EYY18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 947
•25 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYY18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 947
File number(s): SYG 2822 of 2018 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 25 September 2024 Catchwords: MIGRATION – Extension of Time – Protection visa – lengthy delay and inadequate explanation for that delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5J, 5LA, 476, 477 Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Jess v Scott (1986) 12 FCR 187
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; FCA 1391
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; FCA 1253
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491
Selvadurai v Minister or Immigration and Ethnic Affairs (1994) 34 ALD 347; FCA 1105
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 4 September 2024 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr A. Taverniti of Sparke Helmore ORDERS
SYG 2822 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYY18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 4 October 2018 is dismissed.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 4 October 2018, under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 February 2018.
The Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 4 October 2018, 205 days after the expiry of the statutory timeframe.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND
The applicant is a citizen of Malaysia who first arrived in Australia on 15 February 2016 as the holder of a Subclass 601 Electronic Travel Authority (Class UD) visa.[1]
[1] Court Book (CB) 20, 44.
The protection visa application
On 27 July 2016, the applicant applied for a protection visa. In that application, the applicant stated he claimed to fear harm in Malaysia if he were to return there as he was ‘haunted by a group of unlicensed money lending’ persons because of an outstanding debt he owed them.[2]
[2] CB 32 to 33.
On 20 December 2016, the delegate refused to grant a protection visa to the applicant (delegate’s decision).[3]
[3] CB 41 to 58.
The review application
On 6 January 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4]
[4] CB 59 to 61.
On 27 September 2017, the Tribunal invited the applicant to attend a hearing scheduled to take place at 9.30 am on 2 November 2017.[5]
[5] CB 65 to 71.
On 2 November 2017, the applicant attended the hearing and was assisted by an interpreter in the Malay language.[6]
[6] CB 77 to 78.
On 6 February 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (Tribunal’s decision).[7]
[7] CB 82 to 92.
While not relevant for present purposes, on 14 August 2018, the applicant lodged a further review application to the Tribunal seeking review of the delegate’s decision. On 21 September 2018, a differently constituted Tribunal found it did not have jurisdiction in relation to that further review application on the basis that the delegate’s decision was no longer reviewable by the Tribunal as it had previously carried out its statutory duty in relation to the delegate’s decision.[8]
[8] CB 97 to 99.
THE TRIBUNAL’S DECISION
The Tribunal’s findings were summarised by the Minister in his written submissions which I largely adopt. In particular, the Tribunal:
(a)observed that the applicant did not give any evidence in relation to the identity of the unlicensed moneylender, the amount he borrowed from the unlicensed moneylender, and the threat of harm he would face from the unlicensed moneylender.[9]
(b)noted that, at the hearing, the applicant stated he could not earn enough money in Malaysia to repay the loans and to support his family. It further observed that he had not provided any documentary evidence in support of his loan or his financial circumstances.[10]
(c)noted that, at the hearing, the applicant stated that his wife’s family had not supported their marriage, had ‘sabotaged’ the marriage and that his wife was seeking a divorce.[11]
(d)noted the applicant’s claims that he would face harm upon return to Malaysia in the form of:
(i)economic harm because he would not be able to work in Malaysia;
(ii)mental stress having been rejected by his wife and her family and because he would not be able to meet his financial commitments in Malaysia.[12]
[9] CB 85 at [16]-[22].
[10] CB 86 at [23].
[11] CB 86 to 87 at [25].
[12] CB 86 at [21]-[25].
