Eca17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 659

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ECA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 659

File number(s): MLG 1970 of 2017
Judgment of: JUDGE LUCEV
Date of judgment: 19 August 2022
Catchwords:

PRACTICE AND PROCEDURE – Extension of time application – consideration of factors – where very lengthy delay – whether proper or sufficient explanation for delay – whether prejudice – whether Proposed Judicial Review Application reasonably arguable

MIGRATION – Refusal of Protection Visa – Proposed Judicial Review Application – whether reasonably arguable

Legislation: Migration Act 1958 (Cth) ss 36, 424, 424A, 425, 476, 477
Cases cited:

AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322

AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291

AZAFX v Federal Circuit Court of Australia and Others [2016] FCA 1139; (2016) 244 FCR 401

BJM15 v Minister for Immigration and Border Protection [2021] FCA 786

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1

BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83

CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588

CXS18 v Minister for Home Affairs [2020] FCAFC 18

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309; (2017) 71 AAR 525

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469

Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; [1986] Aust HC & Fed Ct Prac 96,460

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) ALR 280; (2014) 139 ALD 50

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; (2003) 198 ALR 293; (2003) 75 ALD 151

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491

SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

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

Tran v Minister for Immigration and Border Protection [2014] FCA 533

WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736

WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726

WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214

WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398
Division: Division 2 General Federal Law
Number of paragraphs: 57
Date of last submission/s: 21 July 2022
Date of hearing: 21 July 2022
Place: Perth
Applicant: In person by phone via CISCO Webex with the assistance of an interpreter
Counsel for the First Respondent: Mr J Lessing via CISCO Webex
Solicitor for the First Respondent: Australian Government Solicitor
Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 1970 of 2017

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

ECA17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

19 AUGUST 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) filed 12 September 2017 for an extension of time in which to file an application under s 476 of the Migration Act be dismissed.

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 LUCEV
Introduction

  1. Before the Court is an application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, ECA17, filed in the Melbourne Registry of this Court on 12 September 2017 for an extension of time in which to file an application for judicial review under s 476 of the Migration Act (“Proposed Judicial Review Application”). The Proposed Judicial Review Application relates to a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively”) of 30 June 2016 to affirm a 27 October 2015 decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant ECA17 a Subclass 866 (Class XA) Protection visa (“Protection Visa”). Because of the acknowledged delay: see AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren, in listing migration applications for hearing before a Judge in the Melbourne Registry, this matter was reallocated in November 2021 to the Court’s Perth Registry for hearing by a Perth Judge. On 19 November 2021 orders were made by the Court listing the matter for hearing on 22 July 2022 before a Judge in the Perth Registry.

  2. The material the Court has before it includes:

    (a)the Court book (“CB”) totalling 120 pages and in evidence as Exhibit 1;

    (b)ECA17’s affidavit affirmed 12 September 2017 (“ECA17 Affidavit”) appending the Tribunal Decision;

    (c)Ms Michelle Stone’s Affidavit affirmed 27 June 2022 (”Stone Affidavit”) appending the transcripts of the hearings before the Tribunal on 17 February 2016 and 18 March 2016; and

    (d)the Minister’s written outline of submissions (“Minister’s Submissions”) dated 7 July 2022.

    EXTENSION OF TIME APPLICATION

    Prescribed period for filing, delay and requirements

  3. ECA17 had 35 days from the date of the Tribunal Decision, 30 June 2016, within which to file an application for judicial review: Migration Act s 477(1). The prescribed period within which ECA17 could apply for judicial review ended on 4 August 2016. The Extension of Time Application was filed on 12 September 2017, and so was made 404 days outside of the time limit prescribed by s 477(1) of the Migration Act.

  4. The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act. Under s 477(2) of the Migration Act the Court may order an extension of the prescribed 35-day period to seek judicial review if:

    (a)an extension of time application is made in writing specifying why it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(a); and

    (b)the Court is satisfied that it is necessary in the interests of the administration of justice to extend time: Migration Act s 477(2)(b).

  5. The Extension of Time Application has been made in writing specifying why it is that ECA17 says it is necessary in the interests of the administration of justice to extend time, and so the Court need only consider whether it is satisfied that an extension of time is necessary in the interests of the administration of justice.

