EXS18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1193
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXS18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1193
File number: MLG 2839 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 18 November 2024 Catchwords: MIGRATION – application for protection visa – review of the decision of the Administrative Appeals Tribunal – extension of time – significant delay – where circumstances of birth explains some of the delay – where merits of the application are very weak – not satisfied that it is in the interests of the administration of justice to extend time –– application for order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 may be made is dismissed Legislation: Migration Act 1958 (Cth) ss 5J(2), 36(2)(a), 36(2)(aa), 36(2B)(b), 422B, 424A(2A), 477(1), 477(2), 477A(2), 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) item 2, div 1, pt 2, sch 2
Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556
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 28Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 14 October 2024 Date of hearing: 28 October 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Mintz Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2839 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXS18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day within which an application under s 477(1) of the Migration Act 1958 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
BACKGROUND
Before the Court is an application to extend the 35-day period within which a judicial review application in relation to a migration decision of the (then) Administrative Appeals Tribunal (Tribunal) may be made under s 477(1) of the Migration Act 1958 (Cth) (Act). The applicant, a Malaysian citizen, arrived in Australia on 18 October 2016 on a (UD-601) Electronic Travel Authority visa: Court Book (CB) 21, CB59. By application dated 21 November 2016 and recorded as received on 23 November 2016 by the (then) Department of Immigration and Border Protection, the applicant applied for a Protection (Class XA) (Subclass 866) visa: CB1-CB53. In support of the application, the applicant claimed that a man had been chasing her to force her into marriage with him and he threatened to splash acid on her if she married another man: CB32. She also claimed to be indebted to a bank and left Malaysia because she needed to work to settle the debt and to save her life: CB32.
A delegate of the (then) Minister for Immigration and Border Protection refused the visa application and notified the applicant by letter transmitted by email on 20 March 2017: CB54-CB57. The delegate was not satisfied the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act: CB59-CB65.
By application to the Tribunal made on 26 March 2017, the applicant applied for review of the delegate’s decision: CB66-CB67. The Tribunal acknowledged receipt of the application by correspondence dated 29 March 2017: CB84-CB85. By correspondence dated 8 November 2017, the Tribunal invited the applicant to appear before it at a hearing on 11 December 2017 to give evidence and present arguments: CB93-CB95. The applicant was also requested to complete an enclosed 'Response to hearing invitation – MR Division' form confirming attendance at the hearing and to use the form to provide or attach any additional or new information the applicant wanted the Tribunal to consider.
The applicant attended the hearing at which she gave evidence and presented arguments assisted by a Malay interpreter: CB103, CB117 at [4]-[5].
On 19 March 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB116. The following day, the Tribunal notified the applicant of its decision: CB112, providing her with a copy of its Statement of Decision and Reasons (Decision): CB116-CB118 and information about her right to apply to the Court for judicial review of the Tribunal’s decision and the time frame within which to so do: CB114.
By her application filed on 21 September 2018 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of the Tribunal’s decision. The application was made outside the time prescribed by s 477(1) of the Act.
TRIBUNAL’S DECISION
At [1]-[12] of the Decision, the Tribunal sets out some introductory matters; discusses the legislative criteria for the grant of a protection visa; and identifies the considerations it has taken into account arising from Ministerial Direction No.56 made under s 499 of the Act. At [13] the Tribunal identifies the issue in the case as “whether Australia has protection obligations in respect of the applicant”.
The Tribunal summarised the applicant’s claims at [19] of the Decision as follows:
•She fears for her safety because of a man who continues to pursue her, but in whom she has no interest.
•She claims he is forcing her to marry him and has threatened to splash acid on her, if she marries another man.
•She claims the perpetrator stalks her and interferes with her relationships with other men, until she breaks up with them. She fears for the safety of the other men she tries to maintain a relationship with as well.
•She claims the perpetrator will continue to threaten her because he knows her address and her family.
•She claims that she has tried to move to different states but the perpetrator continues to find her.
•She claims that the only way she could escape him was to run-away to Australia.
•She also claims to have a bad debt with a bank and so she needs to work for the settlement.