In consideration of the applicant’s claims and evidence, the Tribunal:
(a)found that the applicant’s evidence in relation to his financial circumstances was vague and lacking in detail, however accepted that he did borrow money from a bank at the time of his wedding to his wife in 2012, and that he subsequently borrowed money from an unlicensed moneylender to repay the bank loan and to support his family.[13]
(b)accepted that the applicant’s marriage had broken down and that his wife was seeking a divorce but noted that the applicant did not provide any evidence, such as medical evidence attesting to his mental condition or any other documentation or independent evidence as to the harm he would suffer as a result of his marriage breakdown if he were to return to Malaysia.[14] It then found that this harm, in the form of mental stress, was not motivated for any for any reason in s 5J(1)(a) of the Act or that it amounted to serious harm for the purposes of s 5J(5) of the Act.[15]
(c)acknowledged that the applicant would face difficulties finding work if he returned to Malaysia but, having had regard to the applicant’s ‘overall motivation and work experience acquired both in Malaysia and Australia’ and relevant country information about the Malaysian economy, did not accept that the applicant’s capacity to subsist would be threatened upon return. Therefore, in terms of the applicant’s economic harm claim, the Tribunal found that the applicant did not face a real chance of serious harm for the purposes of s 5J(5) of the Act.[16]
(d)accepted that the applicant would face a real chance of serious harm by being threatened by a group of unlicensed moneylenders if he returned to Malaysia. However, having had regard to country information relating to the Royal Malaysia Police (RMP), it found that the applicant would be able to access effective state protection and would not be denied access to state protection for any reason in s 5J(1)(a) of the Act. The Tribunal concluded that effective protection measures were available and, by operation of ss 5J(2) and 5LA of the Act, the applicant did not have a well-founded fear of persecution.[17]
[13] CB 86 at [20], CB 88 at [33].
[14] CB 88 at [34].
[15] CB 88 at [34].
[16] CB 88 to 89 at [35]-[37].
[17] CB 89 at [38]-[40].
Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant met s 36(2)(a) of the Act.[18]
[18] CB 89 at [41].
Referring to its anterior findings made in relation to its assessment of the applicant’s circumstances against the refugee criterion in s 36(2)(a), the Tribunal also found there was not a real risk that the applicant would suffer significant harm if he returned to Malaysia due to his economic circumstances or the mental stress arising from his marriage breakdown.[19] Further, the Tribunal considered the country information on the effectiveness of the RMP and found that the level of protection it could offer the applicant reduced the risk of significant harm to him from moneylenders below a real one. It found he would not face a real risk of significant harm in Malaysia on the basis that, for the purposes of s 36(2B)(b) of the Act, he could obtain adequate state protection from the RMP.[20] Accordingly, the Tribunal was not satisfied that the applicant met s 36(2)(aa) of the Act.[21]
[19] CB 90 at [42]-[46], CB 91 at [51].
[20] CB 89 to 90 at [47]-[49].
[21] CB 91 at [53].
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal’s decision, it provided:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit 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 Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975— the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 — the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 — the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority — the date of the written statement under subsection 473EA(1); or
(d) in any other case — the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Section 5J of the Act relevantly provided:
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
Section 5LA of the Act provided:
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Section 36 of the Act relevantly provided:
36 Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of the application filed on 4 October 2018. As the Tribunal’s decision was dated 6 February 2018, the applicant had until 13 March 2018 to bring this proceeding. Because the application was not filed until 4 October 2018, it was brought 205 days out time.
The application was accompanied by two Affidavits, both sworn on 24 September 2018. The first Affidavit attached a copy of the Tribunal’s decision record. The applicant’s second Affidavit (second Affidavit) is discussed in more detail below.
At the hearing before me, the applicant sought to tender four documents in the Malay language. The applicant submitted that these documents were:
(a)a copy of a police report from 2013;
(b)a letter about the applicant’s divorce from his wife;
(c)a further document regarding his divorce; and
(d)a document in relation to issues of custody of the applicant’s children.
The applicant acknowledged these documents were not before the Tribunal but maintained they were relevant as they were proof of him having told the truth about his protection claims.
The Minister did not object to the Court admitting the documents subject to relevance. The Minister submitted that the documents were of limited probative value and not relevant to the proceedings for the following reasons:
(a)the documents were in Malay and not translated in English;
(b)the documents were not before the Tribunal when they made its decision.
I accept the Minister’s submission that these documents hold no probative value for the Court in determining whether the Tribunal has made a jurisdictional error. The documents have not been translated to English, nor were they before the Tribunal when it made its decision. There is also nothing to suggest that the documents, if translated, would provide some evidentiary basis upon which to raise a ground asserting error on the part of the Tribunal. Accordingly, I rule that they are inadmissible and make no further reference to them.