    Whether in the interests of the administration of justice

    Law

  6. In considering the law with respect to extending time in which to make an application for judicial review under the Migration Act regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:

    (a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;

    (b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;

    (c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and

    (d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.

  7. With the statements of principle above in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act are well established, but not closed, and can be summarised as follows:

    (a)the extent of the delay;

    (b)the explanation for the delay;

    (c)any prejudice that may be suffered; and

    (d)the merits of the Proposed Judicial Review Application,

    see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ; AZAFX v Federal Circuit Court of Australia and Others [2016] FCA 1139; (2016) 244 FCR 401 at [9]-[10] per Charlesworth J.

    Extent of delay

  8. In this case there is a very substantial delay of 404 days. The delay itself is more than eleven times the existing limitation period. As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and “[i]n all but very exceptional cases”, the limitation period should be “rigidly applied”: see too BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 (“BJM15”) at [41] per Colvin J; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (“WQRJ”) at [30] per Derrington J. In the Court’s view, for reasons set out below in relation to both the explanation for the delay (at [10]-[18] below) and the merits of the Proposed Judicial Review Application (at [21]-[51]) there is nothing “exceptional”, or obviously exceptional, in the circumstances of ECA17’s case.

  9. This is a case in which the delay in bringing the Proposed Judicial Review Application weighs significantly and heavily against granting the Extension of Time Application, and is so very substantial that, of itself, it is probably sufficient for the Court to exercise its discretion to dismiss the Extension of Time Application (absent an exceptional case).

    Explanation for delay

  10. Generally, “the longer the delay the more persuasive the explanation needs to be”: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J; see also Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; [1986] Aust HC & Fed Ct Prac 96,460; FCR at 195 per Lockhart, Sheppard and Burchett JJ. Unwarrantable delay in the absence of any acceptable explanation may be a sufficient reason alone to deny the grant of discretionary relief: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57] and [61] per Bromwich J; WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214 at [42] per Judge Lucev. Further, with such a very substantial delay, ECA18’s “case would need to be exceptional” before the time for commencing proceedings would be extended: Marks at [13] (see too at [16]) per McHugh J, citing Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479; ALJR at 459 per McHugh J.

  11. The effect of delay in a case seeking prerogative relief from the decision of an administrative decision-maker was commented upon by the High Court in Marks at [16] per McHugh J in the following terms:

    16.Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, ‘[t]he rules of court must prima facie be obeyed’. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

  12. ECA17’s reasons for delay are set out in the Extension of Time Application. In summary, ECA17 says that his father was diagnosed with liver cancer in June 2016, his father needed a lot of money for treatment and ECA17 could not afford to pay a “fee” of $1,673.00 (this appears to be the fee for the application to the Tribunal): CB 107, as his savings were needed to pay for his father’s medical fees. He states that he could not appeal his case “due to lack of money”. ECA17 states that his father passed away in December 2016. At hearing ECA17 also said that he was the person upon whom his family in Malaysia relied financially.

  13. In ECA17’s Affidavit filed with the Extension of Time Application there is no evidence of an explanation for the delay.

  14. On 19 November 2021 the Court made orders at a hearing at which ECA17 appeared in person with the assistance of a Mandarin interpreter, including an order that ECA17 file and serve by 23 June 2022 any affidavits. ECA17 did not file any affidavits pursuant to that order.

  15. In short, therefore, there is no evidence capable of sustaining the reasons for the delay alleged in the Extension of Time Application.

  16. There are a number of other matters which tell against the reasons for delay given by ECA17 in the Extension of Time Application, namely:

    (a)ECA17 does not advance any evidence of having applied for the fee exemption that is offered by the Court for financial hardship;

    (b)ECA17’s assertion that he paid his father’s medical expenses is questionable in circumstances where he told the Tribunal (in the February 2016 hearing) that he was not working, received free rent and food from friends in exchange for domestic chores and described himself as “broke”: Stone Affidavit, pp 30 and 33; and

    (c)in circumstances where ECA17’s father is said by ECA17 to have passed away in December 2016, or approximately eight to nine months before filing of the Extension of Time Application, the majority of the period of the delay relates to a period which post-dated any apparent necessity to pay his father’s medical fees.

