EXU18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1215
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXU18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1215
File number(s): MLG 2840 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 18 November 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for significant delay – whether there was an arguable case of jurisdictional error – extension of time application refused with costs Legislation:
Migration Act 1958 (Cth) ss 36, 65, 411, 412, 414, 415, 426A, 430, 476, 477
Cases cited: AJW15 vMinister for Immigration and Border Protection [2015] FCCA 2579
AJW15 vMinister for Immigration and Border Protection [2016] FCA 197
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZTCU vMinister for Immigration and Border Protection [2014] FCCA 1600
SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552
SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 22 October 2024 Date of hearing: 22 October 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr J. Sathiendrakumar Counsel for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2840 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXU18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
18 NOVEMBER 2024
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 amended to “Administrative Review Tribunal”.
3.The applicant’s application for judicial review filed on 21 September 2018 is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceedings 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 CUTHBERTSON
INTRODUCTION
On 21 September 2018, the applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 13 November 2017 (JR application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicant a protection (Class XA) (Subclass 866) visa (the visa) under s 65 of the of the Act (Tribunal’s decision).
The JR application was filed out of time. Section 477(1) of the Act provides that an application to this Court for a remedy pursuant to s 476 must be made within 35 days of the date of the migration decision. The date of the migration decision in this matter is 13 November 2017: see ss 477(3)(c) and 430(2) of the Act. In this case, the applicant filed her application 277 days after the relevant date. The applicant has sought an extension of time in which to file her JR application (EOT application). The Minister opposes the application.
This judgment is only concerned with the EOT application. The EOT raises the following issues: does the applicant have an adequate explanation for the delay and is the JR application reasonably arguable. For the reasons set out below, the EOT application is dismissed.
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (CB) 14, 39). She arrived in Australia on 30 March 2016 on a tourist visa (CB 44).
The applicant applied for the visa on 30 June 2016 (visa application) (CB 1-40). The applicant declared in the Form B and Form C of the visa application that she did not receive assistance in completing them (CB 10, 38).
The applicant's claim for protection set out in her visa application (CB 32-35) was accurately summarised by the delegate in their refusal decision as follows (CB 45-46):
•The applicant went guarantor for her brother-in-law for a number of loans through money lenders. When the debt accrued they received threats of harm from the debt collectors.
•Her brother-in-law failed to settle the debt of RM150, 000 made with four licenced loan companies since 2014. Life became horrible after they failed to settle the remaining balance of RM 100, 00.
•The applicant was forced to surrender the house. Her hands and feet were tied up and her head was hit by them. As her brother in law escaped she has been the victim of the threats and violence. They splashed red paint on her car and her house and they also wrote abusive words to her.
•The total loan is higher and she cannot afford to pay. She is just the guarantor and her brother-in-law is using her.
•If the applicant returns to Malaysia she will not feel safe because of the debt collectors. They still hurt her and she is very afraid they will try and threaten her family. She cannot live in peace wherever she goes as she will be hunted by them.
•The applicant has not been able to find her brother-in-law and she is the victim.
•The applicant was hit and threatened that if she doesn't pay her house will be burnt. Her legs were cracked when she was hit with the wood. They threatened to kill her if she cannot solve the problem.
•The financial problems of her country have fallen.
•The applicant made a report to the police regarding the problem and they told her to be patient but nothing has changed. The problem is now worse and she has to defend herself.
•She did not try to move to another place even though she received the threats. She is very stressed and she believes that if she moves the debt collectors will find her.
•The bank in Malaysia has not provided financial lending to help the applicant.
•The authorities will not help the applicant as it is her problem. The police only accepted the report and gave some safety for a few days.
•The applicant won't be able to relocate in Malaysia because of this problem.
On 8 February 2017, a delegate of the Minister (the delegate) refused to grant the applicant's visa (CB 41-57) (delegate’s decision). The applicant was notified of this decision by letter the same day.
