EEL18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 300
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EEL18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 300
File number(s): MLG 2402 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 6 March 2025 Catchwords: MIGRATION– extension of time application – applicant filed 371 days out of time – insufficient explanation as to delay – unparticularised grounds – lack of merit in substantive application – extension of time not granted – costs ordered Legislation: Migration Act 1958 (Cth) s 477 Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SZNXA v Minister for Immigration and Citizenship[2010] FCA 775
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WZAVW v Minister for Immigration & Anor [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submissions: 20 February 2025 Date of hearing: 20 February 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2402 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EEL18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time for the filing of the Application lodged on 13 August 2018 is refused and the Application be otherwise dismissed.
2.The Applicant pay the Minister’s costs fixed in the sum of $5,000.00
3.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
4.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
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 BINGHAM
By an application filed in this Court on 13 August 2018 (Application) the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 3 July 2017 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) (Tribunal’s Decision). The Application was filed 371 days outside of the 35-day time limit prescribed in s 477(1) of the Migration Act. The Applicant therefore requires an extension of time to seek review of the Tribunal’s Decision.
BACKGROUND
The Applicant is a citizen of Malaysia of Islamic faith. The Applicant arrived in Australia on 20 August 2014 as a holder of an electronic travel authority visa.
Visa Application
The Applicant applied for the Visa on 14 November 2014 (Visa Application).
The Applicant made multiple claims for protection in his Visa Application. The protection claims included:
(a)He feared harm due to high levels of crime and Malaysia is no longer safe.
(b)The Applicant had been beaten, robbed and received death threats.
(c)The Applicant feared he could be killed if he returned.
(d)The Applicant did not trust the authorities could protect or assist him as they are corrupt.
Relevant statutory requirement of the Visa
Sections 36(2)(a) and 36(2)(aa) of the Migration Act set out the following:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Section 36(2A) of the Migration Act sets out the meaning of the phrase ‘significant harm’.
Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2)-(6) and 5K-LA additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out.
Delegate’s Decision
On 11 December 2014 the Department requested further information from the Applicant and invited him to attend an interview on 12 January 2015. The Applicant did not provide further information nor did he attend the interview.
On 29 May 2015 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate noted that the Applicant was sent a letter acknowledging receipt of his application on 11 December 2014. Undercover of the correspondence of 11 December 2014 the Applicant was given seven days to respond and contact the Department to arrange an interview. At the time of the Delegate’s Decision, no response had been received from the Applicant.
The Delegate found that that there was nothing to indicate the Applicant’s apparent fear of harm had anything to do with his race, nationality, political opinion, religion or membership of any social group. The Delegate was of the view that the claims about being a victim of crime related to generalised crime in Malaysia and was not specific to the Applicant.
It was not accepted that the Applicant would be mistreated or denied protection by authorities in Malaysia and the Delegate observed that the Malaysian constitution provides equal protection under the law for all citizens.
The Delegate was not satisfied that there were substantial grounds for believing that there would be a risk the Applicant would be subject to significant harm, and was not satisfied that Australia has protection obligations pursuant to s 36(2)(aa) of the MigrationAct.
Application for review to the Tribunal
On 30 June 2015 the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal. An acknowledgment of application letter was sent to the Applicant on the same date. In that letter the Tribunal invited the Applicant to provide material or written arguments for the Tribunal’s consideration.
On 14 September 2016 the Applicant was invited to attend a hearing on 14 October 2016. The invitation letter was sent to the Applicant’s migration agent. This correspondence required the Applicant to complete a response form to confirm attendance and attach any additional information should the Applicant have new material he wished the Tribunal to consider. The response form was completed and sent back to the Tribunal on 15 September 2016, and no new material was provided.
On 14 October 2016 the Tribunal Hearing was held (Tribunal Hearing). The Applicant attended with the assistance of a Malay interpreter.
On 8 February 2017 the Applicant and their representative were notified by the Tribunal that they had recently received advice that the migration agent’s registration with the Office of the Migration Agents Registration Authority (MARA) was cancelled on 16 January 2017. A change of contact details form was attached but no response was received from either the Applicant or their representative notifying the Tribunal of alternative contact details. Correspondence following this time was still sent to the Applicant’s representative at their registered email address.
