EYN18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 390
•21 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYN18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 390
File number(s): MLG 2860 of 2018 Judgment of: JUDGE COULTHARD Date of judgment: 21 March 2025 Catchwords: MIGRATION – Protection (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether extension of time is necessary in the interests of the administration of justice – length of delay – prospects of success of substantive application – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J(1), 36(2)(a), 36(2)(aa), 476, 476(1), 477(1), 477(2) Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 163
Jess v Scott (1986) 12 FCR 187
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZWDG v Minister for Immigration Multicultural and Indigenous Affair [2006] FCA 497
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
NABE v Minister for Immigration (No 2) (2004) 133 FCR 1
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 13 and 14 March 2025 Date of hearing: 13 and 14 March 2025 Place: Brisbane Applicant: The applicant appeared via Microsoft Teams. The applicant was unrepresented. Solicitor for the First Respondent: Mr Mangos - Sparke Helmore. Second Respondent: The second respondent filed a submitting appearance save as to costs. ORDERS
MLG 2860 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYN18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
21 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be changed to “Administrative Review Tribunal”.
2.The application for extension of time is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount 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 COULTHARD
INTRODUCTION
Before the Court is an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (“the Act”) within which to make an application to seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Malaysia. The applicant arrived in Australia on 26 December 2015. On 23 February 2016, the applicant made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (Court Book (“CB”) 1-37). The applicant’s claim for protection in the visa application was that she had left Malaysia because she had a debt with a loan shark; she cannot repay the debt; and the loan shark had threatened her. The applicant said she feared ‘blackmail, life threatening, mentally tortured’ (CB 32-34).
On 22 June 2016, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that she was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act (CB 74-86) and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act as the delegate was not satisfied that as a consequence of being removed to Malaysia there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act (CB 86-87) (“delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 2 July 2016, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 88-89).
On 4 July 2016, the Tribunal acknowledged receipt of the application and advised the applicant that should she wish to provide material or written arguments for consideration that she should do so as soon as possible (CB 91-92). The applicant did not respond.
On 1 June 2018, the Tribunal invited the applicant to attend a hearing on 5 July 2018 to give evidence and present arguments relating to the issues arising in her case, stating that it was unable to make a favourable decision based on the information before it alone (CB 94-95).
On 5 July 2018, the applicant attended the hearing (CB 97-99). The applicant was assisted by an interpreter in the Malay and English languages (CB 97).
On 17 July 2018, the Tribunal, by letter notified the applicant that it had made a decision (“notification of decision”) to affirm the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 102-106). The notification of decision states that an “Information About Decisions” Fact Sheet (“Fact Sheet”) was attached. A copy of the Fact Sheet does not appear in the Court Book as an attachment to the notification of decision.
On 18 August 2018, the applicant by email to the migration division of the Tribunal, requested to appeal the decision made by the Tribunal and gave reasons in support of her request (CB 110-111) and on 17 September 2018, forwarded that email to the National Registry of the Tribunal and requested a “second review” of her appeal (CB 110).
On 18 September 2018, the Tribunal acknowledged receipt of the submission dated 17 September 2018 and informed the applicant that the Member had decided not to reopen the case, that once a decision is made the Tribunal had no power to take any further action and was not in a position to assist any further on this issue (CB 113).
THE TRIBUNAL’S DECISION
The application before the Court is not a hearing of the applicant’s substantive application for judicial review. Nevertheless, given the Court is to assess the merits of the substantive application, it is useful to set out a summary of the Tribunal’s decision so far as it is relevant to the Court’s assessment of the merits of the grounds of review in the substantive application for judicial review.
The Tribunal’s review focused on whether the applicant has a well-founded fear of persecution for one or more of the reasons in s 5J(1) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm ([9]).
The Tribunal said that it assessed the applicant’s protection claim against Malaysia as the receiving country ([10]).
The Tribunal then summarised the applicant’s claim for protection as set out in the visa application ([11]).
The Tribunal then referred to the evidence the applicant gave at the hearing and described the applicant as giving credible evidence about the details of the loan outlined in the visa application and the threats that had been made by the loan shark when she was in Malaysia ([12]). The applicant told the Tribunal that she had secured full time employment in Australia and had paid the loan in full. The applicant agreed with the Tribunal’s suggestion that because the loan is repaid, she is no longer at any risk of harm from the money lender ([12]).
The applicant told the Tribunal that she has no other reasons for fearing harm if she returns to Malaysia. She referred to her age and told the Tribunal that she can earn more money in Australia which would set her up after a couple more years so she can establish herself in Malaysia when she goes back ([12]).
The Tribunal said that it found the applicant to be a reliable witness and accepted that she left Malaysia in December 2015 due to the fear she would be harassed by a money lender because she had ceased paying back a loan taken out in January 2014. The Tribunal accepted that the money lender was pressuring the applicant to repay the loan during 2015 and had threatened to harass her and take her personal belongings if she did not pay the full amount of the repayments expected. The Tribunal said that it accepted that the applicant genuinely feared being blackmailed, threatened and mentally tortured at the time she lodged her protection application, because at that time she was unable to repay and had not repaid the loan ([13]).
