The delegate concluded that they were not satisfied the applicant was a person in respect of whom Australia had protection obligations with respect to s 36(2C), and refused the applicant’s visa application.

    TRIBUNAL PROCEEDING

  6. On 9 December 2016, the applicant lodged an application to the Tribunal for a review of the delegate’s decision. The Tribunal acknowledged receipt of the visa application on 13 December 2016 noting that the validity of the application had yet to be assessed. The Tribunal advised in its correspondence that if the applicant wished to provide any material or written arguments for its consideration, to do so as soon as possible, and enclosed a copy of an ‘Information for refugee review applicants – MR Division’ factsheet. By application dated 22 March 2019, the applicant applied under the Freedom of Information Act 1982 (Cth) (FOI application) for access to his file from the Department of Home Affairs. The Tribunal acknowledged receipt of the FOI application and transferred the request to the Department on 22 March 2019.

  7. On 23 July 2019, the Tribunal advised the applicant by letter, dispatched by email, that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend a hearing scheduled on 14 August 2019 to give evidence and present arguments relating to the issues in his case, and enclosed an ‘Information about hearings – MR Division’ factsheet and a ‘Response to hearing invitation’ form to confirm attendances at the hearing and to provide any additional or new information which the applicant might wish the Tribunal to consider. The applicant returned the ‘Response to hearing invitation’ form, indicating his intention to attend the hearing, requested a Vietnamese interpreter and nominated his daughter and ex-wife as witnesses to give oral evidence during the hearing.

  8. On 5 August 2019, the applicant submitted to the Tribunal a psychological assessment report dated 22 June 2018 by an accredited mental health social worker, Mr Hien Bui, from Hampshire Medical Centre. The psychological assessment report explained that the applicant was referred to Mr Biu’s clinic by his general practitioner to address his depressive and psychotic symptoms. Mr Bui recounts the applicant’s background history and made an assessment on his mental state, psychological and social impacts, and recorded that, “[f]rom a qualified Counsellor, Family Therapist and Mental Health Social Worker point of view, I believe [the applicant] had been abused emotionally, physically and psychologically from a gang in Vietnam”, and “I believe that [the applicant’s] story is genuine and truthful”. Upon assessment of the applicant’s mental health, Mr Bui placed the applicant in the “mild range for depression, the mild range for anxiety and moderate range for stress”.

  9. The applicant attended the scheduled hearing before the Tribunal on 14 August 2019 with the assistance of a Vietnamese interpreter, and the Tribunal received evidence from the applicant’s daughter and ex-wife.

  10. On 14 August 2019, the Tribunal affirmed the decision under review and notified the applicant of that decision by letter, provided to the applicant by email transmission on 23 August 2019. The Tribunal enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision), an ‘Information about decisions – MR Division’ factsheet and an extract of ss 5, 5J, 5K, 5L, 5LA and 36 of the Act. The factsheet relevantly advised the applicant of 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.

    TRIBUNAL’S DECISION AND REASONS

  11. The Tribunal set out a brief procedural history to the review application at [1]–[6] of the Decision and detailed the mandatory considerations relevant to the application, including: ss 5H, 5J, 5K–LA, 36 of the Act; Ministerial Direction No. 84 made under s 499; policy guidelines prepared by the Department of Home Affairs – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) to the extent that they were relevant to the Tribunal’s consideration: Decision at [7]–[12]. The Tribunal recounted the applicant’s protection claims and acknowledged receipt of the articles enclosed with the applicant’s visa application and the psychological assessment report submitted to the Tribunal on 5 August 2019: at [13]–[15].  

  12. The Tribunal noted the cardinal issue in the review to be whether the applicant had a well-founded fear of being persecuted for one or more of the reasons set out in s 5J of the Act, and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia that there was a real risk he would suffer significant harm: Decision at [17].

  13. The Tribunal recounted the applicant’s claims for protection as follows:

    (a)after his daughter left Vietnam in 2008, the applicant received phone calls from gangsters threatening to harm him or make him disappear; however, nothing had happened to him in the eight-year period between 2008 and 2016, even though he had remained at the same residential address in Vietnam since 1991 prior to his arrival to Australia: Decision at [25];

    (b)the applicant was in fear because ‘they’ are the dark and kept threatening him and threatening to damage his house: at [25];

    (c)the applicant departed Australia three times after he first arrived and before applying for a protection visa, noting that returning to Vietnam was inconsistent with the applicant claiming to fear harm from gangsters and human traffickers: at [26];

    (d)the applicant, did not initially consider the threats as “important”, but the pressure escalated and he could no longer put up with it by 2016: at [26];

    (e)the applicant’s daughter returned to Vietnam twice after her first arrival in Australia to see her grandmother who was ill at the time: at [27];

    (f)in 2007, prior to the applicant’s daughter departing from Vietnam, the applicant’s house was spraypainted by gangsters, and he did not dare go out in the street: at [28]. In response to the Tribunal’s query why the applicant did not mention this claim in his visa application, the applicant responded that he had evidence but did not bring it with him: at [28];

    (g)the applicant did not indicate that he reported the claimed threats to the police, but stated in his application that the police are corrupt and work with the gangsters: at [29]. The Tribunal put to the applicant country information from the United Kingdom Home Office (UKHO) indicating that, in general, state protection is available to victims of human trafficking. The applicant commented that police are not prepared to assist as they may be bribed by gangsters: at [29].

