EEF18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 335
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 335
File number: MLG 2398 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 13 March 2025 Catchwords: MIGRATION – protection (subclass 866) visa – review of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – extension of time – applications for judicial review must be made within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review 2 and a half years after time elapsed – not satisfied that it is in the interests of the administration of justice to extend time – application for an order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 (Cth) may be made is dismissed Legislation: Migration Act 1958 (Cth) ss 36, 36(2)(a), 36(2)(aa), 36(2B), 424(3)(ba), 424A, 424A(1), 424A(1)(a), 426A(1A)(a), 426A(1A)(b), 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b), 499
Migration Regulations 1994 (Cth) sch 2, cl 866.221
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 2
Cases cited: BBU15 v Minister for Home Affairs [2019] FCA 1324
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BVD17 v Minister for Immigration and Border Protection[2019] HCA 34
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003[2005] FCAFC 73
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541
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 Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556
QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9
Re Patterson; Ex parte Taylor [2001] HCA 51, 207 CLR 391
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 147 CLR 297
SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
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
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579
VAF v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 123, 436 FCR 549
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 6 February 2025 Date of hearing: 27 February 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitors for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2398 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEF18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day period within which an application for judicial review of a migration decision of the Administrative Appeals Tribunal may be made is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
Before the Court is an application for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period within which a judicial review application of a migration decision of the former Administrative Appeals Tribunal (Tribunal) may be made. The judicial review application was made more than two and a half years after the Tribunal’s decision.
BACKGROUND
The applicant, a Malaysian citizen, arrived in Australia on 25 December 2013 as the holder of a Visitor (Class UD) (Subclass 601) visa: Court Book (CB) 48. That visa expired on 25 March 2014, and the applicant remained in Australia as an unlawful non-citizen, until he applied for a Protection (Class XA) (Subclass 866) visa on 16 September 2014: CB1-CB33; CB48; CB51, and was granted an associated Bridging (Class WC) visa: CB48. The applicant claimed protection because his restaurant business was facing financial problems, so he borrowed 50,000 MYR from an illegal moneylender – “Ah Long”. According to the applicant, he was required to pay the Ah Long 90,000 MYR within 3 months; however, he was unable to meet the total repayment amount. He claimed that Ah Long “found” him and gave him 1 month to fulfil the repayment obligation or they will do “something bad” to him. The applicant claimed that Ah Long had already sent “people to beat [him]”: CB33. The applicant said he feared harm from the Ah Long claiming that “they will kill [him] if [he does] not pay [the loan]”. The applicant claimed to have made a police report, but the local authorities in Malaysia did not accept it: CB17-CB20.
The (then) Department of Immigration and Border Protection acknowledged receipt of the application on 17 September 2014, and a delegate of the (then) Minister for Immigration and Border Protection informed the applicant that the application was assessed as a valid application: CB36. On 11 June 2015, the delegate invited the applicant to attend an interview scheduled on 6 July 2015. The applicant did not attend the interview: CB50.