CONSIDERATION
Returning to the application, the consequence of it having been filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) is whether the application has been made to the Court in writing detailing why the extension should be granted.
In the originating application, the applicant specified the following ground as to why they say it is necessary in the interests of the administration of justice to extend time:
1.I am a victim of fraudulent or non-existent migration agent who demands a lot of money from me. I attached an affidavit of delay. After my review application in Administrative Appeals Tribunal failed I was introduced by a friend to a migration agent and said that she can help with my migration problems.
At the hearing before me on 4 September 2024, the applicant confirmed that the contents of the applicant’s second Affidavit were grounds upon which he intended to rely in relation to his delay in filing his judicial review application. Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may 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 principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’.[22] Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
[22] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40].
The extent of the delay and explanation for it
As stated above at [21], the applicant’s delay in filing his judicial review application is 205 days out of time. The delay is lengthy. The Court has, in other cases described the delay of 74 days as ‘substantial’[23] and delay of 54 days is likely to be fatal to an application for an extension of time where there is no reason for delay.[24]
[23] WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14].
[24] WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay.[25]
[25] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
In order to explain his delay, the applicant relied on his second Affidavit, which relevantly read (names omitted, but otherwise reproduced without alteration):
1.I am the applicant of these proceedings. I write to explain why there is a delay in filing if this case.
2.I believe I am a victim of migration fraud but I did not discovered this less than 2 weeks ago.
3.On 14 September 2018 I was told about a lawyer in Sydney who offers pro bono assistance to Malaysian workers. I sought legal advice immediately after receiving the contact details of the lawyer. I then discovered I was a victim of Fraud.
4.I was rejected my protection visa application at the AAT in February 2018. I was suffering depression at this time so I could not make sense of what was happening.
5.When I saw my visa was about to run out I made inquiries about a migration agent in Sydney.
6.I met lady [R] on 11 February 2018 through a friend. I gave my details to a friend and he has given the details to [R]. I have messages to prove this. My friend [Z] paid [R] on 20 March 2018 and I have been paying him back in instalments and did not make my application for this appeal. [R] disappeared and I could not do anything. I formed a whatsapp group of people who have been cheated by Lady [R]. [Z] was also cheated by her. Attached and marked “Annexure A” is a copy of whatsapp correspondence between me and my friend [Z] from this period.
7.I then met with another migration agent [G] on 28 May 2018. He opened my Migration account (VEVO) and said I did not have a visa. He offered to help me to fix up my visa and regularize my visa. He charged me $2330 including house bond. He forced me to go into his house as part of this package. I had to immediately pay $420. He said he would appeal my case and ask for an extension of my visa. He also borrowed money from me to pay his school studies. Attached ad marked “Annexure B” is a copy of whatsapp correspondence between me and the migration agent.
8.He then told me that he applied to the court for me and gave me an invoice from Immigration Department to demand payment from me. Attached and marked “Annexure C” is this invoice. I have recently been advised this invoice is a fake invoice.
9.I have just moved into a grannyflat in Sydney. But I am couch surfing between houses. I am also making arrangements to leave Sydney and plan to leave in October 2018 to either Brisbane or Melbourne.
Attached to the second Affidavit were three annexures, the contents of which are summarised as follows:
(a)Annexure A contained 32 screenshots of text message conversations purportedly between the applicant and his friend Z, the majority of which were in a language other than English, which occurred on various dates including 15 February 2018, 21 March 2018, 29 March 2018, 3 April 2018, 4 April 2018, 18 April 2018, 19 April 2018, 20 April 2018, 25 April 2018, 27 April 2018, 2 May 2018, 3 May 2018, 9 May 2018, 16 May 2018, 18 May 2018, 23 May 2018, 25 May 2018, 26 May 2018, 31 May 2018, 14 June 2018, 27 June 2018, 3 July 2018, 12 July 2018.