On 3 July 2017 the Tribunal affirmed the Delegate’s Decision. Notification of the Tribunal’s decision was forwarded to the Applicant’s last known email address being that of his representative. On 30 July 2017, at the request of the Applicant a copy of the decision notification of 4 July 2017 and the Tribunal Decision of 3 July 2017 were emailed to the Applicant by the Tribunal.
In its reasons, the Tribunal stated that the Applicant was unable to provide even basic information at the hearing which led to the member reaching “a positive state of disbelief that any of these things have in fact happened.”[1] For example the Applicant said that he had feared harm from people connected to an incident in which he was attacked by men with machetes on a highway in Malaysia. He alleged that the men were hired to attack him due to his brother’s involvement in a gang where there was a disagreement between members.
[1] Court Book filed by the Minister on 4 March 2020 81; Tribunal’s Decision, [14].
The Tribunal was not satisfied that any of the Applicant’s claims were plausible given the vagueness of the evidence. It was observed that the evidence given at the hearing did not appear in his Visa application. When this was put to the Applicant, he simply stated that the application was filled in by his friend ‘Kamal’ who had charged $800 for the assistance. The Tribunal did not accept the Applicant’s evidence at the Tribunal Hearing.
The Tribunal held that the Applicant does not meet the criteria in s 36(2)(a) or the complementary protection criterion under s 36(2)(aa). Further, it was held that the Applicant does not have a well-founded fear of persecution pursuant to s 5J or faces a real risk of suffering significant harm as defined in s 36(2A).
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 13 August 2018, outside 35 days of the date of the Decision as prescribed by s 477 of the Migration Act. The Application was filed 371 days out of time.
On 19 February 2020 Orders were made by consent for the filing of material. The Applicant has not filed material in accordance with these Orders.
This matter was heard on 20 February 2025 in person at the Melbourne Registry (Hearing). The Applicant appeared with the assistance of a Malay interpreter. A solicitor for the Minister appeared.
At the commencement of the Hearing the Applicant sought an adjournment for the purpose of seeking legal representation. The Applicant stated that he had tried to find a lawyer but was unable to find one so far. The Applicant did not provide any documentary evidence of his search for a lawyer nor, in response to questions from me was he able to identify any lawyers or law firm that he sought to retain or that had refused his retainer. The Minister opposed the application for adjournment based on a significant period of time that had already elapsed since the making of the Tribunal Decision and the filing of the Application. It was submitted that a grant of an adjournment was not in the interests of the administration of justice considering the backlog of migration judicial review applications. Further the Applicant had more than adequate time to engage a lawyer between the time the Tribunal made the decision and the listed hearing before this Court. I also consider that an adjournment would be contrary to the overarching purpose of this Court.[2] I declined to grant an adjournment.
[2] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 191.
The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court. The Applicant told the Court that he did not need an interpreter. The Court had arranged for an interpreter to be available. The interpreter remained online and was available to interpret if circumstances arose where the Applicant did not understand anything that was said by me or the representative for the Minister. The Applicant was advised of this.
When asked to make submissions at the Hearing the Applicant said he did not want to comment on anything without a legal representative. I explained to the Applicant that his adjournment application had been refused. He elected not to make submissions in support of his Application. I asked the Minister’s representative to make submissions on behalf of the Minister. After the Minister concluded their submissions I again invited the Applicant to make submissions in response to what he had heard. He again refused to make submissions without a legal representative.
The Applicant relied upon the following documents:
(a)The Application; and
(b)The Affidavit of the Applicant filed on 13 August 2018.
The Minister relied upon:
(a)The Response filed on 11 September 2018;
(b)The Outline of Submissions filed on 5 February 2025; and
(c)The list of authorities filed on 13 February 2025.
EXTENSION OF TIME
Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the ‘migration decision’. The Tribunal’s Decision is a migration decision and therefore the time period for the Applicant to have filed an application for judicial review ended 35 days after 3 July 2017.
The Applicant has not satisfied the requirements of s 477(1) and requires an extension of time under s 477(2) of 371 days. Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if the conditions in it is “necessary in the interests of the administration of justice”. The Applicant relied on two grounds for the extension of time:
1.I was not aware of the time 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 Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
Section 477 of the Act does not prescribe criteria by which to determine the ‘interests of the administration of justice’: see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’; ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 278 FCR 475 (DHX17) at [76].
CONSIDERATION
The delay
The Application was filed 371 days out of time. The extent of the delay is substantial.
I asked the Applicant why there had been a 371 day delay in filing his Application. His only response to this question was that he could not tell me.