On 3 March 2017, the applicant applied to the Tribunal for a review of the delegate's decision (CB 58-59). On the face of the review application, the applicant made it on her own behalf and requested that correspondence be sent to her personally. She provided her street and email address details for that purpose (CB 59). On 8 March 2017, the Tribunal wrote to the applicant acknowledging receipt of her application for review. The letter advised the applicant to tell them immediately if she changed her contact details or if their personal circumstances change. The Tribunal also advised that if the applicant wished to provide material or written arguments for it to consider, she should do so as soon as possible (CB 60-62).
On 18 September 2017, the Tribunal wrote to the applicant advising that having considered the material before it, it was unable to make a favourable decision on that information alone (CB 63-65). The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case on 23 October 2017. The letter also requested that the applicant read, complete and return an enclosed ‘Response to hearing invitation - MR Division’ form. She was also asked to use this form or attach any additional information if she had any requests or new information which she wished the Tribunal to consider (CB 63-65). On 19 October 2017, the applicant provided the completed form to the Tribunal (CB 66-69).
The Tribunal’s hearing was conducted on 23 October 2017. The applicant attended in person with the assistance of an interpreter in the Malay language. The hearing record indicates that no documents were received during the course of the hearing. The hearing commenced at 12:15pm and concluded at 1:15pm (CB 71-73).
On 13 November 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant's visa (CB 75-82). The applicant was notified of the decision by email on the same day (CB 74). The letter attached a document titled ‘MR25 Information about decisions – MR Division’ (CB 75, Applicant’s affidavit filed 21 September 2018, Annexure A). That document relevantly stated the following:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The email address used to send the Tribunal’s decision to the applicant was the one she provided as her address for correspondence in her application for merits review (CB 59). That email had also been used by the Tribunal to invite the applicant to the hearing which she duly attended (CB 63).
THE APPLICATIONS FOR EXTENSION OF TIME AND JUDICIAL REVIEW
The JR and EOT applications were filed on 21 September 2018. The applicant provided an email address for service, which was the same email address provided to the Tribunal. In her application, the applicant outlined the following grounds for her EOT application:
1.The applicant never received proper notice of the decision to refuse her review for a protection visa.
2.The extension of time is necessary for the interests of administrative justice, as the applicant was denied an opportunity to have her case properly reviewed.
3.The applicant had a purported 'migration agent' who was taking care of her matter and had access to her emails. She paid him money for his services but was never notified of the decision.
4.If the applicant was to be denied administrative justice this would cause her undue hardship.
The particulars of the grounds of review set out in the JR application are as follows:
Particulars
1.The Tribunal did not take a relevant matter into consideration when making an assessment of the protection visa, therefore resulting in a decision affected by jurisdictional error.
a. Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 states that: Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.
b. The Tribunal in its capacity to review omitted any reference to the DFAT report throughout the decision record.
c. The Tribunal did not exercise its capacity to review under Ministerial Direction number 56 of 21 June 2013 under s 499 of the Migration Act
d. Thus failing to take in a relevant consideration.
The applicant also filed an affidavit in support of her applications (applicant’s affidavit) which sets out some background information and relevantly states:
4. I believe that the AAT in their decision made errors in law in their capacity to review.
5. I am applying for an extension of time because it is in the interests of administrative justice.
6. I never received notification of my decision from the AAT.
7. My ‘migration agent’ that I paid, has left and I don’t know his whereabouts.
8. I was denied a chance to have my case reviewed.
9. A copy of the Immigration Assessment Authority decision record is annexed hereto and marked “annexure A”.
On 15 May 2020, procedural orders were made by a registrar to ready the matter for an extension of time hearing. Those orders included that the applicant file and serve 28 days before the extension of time hearing date any amended application with proper particulars of the grounds of the application, any affidavits, supplementary court book (if any) and written submissions. No documents were filed by the applicant in accordance with those orders.
