EMR20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 83
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMR20 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 83
File number: SYG 2371 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 29 January 2025 Catchwords: MIGRATION – extension of time application – explanation of delay is unsatisfactory – no jurisdictional error established Legislation: Migration Act 1958 (Cth) ss 5 H, 5J, 36(2), 423A
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; 3 FCR 344
Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249
MZZGC v Minister For Immigration and Border Protection [2015] FCA 842
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 21 January 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Gao (HWL Ebsworth) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2371 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMR20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘ Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to read ‘ Administrative Review Tribunal’.
3.The applicant’s application for an extension of time is refused.
4.The application for judicial review is dismissed.
5.The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,737.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 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 D HUMPHREYS
EXTENSION OF TIME
The applicant seeks leave for an extension of time in respect of an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 24 May 2017. The Tribunal affirmed a decision made on 1 February 2017 by a delegate of the Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“protection visa”).
The applicant seeks an extension of time under s 477(2)(b) of the Act on the following grounds (errors in original):
1.I do not have lawyer and I don’t know I had the right to appeal to federal circuit court until my Australian friend told me I can still had the right to appeal to Federal Circuit Court.
2.I don’t have money as I having financial hardship and I don’t know I can seek for the exemption filing fee at the court.
For the reasons outlined below, the application for an extension of time must be refused and the application dismissed.
BACKGROUND
The applicant is a female citizen of Malaysia. She first arrived in Australia on 24 June 2016 using an Electronic Travel Authority (class UD) (subclass 601) visa.
On 30 August 2016, the applicant made a valid application for the protection visa and was granted an associated Bridging visa.
On 1 February 2017, a delegate refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant applied to the Tribunal for a merits review of the refusal decision on 3 February 2017.
She appeared before the Tribunal in May 2017 to give evidence and present arguments. She was assisted by an interpreter who spoke Mandarin and English.
On 24 May 2017, the Tribunal affirmed the decision not to grant the applicant a protection visa.
An application was lodged with the then Federal Circuit Court of Australia on 16 October 2020, well out of time, seeking review of the Tribunal’s decision.
THE LAW IN RELATION TO AN EXTENSION OF TIME
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)prejudice to the respondent due to the delay; and
(d)the merits of the proposed application.
To the above, the Court would add that the longer the delay in lodging an application, the more persuasive the reason for the delay must be.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. She was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the matters that would be considered in relation to consideration of an extension of time. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case. The applicant told the Court that she did not know how to upload documents to the Court portal. As to the reasons for the delay, the applicant stated that she did not know how to check the contents of her ‘inbox’ and was reliant on the assistance of friends and her partner.
She had a friend that helped her but claimed that she was not told about the relevant time limit on applications for judicial review.
The applicant was asked to address each of the grounds of judicial review she relied upon. The grounds of judicial review are reproduced at [48] of this judgment.
As to ground one, she stated that in Malaysia, same sex partners are not able to be together.
As to ground two, she asked her partner to assist her on the date of the court hearing. Her partner had been previously unable to attend the Tribunal hearing.
As to ground three, the applicant stated that her parents and brother will not allow her to live in Malaysia with her partner. She said they told her she cannot get happiness or a child with a same sex partner.
In regard to ground four, the applicant stated that she travelled to Australia initially on a tourist visa as she was told she could not lodge an application for a protection visa offshore.
As to ground five, she stated she missed her partner, did not want to be separated from her and came to Australia so she could be with her and not discriminated against.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She answered that she wanted to stay in Australia as she had been with her partner for 20 years. The applicant’s brother had beaten her partner in Malaysia. She hoped that the Court could help her.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The first matter to be considered is the extent of the delay. The delay is some 3 years, 3 months and 18 days. This is a very lengthy period of time and of itself mitigates against an extension of time being granted. Accordingly, any explanation for the delay will need to be very persuasive.
The second matter is the applicant’s explanation for the delay. In her initiating application the applicant relies upon the following matters (set out verbatim):
1.I do not have a lawyer and I don’t know I had the right to appeal to the federal circuit court until my Australian Fried told me I can still had the right to appeal to the Federal Circuit Court.
2.I don’t have money as I having financial hardship and I don’t know I can seek for the exemption of the filing fee at the Court
As noted by the first respondent, when notified about the Tribunal decision affirming the delegate’s decision not to grant the applicant her visa, the applicant was informed of her appeal rights to this Court and the 35-day timeframe in which to lodge such an appeal.
Further, there was nothing unusual or unique about the applicant’s circumstances that would set her apart from other self-represented applicants for judicial review and migration matters. Impecuniosity is not a basis for failing to seek review:(see: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24] – [26]), noting the court has a fee waiver process in place.
The first respondent also relies on Mohammed v Minister for Immigration and Border Protection [2014] FCA 1249 at [29] where the following was said:
[t]here are many unrepresented applicants… who managed to comply with the time limits imposed by the rules.