  14. The Tribunal recorded that the applicant’s daughter gave evidence that her father received multiple phone calls from the gangsters, and that in 2007, their house in Vietnam was painted by gangsters. The Tribunal put to her that the applicant gave evidence that he lived at the same address since 1991, and she replied that it was her mother’s unit that was sold: Decision at [30].

  15. The Tribunal also recorded that the applicant’s ex-wife gave evidence that gangsters had thrown paint balloons or chemicals at their house; on one occasion ‘someone’ threw glass at her bruising her arm; and that two or three people tried to attack her but she had made it home safely. She said that she reported these incidents to police, but they did not find anything. She also claims that she was fearful for her (former) husband’s life because of the phone calls he received: Decision at [31].

  16. The Tribunal reasoned that the fact that nothing had happened to the applicant in the eight-year period between 2008 and 2016 and that he had lived at the same residential address since 1991 prior to his arrival in Australia, was inconsistent with the applicant fearing harm from a gangster organisation. The Tribunal did not find it plausible that gangsters would make threatening calls for eight years without acting on the claimed threats, and the Tribunal did not accept that the applicant had been threatened by the said gangster organisation: Decision at [25]. The Tribunal did not accept the applicant’s explanation that gangsters would pursue the applicant without taking any action, and did not accept that the applicant dismissed the phone calls as not important, but only sought protection in 2016 because by that time the calls were allegedly intolerable: at [26]. The Tribunal considered that the applicant’s daughter’s willingness to return to Vietnam was inconsistent with the applicant fearing harm from gangsters or human traffickers: at [27], and that if the claim that gangsters spray painted the applicant’s house was true, that claim would have been addressed in the applicant’s visa application, or the applicant would have at least provided evidence prior to the Tribunal hearing: at [28].

  17. The Tribunal advised the applicant that it preferred the country information evidence from the UKHO, and whilst it accepted that there may be instances of police corruption in Vietnam, the evidence indicated that “the government … prosecutes those involved in trafficking”; “the government provides protection and reintegration support to victims”; and “effective state protection is likely to be available to victims of human trafficking”, meaning that the applicant could have sought and received assistance from the local authorities: Decision at [29]. The Tribunal gave the evidence of the applicant’s daughter and ex-wife no weight, as they were persons who had an interest in supporting the applicant’s application to remain in Australia: at [31]. The Tribunal reasoned that if the claims that the applicant’s house had been spray painted, hit with chemicals, or that the gangsters attempted to attack the applicant’s ex-wife were true, those matters would have been raised in the applicant’s visa application: at [31]. In considering the applicant’s psychological assessment report dated 22 June 2018, the Tribunal did not accept the counsellor’s findings, specifically, that “[the applicant] had been abused emotionally, physically and psychologically from a gang in Vietnam”, and noted that it was not the counsellor’s role to test the veracity of the applicant’s claims: at [32].

  18. Overall, the Tribunal did not find the applicant to be a credible witness and concluded that he had concocted his primary claim that he was threatened by gangsters to release information about his daughter’s whereabouts. The Tribunal found the applicant’s evidence to be vague, inconsistent and lacking plausibility: Decision at [24]. The Tribunal determined that there was no real chance that the applicant would suffer persecution involving serious harm from either gangsters or a mafia organisation if he were to return to Vietnam, and accordingly, was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act. The Tribunal was also not satisfied that the applicant would suffer harm from anyone as a necessary or foreseeable consequence of him being removed from Australia to Vietnam, and was not satisfied that the applicant met the refugee criterion for the grant of a protection visa: at [37]. The Tribunal thereby affirmed the decision under review: at [39].

    CONSIDERATION

  1. As earlier mentioned, the applicant applied to the Court for judicial review of the Tribunal’s decision on 26 September 2019, as well as an extension of the time within which that application may be made. Such an application 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 14 August 2019 and the 35-day period ended on 18 September 2019. The application was therefore made eight days after the prescribed period had lapsed. Section 477(2) allows the Court, by order, to extend the 35-day period as the Court considers appropriate, if it is satisfied that it is necessary in the interests of the administration of justice to do so.

  2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Federal Court’s discretion under s 477A(2) of the Act, a provision which corresponds with this Court’s discretion to extend time in s 477(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] FCA 186, 3 FCR 344 at 348–349: Tu’uta Katoa at [13].