The Tribunal set out the applicant’s oral evidence about her claims at [22] – [31]. The Decision records the applicant gave evidence that:
(a)a stalker showed interest in her; that he appeared one day telling the applicant he wanted to be her friend; and that her initial response was ‘ok’: at [22];
(b)the stalker’s name was [redacted]; but beyond knowing that he worked in an office, she did not know any other details; later the applicant said [redacted] was her younger brother’s friend: at [25]-[26];
(c)[redacted] had bumped into the applicant in public places on several occasions: at [27];
(d)[redacted] had threatened the applicant with an acid attack; the threat was made a few months after the applicant told [redacted] she could not give him her decision; [redacted] told the applicant that he did not accept her refusal and that [redacted] would try to break up any relationship she had with other men: at [28];
(e)she considered [redacted]’s pursuit of her as a serious threat as it was persistent, but she did not consider the acid attack threat as serious: at [29];
(f)she did not report the matter to local police because her mother told her to ignore it and not to take the threat seriously: at [30];
(g)both her parents and a friend suggested she take a (overseas) holiday to release or escape the stressful situation: at [30] – [31];
(h)since arriving in Australia, she married in July 2017 and (at the time of the Tribunal’s hearing) was 21 weeks pregnant: at [36] – [37];
(i)there was “no issue” with [redacted], now that she was married: at [38];
(j)she had intended to remain in Australia until the end of 2017 and then return to Malaysia but when she learned she was pregnant, she decided to remain in Australia and to return to Malaysia after her child was born: at [39];
(k)if she returned to Malaysia pregnant, she feared [redacted] might attack her, but thought [redacted] would not be able to locate her as he did so before she left Malaysia: at [40];
(l)she felt safer with her husband: at [38], [40];
(m)she was indebted to a Malaysian bank, but that, given a new repayment plan proposed by her lawyer friend, all financial matters were under control: at [41]-[42];
(n)she had no available documents relating to her dealings with the bank: at [43]; and
(o)she intended to willingly return to Malaysia in around 3 to 4 months following the birth of her child: at [44].
The Tribunal dealt with country information pertaining to Malaysia derived from the 2016 country report from the Department of Foreign Affairs and Trade, Freedom House 2015 report, Transparency International's corruption index for 2014 and the US Department of State Malaysia 2016 Crime and Safety Report at [45]-[51] of the Decision.
The Tribunal accepted the applicant may have known [redacted] and she may have had issues with [redacted]’s unreciprocated interest in her but, considered the applicant’s evidence given at the hearing raised certain issues of credibility: at [52]. The Tribunal did not accept the applicant's claim that she had been targeted by [redacted] who wanted to force her to marry him because the evidence was lacking in detail about [redacted] and was inconsistent: at [54]. Given the country information indicated that Malaysia had a functioning judicial system and police force, and that the Malaysian authorities were reasonably effective in combating crime and protecting persons within their jurisdiction, the Tribunal considered the applicant’s reasons for not reporting the threat from [redacted] to local police as not being sufficient. For the same reasons the Tribunal did not consider the applicant had a well-founded fear of persecution: at [55]. The Tribunal also considered the applicant’s evidence that since she had married, she no longer felt threatened and that she intended to return to Malaysia following the birth of her child – in assessing the veracity of her claimed fear of persecution and the risk of significant harm: at [56], [60].
The Tribunal did not accept the applicant’s claimed legal issues with a bank in Malaysia relating to borrowings to fund a car, home and tertiary study. This was because of the absence of any documents establishing a loan nor any correspondence relating to the lawyer negotiated re-scheduled payment arrangement. Nevertheless, the Tribunal considered that if there were such issues, Malaysia’s independent and functioning judicial system was equipped to resolve the issues: at [57].
Ultimately, the Tribunal did not accept: the applicant was threatened by [redacted]; there was a real chance the applicant would face persecution involving serious harm if she returns to Malaysia because she refused [redacted]’s marriage proposal; nor that she faced legal issues concerning any outstanding loans with a bank: at [58]. The Tribunal concluded:
(a)the applicant did not have a well-founded fear of persecution and was not a refugee under s 36(2)(a) of the Act: at [59]; and
(b)there was no real risk the applicant would suffer significant harm for any reason and so the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa): at [60].
CONSIDERATION
An application to the Court for a review of a decision of 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 March 2018 and the 35-day period within which an application to the Court must be made ended at the conclusion of 23 April 2018. The applicant’s application was therefore made 151 days after the time prescribed had lapsed. Section 477(2) of the Act allows the Court to extend the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
The applicant’s ground for an extension of time set out in her application is as follows (reproduced verbatim):
1.The Tribunal made their decision on 19 March 2018. My first baby was born on 16 April 2018. The baby was born prematurely, and the birth was very traumatic, and an emergency caesarean section was required. The major abdominal surgery caused me a lot of stress and depression and I was unable psychologically to process the legal proceedings required to apply for review to court. Find annexed to this application documents relating to the birth of my child.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 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), as follows:
10. The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11. At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12. On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, 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. 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.