(b)Annexure B contained:
(i)28 screenshots of text message conversations purportedly between the applicant and his migration agent G, the majority of which were in a language other than English, which occurred on various dates including 25 June 2018, 26 June 2018, 28 June 2018, 29 June 2018, 30 June 2018, 3 July 2018, 8 July 2018, 12 July 2018, 13 July 2018, 14 July 2018, 16 July 2018, 18 July 2018, 19 July 2018, 20 July 2018, 23 July 2018, 24 July 2018, 25 July 2018; and
(ii)a screenshot depicting a money transfer of $1,800 made on 14 August 2018.
(c)Annexure C contained a document purporting to be a tax invoice/receipt in the sum of AUD881.50 issued by the Department of Home Affairs on 14 August 2018.
At hearing, I drew the applicant’s attention to his second Affidavit and invited oral submissions in relation to his explanation for the 205-day delay in filing his judicial review application. The applicant neither referred to, nor elaborated upon, the explanation given in his second Affidavit. Instead, he explained that he did not file the application on time because he had other priorities during that period. He submitted that he was busy working in order to provide for his wife and child and this made him forget ‘important things’.
By way of written submissions, the Minister argued that the applicant had not provided an adequate explanation for the delay. The Minister noted the applicant’s admission that he received the Tribunal’s decision on 7 February 2018. Even accepting the applicant’s evidence in the second Affidavit about what occurred after that is true (notwithstanding the various text messages were untranslated and he has not provided any medical evidence to support his claim to have been suffering from depression), the Minister maintained that it remained the applicant’s responsibility to ascertain his review rights within the applicable time limit,[26] and that the Tribunal had provided an information sheet with its decision which detailed the steps to take in order to seek judicial review of that decision.[27]
[26] 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]; SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108.
[27] Annexure ‘BM-1’ to the Affidavit of Bethany McNamara made on 24 May 2024.
In addition, the Minister made the following submissions in relation to the applicant’s attribution of the delay to his experiences with third parties who assisted him with his immigration affairs:
The mere fact that the applicant put his faith in other persons, perhaps did not understand the steps that were taken by them (which appear to be lodging a second Tribunal application and/or a second visa application) does not, of itself, reveal a sufficient explanation to warrant the extension of time sought. Finally, the Minister does not accept there has been any explanation for the delay once the applicant obtained the assistance of a solicitor between 14 September 2018 and 4 October 2018 (noting he already had a copy of the Tribunal decision and a further copy was provided on 18 September 2018), which was a period of a further 20 days.
The Minister neither objected to the applicant’s reliance on his second Affidavit nor sought to cross-examine the applicant on its contents. Nevertheless, at hearing, the Minister submitted that the applicant was aware of the relevant timeframe within which to seek judicial review and argued that the applicant’s explanation for the delay was unpersuasive because it did not sufficiently detail the active steps taken by the applicant to prepare and file his judicial review application throughout the period commencing on 6 February 2018 and ending on 4 October 2018. It was observed that the applicant had not provided any:
(a)medical evidence to support his claim that he suffered from depression in February 2018 and that his condition impaired his ability to lodge a review application.
(b)detail in relation to the activities of his various advisers whom he relied upon to file his judicial review application, including:
(i)R whom he met on 11 February 2018;
(ii)G whom he met on 28 May 2018; and
(iii)a solicitor whom he met soon after 14 September 2018.
(c)detail of his efforts to ensure that these various advisers filed his judicial review application in a timely manner.
(d)explanation for the delay once the applicant obtained the assistance of a solicitor soon after 14 September 2018 and before 4 October 2018.
Having considered the applicant’s submissions at their highest and the available evidence, I am of the view that, for the following reasons, the applicant has not offered a satisfactory or acceptable explanation for the delay in making this application.
First, attached to the letter enclosing the Tribunal decision was a sheet entitled ‘MR25 Information about decisions – MR Division’ containing information that judicial review of the Tribunal’s decision must be sought within 35 days of the date of the decision, otherwise a request for an extension of time would be required.[28] The sheet also contained information about where the applicant could obtain immigration assistance, along with referrals to other services, for the purposes of filing that judicial review application.