On 7 July 2015, the Minister’s delegate refused the visa application, and a notification of the delegate’s decision was transmitted to the applicant by post: CB44. Attached to the notification letter was a decision record: CB47-CB54, and a digital recording of the protection visa interview, which the applicant did not attend: CB46. The delegate determined that the applicant’s claims were not credible, and as a result, was not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36 to the Act and cl 866.221 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Consequently, the delegate refused the visa application: CB54.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal for a review of the delegate’s decision: CB55-CB56. The Tribunal acknowledged receipt of the application on 7 August 2015: CB58-CB59, and enclosed an ‘Information for review applicants’ factsheet. By correspondence dated 18 September 2015 dispatched by email to the applicant’s email address specified in the review application to the Tribunal (which is also the email address as specified in the application to this Court), the Tribunal invited the applicant to attend a hearing scheduled for 16 October 2015 to give evidence and present arguments relating to the issues in his case: CB61-CB62. The correspondence informed the applicant of the following: CB61:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
The correspondence enclosed an ‘Information about hearings – MR Division’ factsheet, and requested the applicant read and complete an enclosed ‘Response to hearing invitation – MR Division’ form to confirm attendance at the hearing, and to use the form to provide or attach any additional information the applicant wanted the Tribunal to consider. The invitation relevantly informed the applicant of the following: CB61-CB62:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
The applicant was sent two SMS hearing reminders on 9 and 15 October 2015 respectively but the SMS messages were undeliverable: CB63. The applicant did not appear at the scheduled hearing: CB71, nor did he respond to the Tribunal’s correspondence on 18 September 2015, by returning a completed response to hearing invitation to confirm his attendance at the hearing or providing any additional information the applicant wanted the Tribunal to consider. By its decision made on 19 October 2015, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa: CB70-CB74. A copy of the Tribunal’s decision under cover of a letter dated 19 October 2015, and a factsheet were dispatched to the applicant by email on 19 October 2015: CB67-CB74; Annexure ‘AR-1’ to the affidavit of Amron Rath affirmed on 20 February 2025.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out at [1]-[3] of its Statement of Decision and Reasons (Decision) the application for review, and noted at [3] and [17] its reasons for deciding to make a decision on the review, without taking any further action to allow or enable the applicant to appear before it:
3. On 18 September 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 October 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
…
17. The applicant was put on notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. He did not provide further information despite ample opportunity to do so. Nor has the applicant given the Tribunal the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered. Due to the lack of detailed information, the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
The Tribunal referred at [4]-[8] of the Decision to the considerations relevant to the applicant’s protection visa application, noting ss 36 and 499 of the Act, Sch 2 to the Regulations, Ministerial Direction No.56, the Department of Immigration (PAM3) – Refugee and Humanitarian Guidelines, and Article 1 of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
The Tribunal set out at [9]-[11] of the Decision the applicant’s claims in his protection visa application before the Department and noted at [12] the issue before the Tribunal was whether the applicant would be persecuted for one or more of the reasons described in the Refugees Convention, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm. The Tribunal concluded at [13] that the decision under review should be affirmed and set out its findings and reasons for that conclusion at [14]-[18]. The Tribunal noted that the evidence before it was very limited, and the applicant provided very little detail about the following matters as disclosed in his visa application:
(a)when he opened his business; why and when he experienced problems with his business and the particulars of those problems: at [15];
(b)which banks he approached to take out a loan, the purpose of the loan, and why he was rejected from taking out a loan with the respective banks: at [15];
(c)when he approached the Ah Long for a loan and whether he had to provide any security for his loan: at [16];
(d)particulars of the loan agreement, and why he was unable to pay the loan back: at [16];
(e)what happened when the Ah Long approached him, and the details of how he was allegedly beaten: at [16]; and
(f)why the police did not accept his report: at [16].
The Tribunal reasoned at [16] of the Decision that absent further information, and its inability to make further inquiries of the applicant at the hearing about the claims, the Tribunal was not satisfied that: the applicant borrowed money from loan sharks; was beaten for money he owes; the applicant owes anyone in Malaysia money; nor would he be killed or harmed for not repaying the money that he allegedly owes. Consequently, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations, nor are there substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm under ss 36(2)(a) or (aa) of the Act. The Tribunal therefore affirmed the delegate’s decision not to grant the applicant a protection visa: at [22] of the Decision.
CONSIDERATION
On 13 August 2018, the applicant applied to the (then) Federal Circuit Court for judicial review of that decision as well as an extension of time. An application to the Court for review of a decision by the Tribunal must be made within 35 days of the date of the Tribunal’s decision: s 477(1) of the Act. The Tribunal made its decision on 19 October 2015, and the final day to make the application within time was 23 November 2015. The applicant therefore made the application 994 days after the time prescribed had lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if satisfied that it is necessary in the interests of the administration of justice to do so.
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 Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566, [40].
In determining that which is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].
Extent and reason for the delay
The applicant’s grounds in support of an extension of time specify the following (reproduced verbatim):
1.I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
2.The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
The extent of the delay – 994 days – is exceptionally lengthy and it may be accepted that the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]; BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7].