On 4 October 2024, the Minister filed an outline of submissions. The Minister also filed an affidavit affirmed by Christopher Orchard on 14 October 2024. That affidavit establishes the applicant has been sent a copy of the Court Book by email on 28 May 2020 and a copy of the Minister’s outline of submissions on 4 October 2024.
EXTENSIONS OF TIME – PRINCIPLES
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period provided by s 477(1) as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors which may be considered in the context of extension of time applications are not closed. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28, the High Court noted the broad terms of the discretion inherent in the phrase “necessary in the interests of administration of justice”. As a consequence, there are a range of permissible considerations relevant to the exercise of the discretion. It will be a matter for the judge hearing the extension of time application to determine which of that range of considerations make it necessary for an extension of time to be granted in a particular case: at [12]-[13], per Kiefel CJ, Gageler, Keane and Gleeson JJ; and [39]-[40], per Gordon, Edelman and Steward JJ.
The High Court in Katoa referred with approval to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, where his Honour identified the kinds of considerations which guide the exercise of the discretion to extend time. They are:
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the administration of justice as a result of the delay;
(d)the merits of the substantial application.
These factors provide guidance, promoting consistency in approach, but are not to be taken as exhaustive, or treated as a code: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [41] – [43], per Mortimer J.
Section 477(2) of the Act entrusts this Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed. As the merits of the proposed application are a permissible consideration, it is within this Court’s jurisdiction to have regard to that factor in such manner as it considers appropriate in the circumstances. Whether the assessment of the merits required is one undertaken at a “reasonably impressionistic level” or involves a more detailed analysis will depend on those circumstances: Katoa at [17]-[19], per Kiefel CJ, Gageler, Keane and Gleeson JJ. Finally, while the majority in Katoa held that in some cases the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending on other relevant factors, in other cases, for example where the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Katoa at [17]-[18]; see also [54], [62]-[63], per Gordon, Edelman and Steward JJ.
HEARING OF APPLICATION
The applicant appeared in person in this Court on 22 October 2024. She was unrepresented and assisted by an interpreter in the Malay language.
The applicant was taken to the materials before the Court, namely the JR and EOT applications, the applicant’s affidavit (received into evidence and marked 1A), the Court Book filed by the Minister on 27 May 2020 (received into evidence and marked 1R) and the Minister’s submissions. I explained the issues I considered particularly relevant to the EOT application, including the length of and explanation for the delay and the merits of the JR application. I also explained that so far as her JR application was concerned, the Court was limited to deciding whether the Tribunal had committed a serious legal error (or jurisdictional error) when making its decision. I provided examples of common errors, including the Tribunal misapplying the law, taking into account irrelevant matters, failing to take into account relevant matters, not affording the applicant a proper opportunity to present her case or failing to afford the applicant procedural fairness.
CONSIDERATION
Length of delay and explanation
As noted above, the application for judicial review was filed 277 days after the Tribunal’s decision. This is a significant delay. The applicant’s explanation in her EOT application and affidavit in support was that she never received “proper notice” or was “never” notified of the Tribunal’s decision as a person she had paid to assist her did not advise her of the decision. Plainly, the applicant received notice at some point because she made the JR application. The difficulty with the applicant’s explanation is that the decision was sent to her personal email address, one she provided to the Tribunal and one that she continues to use. The other difficulty with this explanation is that the application for merits review was, on its face, filed by the applicant on her own behalf.
The applicant’s explanation to this Court was different. I asked her when she received the Tribunal’s decision. She said it was a year later when she checked the Visa Entitlement Verification Online (VEVO) application and saw her visa had expired. Given the Tribunal’s decision was sent to her email address, I asked whether she accessed her emails. She told me she could not because her phone was broken. I asked when her phone broke. She said it had broken many times. It was evident the applicant had access to her emails when she received the invitation to attend the Tribunal hearing on 18 September 2017. A response to hearing invitation form had been sent to the Tribunal by email on 19 October 2017. The applicant attended the hearing on 23 October 2017. The Tribunal’s decision was made on 13 November 2017 and sent to the applicant that same day. The applicant agreed she had attended the hearing. She said she was expecting a second hearing because her friend had two hearings. Her phone was working when she received the hearing invitation. She stated she had to buy a new phone. She tried many times to get her email account back up and running. She had to set up a new email account in order to retrieve her old email account. Ultimately, she said it took four to five months to get access to her email account.
