EGU19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 703

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EGU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 703   

File number(s):	SYG 2805 of 2019
Judgment of:	JUDGE ZIPSER
Date of judgment:	16 May 2025
Catchwords:	MIGRATION – judicial review – extension of time application – merits of underlying application – lengthy delay – unsatisfactory explanation for delay – extension of time refused
Legislation:	Migration Act 1958 (Cth) ss 36, 65, 477, 477A
Cases cited:	Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division:	Division 2 General Federal Law
Number of paragraphs:	56
Date of hearing:	5 May 2025
Place:	Parramatta
Applicant:	Applicant in person
Solicitor for the Respondents:	Ms G Gutmann of Minter Ellison

ORDERS

SYG 2805 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EGU19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	16 MAY 2025

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 30 October 2019 is dismissed.

2.The applicant pay the first respondent’s costs 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 ZIPSER

INTRODUCTION

1. On 30 October 2019, the applicant filed an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 June 2019. The application was lodged 97 days after expiry of the 35-day limit prescribed in s 477(1) of the Act. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application to extend time is refused.

   FACTUAL BACKGROUND

3. The applicant, a citizen of Papua New Guinea (PNG), first arrived in Australia in May 2011 on a tourist visa.

4. On 11 April 2014, the applicant lodged an application for a protection visa.

5. Following an interview on 8 September 2015, on 8 June 2016 a delegate of the first respondent refused to grant the visa.

6. On 22 June 2016, the applicant applied to the Tribunal for review of the delegate's decision.

7. On 3 December 2018, the Tribunal invited the applicant to appear at a hearing on 26 March 2019 to give evidence and present arguments.

8. On 26 March 2019, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of his representative.

9. On 7 and 9 May 2019, the applicant's representative emailed a post-hearing submission and further evidence to the Tribunal.

10. On 20 June 2019, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a protection visa.

    TRIBUNAL’S DECISION

11. The Tribunal at [10]-[34] summarised the applicant’s evidence and claims in his protection visa application, provided at an interview with the first respondent’s delegate on 8 September 2015, provided in writing to the Tribunal, and provided orally at a hearing before the Tribunal on 26 March 2019.

12. The Tribunal at [35]-[37] reviewed relevant country information.

13. The Tribunal at [39]-[42] considered whether the applicant was a credible witness. The Tribunal stated in an upfront finding at [41], with reasons provided in later parts of the Tribunal’s decision, that the applicant “is an unreliable witness and that key elements of his claims are not credible”.

14. The applicant’s principal claim was that in 2003-2004 there was a tribal war in the applicant’s home village of Kerabi between the applicant’s tribe (the Lu tribe) and an opposing tribe (the Yamo tribe), the applicant had an important role in the tribal war, the applicant was attacked on later dates by members of the Yamo tribe, the applicant has a leadership role in the Lu tribe and, in connection with or arising from these matters, the applicant faces a real chance of serious harm from the Yamo tribe and the Kewai tribe if required to return to PNG.

15. The Tribunal at [48] accepted there was a tribal war in Kerabi village between 2003 and 2004. The Tribunal at [54] expressed concern that the applicant “has sought to exaggerate the significance of his role in the tribal war”. The Tribunal at [64]-[65] accepted the applicant was robbed on one occasion, but did not accept the attackers were from the opposing tribe. The Tribunal at [81] was not satisfied that the applicant ever had a significant leadership role in the Lu tribe. The Tribunal at [87] was not satisfied the applicant was attacked on another occasion he claimed to have been attacked. The Tribunal at [91]-[92] considered the applicant’s two year delay in applying for a protection visa after arriving in Australia, and stated that the applicant’s “two year delay in applying for a protection visa reinforces its concern that he does not have a genuine fear of being harmed in PNG”. The Tribunal at [99]:

    (a)noted that it “has rejected in their entirety [the applicant’s claims] that he was harmed in the aftermath of tribal war and that he is of adverse interest to Yamo tribesmen”; and

    (b)found “that the chance that [the applicant] will face serious harm as a result of tribal violence is remote”.