  17. There was, therefore, irrespective of the father’s illness, a significant delay in filing the Extension of Time Application. Whilst not as significant as the 404 day delay, there still remains a very significant and unexplained delay in the filing of the Extension of Time Application for some months after the father’s death.

  18. The above circumstances do not adequately explain the delay in filing the Extension of Time Application, and this factor weighs, particularly in circumstances where there is a very substantial delay on any view of the matter, heavily against the grant of the Extension of Time Application.

    Prejudice

  19. The Minister submitted that no prejudice would be suffered by him if ECA17 is granted an extension of time.

  20. On the basis of the Minister’s submission the Court will treat prejudice as a factor which is neutral in the assessment of the Extension of Time Application. The Court does so in circumstances where, based on usual principles in relation to extension of time applications, there may have been, notwithstanding the Minister’s submission, prejudice to the Minister because the Minister had lost a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation under s 477(1) of the Migration Act: Marks at [17] per McHugh J; WQRJ at [41]-[44] per Derrington J; WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398 at [109] per Judge Lucev.

    Whether grounds of the Proposed Judicial Review Application reasonably arguable

    Requirement for jurisdictional error

  21. For present purposes it suffices to observe that this Court may set aside a Tribunal decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:

    (a)identifies a wrong issue;

    (b)asks the wrong question;

    (c)ignores relevant material; or

    (d)relies on irrelevant material,

    in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

  1. In determining whether the grounds of the Proposed Judicial Review Application are reasonably arguable it is not necessary for ECA17 to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice, or the interests of justice, to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] per Mortimer J.

  2. In determining whether the grounds of review are reasonably arguable the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether ECA17 would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ). The merits of the Proposed Judicial Review Application may be assessed “in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469 at [9] per Brennan CJ and McHugh J, recently applied in BJM15 at [45]-[46] per Colvin J and CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588 at [15] per O’Bryan J.

    Background

  3. The relevant background to the Judicial Review Application is as follows:

    (a)ECA17 is a Malaysian citizen of 35 years of age: CB 23;

    (b)ECA17 said that in 2014 he acted as guarantor for a friend who borrowed money from a loan shark, his friend failed to pay the debt and ran away, and ECA17 was then beaten and threatened by the loan shark: CB 27 and 52;

    (c)on 14 April 2015 ECA17 entered Australia: CB 25 and 51;

    (d)on 9 July 2015 ECA17 applied for the Protection Visa: CB 11-36; and

    (e)on 27 October 2015 the Delegate refused to grant ECA17 a Protection Visa: CB 51-64.

    Background to the Tribunal Decision

  4. The background to the Tribunal Decision is as follows:

    (a)on 5 November 2015 ECA17 applied for review of the refusal of the Protection Visa: CB 65-66;

    (b)on 13 January 2016 the Tribunal invited ECA17 to attend a Tribunal hearing on 3 February 2016 (“First Tribunal Hearing”);

    (c)on 3 February 2016 ECA17 did not appear at the First Tribunal Hearing. The First Tribunal Hearing record was marked as “No Show” to indicate that ECA17 did not attend: CB 73-76;

    (d)on 4 February 2016 ECA17 contacted the Tribunal claiming that he did not attend the First Tribunal Hearing as he had been “ill for the last three days and because he had mistakenly assumed [his hearing was scheduled for another day”. ECA17 was advised that any request for a rescheduled hearing would need to be in writing: CB 77;

    (e)on 5 February 2016 the Tribunal again wrote to ECA17 to say that the Registrar had given ECA17 until 9.00am Monday 8 February 2016 for the receipt of his request for a rescheduled hearing: CB 78;

    (f)on 8 February 2016 ECA17 emailed the Tribunal with a letter apologising for his absence at the First Tribunal Hearing, attaching a medical certificate and stating that he hoped “the AAT would offer a final opportunity for me to appeal the decision not grant me the 866 (Protection) visa”: CB 79-80;

    (g)on 9 February 2017 the Tribunal invited ECA17 to attend a Tribunal Hearing on 17 February 2016 (“Second Tribunal Hearing”): CB 82-84;

    (h)on 17 February 2016 ECA17 attended the Second Tribunal Hearing with the assistance of a Mandarin interpreter: CB 88-90. The Second Tribunal Hearing went for two hours and 15 minutes: CB 88-90;