The Minister submits the delay involved is significant, inadequately explained or supported by any evidence. There is no evidence the applicant had the assistance of a migration agent at any stage during her review before the Tribunal. The decision was sent to her personally at her nominated email address, the same email address she has nominated for service in these proceeding. Consequently, the Minister argues any assertion the applicant was not properly notified of the decision fails on the facts.
In my view, the applicant has failed to provide an adequate explanation for the delay in filing her JR application. It is notable the applicant’s explanation to this Court was not entirely consistent with the explanation set out in her EOT application or affidavit. It is difficult to understand why the applicant would not have taken steps to get her phone repaired or replaced and access to her email address more urgently, particularly as she claims to have been expecting an invitation to a second hearing. In any event, even accepting the applicant’s explanation at its highest, it only accounts for four to five months or approximately half of the overall delay. This weighs heavily against granting an extension of time.
Prejudice
The Minister does not claim that any specific prejudice would be suffered if an extension of time was granted. The Minister submits there is, however, the public interest in the finality of decision making to be considered.
Given the length of delay, in my view, prejudice to the administration of justice more generally is a relevant factor. It is not, however, a determinative factor in the circumstances of this case.
Merits
The applicant’s JR application alleges the Tribunal failed to take into account a relevant matter, referring to information required to be considered, pursuant to Ministerial Direction No 56 (MD 56), together with a more generalised complaint that it erred in law. The applicant’s submissions in this court did not engage with the grounds set out in the JR application and are discussed further below. The Minister submits the applicant has failed to raise a sufficient basis to grant an extension of time. Before proceeding to consider the applicant’s grounds of review and the parties’ submissions as to the merits of the judicial review application, it is helpful to set out the decisions made below.
Delegate’s decision
On 8 February 2016, a delegate of the Minister (the delegate) refused to grant the applicant a visa (CB 41-57). The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as set out in ss 36(2)(a) or (aa) of the Act. The delegate also found she was not the member of the same family unit as a non-citizen in respect of whom the Minister was satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (ss 36(2)(b) and (c) of the Act).
In the course of assessing the applicant’s claim against the refugee criterion, the delegate found the applicant’s claim to fear harm was not because of her race, religion, nationality, political opinion or membership of a particular social group as required by s 5J(1)(a) of the Act. Consequently, she was not a refugee as defined in s 5H of the Act (CB 47-48, [19]-[24]).
In assessing the applicant’s claim against the complementary protection criterion and finding she was not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act, the delegate noted the applicant’s claims and observed she had provided minimal detail about the situation she claimed she faced in Malaysia. The delegate also noted she had failed to provide evidence to corroborate her claims of damage to property or of assault. Consequently, the delegate did not form the belief the applicant faced a real risk of significant harm should she return to Malaysia. The delegate was also not satisfied the applicant would not be given state protection if she returned to Malaysia noting the country information and absence of evidence to the contrary (CB 56-57).
The Tribunal’s decision
In its statement of decision and reasons (CB 77-82), the Tribunal first set out the criteria for protection visas (CB 77-78, [8]-[12]). The Tribunal noted it had taken account of departmental policy guidelines to the extent they were relevant as was required by MD 56 (CB 78, [13]).
The Tribunal decision records that it read to the applicant the claims she made to the Department in her visa application (CB 78-79, [19]). The Tribunal recorded the applicant informed the Tribunal those claims were not proper and did not explain her real claims for seeking protection in Australia. The Tribunal then summarised what it described as the applicant’s “new claims” as follows (CB 78-79, [19]):
•Before the applicant decided to come to Australia she had experienced problems with her business (what the applicant described) a ‘sundry shop’.