[28] CB 82 and Annexure ‘BM-1’ to the Affidavit of Bethany McNamara made on 24 May 2024.
Secondly, there is no evidence before the Court as to the applicant’s claimed mental health condition which impaired his capacity to understand and perform the steps required to file his judicial review application once he had been notified on the Tribunal’s decision in February 2018.
Thirdly, while I am prepared to accept that the applicant did engage with various advisers on an intermittent basis during 2018 in order to regularise some aspects of his immigration affairs, there is an absence of persuasive submissions and evidence indicating that the applicant clearly and promptly instructed those advisers to file a judicial review application and made concerted efforts to ensure that they comply with such instructions in a timely manner.
Fourthly, the applicant’s oral submission that he lodged his judicial review application late because he was busy working and it slipped his mind is less than satisfactory.
The lengthy delay in the absence of a satisfactory and acceptable explanation weighs strongly against the grant of an extension.
Any prejudice to the respondent if an extension were granted
In oral submissions, the Minister properly submitted that they would not suffer any particular prejudice if the applicant was granted an Order allowing an extension of time, other than as to costs.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing.[29]
[29] SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I consider this factor neutral regarding the grant of an extension.
Public interest and impact on the applicant
There is a public interest in ensuring that administrative decisions are made lawfully. The merits of the substantive ground relied upon by the applicant, which are considered below, will be relevant in this regard. It has also been recognised that there is a public interest in the finality of administrative decisions.[30]
[30] Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]-[17]; [2000] HCA 67.
With regard to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant is significant in that he would be returned to his country of nationality which is a circumstance he claims to fear. I consider this to be a matter weighing in favour of the grant of an extension.
The merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time.[31] Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted.[32]
[31] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the full Court of Appeal in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110 at [69].
[32] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
However, the discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the 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.
In his application, the applicant relies on the following six grounds of review (reproduced without alteration):
1.There has been a breach of the rules of natural justice in the making of the decision.
2.Procedures that should have been observed in making the decision were not observed.
3.The decision was not authorised by the Act under which it was made.
4.The decision involved an error of law, whether or not the error appears on the record of the decision.
5.There is no evidence or other material to justify the making of the decision.
6.The decision was otherwise contrary to law.
In the Minister’s written submissions, the applicant’s grounds of review were categorised in the following manner, which I adopt:
(a)Grounds one, two and three contend that the applicant was denied procedural fairness;
(b)Grounds four and six contend that the Tribunal’s decision was not made according to law, or that it contains an error; and
(c)Ground five contends that there was no evidence or material to justify the Tribunal’s decision.
I note that the grounds are unparticularised and further observe that, although invited to elaborate on these grounds at the hearing, the applicant did not provide any further matters for the Court’s consideration.
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, not persuaded that a reasonably arguable case of jurisdictional error arises out of the grounds of the substantive application.
Grounds one, two and three – whether the Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act
I note that s 425 of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As described above at [9], the applicant was invited to a hearing before the Tribunal pursuant to s 425 and I accept the Minister’s submissions that this invitation complied with s 425A of the Act in that it:
(a)informed the applicant of the date, time and place of the scheduled hearing: s 425A(1);
(b)was sent to the last email address provided to the Tribunal by the applicant in connection with the review: ss 425A(2) and 441A(5);
(c)gave a period of notice to appear before the Tribunal which was more than the prescribed period of 14 days: s 425A(3) and reg 4.35D of the Migration Regulations 1994 (Cth); and
(d)contained a statement as to the effect of s 426A, referring to the consequences of non-appearance at the hearing: s 425A(4).
The High Court considered the Tribunal’s procedural fairness obligations in the protection visa merits review decision-making context in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).[33] In SZBEL, the High Court explained as follows (footnotes omitted):
32. In Alphaone the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” (Emphasis added)
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
(Emphasis added)
[33] See Singh v MICMA [2024] FedCFamC2G 515 per Kendall J at [77].