The ground relied upon in the Application was that the Applicant was not aware of the proscribed time limit for filing the Application. Ignorance of a proscribed time limit is not a reasonable excuse.
The Minister submitted that the delay is extreme and the Applicant not being aware of the time limit is an insufficient basis for the grant of an extension of time.
I consider that the delay in this case is without excuse. Being a litigant in person “brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards reasonably expected when a litigant exercises a right to access the Court and its process whether at first instant or on appeal”.[3] In this case the delay is excessive.
[3] Bahanko v Sterjov and Others [2008] FCAFC 30; (2008) 166 FCR 415, [6].
The Applicant has not provided an adequate explanation for the delay. The length of the delay and the fact that no reasonable excuse could be offered by the Applicant weighs in favour of dismissing the Application.
Prejudice to the Minister
The Minister submitted that there is no specific prejudice to the Minister beyond the public interest in the finality of decision making.
There is little prejudice to the Minister, save for the costs of having to defend an application. This factor weighs in favour of the grant of an extension of time, however the lack of prejudice to the Miniter does not in itself justify the grant of the extension of time.
Reasonable prospects of success
Importantly, I am to consider whether the Application is “sufficiently arguable” to warrant the grant of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review: In DHX17, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], the Court observed, at [68], that:
68[…] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]
(Emphasis added)
A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18].
The question before the Court is whether any of the grounds are ‘arguable, ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.
The grounds of judicial review in the Application provided as follows (Grounds of Review):
1.The Tribunal misconstrued the risk of significant harm as set out ins36(2B) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life of significant harm to the applicants upon he returns to Malaysia.
2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with provisions of the Migration Act.
3.The Tribunal has failed to investigate applicant's claim, especially the grounds of persecution in Malaysia.
4.The second respondents failed to comply with the mandatory requirement under s 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 comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act, and make no attempt to, and did not, comply with the requirements set out in section 424A of the Act.
The Minister contended that that Grounds of Review do not support the grant of an extension of time.
Ground 1 and 2
The Minister submitted that there is no error in the manner the Tribunal construed and applied the real risk test or standard of significant harm, or the manner in which the Tribunal applied the legislation to the facts.
I agree with the Minister that there is no identifiable error with respect to Grounds 1 and 2.
Ground 3
The Minister submitted that it was well established that it is for the Applicant to make out his case before the Tribunal.[4]
[4] VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, [27].
The Tribunal does not have a general duty to investigate. The Minister submitted that no obligation arose in this case to inquire about a critical fact, the existence of which would be easily ascertained.[5] Further the Minister submitted it is clear from the Tribunal’s Decision that the Applicant gave evidence at the hearing and that the evidence was considered by the Tribunal. The Tribunal made findings on the evidence before it and determined that the Applicant’s claims were not credible. These findings were open to the Tribunal.
[5] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
It is not open to this Court to undertake a review of the merits of the Applicant’s case. I accept and agree with the submissions of the Minister. There is no error with respect to Ground 3.
Ground 4
In so far as this ground alleges that the Tribunal did not comply with its procedural fairness obligation the Minister submits that the Tribunal complied with Part 7 Division 4 of the Migration Act in that:
(a)The Applicant was invited to attend the hearing via his representative;
(b)The Applicant attended the hearing and gave evidence. The Applicant was on notice that the credibility of his claims were the determinative issue before the Tribunal. This notice was constituted by the delegates decision record and the questions raised with him by the Tribunal member;
(c)The Applicant was assisted at the Tribunal Hearing by a Malay interpreter; and
(d)In addition to giving evidence the Applicant was also accorded an opportunity to make submissions in support of his case.
The Minister submitted that the Tribunal was not required to put any additional material to the Applicant as there was no other information relied on by the Tribunal when making its decision.
I agree with the submission of the Minister that there is no discernible error with respect to Ground 4.
It is apparent that the substantive application made by the Applicant has very limited prospects of success.
CONCLUSION
Taking into account the length of the delay, the lack of a reasonable excuse for the delay and the limited prospects of success, I am not satisfied that it is in the interests of the administration of justice to extend the time for filing of the Application. The extension of time is not granted and therefore the Court has no jurisdiction to review the Tribunal’s Decision. The Application must be dismissed.
The Minister sought costs in the sum of $5,000.00, which is less than that prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $5,000.00.
Orders will be made accordingly.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 6 March 2025
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