•She borrowed the money to run her business from friends and family totalling RM40K.
•The business did not go well and she could not afford to pay for employees, rental and suppliers.
•She also had difficulties in paying the loan she had procured from her friends and family.
•She was in a desperate situation and decided to sell her business to a ‘friend’ for RM5000.
•When her friends and suppliers found out about her sale of her business they disapproved and thought they had been cheated.
•Her friends and supplies demanded full payment of the money loaned to him (sic) and she (the applicant) felt under great pressure.
The Tribunal then outlined the evidence given during the hearing as follows (CB 79-81, [21]-[34]):
The applicant’s financial problems in Malaysia and the reasons why she came to Australia
21. The failure of the applicant’s business (her sundry shop) placed upon her a lot of mental pressure. The applicant described her demeanour at home as being ‘…crazy…’ Her mother and her siblings thought (according to the applicant) she was ‘under stress for the money (she had borrowed) to be paid’ back to those she had originally borrowed from. It was in this difficult period for the applicant - with mounting debts around her that she ‘…decided to come to Australia…’
22. The applicant’s thoughts about escaping from her problems in Malaysia by coming to Australia were enhanced after she talked to a ‘friend’ who told her that Australia would offer her the prospects of a ‘good job’ which would assist her with dealing with her financial problems in Malaysia.
23. The applicant then told the Tribunal that she paid this ‘friend’ RM5000 to organise her trip to Australia.
24. The applicant emphasised to the Tribunal her situation in Malaysia was creating difficulties for her. She told of having a major economic problem which was caused by her borrowing RM40K as capital for her business and she had no possibility while being in Malaysia to repay this loan.
25. The Tribunal has (sic) told that the applicant's friends and family members were told by her to wait a little time and that she is doing everything while in Australia to accumulate the required funds to repay them all.
26. The applicant was asked by the Tribunal - how much of the original loan had the applicant paid back to her family and friends? Her response was to tell the Tribunal that she arrived in Australia in the winter of 2016 and there was not much work to be found at that particular time. Her ‘friend’ in Malaysia (according to the applicant) had lied to her about the real work opportunities in Australia. The applicant also told the Tribunal that when she did find some work, ‘…she did not get paid…’ and had been ‘…cheated by her supervisor….’ Currently, she is working ‘…cleaning homes…’ However, no money has been transferred to Malaysia for re-payment of her outstanding loan.
27. The Tribunal asked the applicant even though she had not sent any money to Malaysia for the repayment of her loan had she at least, saved some money in the bank? Her response was to tell the Tribunal that ‘…if I'm given the opportunity to work here (in Australia) I will…’
28. The applicant went on to tell the Tribunal that she had qualified in Malaysia for a Certificate in Child minding and also hoped ‘…to work here…’ in the same profession but so far, ‘…this had not happened…’ The Tribunal was told that the applicant was ‘interested’ in ‘childcare’ and wanted to ‘study’ here and eventually become qualified to work with children as a childcare worker. She also told the Tribunal that currently she is enhancing her ‘English’ language skills by attending classes held at the Shepperton Community Centre in Shepperton, Victoria. Also, she has applied for a ‘…licence to be permitted…’ to work with children...’
If the applicant returns to Malaysia in the reasonably foreseeable future what is her main concerns and fears?
29. The applicant told the Tribunal that she would be ‘committed to a mental institution.’ Asked to explain this fear, the applicant told the Tribunal that if she went back to Malaysia, she would never be free of people (friends and family members) asking her for their money. After all, the applicant came to Australia to gain an opportunity to work and to save some money to make re-payment of her outstanding loan.
If, the applicant was physically threatened (if she returned to Malaysia) could she rely on the local Malaysian police for assistance?