16. The Tribunal at [100]-[103] rejected some additional claims by the applicant.

17. The Tribunal at [111]-[112] concluded that the applicant was not a person in respect of whom Australia had protection obligations and did not satisfy the criteria for a protection visa in s 36(2) of the Act.

    PROCEDURAL HISTORY

    Application

18. On 30 October 2019, the applicant lodged in this Court an application seeking judicial review of the Tribunal’s decision (Application). The Application was accepted for filing on the same day. The Application included three grounds as follows (as written):

    1.I have mental health issues (PTSD) and got mixed up at the hearing.

    2.There wasn’t enough evidence which I am still gathering.

    3.My case went deeper in terms of cultural or different society court interpretations. Most of the contexts I tried to explain seem foreign to the member (member Frances Simmons) and at times she couldn’t read alone the lines of what I was explaining. Probably she jumped into conclusion by rejecting my court appeal because every statement wasn’t making sense when concluding the factors involved:

    (1) Tribal Conflict

    (2) My relocations/ residences/ movements

    (3) Society and cultural influences

    (4) Didn’t have the court evidence (maybe)

    (5) I looked healthy physically

19. As explained below, in light of the time limit for filing applications in s 477(1) of the Act, the applicant filed the Application 97 days after the expiry of the time limit and required an extension of time. The Application included an application for extension of time. The applicant, in response to a request in the application form to specify “why the applicant considers it necessary in the interests of the administration of justice to extend time”, wrote:

    1.To prepare court evidence which was absent at the AAT hearing.

    2.Financial hardship and associated problems (health)

    3.Mental health issues

20. On 30 October 2019, the applicant also filed an affidavit which annexed the Tribunal’s decision dated 20 June 2019. The affidavit contained no evidence in support of the application for an extension of time.

21. On 21 November 2019, a registrar made procedural orders, including that the applicant file and serve by 31 January 2020 any amended application with proper particulars and any evidence on which the applicant intended to rely. The applicant did not file any materials in response to this order.

22. On 23 January 2025, a registrar made procedural orders at a listing at which the applicant appeared by phone. The orders included:

    (a)that “the matter be listed for an extension of time hearing and, if granted, a final hearing on a date and time to be advised”; and

    (b)the applicant file and serve at least 28 days before the hearing any amended application, written submission and further evidence.

23. In March 2025, the registry of the Court notified the parties that the proceeding was listed for an extension of time and final hearing on 5 May 2025.

24. On 22 April 2025, the first respondent filed a written submission.

25. On 23 April 2025, the applicant served a written submission.

26. On the morning of 5 May 2025, about two hours before the hearing in this Court commenced, the applicant filed a 49-page bundle of documents. The bundle comprised a submission dated 1 May 2025, the submission dated 23 April 2025, and documents of an evidentiary nature.

    Hearing on 5 May 2025

27. At the hearing on the afternoon of 5 May 2025, the applicant appeared before the Court unrepresented. Gabrielle Gutmann from Minter Ellison appeared for the first respondent.

28. The applicant brought to the hearing a copy of a Court Book, filed and served by the first respondent in December 2019, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision. I explained to the applicant the limited role of the Court in a judicial review proceeding, and the need for the applicant to persuade the Court that there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error.

29. I explained to the applicant that, since he filed the Application more than 35 days after the date of the Tribunal’s decision, he must persuade the Court to extend time for the filing of the Application. I noted that the applicant had not filed an affidavit containing sworn evidence to explain his delay in filing the Application. I stated that, if the applicant wants to persuade the Court to extend time, it is desirable that he gives evidence under oath to explain the circumstances in which the Application was not filed within 35 days of the Tribunal’s decision, but was instead filed 97 days later.

30. The applicant stated that he wished to give sworn evidence concerning his delay in filing the Application.

31. I then adjourned the matter for 20 minutes so that:

    (a)the applicant could consider the sworn evidence he wanted to give concerning his 97 day delay in filing the Application, and oral submissions to make to persuade the Court there is a jurisdictional error in the Tribunal’s decision; and

    (b)Ms Gutmann could consider the 49-page document filed by the applicant a few hours before the hearing.