  3. 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]; 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].

  4. 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

  5. The extent or period of the delay – 8 days – as accepted by the first respondent, is relatively short. The explanation for the delay as set out in the applicant’s application is as follows:

    1.Although the decision record was prepared and dated by (sic) Tribunal on 14 August 2019, according to the Tribunal’s records, the notification letter and the decision record were delivered to the Applicant via email on 23 August 2019. By 20 September 2019, for some reasons (sic), the Applicant still has not received such an email from the Tribunal. The Applicant then sent an email to the Tribunal on (sic) same day enquiring about the outcome of the hearing. At 4.33.08 pm AEST on 20 September 2019, the Tribunal sent an email to the Applicant with the subject of “1621087 – [DRN19] – VIC – Re-notification of decision” attaching the notification letter and the decision record. The Applicant was only able to seek legal representation to avail himself of judicial review rights on 24 September 2019.

    2.Further and in the alternative, while the Applicant conceded that the Tribunal might have sent him the email on 23 August 2019, the 35 days (sic) timeframe (from the date the decision being (sic) made on 14 August 2019) given to the Applicant to seek Judicial Review has been cut short by 9 days due to the delay in sending the Applicant the decision record by the Tribunal on 23 August 2019. It is therefore necessary in the interests of the administration of justice to allow the Applicant an extension of time of 9 days to make up for the delay on the part of the Tribunal.

    3.The substantive case for the Judicial Review is sufficiently arguable to grant the extension of time.

    4.There is no prejudice to the Minister.

  6. In sum, the application explains the delay by asserting the applicant did not receive the written notification of the Tribunal’s decision until 20 September 2019, and that he was able only to seek legal representation to pursue judicial review of the decision on 24 September 2019. No evidence is offered to support the assertion. The Tribunal records set out in the Court Book (CB) filed by the first respondent do not objectively support this claim. Moreover, the affidavit of the applicant’s then solicitor, Natham Le, does not attach copies of emails said in the application to have been exchanged between the Tribunal and the applicant in September 2019.  Instead, all that is attached are copies of the Tribunal’s notification letter dated 23 August 2019, the earlier mentioned ‘Information about decisions – MR Division’ factsheet and the Decision. There is nothing in the material before the Court suggesting anything other than that the applicant was properly notified of the Tribunal’s decision on 23 August 2019, when notification was sent to the email address listed in the Tribunal’s application for review.

  7. Nothing turns on the alternative explanation for the delay—that because the Tribunal notified the applicant of its decision on 23 August 2019, he was deprived of nine days because of the delay in sending the applicant the Tribunal’s decision. The legislative scheme contemplates that the notice to the applicant of the Tribunal’s decision (other than an oral decision) will not always be contemporaneous or given on the date on which the Tribunal’s decision is made. Section 430A(1) of the Act requires the Tribunal to notify an applicant of a decision on a review by providing a copy of its written decision and reasons within 14 days after the date on which the decision is taken to have been made. Notification may be given by email, sent to the applicant’s last email address given to the Tribunal in connection with the review: ss 430A(1)(b) and 441A(5)(b) and (d). Here the Tribunal decided the review on 14 August 2019 and notified the applicant nine days later – on 23 August 2019. The requirement under s 477(1) that a judicial review application be made within 35-days of the date of the Tribunal’s decision is established in the legislative context just discussed. Accordingly, the date the Tribunal made the review decision, and the date on which the applicant is notified of that decision, need not coincide, but time reckoning for making of a judicial review application begins from the date of the former, not the latter. As the applicant has been appropriately notified of the Tribunal’s decision, the claim in the applicant’s application explaining the delay does not provide an acceptable or satisfactory explanation for the delay. In any event, it is not evident how this assertion explains the delay. There remained 24 days for the applicant to commence judicial review proceedings. The delay is concerned with the period following the expiration of the 35-day time limit.

  8. During the interlocutory hearing, the applicant said that he did not prepare the grounds for the extension of time in his application. He said he did not know his application was lodged out of time because he left everything to his representative. The application was prepared by a lawyer, as was the accompanying affidavit. Beyond that, there is insufficient material before the Court to support any conclusion that the delay was the result of representative error.

  9. To the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, a litigant’s ignorance of the time limit for making a judicial review application is not, without more, a satisfactory or acceptable explanation for the delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]–[9]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. Ultimately, the applicant is responsible for ascertaining any review rights he might have and any attendant time limits: SZSDA at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Nonetheless, information about the applicant’s right to seek judicial review was provided to the applicant at the time he was notified of the Tribunal’s decision, which specified the timeframe in which an application must be made to the Court.

