FDT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 379
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 379
File number(s): MLG 2556 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 May 2022 Catchwords: MIGRATION – application to extend time for applying for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for remedies – whether there is any merit in grounds of substantive application – application for extension of time dismissed. Legislation: Migration Act 1958 (Cth) s 5J, 36, 476, 477 Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Division: General Number of paragraphs: 22 Date of hearing: 5 May 2022 Place: Sydney The Applicants: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Ms L Mills of Clayton Utz, by telephone ORDERS
MLG 2556 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDT17
First Applicant
FDU17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application made pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act in relation to the decision made by the second respondent on 4 April 2017 is dismissed.
2.The applicants pay the first respondent’s costs set in the amount of $7,467.
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
INTRODUCTION
By an application filed on 24 November 2017 the applicants, nationals of Malaysia, apply for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision made by the second respondent (Tribunal) on 4 April 2017.
BACKGROUND
On 15 January 216 the applicants each applied for a Protection (class XA, subclass 866) visa (Protection visa). The second applicant, the son of the first applicant (applicant), applied as a member of the applicant’s family unit.
In her application for a Protection visa the applicant claimed she left Malaysia because she is a member of Bersih, an organisation that promotes clean and fair elections, and the Malaysian government was tracking members of Bersih. The applicant claimed that when she attended demonstrations as a member of Bersih she was sprayed with tear gas and “acid water”; and she is afraid she will be arrested and imprisoned if she returns to Malaysia. On 23 March 2016 the delegate refused to grant the applicant, and therefore also the second applicant, a Protection visa because the delegate found the applicant’s claims are vague and lacking in detail.
On 3 April 2017 the applicant appeared before the Tribunal to give evidence and present arguments. At the hearing the applicant provided written submissions in which the applicant claimed that she had paid a “third party” to prepare her application for a Protection visa and, apart from signing the form of application, the applicant did not know that the third party had claimed the applicant had been a member of Bersih. The applicant said she had “no ideas [sic] at all on the fact that I was unable to change anything for that matter”.[1] The applicant then stated the “real reason of leaving Malaysia” as follows:
[1] CB167
(a)The applicant owned a business in the name of her daughter. The applicant began the business with a small amount of capital from her own savings and from family members.
(b)The applicant’s business slowly grew to become more successful, and the business became one of the biggest caterers to a particular Ministry.
(c)After the government implemented GST, all caterers had to wait for four months to receive payment. The applicant attempted without success to obtain a bank loan to inject more capital towards her business.
(d)The applicant’s business reached the point where the applicant was unable to pay her workers’ salary, rental, and vehicle instalments; and the business had no capital to fulfil the next orders. The applicant’s debts were out of control.
(e)The applicant decided to take “the fastest and easiest way to settle down” her debts; and this was by borrowing money from an “illegal moneylender”.
(f)The applicant took out three loans, each of which she repaid. The applicant took out a fourth loan, but she was unable to repay this amount. The applicant agreed to the moneylender’s offer to open a new account to get the money to pay the previous loan.
(g)The applicant borrowed RM70,000 which, together with interest, she was required to make 15 monthly instalments of RM16,000. The applicant paid the first instalment; but she was not in a secure position. Her life was getting much more miserable and uncontrollable since she got involved with the illegal moneylender.
(h)One day a “new friend” of the applicant offered the applicant to work in Australia. The friend promised the applicant she would gain almost RM15,000 to RM16,000 monthly working in Australia. The applicant accepted the offer on condition that her son, the second applicant, accompany the applicant to Australia. The applicant travelled to Australia, and left her daughter and husband to manage the business in Malaysia.
(i)To survive the applicant’s family in Malaysia decided to sell the cookware and kitchenware of the applicant’s catering business, and the money was used to pay the second instalment of the loan. Further, the applicant’s family moved out from their house because they could not pay the rent, and the moneylender knew the applicant’s and her family’s address. The moneylender did many things to scare the applicant and her family.
(j)The moneylender in Malaysia has kept searching for the applicant and, after realising the applicant was no longer in Malaysia, the moneylender started to threaten the applicant’s daughter by phone calls and by tracking the applicant’s family.
(k)The applicant could not provide money for the “next” payment, even though the applicant decided to ask her husband to hand over their car to the moneylender. The applicant talked with the moneylender to pay interest of RM2,000 every month until she could provide the full amount.