13. In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14. Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "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" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15. The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16. Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17. French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is 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. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18. However, and as the plaintiff accepted, 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, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. 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. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19. It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal 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. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(citations omitted)
The non-exhaustive principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 to which reference is made at [13] of Tu'uta Katoa were approved 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 [2], [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; (2021) 286 FCR 556 at 566, [40].
The extent of the delay – 151 days – is in a relative sense, significant. The first respondent contended the longer the delay, the more persuasive the explanation needs to be. So much may be accepted: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]. As to the explanation for the delay during the hearing before me, the applicant explained that apart from recovering from the emergency caesarean section performed to enable her to give birth, she was culturally required to undertake 100 days of confinement, and as this was her first baby, she had to learn how to take care of it and had too many other things to think about at the time. She said that she was not sure what to do, had sought out help and was looking for documents to support her judicial review application. The first respondent contended that the applicant has not explained why she did not seek judicial review prior to the traumatic birth of the child, specifically the period between the date she was notified of the Tribunal’s decision (20 March 2018) and the date she gave birth (16 April 2018), nor has she explained why she delayed until 21 September 2018 to make the application. The first respondent contended that the applicant’s cultural requirement of a ‘confinement period of 100 days after giving birth’ would have ended on 25 July 2018, and so does not explain why the applicant delayed the filing of the application until 21 September 2018. So much may also be accepted.
It is doubtless the case that a combination of recovery from birth related surgery, the applicant’s cultural requirements and the general upheaval visited upon a new mother following the birth of her first-born child, would likely be all consuming. Some of the period of the delay in making the application will therefore be explained by these circumstances. However, whilst the applicant may have been stressed following the birth, I do not accept absent, any medical evidence, that the applicant suffered from depression or that she was unable psychologically to process the legal proceedings required to apply for review to the Court as she contends in her application. More than a self-diagnosis will be required if depression is said to explain or contribute to a delay in applying for relief to the Court. Given the proximity of the date of the impending birth to the date on which the Tribunal made its decision, I consider that the applicant’s justified preoccupation with impending birth was likely the applicant’s sole focus at the time and so any inaction by the applicant during that period does not significantly weigh against the applicant. When these circumstances are considered, it seems to me there is at least a satisfactory explanation for a portion of the period of the delay, but such period as remains unexplained by the circumstances, is 58 days and is still significant. Lest it not be clear, I do not consider the other reasons for the delay advanced by the applicant and earlier summarised, satisfactorily explain any part of the period of the delay. The applicant has not explained what documents she was looking for, whether she found the documents or why the search for them accounts for the delay or a part of it. Similarly, the applicant has not explained what it was that she was unsure about, when and what steps she took to inform herself about making a judicial review application to the Court or when and from whom she sought out assistance. Consequently, there is no acceptable explanation for some of the period of the delay, specifically the period between the completion of the applicant’s cultural confinement and the day she applied to the Court.
The absence of an acceptable explanation for some of the period of delay, the extent of which is still significant, weigh against a conclusion that it is in the interests of the administration of justice to extend time.
The first respondent concedes there is no prejudice in the granting of the extension of time that could not be addressed through an order for costs, but rightly says that the mere absence of prejudice to the Minister is insufficient to warrant the grant of an extension. Nevertheless, the absence of prejudice is a matter that weighs in favour of the applicant.
Turning then to the merits of the application, the particularised review grounds in the application the applicant proposes to advance are as follows (reproduced verbatim):
1.The Tribunal breached natural justice by failing to give me a fair hearing. My claims were sensitive in nature, relating to gender-based violence, and were not considered in a culturally sensitive way.
a. The Tribunal referred to my inability to provide details of my persecutor and about the threats of violence and forced marriage against me as evidence that I had not been targeted for such harm. [See paragraphs 54-55 of the AAT Decision]
b. Such reasoning fails to consider the cultural, religious and genderbased reasons of my case and the shame and difficulties I faced.
c. The Tribunal was constituted by a male member and I was presented with a male interpreter.
d. It was legally unreasonable to make findings against my credibility under such circumstances.
2.The Tribunal committed jurisdictional error by taking into account irrelevant considerations.
a. The Tribunal erred in finding that my unwillingness to approach the police in my home country for assistance was evidence of the fact that I did not fear harm. Such conclusions are unreasonable and ignored the country information before the Tribunal about the corruption within the Malaysian police force.