  10. The ‘Information about decisions – MR Division’ factsheet, which was enclosed in the correspondence containing the Tribunal’s decision, clearly indicates than an application for judicial review had to be made within 35 days of the date of the decision, and there is no reference to the date of notification being the relevant point from which time is reckoned.

  11. In the circumstances, although the delay is short, it has not been adequately or satisfactorily explained. Together these factors weigh marginally against the application to extend time.

    Prejudice

  12. The first respondent accepted that he is not specifically prejudiced by the delay, but in any event, the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: SZTRY at [6]; Hunter Valley at 349. The first respondent also highlighted the public interest in the finality of administrative decisions but accepted given the short delay that this specific factor is of limited weight. The absence of prejudice in the context of this short delay weighs marginally in favour of the application to extend time.

    Merits

  13. The substantive application for judicial review sets out four particularised grounds as follows:

    Ground 1

    The Tribunal denied the Applicant procedural fairness due to its failure to afford the Applicant with (sic) a fair hearing and an opportunity to provide further evidence or submission.

    Particulars

    a.At paragraph 5, the Tribunal while acknowledging the Applicant did not provide the Tribunal with the Department's decision record failed to ascertain whether the Applicant had an opportunity to read it. In fact, the Applicant did not have the decision record at the time of lodgement of the review application to the Tribunal on 9 December 2016. The Tribunal ought to have noticed this irregularity such that it must provide the Applicant an opportunity to read the decision record by adjourning the hearing.

    b.The Applicant's legal representative arrived late after the hearing had commenced and the Tribunal was aware of the legal representative's late arrival during the hearing, yet the Tribunal completely ignored the legal representative's presence and failed to ask the legal representative to make any further submissions on behalf of the Applicant during or after the hearing. 

    c.At paragraph 28, the Applicant told the Tribunal that in 2007 the gangsters spray painted the wall and windows of his home and the Applicant had evidence for this incident but did not bring (sic) along to the hearing. The Tribunal failed to provide the Applicant an opportunity to submit this evidence after the hearing which occurred in the morning of 14 August 2019 but went straight to prepare and sign the decision record at 2.49 pm on the same day.

    Ground 2

    In determining whether the Applicant would face a “real chance” of serious harm, the Tribunal committed jurisdictional error in that it misunderstood the law or applied the wrong legal test.

    Particulars

    a.The Tribunal ought to know that the test to ascertain whether there is a real risk of harms (sic) to the Applicant is a forward-looking test (DZADC v MJAC (No.2) (2012) 131 ALD 463 at [16] applying Chan v MIEA (1989) 169 CLR 379 and MIEA v Wu Shan Liang (1996) 185 CLR 259).Yet, at paragraph 25 it relied on the non-occurrence of the harms from July 2008 until March 2016 when the Applicant came to Australia to conclude that the Applicant is not at risk of harms (sic) from the gangsters. The Tribunal wrongly required the Applicant to show past persecution in order to demonstrate a well-founded fear of being persecuted.

    Ground 3

    The Tribunal’s decision was infected with jurisdictional error in that it has failed to take into account relevant matters or circumstances.

    Particulars

    a.At paragraph 14, the Tribunal acknowledged that the Applicant had included in his application two articles regarding people trafficking in Vietnam and links to articles regarding corruption among Vietnamese authorities. However at paragraph 29, the Tribunal completely failed to take into consideration the above information but relied solely on the Country Policy and Information Note prepared by United Kingdom Home Office, which was silent about the integrity and effectiveness of the police in Vietnam, to conclude that the Applicant could have sought and received assistance from the authorities in Vietnam.

    b.At paragraph 32, the Tribunal while considering the psychological assessment failed to take into account the circumstances of the Applicant leading to him suffering from depression. As the Applicant provided to the Tribunal during the hearing, he was depressed because he was divorced from his wife who thought him as being crazy but in reality he was paranoid because of the threats he received from the gangsters; he had been living alone in Sydney until re-establishing contact with his daughter, who lived in Melbourne, in early 2019; and he was fearful for his life and well-being if forced to return to Vietnam. All of these circumstances had been corroborated by the Applicant's ex-wife on the date of the hearing. The failure to take into consideration such circumstances has led to Tribunal to (sic) outright dismissing the psychological assessment of the counsellor.

    Ground 4

    The Tribunal made jurisdictional error as it conducted itself in a manner that displays actual or apprehended bias and failed to keep an open mind with respect to the issues at hand.