30. The applicant told the Tribunal that ‘…she was not sure…’ if threatened by those she owed money if the police would assist her.
Has the applicant experienced any actual harm directed at her by though she owes money?
31. The applicant had not faced actual physical harm (while in Malaysia) but she did experience ‘mental harm’ because she's not being able to pay her debts as she had promised to do so. She also told the tribunal the while she is been in Australia, she has been told by her mother that both she and her younger brother have received messages on their mobile phones from her friends and other family members ‘…asking for her to pay the money she owes them…’ These debtors, according to the applicant, have also ‘requested her mobile phone number…’ but both her mother and brother have refused their requests in an effort to limit the anxiety the applicant is feeling.
Could the applicant choose to live in another part of Malaysia, if she returned to Malaysia hence, avoiding immediate and constant contact with her debtors?
32. The applicant told the Tribunal that she would find it difficult to live in a different part of Malaysia. It would be difficult to find work as a child carer with them in Malaysian economy being in the difficult state it is currently in.
How much is the applicant earning cleaning homes?
33. The applicant told the Tribunal that what she earns depends on the amount of work being available for her to do in a week. In some weeks she would earn AUD$300-$500. It was also pointed out by the applicant to the Tribunal that she had been in Australia since March 2016 and it was only ‘late last year’ that she found work. Before finding her present employment the applicant was surviving and making a living in Australia by doing ‘…seasonal work…’ on various rural properties - picking vegetables and fruits.
Concluding remarks by the applicant to the Tribunal
34. The applicant hoped that the Tribunal would provide her with a visa which would permit her to remain in Australia for the time being in order to work and save money to repay her debtors in Malaysia.
Against this background, the Tribunal made the following findings (references omitted) (CB 81-82, [35]-[40]):
35. The Tribunal does accept that the applicant was faced with a personal crisis which involved her, her friends and family members because she borrowed a considerable amount of money from them for her own business and had been unable to make any repayments and this caused her concerns and anxieties. The Tribunal also accepts that these anxieties led the applicant to come to Australia in an endeavour to find work and earn money in order to settle her debts with family and friends in Malaysia.
36. However, the applicant in her evidence to the Tribunal did not identify any well-founded fear of persecution procured against her by any friend or family member demanding from her the immediate repayment of moneys she had borrowed from them. Indeed, when asked by the Tribunal if the applicant had experienced actual threats while in Malaysia she told only of 'mental harm' felt by her not being able to make repayments to her friends and family members. The applicant also did not identify for the Tribunal any fears which she encountered and sought the protection of Malaysian authorities who in their turn denied her protection from any harm that she faced. Moreover, the applicant did not identify any legal proceedings to have been instigated against her in Malaysian judicial system by her friends and family debtors for recovery of the money she owed then and made no submission to the Tribunal that she experienced any inabilities to access justice if she chose to defend herself in any court proceedings. Hence, the applicant's main concerns for leaving her country, Malaysia was not seek sanctuary and protection in Australia from threats faced but to seek opportunities for better paid employment enabling her over a period of time to repay her debts. Therefore, the Tribunal finds that based on the evidence submitted by the applicant as having come to Australia in 2016 to seek better employment opportunities in order to earn her money to settle her outstanding debts in Malaysia, the Tribunal finds that there is no chance of her being threatened or otherwise persecuted for any reasons as defined by the Act pursuant to s.5J(1)(a), (b) and (c).
37. For the reasons given in paragraph [36] above, the Tribunal does not accept that the applicant was forced to flee Malaysia because she feared persecution for any reason, or that there is a real chance that she will face persecution involving serious harm for any reason if she returns to Malaysia. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
39. The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has also considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. For the reasons given in paragraph [36] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because of her inability to settle her debts with her friends and family members or that she will be unable to seek out employment opportunities as they present themselves to her within the Malaysian economy. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(aa) of the Act.
40. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The grounds of review
The applicant’s submissions
The applicant was asked to explain what she thought the Tribunal did wrong in reaching its decision. I also asked the applicant questions about her grounds of review. I clarified with her if she considered that the Tribunal incorrectly recorded the evidence she gave during the hearing. She told the Court the reasons for decision accurately record that evidence. She also confirmed the information she provided the Tribunal was correct. She agreed that she did not have a proper basis for a protection visa. She described the Tribunal’s decision as fair. She explained, however, that she wanted a chance to catch her dream and that she was not given that chance. She explained she was the victim of a visa syndicate. She had wanted to apply for a student visa for a childcare course. She had paid someone to assist her who had put forward the protection claims which she described as including facts not related to her life. The applicant considered the Tribunal should have given her time to change to a student visa. She claimed she asked for time to do that. She also suggested there were some issues with the interpretation of the proceedings. She suggested she had asked for time to apply for a student visa but that the request was not interpreted. She told the Court she now intends to apply for a partner visa as she is married. The applicant did not clearly explain what she would have been able to achieve if the Tribunal had adjourned proceedings or why she had not sought to change her visa while awaiting the review hearing. She explained it had something to do with the type of bridging visa she was able to obtain but was unable to articulate what role the Tribunal could have had to ensure she had the appropriate bridging visa to enable such an application to be made.
The Minister’s submissions
In respect of the applicant’s grounds, the Minister acknowledged the Tribunal must, when coming to its decision, take into account MD 56, ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’ (together, the Guidelines). It is, however, only required to refer to such Guidelines or country information to the extent they are relevant: SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151 at [21]. Engagement with the Guidelines or country information can be inferred from the language and findings set out in the Tribunal’s decision, including a statement by the Tribunal that it is required to take into account the Guidelines: SZTCU vMinister for Immigration and Border Protection [2014] FCCA 1600 at [42]; AJW15 vMinister for Immigration and Border Protection [2015] FCCA 2579 at [3]-[5]; AJW15 vMinister for Immigration and Border Protection [2016] FCA 197 at [46]. Where the Guidelines or country information are relevant to the Tribunal’s decision and the Tribunal has not actively engaged with the Guidelines or country information, then it may have fallen into error, particularly where its factual findings render them relevant: SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552 at [53]-[54].
The Minister submits it is evident from the Tribunal’s decision record that it considered the relevant Guidelines and Department of Foreign Affairs and Trade (DFAT) country information (CB 78, [13]) and took into account the Guidelines and country information to the extent that they were relevant to its decision. The weight given to the country information was a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, at [11]. Accordingly, the Minister submits this ground does not have merit to warrant the grant of the extension of time.
As to the applicant’s further complaints, the Minister submits the Tribunal considered the applicant’s evidence but found the applicant did not satisfy the criteria for the visa. The Minister submits the Tribunal’s findings in this regard were open to it.
In respect of any complaint concerning a request for time to make an application for a student visa, the Minister submits the onus is on the applicant to file a transcript of the Tribunal hearing to establish there was such a request which was refused. This has not occurred.
Discussion
The applicant’s sole ground of review disclosed in the JR application is without merit. At the time the Tribunal made its decision, it was required to comply with MD 56: ss 499(1) and (2A) of the Act. MD 56 directed the Tribunal when reviewing a decision to refuse to grant a protection visa to take account “to the extent that they are relevant to the decision under consideration” the ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’: cl 2. The Tribunal was also required to take into account any country information assessment prepared by DFAT expressly for protection determination purposes, where relevant: cl 3.
In this case, the Tribunal expressly referred to having taken account of the policy guidelines and the country information to the extent they were relevant to the decision under consideration (CB 78, [13]). The applicant has not identified which aspects of the Guidelines or country information were relevant to her claims made before the Tribunal and which were not taken into account. On the applicant’s own case, she did not qualify for a protection visa.