    (i)partway through the Second Tribunal Hearing the Tribunal expressed its wish for ECA17’s sister to speak with the Tribunal, enquiring with ECA17 if this was possible and explaining the reasons why it wished to speak with ECA17’s sister: Stone Affidavit, pp 37-39 and 43, and again at the conclusion of the Second Tribunal Hearing where the Tribunal expressed its concerns regarding ECA17’s cognitive ability and potentially the dialect of the language ECA17 used: Stone Affidavit, p 44;

    (j)on 4 March 2016 after receiving a call from ECA17 who confirmed his sister would be available all of the week 14-18 March 2016, the Tribunal wrote to ECA17 to invite ECA17 to attend a further Tribunal hearing on 18 March 2016 (“Third Tribunal Hearing”): CB 98-100; and

    (k)on 18 March 2016 ECA17 attended the Third Tribunal Hearing with his sister and with the assistance of a Mandarin interpreter. The Third Tribunal Hearing went for a little over an hour: CB 103-105.

    Tribunal Decision

  5. On 30 June 2016 the Tribunal affirmed the Delegate’s Decision: CB 108-120.

  6. In the Tribunal Decision the Tribunal:

    (a)outlined the background to the Delegate’s Decision: CB 109 at [3]-[4];

    (b)in relation to the Second Tribunal Hearing, noted at CB 109 at [5]-[19]:

    (i)that ECA17 told the Tribunal he is illiterate and that he had assistance in completing his Protection Visa application: CB 109 at [5];

    (ii)the summary of the claims put forward by ECA17: CB 109-110 at [6]-[18]; and

    (iii)that the Tribunal was very concerned about ECA17’s evidence, was troubled by his presentation and the difficulty that it had eliciting information from ECA17, and that there were many times during the Second Tribunal Hearing when it appeared to the Tribunal that ECA17 did not understand the questions. While noting that ECA17 had said he was illiterate, because the Tribunal was concerned that he had some type of cognitive or psychological dysfunction, it decided to ask ECA17’s sister to attend a further Tribunal hearing: CB 111 at [19];

    (c)outlined the course of the Third Tribunal Hearing noting that ECA17’s sister attended and answered the questions the Tribunal asked of her: CB 111 at [20]-[25];

    (d)detailed the relevant legislation and sections of the Migration Act applicable to the grant of a Protection Visa: CB 112 at [27]-[31]; and

    (e)considered country information about Malaysia and in particular, about loan sharks, colloquially known as “Ah Long”, as follows:

    (i)that the country information indicated that most of the repeat borrowers from loan sharks are those involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks, and that though the police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis, that police “can take action if loan sharks resort to violence or extortion to recover their money”: CB 113 at [34];

    (ii)that police operations targeting Ah Long are not uncommon and that police in Perak, Malaysia, had made 88 arrests during an eight-month period, and continue to combat Ah Long syndicates by removing advertising materials from public spaces: CB 113 at [35];

    (iii)police action against Ah Long in Kuching, Malaysia resulted in police raids and removal of advertising materials, and that numerous media reports regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes were located: CB 113-114 at [36]-[37]; and

    (iv)Department of Foreign Affairs and Trade (“DFAT”) country information report on Malaysia which included a 2013 KPMG corruption survey and a survey by the Malaysian chapter of Transparency International, both of which found that respondents believed that bribery and corruption is an inevitable cost of doing business and that most respondents who said they would not report incidents of corruption admitted they are afraid that there would be negative consequences as a result of making a report: CB 114-115 at [38]-[40];

    (f)in its findings:

    (i)accepted that ECA17 had guaranteed the loan his brother had taken out with a loan shark and that ECA17 had signed a document guaranteeing the loan, though it was unclear about whether the document is enforceable given the concerns the Tribunal had about ECA17’s capacity: CB 115 at [44]. (The Court notes that the Tribunal clarified ECA17’s claims: see CB 109 at [4] so that the earlier claim that the guarantee was for a friend: see [24(b)] above fell away in favour of the claim that it was ECA17’s brother for whom he was guarantor);

    (ii)accepted that ECA17 had been harassed and threatened for repayment of the loan and accepted that he may have been assaulted, but not as severely as ECA17 had claimed: CB 115 at [44];