In the Court’s view, the explanations, including those given in oral submissions are unpersuasive. No real explanation has been offered as to why the applicant was unaware of the relevant time limits. No material or evidence has been put forward to support the applicant’s claim of impecuniosity. The applicant clearly had the technical IT capability of making an application to the Tribunal. The submission that she was unable to access her inbox is unpersuasive and is not accepted by the Court. This consideration mitigates heavily against leave being granted.
As to the prejudice to the Minister, the Court notes the proper concession that there was no real prejudice to the Minister other than significant public interest in the finality of judicial decisions.
The final matter relates to an assessment of the merits of the proposed grounds of review. If the grounds of review have no merit, there is no point in granting an extension of time. Any consideration of the proposed grounds of review should be at an impressionistic level only. This requires a consideration of the Tribunal decision along with the proposed grounds.
ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal instructed itself as to the relevant criteria for a protection visa in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (“Regulations”) from [6] to [10].
It noted at [11] the requirement, in accordance with Ministerial Direction No. 56 under s 499 of the Act, to take account of policy guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”).
The evidence before the Tribunal was outlined at [12]-[13].
The applicant’s claims were summarised at [17] as follows:
•The applicant left Malaysia because she wanted to be with her lover, and her relatives would not approve of the same-sex relationship and wanted to separate the applicant from her partner. Her partner is the only one she has wanted to be with for the past 15 years.
•The applicant claims that her family would ruin her relationship if she returns to Malaysia.
•The applicant claims that her uncle nagged about her life. He would threaten her about chasing her out of the house because he is embarrassed by her and he would sometimes lock her up.
•The applicant was too scared to report the matter to the police.
•The applicant claims that her family would not accept her and she would get depressed.
•The applicant claims that her family would kill her before the authorities could protect her. Her family would find her no matter where she relocates within Malaysia as they have a very strong Chinese association.
The Tribunal was satisfied at [18] that the applicant was a Malaysian national and that Malaysia is the relevant receiving country for the purpose of assessing the applicant’s claim for protection. It was also satisfied the applicant did not have a right to enter and reside in any other country and accordingly, the applicant was not excluded from Australia’s protection obligations under s 36(3) of the Act.
The Tribunal outlined the evidence and claims made at the hearing from [20]-[55]. It listed a number of concerns at [52] that were put to the applicant.
It instructed itself from [56] – [60] as to the relevant law in adopting a reasonable approach when making findings of credibility.
At [61] the Tribunal did not accept the applicant’s claim that she is a lesbian or her claim to fear returning to Malaysia as credible. This was based on the following reasons:
·The Tribunal found it implausible the applicant was motivated enough to continue a same sex relationship for 15 years in the face of familial and social pressure and rejection (and claimed abuse) but was unaware of the legislative, social and cultural environment for LGBTI people in Malaysia.
·The Tribunal found it implausible that the applicant claimed to have fled Malaysia because she researched countries like Australia and knew she could be with her partner, live freely and get married in Australia. It noted same-sex marriage was not legal in Australia (at the time). Other than claiming to live with her partner (of which the Tribunal had no evidence), the applicant’s lifestyle appeared no different to her lifestyle in Malaysia.
·The Tribunal did not accept the explanation provided by the applicant for her partner’s non-attendance at the hearing. It found it implausible that the applicant’s partner of 15 years would prefer to ‘have a look around’ in Melbourne than to be with her partner at the hearing given the nature of the claims for protection.
·The Tribunal was not persuaded by the explanation provided to account for who took a photo of the applicant and her partner.
In light of its findings and concerns, the Tribunal was of the view that in the absence of the applicant’s partner attending the Tribunal hearing or any other person that can vouch for the relationship, the Tribunal could not verify the other person in the photographs or that the pictured person was the applicant’s partner. Accordingly, the Tribunal found it was not satisfied the applicant was in a same sex relationship. As this was the only same sex relationship the applicant described to the Tribunal, the Tribunal was not satisfied the applicant had ever been in a same sex relationship.
The Tribunal did not accept at [62] that the applicant has been subject to verbal or physical abuse due to her sexuality as a lesbian or any same sex relationship by her parents, her brother, her uncle or anyone else. It also rejected the applicant’s explanation that she forgot to mention years of verbal and physical abuse from her mother, father and brother in her protection visa application due to memory loss. It noted there was no medical evidence to support this claim and the applicant told the Tribunal that she had never sought medical assistance because she felt that it was not a significant illness. On this basis and in accordance with s 423A of the Act, the Tribunal did not accept the applicant’s claim to have suffered abuse from her mother, father or brother.
At [63] the Tribunal noted it would have expected the applicant to have made enquiries of her available options to remain in a safe country when she travelled to Thailand on two occasions prior to coming to Australia. It also would have expected her to have lodged a protection visa application shortly after her arrival. The applicant’s explanation for her delay in lodging her protection visa application being that she wanted to be a “tourist first”, contributed to the Tribunal’s finding that the applicant was not genuine in her claims.