    Particulars

    a.During the hearing, the Tribunal expressed a high level of suspicion and disbelief as to the answers provided by the Applicant and his two witnesses when giving evidence about the threats of harm they received and the paint incidents occurring to their house. At paragraph 31, the Tribunal then imputed that because the two witnesses have an interest in supporting the Applicant to remain in Australia, he gave their evidence no weight without conducting a proper fact-finding process.

    b.During the hearing, the Tribunal had on several occasions interrupted the Applicant preventing him from fully presenting his accounts. For instance, when the Tribunal asked the Applicant why his daughter could sign a document which was included in his protection visa application without him physically meeting her. The Tribunal then imputed the Applicant as being not truthful while in fact the Applicant, who was living in Sydney at that time, had obtained the email address and contact number of his daughter, who was living in Melbourne at that time, through a friend and asked her to sign the document and send to him the document via email.

    c.By closing its mind and therefore failing to give due consideration as to the possibility of accepting the evidence provided by the Applicant and the witnesses, the Tribunal clearly exhibited a bias against the Applicant and pre-determined his case without a fair assessment of all the materials before the Tribunal.

  14. During the interlocutory hearing, the applicant said that he did not prepare the grounds of review. The applicant said that the grounds were prepared by his then lawyers and that he did not understand them, nor was he able to elaborate on the grounds. The applicant could not articulate any other basis on which it might arguably be said the Tribunal’s decision is attended by jurisdictional error. The applicant accepted the Tribunal made no legal error in its decision but complained that his former solicitors did not properly represent his grievance at the Tribunal, and took issue with the quality of interpreting services at the Tribunal hearing. The applicant did not elaborate on either complaint.

  15. Insofar as the applicant complains about the quality of interpreting services, the applicant failed to produce a transcript or audio recording of the Tribunal’s hearing to make good his generalised claim. In the absence of a transcript or audio recording, the applicant’s claims lack a proper foundation and are not made out. There is nothing in the Tribunal’s decision to indicate any translation issues during the hearing and there is no evidence the applicant raised any complaint about the quality of the translation during the hearing. No mention is made of the issue in the grounds set out in the application. The allegations about the quality of the solicitor’s representation, without more, will not make good an allegation of jurisdictional error on the part of the Tribunal. Moreover, it is to be doubted whether the applicant was represented by solicitors at the Tribunal hearing. Both the record of attendance at the Tribunal hearing at CB160, and the Tribunal’s Decision at CB169, suggest he was not represented. Indeed, during the interlocutory hearing, the applicant confirmed that he was not represented at the Tribunal hearing and was not assisted by any representative.

  16. The applicant’s written submissions take matters no further. They amount to a plea to remain in the country on personal and compassionate grounds. The submissions point to no arguable case of jurisdictional error in the Tribunal’s decision and essentially invites the Court to engage in impermissible merits review: 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. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error and has no legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 at [40]. The applicant’s oral submissions were to the same effect.

  1. Although the applicant appeared to abandon the grounds of review set out in his application, I will nonetheless address those grounds.

    Ground 1

  2. By proposed ground 1, the applicant claims that the Tribunal denied him procedural fairness by failing to give him a fair hearing and an opportunity to provide further evidence. This ground is advanced on several bases. First, the applicant claims that he did not have a copy of the decision made by the delegate, nor had he read the decision, and that the Tribunal should have adjourned the hearing to allow the applicant an opportunity to read the decision. Second, the Tribunal ignored the presence of the applicant’s representative at the hearing and failed to ask the representative to make any further submissions in the hearing. Third, the Tribunal failed to provide the applicant an opportunity to submit further evidence in support of the claim that gangsters spray painted the applicant’s house.

  3. There is no evidence the applicant did not have a copy of the delegate’s decision. And as the first respondent correctly observed, this claim is difficult to follow in the circumstances where the applicant was able to make his review application to the Tribunal one week after the decision by the delegate was made. Nevertheless, even if the contention is correct, it does not constitute a breach of the natural justice requirements in Div 4, Pt 7 of the Act by the Tribunal. Nor was it an act or omission by the Tribunal. In the present case the Court is not empowered to review the conduct and decision-making of the delegate. This was in the purview of the Tribunal.

  4. As to the second matter, as I have already noted, during the interlocutory hearing, the applicant confirmed that he was not represented at the Tribunal hearing and was not assisted by any representative. This allegation is therefore misconceived.

  5. Dealing with the third matter, the Tribunal recorded at [28] of the Decision that the applicant indicated he possessed further evidence in relation to the claim that gangsters spray painted his home, but that he did not bring it to the hearing before the Tribunal. There is no evidence by way of transcript or audio of the Tribunal proceeding to substantiate that claim, nor is there any indication, on the face of the Tribunal’s decision, that the applicant sought an opportunity, by way of an adjournment application or request, to provide further evidence. In the absence of a transcript or audio recording, this claim cannot be made good. The applicant was given the opportunity to give evidence at the hearing before the Tribunal, and the applicant’s failure to provide evidence is not a basis for jurisdictional error. It is well-established that an applicant must make their case before the Tribunal. 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, 183 FCR 575 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]; nor to make any further inquiries or obtain information beyond that which is provided by the applicant: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. 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.