    (iii)did not accept that the police would have released people arrested for assault, particularly the type of aggravated assault ECA17 described, as easily as ECA17 claimed: CB 115-116 at [44]; and

    (iv)accepted that on occasion the Malaysian police may be incompetent or corrupt but that the country information confirms that generally it is a professional and effective police force and that they take the issue of loan sharks seriously, pointing to the references to this in the media that it had cited at CB 113-114 at [34]-[37];

    (g)noted there were no further attacks on ECA17 after he had moved away from his former workplace and his home: CB 116 at [45];

    (h)regarding ECA17’s evidence that did he not want to involve his family and has been reluctant to move in with any member of the family in case he implicates them, noted that while ECA17 did not claim that no one had looked for him at his parent’s place, despite specific questioning on this point at the Second Tribunal Hearing, that ECA17’s sister did raise this, but the Tribunal did not accept her evidence on this point as it considered that it was given in order to help her brother: CB 116 at [47];

    (i)was not satisfied that ECA17 had a real chance of suffering harm in Malaysia, given the amount of time that has elapsed since the initial loan in 2013 and the fact that ECA17 had moved around and had not claimed that he was found after moving: CB 116 at [48];

    (j)noted it had discussed the issue of relocation in some detail with ECA17, and further noted that while ECA17 was reluctant to live with family, close or extended, because he did not want to cause any trouble, this did not preclude him being able to move to another part of the country and living independently as he wishes to do, something that he has demonstrated he was able to do in 2014 and since his move to Australia. The Tribunal noted both ECA17 and his sister said the loan shark would still be able to find him if he was to move to various parts of Malaysia but that they could not provide any reasons for believing this: CB 116 at [49];

    (k)was satisfied that ECA17 would be able to relocate in Malaysia and that he would have the support of his family, including extended family to be able to do so: CB 116 at [50];

    (l)did not accept that there is a real chance that ECA17 would face serious harm if he returned to Malaysia in the reasonably foreseeable future: CB 116 at [51];

    (m)was therefore satisfied that ECA17 is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act : CB 116 at [52]; and

    (n)having considered the available evidence and its findings did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of ECA17 being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Migration Act: CB 116 at [54].

    Grounds of Proposed Judicial Review Application

  7. The Proposed Judicial Review Application contains the following three grounds (reproduced unaltered):

    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 serious harm to the Applicants upon he returns to Malaysia because of his brother borrowed money from a loan shark.

    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 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 to 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.

    ECA17’s submissions

  8. ECA17 did not file any written submissions relating to whether the grounds of the Proposed Judicial Review Application were reasonably arguable.

  9. The ECA17 Affidavit provides as follows (reproduced unaltered):

    1.I am a Malaysian citizen applied for protection visa set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. The Delegate of the Minister refused to grant my visa, and the Tribunal member affirmed the deligate decision despite meet the criteria in s.36(2)(a) of the Act.

    2.The Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.

  10. ECA17’s oral submissions at hearing did not address whether the grounds of the Proposed Judicial Review Application were reasonably arguable.

    Consideration - Ground 1

  11. The Tribunal was aware of the applicable law which it referred to, and in relation to which it set out the relevant provisions of the Migration Act, particularly as to the meaning of “significant harm” and “serious harm”: CB 112 at [30]-[31] and CB 118-120. There is no indication in the Tribunal Decision that the Tribunal misconstrued s 36(2B) of the Migration Act (or any other provisions impacting thereon) in reaching its ultimate conclusion.

  12. If ECA17’s ground of appeal is directed towards the factual assessment undertaken by the Tribunal in respect of s 36(2B)(a) of the Migration Act, the conclusion reached by the Tribunal that ECA17 would be able to relocate within Malaysia was reasonably open to it and does not evidence any jurisdictional error. In relation to relocation the Tribunal referred to relevant country information (a DFAT report and a report from Freedom House) concerning the capacity of Malaysian citizens to relocate within Malaysia: CB 115 at [41]-[42], and discussed the issue of relocation with ECA17: CB 116 at [49], before concluding that it was satisfied that ECA17 would be able to relocate within Malaysia: CB 116 at [50]. The Tribunal Decision reveals a reasonable and intelligent justification for its findings with respect to relocation: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [105] per Gageler J; Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J. Reviewing the Tribunal’s findings concerning relocation within Malaysia would therefore constitute no more than impermissible merits review: CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35] per McKerracher, White and Colvin JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

    Consideration - Ground 2

  13. Ground 2 is a “general, unparticularised ‘template’ ground”. The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ, provided that, as was the case in this case (within the context of the Extension of Time Application) ECA17, as a self-represented applicant, was afforded an opportunity by the Court to explain orally the matters said to give rise to the proposed review ground and which were otherwise unparticularised: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J.