The Tribunal found at [64] the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act and was therefore not a refugee as defined in s 5H.
In considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal found at [65] there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
The Tribunal was not satisfied at [66] the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a).
It was also not satisfied at [67] the applicant met the alternative criterion in s 36(2)(aa).
The applicant further did not satisfy the criterion in s 36(2).
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in an Originating Application lodged on 16 October 2020. They are reproduced as follows (errors in original):
1.Tribunal do not really consider it is illegal to have Adult same-sex relationship in Malaysia are illegal, regardless of age and consent, under the Penal Code which criminalises carnal intercourse against the law of nature and allows for punishment including up to 20 years’ imprisonment and whipping.
2.Tribunal do not believe my relationship with my homosexual partner was genuine because my partner didn’t turn up for the hearing. I should given second change of hearing together with my partner.
3.Tribunal do not understand Chinese family culture in Malaysia and do not believe I was harmed by my family members. I was born in typical Chinese culture family and I having same sex relationship caused them felt ashamed and they tried to lock me down and beat me to prevent me become Lesbian.
4.Tribunal do not consider why I do not applied protection visa with my homosexual partner during the first time arrival to Australia and give a wrong judgment that I do not fear of harmed return to Malaysia. I went back to Malaysia silently without my family member acknowledgment as I need to settle my personal belonging stuff before I permanently stay in Australia.
5.Therefore, the decision made by Tribunal is unfair to me.
THE FIRST RESPONDENT’S SUBMISSIONS: MERIT OF THE PROPOSED GROUNDS
The first respondent submits that the substantive case for judicial review fails, as the grounds of the application are neither strong nor exceptional. Rather, the grounds fail to establish any reasonable argument that the decision of the Tribunal was affected by jurisdictional error.
Ground one cannot be made out as the decision record indicates the Tribunal carefully examined the applicant’ claims in this respect at [23]-[32].
Ground two is an attempt to engage the Court in impermissible merits review as it impugns the Tribunal’s factual findings at [61]. The findings of the Tribunal including those at [61] with regard to being unable to confirm the identity of the second person in the photo were reasonable and open to it. The applicant was on notice that she could have brought her partner or any other witness to the hearing but elected not to do so. It is well established that the Tribunal may draw conclusions by identified gaps, defects or lack of detail or specificity in evidence; (see: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]). In view of the gaps and lack of specificity in evidence identified by the Tribunal and put to the applicant at the hearing, it was open to the Tribunal to make adverse findings with regard to the applicant’s claim of being in a same-sex relationship.
As to ground three, the Tribunal examined the issues at [43], [50] and [54] and reached a finding on the merits that the applicant’s claims were not made out. This ground does not establish jurisdictional error.
In relation to ground four, the Tribunal did consider the applicant’s explanation for the delay in applying for the protection visa at [63] and did not fall into error by failing to consider the claim.
Ground five is a broad allegation that lacks particulars and does not establish jurisdictional error.
IS THERE MERIT IN THE PROPOSED GROUNDS?
In the Court’s view, ground one must fail. The Tribunal set out clearly at [23] onwards its discussion with the applicant as to the issues of being a lesbian in Malaysia. At [61] the Tribunal set out in some detail the reasons why it did not accept the applicant’s claim that she is a lesbian, or her claim to fear returning to Malaysia was credible. The Court considers these findings were open to the Tribunal on the evidence that was before and for the reasons it gave. Ground one has no merit.
The Court accepts the respondent’s submission that ground two is an impermissible attempt to engage the Court in merits review. Ground two has no merit.
Ground three merely takes issue with the factual findings of the Tribunal and does not raise any jurisdictional error. The findings of the Tribunal were open to it on the evidence that was before it and for the reasons it gave.
The Court is satisfied in relation to ground four that the Tribunal did consider the applicant’s explanation for the delay in applying for a protection visa at [63] and the Tribunal was entitled to have concerns as to the delay in applying for the visa, for the reasons it gave.
Ground five merely consists of disagreement with the Tribunal’s ultimate finding and is not a proper ground of judicial review.
Even at an impressionistic level, the Court is not satisfied that any of the grounds of judicial review have merit.
DETERMINATION
The length of the delay in seeking judicial review in this case is very long. The explanation provided for the delay in seeking judicial review is unsatisfactory. Whilst there was no prejudice to the Minister, the Court acknowledges the need for there to be finality in proceedings especially where they involve constitutional writs. Each of these factors mitigates against an extension of time being granted.
Most importantly, none of the proposed grounds of judicial review, even at an impressionistic level, have merit. In these circumstances, there would be no point in granting an extension of time.
Accordingly, the application for an extension of time is refused and the application is dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 29 January 2025
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