  6. It is also to be remembered that when the Tribunal invited the applicant to attend a hearing scheduled on 14 August 2019 to give evidence and present arguments relating to the issues in his case, it enclosed a ‘Response to hearing invitation’ form and it asked the applicant to complete the form to confirm attendances at the hearing and to provide it with any additional or new information which the applicant might wish the Tribunal to consider. Apart from at the hearing, this was also an opportunity for the applicant to provide the Tribunal with any further evidence he had to provide. The applicant returned the ‘Response to hearing invitation’ form, indicating he would attend the hearing, he requested a Vietnamese interpreter, and he nominated his daughter and ex-wife as witnesses to give oral evidence during the hearing. But he did not provide any additional or new information, despite having the opportunity to so do.

  7. Consequently, proposed ground 1 does not disclose any arguable case of jurisdictional error.

    Ground 2

  8. By proposed ground 2, the applicant claims that the Tribunal applied the wrong legal test, in that the Tribunal ought to have applied the forward-looking test in ascertaining whether there was a real risk of harm, by reference to DZADC v Minister for Immigration & Citizenship (No 2) [2012] FMCA 778, 131 ALD 463 at [16], and that at [25] of the Decision, the Tribunal was incorrect in requiring the applicant to show past persecution to prove the existence of a well-founded fear of persecution.

  9. At [25] of the Decision, the Tribunal explained why it did not accept the applicant’s claim that he had been threatened by an alleged gangster organisation as follows:

    25. For the following reasons the Tribunal does not accept that [DRN19] has been threatened with harm by members of a gangster organisation because he refused to provide information regarding the whereabouts of his daughter. Firstly, while [DRN19] claims that after his daughter left Vietnam to come to Australia in July 2008 (on a student visa) he received threatening phone calls from gangsters including calls threatening that he would be harmed or would 'disappear', nothing happened to him over the nearly eight year period from July 2008 until he came to Australia (for the fourth time) in March 2016. This is even though he indicated to the Tribunal he remained living at the same address in Ho Chi Minh City from 1991 until he came to Australia in 2016. The Tribunal finds this to be inconsistent with a gangster organisation threatening him that he will be harmed unless he cooperates with them. When this was put to [DRN19] at the hearing he said they kept threatening him and threatening to damage the house which made him realty fearful because they are 'the dark'. The Tribunal does not find it plausible and does not accept that gangsters would have persisted with making threatening calls for nearly eight years without actually acting on their claimed threats to harm [DRN19] or damage his property.

  10. The Tribunal’s task was, ultimately, to determine whether there was a real chance of the applicant suffering persecution involving serious harm if he were to return to Vietnam. It is accepted that an aspect of the Tribunal’s obligation is to correctly apply the legal principles in determining whether an applicant has a well-founded fear of persecution by engaging in reasonable speculation requiring the Tribunal to take account of the chance that past events might have occurred, even though it thinks that they probably did not: Wu Shan Liang at 281, 293; Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22, 191 CLR 559 at 575–6; Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, 93 FCR 220 at [63]. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing and determining that which is likely to occur in the future will, in most cases, require findings as to what has occurred in the past. And ordinarily, an integral part of the process of deciding the chance of something occurring in the future is that conclusions are formed concerning past events: Guo at 575. This is because the question for the Tribunal is whether it is satisfied that the applicant has a well-founded fear of future persecution – that is – does the applicant have a “real substantial basis” for the fear? And so, the Tribunal must not foreclose reasonable speculation about the chances of the hypothetical future event occurring: Rajalingam at [60]. The obligation will not arise if the Tribunal is in no real doubt about its findings as to the past and the future are correct, or it considers that the probability of error in its findings is insignificant: Guo at 576; Rajalingam at [56].

  11. Whether the Tribunal was obligated to consider the possibility that its factual findings might not be correct is to be determined by reference to the Tribunal’s reasons: Rajalingam at [67], and if on a fair reading of the reasons the Tribunal had no real doubt as to its findings, it is no part of the Court’s judicial review function to ask whether the Tribunal should have had doubts: Rajalingam at [56]. The Tribunal is not required to express its findings about past events by making explicit the degree of conviction or confidence it has that the findings made are correct: Rajalingam at [64]. Nor is it the function of the Court to ascribe or impute to the Tribunal a lack of confidence in the correctness of its findings by assessing the evidence that was before the Tribunal for itself: Rajalingam at [65]. And a fair reading of the reasons includes that the Tribunal’s reasons should receive a beneficial construction and should not be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 271–2; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280 at 287; Rajalingam at [67].

  12. Returning to the Tribunal’s reasons, at [25], the Tribunal recounts that after the applicant’s daughter left Vietnam, the applicant claimed that he received threatening phone calls from gangsters that he would be harmed or disappear. The Tribunal observed that:

    ·nothing had happened to the applicant during the eight-year period from when he departed Vietnam in 2008 until his fourth arrival to Australia in 2016; and

    ·he lived at the same address in Vietnam from 1991 up until the applicant arrived in Australia in 2016.