  14. The Tribunal Decision does not disclose any lack of jurisdiction. The Tribunal Decision is comprehensive and addresses the claims made by ECA17, and its findings and ultimate conclusion (as set out at [27] above) disclose a more than adequate basis for reaching a state of “reasonable satisfaction” (for the purposes of s 65(1) of the Migration Act), and therefore for its decision to affirm the Delegate’s Decision. There is no basis to conclude that the Tribunal Decision is legally unreasonable, or that it lacked an evident and intelligible justification so as to constitute jurisdictional error: see cases cited at [33] above; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) ALR 280; (2014) 139 ALD 50 at [45] per Allsop CJ, Robertson and Mortimer JJ.

    Consideration - Ground 3

  15. ECA17 has not identified any particular information which might attract the operation of s 424A of the Migration Act. The Court notes that the country information relied upon by the Tribunal is excluded from the obligations in s 424A of the Migration Act by s 424(3) of the Migration Act.

  16. To the extent that ECA17 might assert that evidence provided by his sister might be “information” that gave rise to an obligation under s 424A(1) of the Migration Act, it is not apparent that any adverse information provided by the sister was the reason, or part of the reasons, for the Tribunal Decision.

    Conclusion – Grounds 1, 2 and 3

  17. It follows from the consideration above of grounds 1, 2 and 3 of the Proposed Judicial Review Application that none of those grounds establish a reasonably arguable case of jurisdictional error in the Tribunal Decision.

    Jurisdictional error otherwise

    Where self-represented litigant

  18. The Court is cognisant that ECA17 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error in the Tribunal Decision being established: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. The Court consequently considers that it ought to have regard to the following in considering whether there is a possibility of a reasonably arguable case of jurisdictional error in the Tribunal Decision being established:

    (a)ECA17’s Affidavit at [2] where he complains that the Tribunal Decision “was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim”;

    (b)whether ECA17 was given a meaningful hearing opportunity before the Tribunal; and

    (c)whether there were difficulties with interpretation which might have affected the outcome of the Tribunal Hearing.

    ECA Affidavit at [2]

  1. The allegation made at [2] of the ECA17 Affidavit is unparticularised, and in that regard, does not establish a reasonably arguable case of jurisdictional error in the Tribunal Decision on the same basis as is set out at [35] above, and for the same reasons. Further, and in any event, it is evident from the Tribunal Decision (as summarised at [27] above) that the Tribunal took into account all matters put to it by ECA17, that it understood the gravity and consequences of a decision adverse to ECA17, and in all the circumstances did not act unjustly, and in this latter respect see the authorities cited at [33] and [35] above in relation to there being an evident and intelligible justification for the Tribunal Decision.

    Meaningful hearing opportunity and difficulty with interpretation

  2. It is convenient to consider the issues of a meaningful hearing opportunity and difficulties with interpretation together.

  3. Section 425(1) of the Migration Act imposed upon the Tribunal an obligation to invite ECA17 to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (“425 Invitation”).

  4. For an applicant who is not mentally fit to participate in a hearing, a 425 Invitation will not be a meaningful one and the Tribunal will fall into jurisdictional error when it does not take steps to ameliorate any adverse effect of the mental unfitness on the Tribunal’s hearing process: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; (2003) 198 ALR 293; (2003) 75 ALD 151 at [35]-[38] per Gray, Cooper and Selway JJ.

  5. Mental illness alone is insufficient to vitiate the Tribunal Decision. The question is whether, by reason of any mental illness, ECA17 is unable to give evidence, present arguments and answer questions: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34] per Tracey J.