(l)The applicant has been able to continue to pay the moneylender from money she has been earning in Australia; but the “bad side” is that the moneylender is still tracking the applicant and forcefully asking her to pay the full amount of the of RM650,000, including the monthly interest of RM2,000.
At the hearing before the Tribunal, the applicant supported her claims by providing a number of documents including invoices, bank transfer receipts, and company registration documents.
TRIBUNAL’S REASONS
The Tribunal accepted:[2]
[2] CB220-221, [16]
(a)the applicant started a catering business;
(b)a particular Ministry was a key client of the business;
(c)the Ministry was slow in making payments;
(d)the business did not have sufficient capital to be able to meet the demands of large orders;
(e)the applicant unsuccessfully attempted to obtain finance from banks;
(f)the applicant took out substantial loans from illegal moneylenders, and was able to repay the first three loans;
(g)the applicant was unable to repay the fourth loan of 70,000MYR after the first month’s repayment;
(h)the applicant left for Australia with her son to undertake work;
(i)after the applicant left Malaysia the moneylender searched for the applicant;
(j)the applicant’s husband and daughter closed the business and sold equipment to get money, and they handed over their vehicle to the moneylender;
(k)the applicant’s family moved to her sister-in-law’s house, and the applicant’s daughter got phone calls from the moneylender threatening to burn down the house, and to run down the applicant’s children;
(l)while in Australia the applicant talked with the moneylender stating she could only pay 2,000MYR a month; and
(m)the money lender agreed the applicant could repay 2,000MYR as interest, but that 650,000MYR was the total amount owing.
On the basis of these findings, the Tribunal made the following additional findings:
(a)The moneylender’s treatment of the applicant and her family did not, and will not, involve any discriminatory conduct against the applicant for the essential and significant reasons of race, religion, nationality, membership of a particular social group, or political opinion as required by s 5J(1)(a) and s 5J(4) of the Act. The moneylender’s conduct was based on his belief that the applicant and her family owe him money which they have not repaid.[3]
(b)There is not a real chance the state of Malaysia will discriminatorily withhold protection for the applicants in relation to any serious harm they may face at the hands of the moneylender, a non-state actor.[4]
(c)The Tribunal did not consider that the moneylender’s threats to the applicant’s daughter to burn down the sister-in-law’s house give rise to a real chance of serious harm.[5] That is because:
(i)the moneylender had not taken further action to harm the applicant’s daughter or other family members in relation to the outstanding loan “despite a considerable period of time elapsing since the applicant left for Australia”;
(ii)the applicant has had telephone contact with the moneylender where he agreed to the applicant repaying 2,000MYR a month;
(iii)even if the applicant will be unable to pay this amount to the moneylender, the chance or risk that the moneylender will seriously or significantly harm the applicant’s daughter and other family members is remote, given the past lack of harm to the applicant’s daughter and other family members; and
(iv)although owing 650,000MYR presents “financial challenges”, the Tribunal did not accept that the applicant’s owing that amount of money constitutes either serious or significant harm.
(d)The applicant would in any event be able to access effective protection measures in Malaysia from the Malaysian state which are durable, and which consist of an appropriate criminal law, a reasonably effective police force, and an impartial judicial system. In those circumstances s 5J(2) and s 36(2B)(b) of the Act apply to the applicants.[6]
[3] CB221, [18]
[4] CB221, [19]
[5] CB221-222, [20]
[6] CB221, [22]
On the basis of these findings, the Tribunal was not satisfied the criteria provided for by s 36(2)(a) or s 36(2)(aa) of the Act for the grant of a Protection visa.
PRINCIPLES
Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[7]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[7] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[8] Further:[9]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[8] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[9] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””.[10]
[10] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
EXPLANATION FOR DELAY
In their application, the applicants, who are not legally represented, specified the following as the grounds on which they apply for an extension of time:
Did not acknowledge the date when the application has been refused by AAT.
Did not have the knowledge that we have to appeal for review at Federal Court before 35 days of the decision has been made.