Although by ground 1 the applicant contends she was denied natural justice with the Tribunal not giving her a fair hearing, in substance and read fairly, the applicant also contends the Tribunal did not take into account relevant considerations and that credit findings the Tribunal made were legally unreasonable.
Division 4 of Part 7 of the Act (as then in force) contained an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division dealt: s 422B. As earlier noted, by correspondence dated 8 November 2017, the Tribunal invited the applicant to appear before it at a hearing on 11 December 2017 to give evidence and present arguments, as well as providing the Tribunal with any additional or new information she wished it to consider. The applicant attended the hearing at which she gave evidence and presented arguments assisted by a Malay interpreter. The Decision shows the Tribunal heard oral evidence from the applicant during the hearing. The Decision does not record that the applicant raised any concerns, much less an objection to the fact both the Tribunal member and the interpreter were male or that she requested a female interpreter or member. The Decision does not recount any argument or evidence about any particular or general cultural, religious, or gender-based considerations the Tribunal should take into account. The applicant does not assert that she raised such matters during the hearing and these were not recorded in the Decision.
During the hearing before me, the applicant also suggested that there may have been some inaccurate translating by the interpreter during the Tribunal hearing relating to her intention to return to Malaysia. When pressed the applicant was a bit more circumspect, suggesting that she may have gained that impression because after the Tribunal hearing, the interpreter had asked the applicant whether his translation was accurate. Given the applicant’s need for an interpreter, how she would know whether a translation was accurate was not explained. The applicant did not produce a recording or transcript of the Tribunal hearing although she had the opportunity to do so pursuant to orders made by Registrar Carlton on 19 May 2020. In any event, the applicant confirmed that [39] of the Decision accurately records her evidence to the Tribunal about her intentions. Paragraph [39] records the following:
The applicant's intention was to remain in Australia until the end of 2017 and then return to Malaysia. However, when she was told that she was pregnant in April 2018, the decision was made to remain in Australia and leave for Malaysia after the child was born.
For completeness, as the first respondent correctly points out, there does not appear to be any evident information the Tribunal was required to put to the applicant pursuant to s 424A(2A) (as then in force) and it appears from the material that the applicant was on notice of the issues arising in relation to the review.
As to the applicant’s contention that the Tribunal’s credibility findings were legally unreasonable, the first respondent submits the Tribunal’s credibility findings were logical and reasonable. Save for cavilling with the assessment, the applicant does not explain why the Tribunal’s credibility findings were unreasonable. Credibility assessments or findings are a matter properly for the Tribunal. However, that credibility is a matter for the Tribunal as a question of fact does not mean that challenges to credibility are not available. Such findings are amenable to judicial review on jurisdictional error grounds, for example on the basis that the findings have no logical or probative basis or that such findings are illogical or irrational, or as contended here, legally unreasonable. Credibility findings might also be made in circumstances lacking in procedural fairness: See discussion in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]-[38].
As earlier noted, the Tribunal did not accept the applicant’s claim that she was threatened by [redacted] because she refused his marriage proposal, nor did the Tribunal consider there was a real chance the applicant faced persecution because she chose to refuse such a marriage proposal or face serious harm if she returns to Malaysia. The Tribunal also did not accept that the applicant faced legal issues concerning her outstanding loans with a Malaysian bank as claimed.
The Tribunal appears to have used references to credibility to describe that which appears in most cases to amount to no more than an assessment of the strength of evidence and the veracity of the applicant’s claims by reference to that evidence. As the Tribunal pointed at [53] of the Decision, it does not have to uncritically accept the claims or allegations the applicant made. Although couched in terms of credibility, the task undertaken by the Tribunal at [52]-[57] of the Decision, appears to be no more than to set out the applicant’s evidence it did not accept and to provide reasons why that evidence was not accepted. The Tribunal does not in terms make any adverse credibility findings. At its highest, the Tribunal expresses the view that “the applicant's version of events as submitted ... at the hearing raise[d] certain issues of credibility”. The applicant’s account of her interactions with [redacted] appears not to have been accepted because the applicant had provided minimal details about [redacted] even though she had described [redacted] as one of her brother’s friends. Such a finding appears available on the evidence and the Tribunal’s reasons in this regard appear rational and logical.
The Tribunal accepted the applicant did not report the claimed threat to local police, but reasoned, on the strength of country information about Malaysian police, that the applicant had not provided any sufficient reasons why she could not have sought the assistance of the local police to provide protection instead of leaving for Australia. Here no credibility finding is involved. Instead, the Tribunal appears to provide an intelligible reason for concluding, as the Tribunal did, that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia in the reasonably foreseeable future, there is a real risk that she will suffer significant harm because she had declined [redacted]’s marriage proposal or that she faced legal proceedings because of outstanding loans with her bank.