The applicant contends in his application that he was not aware of the time limit prescribed to apply for judicial review of the Decision to the Court. As earlier noted, the applicant was provided with a fact sheet and letter dated 19 October 2015 when the Decision was sent to him by email on 19 October 2015: CB67-CB74; Annexure ‘AR-1’ to the affidavit of Amron Rath affirmed on 20 February 2025. The factsheet contained the following information:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The letter accompanying the Decision also provided the following:
If you have any questions, please email [email protected]: or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Ultimately, the applicant is responsible for ascertaining and accessing any review rights available to him, and any time limits that apply to the exercise of those rights: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. To the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant’s ignorance of the limit for a review 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 at [38]. In any event, 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. Even allowing for the fact that the information is in English, a diligent litigant would have taken prompt action to seek assistance with a translation. The accompanying letter alerted the applicant to one source where he could obtain translating assistance. The need for the information to be translated does not explain the lengthy period of the delay. In the circumstances, the applicant’s explanation for the delay is not an acceptable explanation.
During the interlocutory hearing, the applicant said that he paid a person who represented himself as a migration agent to help him apply to the Tribunal. The application lodged with the Tribunal bears no indication that the applicant was represented or that documents were to be sent to a Migration agent or any other representative: CB55-CB56. There is no evidence, beyond the applicant’s bare and belated assertions, of any involvement of a migration agent or by any person purporting to be a Migration agent. In any event the applicant said that he met with this person on two occasions – once before applying to the Tribunal for a review and a second time about a week after the Tribunal had made its Decision. As to the judicial review application, the applicant said that this person had told him that the person would take care of everything and to leave it with him. He said he learned that an application to the Court had not been made about 2 to 3 months after the second meeting when he heard from a “friend” that the person had “run-away”. The applicant’s explanation for the delay thereafter was a combination of financial hardship and general struggles with his life. None of these matters were raised as grounds for an extension of time in the application filed in the Court on 13 August 2018 nor in the accompanying affidavit, and despite orders of the Court, no further affidavit or other material has been filed to support any of the matters the applicant raised at the interlocutory hearing. There is no evidence explaining: the extent of the applicant’s financial circumstances or any particulars of his struggles; how these circumstances impacted the applicant’s capacity to bring the application in a timelier way; or how those circumstances changed to allow the current application to be made. No explanation is proffered about the financial hardship alleged nor how it explains the delay in making this application or any part of it. I do not accept the applicant’s bare assertions.
In any event, and speaking generally, an applicant’s financial circumstances or difficulties alone will be an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]; GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25]. The applicant also said that he was prompted to make the judicial review application in August 2018 by his then wife after many of his friends were “caught” by migration officials. From this I infer that no real steps were taken before this time to make a timelier application to this Court. Nothing that the applicant said during the interlocutory hearing provides an acceptable explanation for the delay.
The absence of an acceptable explanation for the delay in making the judicial review application and the exceptionally lengthy extent of that delay are matters that weigh against a conclusion that it is necessary in the interests of the administration of justice to extend time.
Prejudice
The first respondent acknowledges that he would suffer no prejudice if an extension of time were granted, but as noted earlier, the absence of prejudice is an insufficient basis to warrant the grant of an extension: Hunter Valley at 348-349 and SZTRY at [6].
Merits
Turning to the merits of the judicial review application, the applicant’s proposed review grounds as set out in the application are as follows:
1.The Tribunal misconstrued the risk of significant harm as set out in s36(2B) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life of significant harm to the applicants (sic) upon he returns (sic) to Malaysia.
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction was not arrived [at] (sic) in accordance with provisions of the Migration Act.
3.The Tribunal has failed to investigate applicant’s claim, especially the grounds of persecution in Malaysia.
4.The second respondents (sic) failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, make (sic) no attempt to, and did not, comply with the requirements set out in section 424A of the Act.
The applicant said that his now ex-wife prepared the grounds of review set out in the application, that he did not understand them and that he could not elaborate nor provide any particulars of the errors alleged. He said that the Tribunal was not wrong and that he was wrong because he did not attend the hearing and sought an opportunity to do so by the Court sending the matter back to the Tribunal for reconsideration.