The complaint that the Tribunal committed an error by failing to give her time to apply for an alternative visa is also without merit. First, there is no evidence that the Tribunal was ever asked to defer its decision or hearing to allow that to occur. The applicant’s submissions to that effect have come late in the day. They do not emerge from her application. It is apparent the applicant did discuss her desire to study and become a qualified childcare worker with the Tribunal (CB 80, [28]). The decision also sets out the “applicant hoped the Tribunal would provide her with a visa which would permit her to remain in Australia for the time being in order to work and save money to repay her debtors” (CB 81, [34]). This suggests the Tribunal was asked by the applicant to grant a visa rather than being requested to grant her time to make an alternative application.
Secondly, the Tribunal’s jurisdiction was limited to conducting a review of the decision before it. The delegate’s decision was a Part 7-reviewable decision within the meaning of the Act: see s 411(1)(c). On receipt of a valid application made pursuant to s 412 of the Act to review such a decision, the Tribunal must review the decision: s 414(1). The powers of the Tribunal are set out in s 415 of the Act. It may exercise all the powers and discretions that are conferred by the Act on the primary decision-maker: s 415(1). In doing so, it may affirm or vary the decision, remit the matter for reconsideration in certain circumstances, set the decision aside and substitute a new decision or exercise powers under s 426A of the Act if an applicant fails to appear: s 415(2).
It is well-settled that the Tribunal’s duty to review is “to arrive at the correct or preferable decision in the case before it according to the material before it”: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18 at [93], per Gageler J. The functions of the Tribunal in reviewing a decision refusing to grant a protection visa are “informed by the statutory criteria for the grant of such visas”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [44], per Black CJ, French and Selway JJ. This entails a determination on the merits of whether the applicant satisfies the criteria for a protection visa: NABE at [48]. It does not entail consideration of whether the applicant met the criteria for a different visa.
In my view, the Tribunal undertook the review it was required and empowered to undertake. The only function it had was to assess whether the applicant satisfied the statutory criteria for the visa that was the subject of the delegate’s decision. It had no power to assess the applicant’s circumstances and grant her a different visa. It also had a duty to undertake that review until such time as the application to the Tribunal was withdrawn by the applicant.
In the circumstances, there was no error in the Tribunal proceedings to hear and determine the application before it. It correctly concluded the applicant did not satisfy the criteria. There is no arguable case of jurisdictional error in the circumstances.
Conclusion on merits
The applicant’s ground of review and matters raised during the course of the hearing of the EOT application do not identify any arguable case of jurisdictional error on the part of the Tribunal. I have also considered the Tribunal’s decision and have not been able to identify any arguable grounds of jurisdictional error. This weighs heavily against granting an extension of time.
CONCLUSION
The absence of a satisfactory explanation for the significant delay in filing the JR application and lack of any arguable case of jurisdictional error are such that I conclude it is not in the interests of the administration of justice to grant the applicant an extension of time in this matter.
The applicant’s application for an extension of time in which to file her JR application is dismissed.
The Minister sought costs in the fixed sum of $4,189.38 which is the scale amount for matters which conclude at an interlocutory hearing. The applicant told the Court it would be difficult for her to pay any costs order if she does not have a visa and cannot work. She also indicated she needed money to apply for another visa.
I have no difficulty accepting the applicant has financial difficulties and would find it difficult to satisfy an order for costs made against her. It is well recognised, however, that impecuniosity is not by itself a ground for a court not to make a costs order in favour of the successful party: see G Dal Pont, Law of Costs: 5th Edition, LexisNexis Australia, 2021 at [8.30]. See also Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 where the Full Court of the Federal Court stated at [5]:
As to the inability to meet a costs order, this has never been a sufficient reason to deny a successful party his or her costs, special reasons apart.
I am satisfied it is appropriate to award costs to the Minister in this matter. I am satisfied the costs should follow the event. I am also satisfied and that the scale amount represents a reasonable indemnity in the circumstances of this case.
Accordingly, I order the applicant pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $4,189.38.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 18 November 2024
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