In this matter, the applicant attended the hearing and was on notice from the delegate’s decision, and the Tribunal’s questioning at hearing, that the question of whether his claims were tied to s 5J(1)(a) and whether the RMP could provide effective or adequate state protection would be among the dispositive issues on the review. I agree with the Minister that no breach of s 425 is apparent.
Further, the applicant’s case was not one where there was ‘information’ in the Tribunal’s possession which the Tribunal was required to put to him in accordance with s 424A of the Act. The Tribunal’s decision was based upon its assessment of the applicant’s written claims, his oral evidence at the Tribunal hearing and country information, the latter of which falls within the exceptions provided at s 424A(3)(ba) and (b) respectively.
Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to grounds one, two and three.
Grounds four and six – whether the Tribunal’s decision was not made according to law, or contains an error
In paragraphs [5] to [9] of its decision, the Tribunal correctly set out the criteria the applicant needed to satisfy in order to be granted a protection visa. Further, in paragraph [10] of its decision, the Tribunal noted various considerations to be taken into account when determining the review. Relevantly, the Tribunal correctly identified the applicant’s need to meet one of the alternative criteria in ss 36(2)(a), (aa), (b) or (c) of the Act along with its need to take into account various considerations to the extent that they were relevant to the delegate’s decision.
For the purposes of its assessment against the refugee criterion, the Tribunal correctly identified that a person will not have a well-founded fear of persecution if the reason for that fear was not one of the reasons in s 5J(1) or where effective state protection is available. In that regard, the Tribunal fulsomely addressed the applicant’s claims relating to mental stress,[34] and economic harm,[35] and found as follows in relation to the applicant’s claim to fear harm from unlicensed moneylenders:
38. As to the applicants claim that he will be hunted by a group of unlicensed moneylenders, based on the available country information, the Tribunal accepts that there is a real chance that he will suffer serious harm by being threatened by unlicensed moneylenders, in the event that he is returned to Malaysia. However, pursuant to s.5J(2) of the Act the Tribunal has considered whether the applicant has access to effective protection measures as a victim of an unlicensed moneylender.
…
40. Having considered the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in his receiving country.
[34] CB 88 at [34].
[35] CB 88 to 89 at [35]-[37].
On that basis, the Tribunal reached the following conclusion:
41. Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a).
With regard to the complementary protection criteria, the Tribunal set out the relevant ‘real risk’ test at paragraph [9] of its decision. It further explained at paragraph [47] that, under s 36(2B), a person would not face a real risk of significant harm if the ‘non-citizen can obtain, from an authority of the country, protection such that there would not be a risk of significant harm’.
The Tribunal’s decision was made on the evidence before it, was not illogical, irrational or unreasonable, and was made according to law.
Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to grounds four and six.
Ground five – whether there was no evidence or material to justify the Tribunal’s decision
I agree with the Minister’s written submission in which the applicant’s complaint in this ground was characterised as ‘misguided’.
With regard to the Tribunal’s fact-finding approach, it is well established that the Tribunal is not required to accept uncritically any, and all claims made by an applicant.[36] Nor is the Tribunal required to have ‘rebutting evidence’ available to it before it can find that a particular factual assertion by an applicant has not been made out.[37]
[36] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; FCA 1253.
[37] Selvadurai v Minister or Immigration and Ethnic Affairs (1994) 34 ALD 347; FCA 1105.
The Tribunal’s decision was based on its assessment of the applicant’s evidence, its acceptance of the majority of his claims, and its assessment of the relevant country information. The Tribunal’s assessment of that country information laid the foundation for its conclusion in relation to the claimed fear of harm from unlicensed moneylenders that, even having accepted that the applicant may face harm from such persons, he did not meet the criteria for the grant of the protection visa because he could obtain effective or adequate state protection from the Malaysian authorities. Further, the Tribunal’s assessment of the applicant’s evidence and relevant country information laid the foundation for its conclusions in relation to the economic harm claims, while its assessment of the applicant’s evidence appropriately underpinned its findings and conclusions in relation to the applicant’s mental health-related claims.
Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to ground five.
This weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case is 205 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the lengthy delay and lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
Therefore, the application is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 25 September 2024
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