During the hearing, I explained to the applicant the nature of the Court’s judicial review jurisdiction if any extension of time was granted and that the merits of his case before the Court will be assessed through the lens of legal or jurisdictional error. I explained that the Court may only grant relief if the applicant establishes the Tribunal’s decision is affected by jurisdictional error and that the proceeding before the Court was not another opportunity to present his merits case nor was it a review of the merits of the Tribunal’s decision or his visa application. I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the applicant some examples of jurisdictional error as including material errors by a decision maker:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)failing to consider a “claim” or a relevant “integer” of a claim;
(h)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(i)failing to observe some applicable requirement of procedural fairness; and
(j)showing actual or there is apprehended bias.
I explained that for the purposes of the extension of time application. The applicant will need to point to some arguable legal or jurisdictional error in the Decision or the process adopted by the Tribunal. The applicant could not point to any error and reiterated his earlier plea that the Tribunal did not do anything wrong, that he was wrong in not attending and that he should be given another opportunity. I turn then to the grounds advanced in the application.
By ground 1, the applicant contends the Tribunal misconstrued the risk of significant harm as set out in s 36(2B) of the Act and says the Tribunal erroneously and narrowly construed the existence of risk to life or significant harm upon his return. The applicant does not particularise how he says the Tribunal misconstrued the Act or misconstrued or misunderstood the risk to the applicant of significant harm. The Tribunal appropriately referred to the refugee criterion and complementary protection criterion at [4]-[8] of the Decision by reference to ss 36 and 499 of the Act, Sch 2 to the Regulations, Ministerial Direction No.56, the Department of Immigration (PAM3) – Refugee and Humanitarian Guidelines, and Article 1 of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees. As earlier noted, the Decision discloses that it was the absence of further information provided by the applicant about his claims, and the Tribunal’s inability to make further inquiries of the applicant at the hearing about the claims, that led the Tribunal to the conclusion that it was not satisfied that: the applicant borrowed money from loan sharks; was beaten for money he owes; the applicant owes anyone in Malaysia money; nor would he be killed or harmed for not repaying the money that he allegedly owes. Consequently, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations, nor are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm.
Further, s 36(2B) of the Act is in substance a deeming provision which arises in the context of the complementary protection criterion in s 36(2)(aa), providing that if there exists a certain state of affairs therein enumerated, then there is taken not to be a real risk the applicant will suffer significant harm. It was not here engaged because the substantial claims going to s 36(2)(aa) were not accepted and there was no need to consider the circumstances described in s 36(2B). It is not the Tribunal that misconstrued s 36(2B) of the Act. Ground 1 as framed misunderstands s 36(2B). The remainder of the matters raised by ground 1 amount to no more than a complaint about the result. Based on the material before the Tribunal and in the absence of the applicant to provide it with more information, these conclusions were entirely open. It is not evident that the Tribunal misconstrued the risk to the applicant of significant harm if returned to Malaysia. The Tribunal did not accept the underlying claims and so concluded there was no discernible risk. Absent further information, which the applicant did not provide because he failed to respond to the invitation to provide information or attend the hearing, it was entirely open to the Tribunal on the material before it to reject the applicant’s underlying claims. For these reasons, I do not consider that ground 1 is arguable, and I consider that it has no reasonable prospect of success.
By ground 2, the applicant contends that the Tribunal did not have jurisdiction to make the decision because it did not reach “reasonable satisfaction” in accordance with the Act. Again, the applicant has not particularised this ground nor has he explained why this might be so. To the extent that the applicant takes an issue with the Tribunal’s merits conclusion, the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6, 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh, Gummow JJ. As earlier noted, the Tribunal told the applicant that when it invited the applicant to attend a hearing, it could not decide the review favourably to him on the material it had to hand. It therefore asked for more information or documents, explained what these were and invited the applicant to a hearing. The applicant did not provide any additional information or documents, and he did not attend the hearing. The Tribunal was entitled to assess the information before it about the applicant’s claims as lacking sufficient detail to be accepted. In the circumstances of the applicant’s failure to attend the hearing, it was empowered to act under s 426A(1A)(a) of the Act (as then in force) as it did, and it was open to the Tribunal to have been satisfied that the material before it provided an insufficient basis to find for the applicant. This ground also does not have any reasonable prospect of success.