The Tribunal accepted the applicant’s evidence that she has now fully repaid the loan and is no longer in fear of harm from the money lender if she returns to Malaysia. The Tribunal found, based on the applicant’s own evidence, that she is not at any current or foreseeable risk of harm of any kind from the money lender if she returns to Malaysia and that she does not have a fear of harm from any other persecutor if she were to return to Malaysia now or in the reasonably foreseeable future but had said that she would prefer to stay in Australia as she can earn more working here ([14]-[15]).
The Tribunal found that the applicant did not have a well-founded fear of persecution for reason of race, religion, nationality, political opinion, or membership in a particular social group now or in the reasonably foreseeable future ([15]). The Tribunal concluded that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act ([16]).
Having concluded that the applicant did not meet the refugee criterion, the Tribunal considered the alternative criterion in s 36(2)(aa). The Tribunal said that based on the evidence (referred to above) it found that the applicant does not fear significant (or any) harm if she were to return to Malaysia due to the previous but now fully resolved dispute with the loan shark or for any other reason. The Tribunal found that there are no grounds (substantial or otherwise) for believing that there is a real risk (or any risk) that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. The Tribunal said that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) ([16]-[17]).
The Tribunal affirmed the delegate’s decision to not grant the applicant a Protection (Class XA) (subclass 866) visa ([20]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 24 September 2018. The applicant also filed an affidavit on 24 September 2018. The affidavit annexes a copy of the Tribunal’s decision.
Pursuant to s 477(1) of the Act, the application was required to be made within 35 days of the Tribunal’s Decision, that is, by 21 August 2018. Accordingly, the application was filed 34 days out of time.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which she seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that she had these documents with her. The Court Book was made an exhibit in the proceedings.
The applicant appeared via Microsoft Teams unrepresented. The applicant had the assistance of an interpreter in the Malay and English languages. The applicant was given the opportunity to make oral submissions in support of her application for an extension of time within which to file her application for judicial review and in reply to the first respondent’s submissions.
The Court explained to the applicant that as the application for judicial review was not filed within 35 days of the date of the Tribunal’s decision the purpose of the hearing was to consider whether the Court should exercise its discretion to extend time for the filing of her application for judicial review. The Court explained that the factors it would consider were length of the delay and the explanation for the delay; any prejudice to the parties; and, whether the proposed grounds of review had any prospects of success were an extension of time to be granted.
CONSIDERATION
Pursuant to s 477(2) of the Act, the Court may, by order, extend the time for the making of an application for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Act. Section 477(2) provides:
2. The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate, if:
a.an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b.the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The phrase “necessary in the interests of the administration of justice” is ‘deliberately broad’ and it is in each case for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [39] (“Katoa”) per Gordon, Edelman and Steward JJ).
Nevertheless, factors commonly regarded include (Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ; [40] per Gordon, Edelman and Steward JJ ):
a. the length of the delay;
b. the explanation for the delay;
c. any prejudice to the respondent or third parties;
d. any prejudice to the administration of justice as a result of the delay;
e. the merits of the underlying application.
The Court has taken the approach of considering those factors in determining whether it is satisfied in the interests of the administration of justice that time should be extended.
Extent and explanation for the delay
The application for judicial review was filed on 24 September 2018. Accordingly, as already noted, the application was filed 34 days outside the 35-day time limit.
The first respondent submitted that this is a moderate delay (first respondent’s submissions (“FRS”) [19]). The Court agrees.
The first respondent submitted that time frames for applying for relief should be rigidly applied in all but exceptional cases and that the longer the delay the more persuasive the explanation needs to be (FRS [18] referring Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 (“Marks”) at [16]; Jess v Scott (1986) 12 FCR 187). The first respondent also submitted that the substantive application should have such prospects of success so as not to render the extension of time an exercise in futility so that if an application has no prospects, an extension of time, even for a short delay should be refused (FRS [18] referring to SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]).
In the application, the applicant provided the following as the grounds in support of the application for extension of time (without alteration):
1.I am poor, English not my first language and I have no legal representation.
2.On 3rd August 2018, I attempted to appeal the AAT’s 17 July 2018 decision within the 35 day time limit
3.However I mistakenly made the appeal to the AAT and not the Federal Circuit Court
Although the applicant had not filed any material in support of her application for an extension of time, the Court gave the applicant an opportunity to make oral submissions explaining the delay. At the hearing, the applicant told the Court that she did not have anyone to help her, that she had asked some friends to help her who suggested to her what grounds to put in the application. The applicant said that she was depressed, did not know what to do and referred to her age. The applicant also referred to her attempt to appeal the Tribunal’s decision to the Tribunal. This was a reference to the email correspondence with the Tribunal which is in the Court Book at 110-113.