At the beginning of the hearing before me I explained to the applicant, who appeared by telephone with the assistance of an interpreter, the purpose of the hearing, namely, to hear the applicants’ application for an order under s 477(2) extending the time by which the applicants can make an application to challenge the Tribunal’s decision. I also explained to the applicant the particular matters the applicant should address, and in particular, the reasons for her not having commenced the proceeding within the 35 day period provided for by s 477(1) of the Act, and why the applicant believes the Court should set aside the Tribunal’s decision, assuming an order extending time is made under s 477(2) of the Act. After identifying the documents that I was required to consider, I invited the applicant to make submissions.
In response to my asking the applicant what she wanted to say about the reasons for the applicants’ delay in filing the application, the applicant said she needed more time to write everything down in relation to her application for an extension of time. The applicant said she did not know she had to this, and then she said it was her mistake. I asked the applicant what she would write down about the delay in filing the application if I were to give her more time to do so. The applicant said she had been initially “tricked” with the reasons she had already given. In response to my asking the applicant to tell me the real reasons, the applicant referred to her having a problem with a loan she had borrowed. Sensing the applicant may have misunderstood me, I asked the applicant why she was late in filing her application in this Court. The applicant again said she needed time to provide details. I asked the applicant to tell me the details. After further exchanges, the applicant confirmed she was relying on the grounds for extension set out in the application she filed with the Court. The applicant also said she had an additional reason for not having commenced this proceeding. She said that “at that time I didn’t know, and I was in such a hurry I had to remedy my status”; the applicant approached “Immigration” because she needed advice; and when she did so staff at “Immigration” gave her “a visa E for [the applicant] to return to Malaysia”; but the applicant in fact needed protection. The applicant said she wanted to fight her case.
I understand the applicant claimed that the applicants were unaware that they had to file an application with this Court within 35 days after the Tribunal made its decision. I am not confident, however, I understand the other reasons on which the applicants rely to explain their delay. I therefore cannot be satisfied the applicants have provided a reasonable explanation for their delay in applying to this Court for remedies in relation to the Tribunal’s decision. Given my lack of confidence in having understood the applicant’s submission, however, I propose to proceed on the assumption that the applicants have provided a reasonable explanation for their delay.
APPARENT MERITS
The application for review contains the following grounds of application (errors in original):
Applying for review by the AAT in a reason that to extend the time of staying in Australia as it is not a good option for us to leave.
I believe all of my reasons for staying here are significant and substantive to be reviewed by the AAT.
I firmly sure that I have given all claims and evidence strongly that AAT should considerably reviewed before making up the decision.
On their face these grounds have no merit; they do not disclose any arguable jurisdictional error by the Tribunal.
At the hearing before me the applicant submitted she had provided the Tribunal documents and she asked why the Tribunal did not accept the applicants’ claims. All the matters she claimed before the Tribunal had occurred, and everything she said to the Tribunal, are true. The applicant also submitted that her case was different from other cases that came before the Tribunal, because the applicant provided documents that supported her claims.
These submissions do not disclose any arguable jurisdictional error. They do not engage with the reasons on which the Tribunal relied for affirming the delegate’s decision. These reasons were premised on the Tribunal’s having accepted the truth of the applicant’s factual claims. The Tribunal affirmed the delegate’s decision because it was not satisfied that the facts as asserted by the applicant, and accepted by the Tribunal, gave rise to a real risk that the applicant will face serious harm, or, given those facts, there is a substantial risk that if the applicant returns to Malaysia she will suffer significant harm; and in any event the Tribunal was satisfied that the applicant would be able to access effective protection measures from the Malaysian state.
CONCLUSION AND DISPOSITION
Even assuming the applicants have given a reasonable explanation for their delay, I am not satisfied it is necessary in the interests of the administration of justice that an order be made under s 477(2) of the Act extending the time by which the applicants may apply to this Court; and that is because the grounds on which the applicants intend to rely have no merit, apparent or otherwise. I propose, therefore, to dismiss the application for an order under s 477(2) of the Act.
The Minister applies for an order that the applicants pay the Minister’s costs set in the amount of $7,467. The applicant submitted she was not in a position to pay costs because neither she nor the second applicant have any work rights. An inability to meet an order for costs is no reason by itself for not applying the usual order that an unsuccessful party pay the costs of the successful party. I am satisfied that the usual order as to costs should be made, and that $7,467 is a fair indemnity of the costs the Minister incurred in defending this application. I will therefore also order that the applicants pay the Minister’s costs set in the amount of $7,467.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 20 May 2022
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