By ground 3, the applicant contends the Tribunal failed to investigate the applicant’s claim, especially on the grounds of persecution in his home country. The duty imposed on the Tribunal by the Act is a duty to review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review and such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction: SZIAI at [25]; Re Patterson; Ex parte Taylor [2001] HCA 51, 207 CLR 391 at 453 [189] and the authorities cited therein. But the Tribunal has no obligation to conduct an inquiry to discover whether the applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, 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: SZIAI at [25].
At [14] of the Decision, the Tribunal notes that:
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.
(citations omitted)
The Tribunal dealt with the information and evidence that was available before it at the time, and arrived at its decision for the reasons that it gave. The applicant was ultimately responsible to make out his case before the Tribunal. The Tribunal noted at [15]-[16] of the Decision that the evidence before it was very limited, and that the applicant provided very little detail about the following matters as disclosed in his visa application:
(a)when he opened his business; why and when he experienced problems with his business and the particulars of those problems;
(b)which banks he approached to take out a loan, the purpose of the loan, and why he was rejected from taking out a loan with the respective banks;
(c)when he approached the Ah Long for a loan and whether he had to provide any security for his loan;
(d)particulars of the loan agreement, and why he was unable to pay the loan back;
(e)what happened when the Ah Long approached him, and the details of how he was allegedly beaten; and
(f)why the police did not accept his report.
At [17] of the Decision the Tribunal noted the applicant:
. . . was put on notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. He did not provide further information despite ample opportunity to do so. Nor has the applicant given the Tribunal the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered. Due to the lack of detailed information, the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.
That the Tribunal did not investigate nor interrogate his claims during the hearing comes down simply to the applicant’s failure to engage with the Tribunal’s processes. That failure cannot in the circumstances be sheeted home to the Tribunal dressed up as jurisdictional error. No arguable case of jurisdictional error is disclosed by ground 3.
The applicant’s third ground claims that the Tribunal failed to investigate the applicant’s claim especially on the grounds of persecution in Malaysia. In the absence of further particulars, it is not clear which claims were not investigated by the Tribunal. As already noted, it is well-established that the applicant must make their case before the Tribunal, and the Tribunal has no duty to investigate the applicant’s matter before it. As the applicant did not appear at the hearing, the Tribunal was therefore unable to further inquire into the applicant’s claims as presented in his visa application. 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.
Ground 4 of the applicant’s application contends that the Tribunal failed to comply with s 424A of the Act as it did not provide the applicant particulars of the information it considered would be part of the reason for affirming the decision under review, and it did not issue a written invitation under s 424A.
Section 424A of the Act (as then in force) provided the following:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The type of “information” that is required to be put to the applicant as derived from s 424A(1)(a) was considered in VAF v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 123, 436 FCR 549 at [24], as follows:
. . . the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 147 CLR 297 at [18] the High Court said that:
. . . [h]owever broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
The Tribunal told the applicant that the information it had was insufficient to find in his favour. That information was the applicant’s claims in his protection visa application and supporting documents, which were provided to the delegate. Whilst the Tribunal had significant concerns regarding the claims of the applicant, it is not apparent that there was any other information on which the Tribunal relied, nor was there any information that was required to be put to the applicant in accordance with s 424A of the Act. As such, the information the Tribunal considered fell under the exception of para (ba) of s 424(3), whereby s 424A(1) does not apply to information:
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department . . .
This ground also does not have any reasonable prospect of success.
Consistent with his model litigant obligations, the first respondent raised the judgment in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975, as relevant to assessing whether the Tribunal’s decision is attended by jurisdictional error.