Whilst the Court accepts that an applicant has an obligation to inform themselves of their rights of review and any relevant time limits, it is also conscious that in this case it is not able to be certain the applicant was informed by the Tribunal of her right to seek judicial review before this Court and of the relevant time limit. The Fact Sheet said to be attached to the Tribunal’s notification of decision does not appear to have been attached, at least it is not in the Court Book. Further, the applicant did seek to exercise a right of review albeit mistakenly to the Tribunal. In that regard, the Court observes that the letter in reply from the Tribunal (CB 113) does not inform or remind the applicant of her review rights when it could easily have done so. The applicant filed her application for judicial review six days after receiving that letter from the Tribunal (CB 113) telling her that the Member had decided not to reopen her case and was not in a position to assist her any further.
The Court tends to the view that in these circumstances, the applicant has what is arguably a plausible explanation for the delay in filing this application that weighs in favour of an extension being granted. However, for the reasons given below, the Court considers that granting an extension of time would be futile as the grounds of review in the proposed substantive application are without merit.
Prejudice, impact on the public and the applicant
The first respondent conceded that there was no prejudice to the Minister beyond the public interest in the finality of administrative decision making, however, the proposed substantive application does not disclose sufficient merit to warrant an extension of time (FRS [20] referring to Marks).
As to the impact on the applicant, the Court observes that no right of appeal would lie to the Federal Court of Australia in the event that this Court did not grant the extension sought although an application could be made to that Court for judicial review (BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [4] per Logan J).
On balance, the Court is satisfied that this factor weighs in favour of an extension being granted.
Merits of the proposed substantive application
The Court is of the view that it is permissible and appropriate, in considering whether in the interests of the administration of justice time should be extended, for the Court to consider whether the proposed grounds of review have any merit. In forming a view as to the merits of the substantive application, the Court is not necessarily limited to anything more than an impressionistic consideration of the grounds of review (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is ‘arguable’, ‘reasonably arguable’ ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (Katoa at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
Despite the procedural order permitting her to do so, the applicant did not file an amended application. The grounds of review in the application are (without alteration):
Ground One:
I appered at the tribunal unrepresented by a lawyer
Ground Two:
I believe that the member was biased against me and pressured me to tell my story in certain way that made my case appear artificially weak
Ground Three:
This meant that the tribunal failed to take into account that I am a woman and that this factor whould cause me further presecution in Malaysia
Ground Four:
For these reasons the member’s decision was wrong
The Court invited the applicant to make oral submissions explaining each of the grounds of review.
Ground one: appearing before the Tribunal unrepresented
The applicant did appear unrepresented before the Tribunal. She had the assistance of an interpreter in the Malay and English languages.
On its face, ground one is merely a statement of fact and is not a ground of review. When asked, the applicant told the Court that she had not made any request to the Tribunal that she wanted to be legally represented. Accordingly, there can be no suggestion that the applicant, for example, sought an adjournment to obtain legal representation. Therefore, the Court does not need to decide if such circumstances (had they arisen) might have occasioned any procedural unfairness.
Ground one is without merit.
Ground two: the Tribunal member was bias
The Court agrees with the first respondent’s submission (FRS [24] referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531) that an allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven. The application provides no particulars of the allegation. The applicant was unable to make any submission as to why she said that the Tribunal member was bias nor how she was pressured to tell her story in a certain way that made her case appear artificially weak.
As can be seen from the above summary of the hearing before the Tribunal, the applicant told the Tribunal that she had paid off the loan, did not fear any further harm from the loan shark and that she had no other reason for fearing harm if she were to return to Malaysia. Her case to the Tribunal was that she wanted to stay in Australia to earn money before going back to Malaysia.
There is no evidence before the Court to suggest that the Tribunal pressured the applicant to tell her story in a particular way. The applicant told the same story to the Court, that is, that she wanted more time to stay in Australia to earn money before going back to Malaysia.
Ground two is without merit
Ground three: failure to take into consideration that the applicant is a woman and would suffer persecution
A careful reading of the applicant’s claims for protection and the reasons of the Tribunal do not disclose that the applicant raised as a matter to be considered the fact that she is a woman. The claim was not advanced at any stage and could not be said to have clearly arisen on the material before the Tribunal. In this regard, the Court agrees with the first respondent’s submissions (FRS [25] referring to Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 163 at 152; NABE v Minister for Immigration (No 2) (2004) 133 FCR 1 at [55]-[57]; MZWDG v Minister for Immigration Multicultural and Indigenous Affair [2006] FCA 497 at [38]) that the Tribunal is not required to consider a claim not made, nor one which cannot be said to clearly arise on the material before the Tribunal.
Ground three is without merit.
Ground four: for these reasons the Tribunal’s decision is wrong
This is not a ground of review but a conclusion the applicant asks the Court to draw from grounds two and three. The applicant confirmed this to the Court and said that she did not have any further submissions to make. The applicant reiterated her desire to stay in Australia and be given time to earn money before going back to Malaysia. Nothing the applicant said could fairly be described as raising a ground of jurisdictional error.
Ground four is without merit.
In conclusion, the proposed substantive application for judicial review is without merit.
CONCLUSION
Accordingly, the Court finds that an extension of time within which to file the application for judicial review is not necessary in the interests of the administration of justice. The application is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 21 March 2025
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