  6. ECA17 does not advance any ground or complaint that the Tribunal failed to comply with this obligation. In the Tribunal Decision at CB 111 at [19] the Tribunal said:

    The Tribunal was very concerned about the applicant's evidence and was troubled by his presentation and the difficulty it had eliciting information. There were many times during the hearing when it appeared to the Tribunal that the applicant did not understand the questions. While noting that the applicant had said he was illiterate, the Tribunal was concerned that the Applicant had some type of cognitive or psychological dysfunction and decided to ask the applicant’s sister to attend a further hearing.

  7. The transcript of the Second Tribunal Hearing indicates that the Tribunal had difficulty eliciting information from ECA17. There is, however, no evidence sufficient to satisfy the Court that ECA17 suffers a disability. ECA17 has never claimed that he suffers a disability. At neither the Second nor Third Tribunal Hearings did ECA17 suggest that he had any disability or psychological infirmities.

  8. As discussed between the Tribunal and the interpreter at the end of the hearing: Stone Affidavit, pp 44-46, it may be that ECA17’s dialect was different to that of the interpreter and that this was the cause of the difficulties. Were ECA17 prevented from understanding the Tribunal’s questions and from giving evidence and arguments, as a result of errors by the interpreter, this may result in a denial of a meaningful hearing opportunity because the standard of interpretation may have affected the outcome of the hearing: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [9] and [24] per Allsop CJ and [66] per Robertson J; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [73]-[76] per Perram J; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309; (2017) 71 AAR 525 at [84]-[88] per Griffiths and Moshinksy JJ.

  9. The Transcript of the Second and Third Tribunal Hearings does not demonstrate that ECA17 was not able to effectively participate therein. While it was at times difficult for the Tribunal to elicit information from ECA17, he was able to present his claims and evidence and they were ultimately able to be understood and considered. ECA17 has not ultimately suggested that the Tribunal misunderstood any of his claims or any aspect of his evidence, or that he had things he wanted to say but was prevented from doing so. The Transcripts do not suggest any misunderstanding, or inability to put matters, to the Tribunal. The Transcript in fact reveals a meaningful dialogue between the Tribunal and ECA17, with ECA17 answering questions put to him, and appearing to be genuinely engaged in the hearing process.

  10. At the Third Tribunal Hearing ECA17’s sister was not needed to assist ECA17 in delivering his evidence – rather, she delivered her own evidence as prompted by the Tribunal.

  11. The Tribunal ultimately proceeded to consider ECA17’s claims and his evidence. The Tribunal was alive to the issue of whether or not ECA17 had the capacity to meaningfully participate in the Second and Third Tribunal Hearings. The inference to be drawn from that fact, together with the fact that the Second and Third Tribunal Hearings proceeded and the Tribunal Decision was made, is that the Tribunal was ultimately satisfied that ECA17 was able to give evidence, present arguments and answer questions, in a manner consonant with the conduct of a fair hearing.

  12. It follows from the above that the Court considers that ECA17 cannot establish a reasonably arguable case of jurisdictional error in the Tribunal Decision on the basis of either or both of a lack of meaningful hearing opportunity or difficulties with interpretation.

    Jurisdictional error otherwise – conclusion

  13. There is nothing in the matters considered by the Court in relation to whether there might be a reasonably arguable case of jurisdictional error in the Tribunal Decision by reason of a matter not raised by ECA17.

    CONCLUSION AND ORDERS

  14. The Court has concluded that:

    (a)the very substantial delay and the lack of a satisfactory explanation as to the delay, are of themselves sufficient to refuse the Extension of Time Application; and

    (b)a reasonably impressionistic examination of the proposed grounds of review relied upon for the Extension of Time Application reveal that the Proposed Judicial Review Application does not establish a reasonably arguable case of jurisdictional error in the Tribunal Decision, and that no other reasonably arguable jurisdictional error in the Tribunal Decision is evident, and this weighs heavily against the grant of the Extension of Time Application.

  15. Given that the issue of prejudice is neutral, it follows that the balance of the remaining factors weigh so clearly against the Court exercising its discretion to grant the Extension of Time Application that there must be an order dismissing the Extension of Time Application, and there will be an order accordingly.

  16. Due to the dismissal of the Extension of Time Application it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [34] per Judge Lucev.

  17. There will also be an order to change the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

  18. The Court will hear the parties as to costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       19 August 2022

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