In DNK17, the Court (Horan J) had to determine whether it had been legally unreasonable for the Tribunal to decide the review under s 426A(1A)(a) of the Act, rather than dismissing the application under s 426A(1A)(b). Horan J reasoned that it was unreasonable for the Tribunal to proceed to determine the review without explaining why it had chosen to do so instead of dismissing the review, particularly because the applicant made 3 requests for an adjournment – 2 of which were granted, and the third denied on the morning of the hearing. However, DNK17 does not, in my view, stand as a general proposition that it will always be unreasonable for a decision-maker exercising power in s 426A(1A)(a) of the Act rather than (b), to make a decision on the review in circumstances where a review applicant fails to appear at a scheduled hearing if reasons for doing so are not articulated. Sometimes those reasons will be obvious or may reasonably be inferred from the circumstances. Ultimately the whole of the circumstances, taking into account the nature and purpose of the power exercised and the statutory context in which the power is exercised, must be considered in assessing whether the exercise of power in a particular circumstance was unreasonable. Put another way – whether there is an intelligible justification for the decision arrived at through an intelligible decision-making process.
Identifying legal unreasonableness is “invariably fact dependent” and turns on the particular factual circumstances in each case rather than an analysis of factual similarities and differences between individual cases: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [84] (per Nettle and Gordon JJ); DNK17 at [72]. And so there is a limit on the utility of comparing the circumstances and outcome of one case with another: DNK17 at [72].
The reasons the Tribunal proceeded to determine the matter and exercise the power of s 426A(1A)(a) of the Act are set out at [3] and [17] of the Decision which are earlier reproduced. In the instant case, as the Tribunal noted, the applicant did not engage with the Tribunal prior to or on the day of the scheduled hearing. And unlike in DNK17, the applicant did not contact the Tribunal to seek an adjournment. The Tribunal noted that the applicant did not respond to the Tribunal’s hearing invitation, nor provide further information given an opportunity to do so. The Tribunal noted the applicant was relevantly put on notice by correspondence on 18 September 2015 that the Tribunal was unable to make a favourable decision on the information alone. That correspondence also noted that if the applicant was unable to attend the hearing, to advise the Tribunal. The Tribunal noted that the invitation correspondence also alerted the applicant to the fact that if he did not attend the hearing and an adjournment was not granted, the Tribunal may decide the review without taking any further action to enable the applicant to appear before it. All this against the backdrop of the applicant’s failure to engage with the delegate’s processes in failing to attend an interview with the delegate when invited to do so. It is in these circumstances that the Tribunal proceeded to make a decision on the review on the evidence available before it under s 426A(1A)(a) of the Act – a decision arrived at through an intelligible decision-making process. Further, as it is evident the Tribunal considered the applicant would not likely engage further in the review process, those reasons also provide an evident and intelligible basis for the Tribunal exercising the power under s 426A(1A)(a) rather than (b). For completeness, the first respondent contended that DNK17 was wrongly decided having regard to BVD17 v Minister for Immigration and Border Protection[2019] HCA 34, but given my conclusion it is a contention with which I need not deal.
For the reasons given, none of the proposed grounds of review raised by the applicant have any reasonable prospects of success and the issue raised by the judgment in DNK17 has insufficient prospects of success to warrant the grant of an extension of time. The merits of the case therefore also tell against a conclusion that it is in the interest of the administration of justice to allow an extension of time. Save for prejudice, all the other matters discussed above also weigh against such a conclusion. Consequently, I am not persuaded that it is in the interest of the administration of justice to extend time and so the application for an order under s 477(2) of the Act to extend the 35-day period within which a judicial review application of a migration decision of the Tribunal may be made is refused.
Costs
The first respondent seeks an award of costs in the amount of $4,189.38 in the event the application for an extension of time fails. The amount is consistent with the amount currently fixed by item 2, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at an interlocutory stage. There is no cogent reason advanced why such an order ought not be made and I consider the amount sought to be reasonable and reflective of the reasonable costs incurred by the first respondent. The applicant is to pay the first respondent’s costs fixed in the sum of $4,189.38.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 13 March 2025
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