32. After the 20 minute break, I accepted into evidence the Court Book and a Supplementary Court Book.

33. The applicant sought to read an affidavit of the applicant sworn on 12 February 2025. The applicant had not previously filed or served the affidavit. He described the affidavit as his personal statement which he forgot to submit to the Tribunal. The affidavit concerned an incident on the evening of 31 December 2015 when the applicant claimed to have been hit on the head. The applicant explained to the Court that the injury had caused him to not remember things at the hearing before the Tribunal in March 2019, but he had not told the Tribunal about the incident. I declined to read the affidavit on the ground of relevance.

34. The applicant then sought to tender a folder of about seven folios. The applicant had not previously served the folder of documents on the first respondent. None of the documents had been provided by the applicant to the Tribunal. Some of the documents, such as photographs of two people who died in 2024 and 2025, were created after the Tribunal’s decision. I declined to receive any of the documents into evidence on the ground of relevance.

35. The 49-page bundle of documents referred to in paragraph 26 above included evidentiary material. There was an overlap between the evidentiary material and documents in the folder referred to in the above paragraph. None of the evidentiary material had been provided by the applicant to the Tribunal. I declined to receive any of the evidentiary material into evidence on the ground of relevance.

36. The applicant then gave oral evidence from the witness box. I directed his attention to the period between 20 June 2019 and 30 October 2019. I asked him to explain why he did not file the Application within 35 days of 20 June 2019, but instead filed the Application on 30 October 2019. The applicant stated that he no longer recalled exactly what happened, he did not have a job, he did not have a place to stay, he has a mental illness and he forgets things. That is why it took him so long.

37. The applicant then made oral closing submissions. He explained that the reason for inconsistencies and inadequacies in his evidence at the hearing before the Tribunal on 26 March 2019 was because he got hit on the head, and he fell face down. He also stated that, although the Tribunal found that he did not face a real risk of harm if required to return to PNG, he faces a real risk of harm if required to return. He explained that there are ongoing problems and there will be a fight. He added that he wants to live in Australia.

    EXTENSION OF TIME PROVISIONS

38. Section 477 of the Act relevantly provides:

    (1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

    (2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

    (a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    (b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

39. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “the paragraph allows the Court to look at 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” and “the level of satisfaction for the Court to reach is not low: 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”.

40. In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that “in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a reasonably impressionistic level”, but “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”, such as in cases where “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”. The plurality added that ultimately the provision “entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application”.

    CONSIDERATION

    Length and reasons for delay

41. The 35-day timeframe for the applicant to apply to the Court for judicial review of the Tribunal’s decision ended on 25 July 2019. The applicant did not apply for judicial review until 30 October 2019. He therefore requires an extension of time of 97 days. The first respondent’s written submission describes the delay as “significant”. I agree.

42. It is not satisfactory that, prior to the day of the hearing in this Court on 5 May 2025, the applicant had not filed or provided to the first respondent an explanation or sworn evidence concerning his delay in filing the Application.

43. The applicant’s explanation provided at the hearing (see paragraph 36 above) is unsatisfactory. In relation to the explanation:

    (a)Even if the applicant did not have a job and experienced financial hardship as a result (to which he refers on page 2 of the Application), he could have applied to the Court for an exemption from paying the Court’s filing fee. The applicant has not provided any evidence concerning this issue.

    (b)Even if the applicant did not have a place to stay, this does not explain his delay in filing the Application.

    (c)The applicant stated that he has a mental illness. It was unclear whether the applicant’s evidence was that he had a mental illness at the time he gave his evidence on 5 May 2025, or alternatively between July and October 2019. If the applicant intended to say that he had a mental illness between July and October 2019, there is no medical or other reliable evidence before the Court to prove this. Based on the applicant’s evidence, I am not persuaded he had a mental illness between July and October 2019, let alone a mental illness which might explain his delay in filing the Application.

44. The length of the delay, and the absence of a satisfactory reason for the delay, weighs against an extension of time.

    Prejudice to the first respondent

45. It is stated in the first respondent’s written submission that “[t]he Minister would not suffer substantial prejudice if time were to be extended…”.