  13. It is these observations that led the Tribunal to reason that it did not find it plausible that gangsters would persist making threatening calls for eight years without acting on the claimed threats. As a result, the Tribunal determined at [25] that it did not accept that the applicant had been threatened with harm from the gangster organisation, and concluded at [34] by finding, that there was no real chance that the applicant would suffer persecution involving serious harm from a gangster or mafia organisation should he return to Vietnam. It is in these circumstances, which are not controversial, that the Tribunal considered the possibility of the occurrence of claims about the past to find that the future events would likely not occur. The Tribunal’s reasons reflect a logical and intelligible basis.

  14. The Tribunal adverted to the “real chance” test at [10] of the Decision and, as the first respondent points out, the Tribunal noted the obvious inconsistency in the applicant remaining in a location of the claimed proximate and constant danger by reason of continual threats directed to him, without any of those threats eventuating or resulting in any harm. I accept the first respondent’s contention that the Tribunal inferred, in a manner that was open for it as the fact-finder, that the applicant had not been harmed as he claimed by reason of his past experience during this significant period; the finding is dispositive of what occurred in the past with the reasonable speculation as to what might occur in the future. I also accept that the Tribunal has otherwise not made any error of the kind as identified in DZADC at [15], that is by not “[going] the extra step of explaining why…[the] finding that nothing happened in the past meant that nothing would happen in the future”.

  15. I am not persuaded that proposed ground 2 establishes an arguable case of jurisdictional error.

    Ground 3

  16. By proposed ground 3, the applicant claims that the Tribunal failed to consider relevant matters. This ground is advanced on two bases. First, the applicant contends that at [29] of the Decision, the Tribunal failed to consider the media articles and links he submitted to the Department and instead relied on country information prepared by the UKHO. Second, at [32], that the Tribunal failed to consider the circumstances that led to the applicant’s depression, which had been corroborated by his ex-wife, and erred in dismissing the applicant’s psychological assessment.

  17. It is uncontroversial that the Tribunal is statutorily required to examine and deal with the applicant’s claims, including an integer of his claims: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [57]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136 at [42], and that jurisdictional error may be established if the Tribunal overlooked or misunderstood a substantial or consequential claim or evidence that relates to a key issue in the review: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99 at [111], [113]–[114]. Consideration of the applicant’s claims and evidence by the Tribunal should be proper, genuine and realistic: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470 at [37]. However, the Tribunal is not required to refer to every piece of evidence before it, nor is it required to engage with considerations that were not the subject of substantial, clearly articulated argument or which otherwise do not arise on the materials. And it was not required to make express reference to a particular consideration it did not consider to be material: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, 274 FCR 646 at [92]; Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 at [15].

  18. Dealing with the first particular of proposed ground 3, the Tribunal explained at [29] of its Decision that:

    29. Fifth, [DRN19] indicated that he never reported the claimed threats to the police. In his application he stated that the police are corrupt and work with the gangsters so it is dangerous to go to the police. At the hearing the Tribunal put to [DRN19] for comment country information from the United Kingdom Home Office (UKHO) indicating that, while human trafficking remains a problem in Vietnam, it is illegal; the government has comprehensive anti-trafficking legislation and prosecutes those involved in trafficking; the government provides protection and reintegration support to victims including through 400 social protection centres; and the UKHO assesses that, in general, effective state protection is likely to be available to victims of human trafficking. [DRN19] commented that in reality human trafficking remains a problem because the police are not prepared to help. He said the police do not want to solve the problem because there would be no benefit or income for them, whereas gangsters might bribe them. The Tribunal prefers the evidence of the UKHO over that of [DRN19] and, while accepting that there may be instances of police corruption in Vietnam, finds that if [DRN19] was being harassed and threatened by gangsters associated with human traffickers for eight years, the evidence indicates that he could have sought and received assistance from the authorities in Vietnam.

  19. The Tribunal acknowledged at [14] of the Decision that the applicant included two articles and various links with his visa application in support of his claims of corruption and human trafficking. The Tribunal did not ignore the articles and links submitted by the applicant, but instead reasoned, relying on UKHO, that the applicant could have sought and received assistance from the authorities in Vietnam. This reasoning is entirely logical in the circumstances, considering the information from the UKHO and the fact that the applicant had indicated that he had not reported the claimed threats to the police. It is open to the Tribunal to consider country information in arriving at its findings on the evidence and materials before it.