The Tribunal did not accept the applicant had any ongoing fears of returning to Malaysia on the strength of the applicant’s evidence that since her marriage she no longer felt threatened and that she intended to return to Malaysia once her child was born. Again, no credibility finding is here involved. The Tribunal did not accept the applicant’s claim that she may face legal issues involving a loan from a Malaysian bank because of the absence of any documents. Once more, no credit finding is involved – instead, the evidence appears simply not to have been accepted for the reasons stated. That the Tribunal doubted and therefore did not accept the existence of a loan from a bank because of the absence of documents (as opposed to a loan from an illegal money lender where documents recording the loan documents are unlikely to exist), particularly where the absence of documents is not explained, appears rational and provides an intelligible basis for rejecting that evidence. The finding does not appear to turn on the applicant’s credibility, rather it appears to turn on the absence of corroborating evidence of the loan.
The Tribunal rejected the applicant’s claims because of the findings it made about the evidence which the applicant advanced in support of her claims. Those findings appear to have had an evident and intelligible basis for the reasons the Tribunal explained based on the applicant’s evidence; the absence of particulars about [redacted] and documents pertaining to the loan; and the country information it had discussed. There is therefore nothing arguably unreasonable in the Tribunal’s so called credibility findings. For the reasons set out above, proposed ground 1 provides a very weak basis for showing the Tribunal’s decision was attended by jurisdictional error.
By ground 2 the applicant contends the Tribunal took into account irrelevant considerations. The applicant does not particularise the irrelevant considerations she says the Tribunal took into account. Instead, the applicant contends the Tribunal erred in finding that her unwillingness to approach the police in her home country for assistance was evidence of the fact that she did not fear harm. She contends that such a conclusion was unreasonable and ignored the country information before the Tribunal about the corruption within the Malaysian police force.
As to the last-mentioned matter, the Tribunal not only considered but also weighed the available country information. It appears to have done so wholistically and not as the applicant seeks to do, by reference to just one piece of information in the abstract and out of context. The applicant does not appear to have told the Tribunal she did not approach local authorities because of any concerns about the effectiveness of or corruption with Malaysian authorities. Instead, the applicant told the Tribunal she did not report [redacted]’s threat because her mother told her to ignore it and not to take the threat seriously: Decision at [30]. Furthermore, the Tribunal did not find, as the applicant contends, that the applicant’s unwillingness to approach the police in Malaysia for assistance was evidence of the fact that the applicant did not fear harm. Instead, the Tribunal found at [55] that the applicant had not provided sufficient reasons why she could not have sought the assistance of the local police or why the local police could not assist her if she desired protection. It found, taking into account the country information identified in the Decision, that effective protection measures were available to the applicant in Malaysia and therefore she does not have a well-founded fear of persecution. The refugee criteria which the applicant sought to invoke by her protection visa application, requires consideration of the applicant’s ability to obtain state protection. As the first respondent correctly points out, this is because the applicant will not have a well-founded fear of persecution if effective protection measures are available in the applicant’s home country: s 5J(2) of the Act. Moreover, there will not be a real risk a person would suffer significant harm if the applicant could obtain protection from the local authorities: s 36(2B)(b) of the Act.
It follows that proposed ground 2 also does not appear to disclose an arguable case of jurisdictional error and is very weak. The weakness of the proposed review grounds weighs heavily against a conclusion that it is in the interests of the administration of justice to extend time.
For the reasons discussed, the above-mentioned considerations taken together do not persuade me that it is in the interests of the administration of justice to extend the 35-day period. The applicant’s application for extension of time is refused.
The first respondent sought costs in the sum of $7,467.00 in the event the applicant was unsuccessful. As the proceeding will be dismissed at an interlocutory stage, the amount sought would exceed the amount for which provision is made in item 2 of Div 1, Pt 2, Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The additional sum is said to be justified because of the duration of the interlocutory hearing and the extent to which the merits of the proposed review grounds were examined. Whilst I accept that the hearing occupied substantial time considering the nature of the application – an interlocutory hearing – the length of the hearing was necessitated by the need for an interpreter and time taken to explain (and have translated) the nature of the proceedings and the matters relevant to the judgment I needed to make. Consequently, I do not consider an amount above the scale amount is reasonable or justified. An order for costs in the sum of $4,189.38 will be made in favour of the first respondent.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 18 November 2024
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