    Merits of underlying application

46. The applicant asserts in ground 1 of the Application that he “[has] mental health issues (PTSD) and got mixed up at the hearing”. This ground, generously construed, contends that the Tribunal either erred in dealing with a claim that the applicant had Post-Traumatic Stress Disorder (PTSD), or failed to realise that the applicant had PTSD which caused the problematic aspects of his evidence.

47. The Tribunal stated at [40] and [42]:

    40. [The applicant] elected to give evidence in English, a language in which he is fluent. After the hearing his representative submitted that a GP had recommended that [the applicant] see a psychological professional in order to evaluate his mental health for a 'possible diagnosis of PTSD' however because of [the applicant’s] financial circumstances he had not seen a psychiatrist or a psychologist. The representative did not submit a copy of the referral from the GP or any medical evidence capable of satisfying the Tribunal that [the applicant] suffers from posttraumatic stress disorder (PTSD). In the absence of any medical evidence, the Tribunal is not satisfied that [the applicant] suffers from PTSD or any other medical condition. Having observed [the applicant] give evidence at the hearing, the Tribunal is satisfied that he had a meaningful opportunity to present evidence and arguments in support of his application.

    …

    42. The Tribunal is not satisfied that [the applicant] suffers from any medical conditions that might excuse or explain the problematic aspects of his evidence…

1. I cannot identify an error in these paragraphs of the Tribunal’s decision. Among other matters:

   (a)It appears that the applicant did not claim at the hearing that he had PTSD or another mental health disorder. Instead, the applicant’s representative raised the issue with the Tribunal in a post-hearing submission.

   (b)The Tribunal stated there was an “absence of any medical evidence” before the Tribunal in support of a claim that the applicant had or might have PTSD or another medical condition. The applicant did not disagree in this Court with the Tribunal’s reference to an “absence of any medical evidence”.

   (c)The Tribunal, based on its observations of the applicant giving evidence, was “satisfied that he had a meaningful opportunity to present evidence and arguments in support of his application”. The applicant, in this Court proceeding, did not challenge this finding.

2. The applicant asserts in ground 2 of the Application that “there wasn’t enough evidence which I am still gathering”. On one reading of this ground, it includes a concession by the applicant that his evidence before the Tribunal was insufficient. In any event, the ground fails to articulate or establish any error by the Tribunal.

3. It is difficult to understand the complaint in ground 3 of the Application. Generously construed, the complaint may be that the Tribunal misunderstood the applicant’s claims and/or evidence. The applicant does not identify the Tribunal’s finding, the subject of complaint in ground 3, or otherwise particularise the complaint.

4. I have reviewed the applicant’s written submission dated 23 April 2025. The applicant states in paragraph 2 that he “was mentally unfit at the time of the Administrative Appeals Tribunal hearing … because I was under PTSD caused by a violent attack in Melbourne by some unknown and still recovering from it”. This complaint overlaps with ground 1 of the Application which I address in paragraphs 46-48 above. The remaining paragraphs of the submission do not identify a jurisdictional error in the Tribunal’s decision.

5. I have read the applicant’s written submission dated 1 May 2025 which contains matters under subheadings numbered from 1 to 8. Subheading 8 is titled “Poor mental health conditions”. The matters stated under this subheading overlap with ground 1 of the Application which I address in paragraphs 46-48 above. The matters stated under the other subheadings do not identify a jurisdictional error in the Tribunal’s decision.

6. In conclusion, the applicant has not identified a reasonably arguable case of jurisdictional error in the Tribunal’s decision.

   Conclusion on application for extension of time

7. The Court may only grant an extension of time if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”. For reasons explained above:

   (a)The applicant’s delay in filing the Application is lengthy and his explanation for the delay is unsatisfactory.

   (b)The applicant has not identified a reasonably arguable case of jurisdictional error in the Tribunal’s decision.

   These matters support a conclusion that it is not necessary in the interests of the administration of justice for the Court to grant an extension of time.

8. Therefore, I refuse to extend time and dismiss the application for an extension of time.

   COSTS

9. At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Gutmann sought an order that the applicant pay the first respondent’s costs in the sum of $4,189.38 which amount was less than the first respondent’s solicitor/client costs. The applicant did not oppose this amount. This amount is reasonable. I will make this order.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       16 May 2025