  20. As to the second particular, the Tribunal acknowledged the applicant’s psychological assessment at [15] of the Decision and apprehended that the applicant was referred to the clinic to address his ‘depression with psychotic symptoms’. At [32], the Tribunal recorded that it accepted that the applicant was referred to the clinic to deal with his depression and psychotic symptoms, however, the Tribunal rejected the assessment on the basis that it was not the counsellor’s role to test the veracity of the applicant’s claims, and that the assessment appeared to be based on self-reporting by the applicant and the counsellor’s belief that the applicant’s story was genuine and truthful. To the extent that the applicant claims that his ex-wife corroborated his account in the hearing, the Tribunal ultimately rejected the applicant’s ex-wife’s testimony because she was not an independent witness and was a person who had an interest in supporting the applicant’s application to remain in Australia and attributed her evidence no weight. The Tribunal did not fail to consider the applicant’s circumstances in dismissing the psychological assessment. The Tribunal rejected the assessment for the cogent reasons it gave.

  21. Consequently, proposed ground 3 does not disclose an arguable case of jurisdictional error.

    Ground 4

  22. By proposed ground 4, the applicant claims the Tribunal displayed actual or apprehended bias by failing to keep an open mind of the issues in the hearing and erred in determining the applicant’s case without a fair assessment of all the materials before it. This ground is advanced on two bases. First, the applicant contends that the Tribunal expressed a high level of suspicion and disbelief to the answers provided by the applicant and his witnesses, and that at [31] of the Decision, the Tribunal gave the witnesses’ evidence no weight in the absence of a proper fact-finding process. Second, the Tribunal interrupted the applicant in the hearing, preventing him from fully presenting his account.

  23. An allegation of actual bias is a serious allegation that must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at [69] per Gleeson CJ and Gummow J. To make good a contention of apprehended bias against an administrative decision-maker, more must be shown than a mere predisposition of the Tribunal to a particular view; it is necessary to show that the decision-maker’s mind was not open to persuasion and incapable of alteration: Jia Legeng [68] and [71]–[72] per Gleeson CJ and Gummow J; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41, 288 FCR 218 at [40] per Bromberg, Murphy and Markovic JJ. But here, the allegation made by the applicant falls well short of that threshold.

  24. As earlier noted, there is no transcript or audio recording of the Tribunal’s hearing to make good this allegation. As explained earlier, the Tribunal rejected the testimony of the witnesses called by the applicant, reasoning that they were not independent witnesses and were persons who had an interest in supporting the applicant’s application to remain in Australia: Decision at [31]. This conclusion was open to the Tribunal and, absent any transcript or audio recording, does not come close to establishing an arguable case of actual or apprehended bias. Similarly, any claim that the Tribunal interrupted the applicant on several occasions, preventing him from fully presenting his account, cannot be made good absent a transcript or audio recording of the hearing. Finally, the claim that the Tribunal closed its mind and failed to consider the possibility of accepting the applicant’s (and his witnesses’) evidence, is so vague, broad and unparticularised that it cannot succeed.

  1. There is nothing by reference to the Tribunal’s decision or the materials that provides an arguable basis for suggesting apprehended, much less actual bias, on the part of the Tribunal.

  2. There is simply no evidence to support the contention of any arguable case of apprehended or actual bias. Ground 4 does not disclose an arguable case of jurisdictional error.

  3. Consequently, although the delay is short and there is an absence of prejudice, for the reasons expressed above about the lack of merit in the proposed judicial review application, I am not persuaded that it is in the interest of the administration of justice to extend time.

    DISPOSITION

  4. The application to extend the 35-day period in which to make an application for judicial review is dismissed.

    COSTS

  5. The first respondent sought an award of costs in the amount of $8,371.30 in the event the applicant was unsuccessful in the extension of time application, which is above the amount fixed by item 3 of Div 1, Pt 2, Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) for a migration proceeding that concludes at an interlocutory hearing. Although the matter has been dismissed at the interlocutory stage by the refusal to grant an extension of time, the first respondent sought to recover costs thrown-away by the applicant’s adjournment application made during the hearing on 10 June 2025. The adjournment was granted because the applicant’s former solicitors filed a notice of withdrawal of lawyer two weeks before to the interlocutory hearing, and I afforded the applicant an opportunity to obtain new representation and an extension of time to file and serve further materials and an amended application. No earlier notice of the application for an adjournment was given by the applicant.

  6. By the hearing on 17 July 2025, the applicant had neither obtained new representation, nor complied with the Court’s orders, save for written submissions which were provided very late, and which did not engage with any issue before the Court. In these circumstances, I consider the amount of costs the first respondent should recover should be more than the scale amount for a migration matter concluded at an interlocutory stage, but I do not consider the scale amount for a matter concluded at a final hearing is appropriate. Instead, I consider an amount of $6,800.00 is appropriate and reflective of the reasonable costs incurred by the first respondent in connection with this application and the costs thrown away, and a departure from the scale amount provided by the Rules is justified.

  7. The applicant will be ordered to pay the first respondent’s costs fixed in the sum of $6,800.00.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       1 September 2025


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