FXT24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 391
•21 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FXT24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 391
File number(s): BRG 490 of 2024 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 – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J(1), 36(2A), 36(2)(a), 36(2)(aa), 426A(1A)(b), 426A(1C)(a), 476; 476(1), 477(1), 477(2) Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Manna v Minister for Immigration & Citizenship [2013] FCA 400
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
NAHI v Minister for Immigration, Multicultural Affairs and Citizenship [2004] FCAFC 10
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491
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: 72 Date of last submission/s: 13 March 2025 Date of hearing: 13 March 2025 Place: Brisbane Solicitor for the Applicant: The applicant appeared in person unrepresented. Solicitor for the First Respondent: Ms Hartwig - Sparke Helmore Second Respondent: The second respondent filed a submitting appearance save as to costs. ORDERS
BRG 490 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FXT24
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 $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE 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 Home Affairs, (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. On 17 October 2018, the applicant arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa. On 15 January 2019, the applicant made an application for a Protection (Class XA) (subclass 866) visa (“the visa”) (Court Book (“CB”) 1-37). In his application for a protection visa the applicant claimed protection because he said that he owed money to a loan shark in Malaysia; that he was required to make payments every month; and that he has financial problems and cannot pay the monthly instalment. The applicant said he was afraid that the loan shark will come to his house and force him to pay back the debt and he was afraid the loan shark will harm him (CB 32).
On 4 April 2019, 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 he was not a person in respect of whom Australia has protection obligations under s 36(2)(a) as the delegate was not satisfied that the applicant was a refugee as defined in s 5H of the Act (CB 56-60), and was not satisfied that the applicant was a person in respect of whom Australia had 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.
Application for review to the Administrative Appeals Tribunal
On 22 April 2019, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 66-67).
On 26 April 2019, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 69-70).
On 27 February 2024, the Tribunal by letter requested the applicant to complete a pre-hearing information form (CB 71). The applicant did not complete the form or provide any submissions.
On 3 April 2024, the Tribunal invited the applicant to attend a hearing on 26 April 2024 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 73-75).
On 26 April 2024, the applicant failed to attend the hearing. The Tribunal dismissed the application for non-appearance under s 426A(1A)(b) of the Act (CB 82).
On 29 April 2024, the Tribunal notified the applicant that his application was dismissed due to non-appearance and informed the applicant that he may apply for reinstatement of the application by 13 May 2024 (CB 80-81).
On 13 May 2024, the applicant requested that the application be reinstated on the basis that he did not receive the hearing invitation as it went to his spam folder and that he had only discovered this oversight recently when he reviewed his spam folder (CB 85-87). The Tribunal reinstated the application under s 426A(1C)(a) of the Act (CB 89).
On 14 May 2024, the Tribunal invited the applicant to attend a hearing on 20 June 2024 to give evidence and present arguments relating to the issues arising in his case (CB 91-93).
On 20 June 2024, the applicant attended the hearing (CB 94-96). The applicant was assisted by an interpreter in the Malay and English languages (CB 94).
On 21 June 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 100-112). On 24 June 2024, the Tribunal by letter notified the applicant that it had decided to affirm the decision under review (“notification of decision”) and attached its reasons for Decision. Attached to the notification of decision was the Tribunal’s “Information About Decisions” Fact Sheet (“Fact Sheet”). The Fact Sheet outlined that the applicant may apply to this Court for judicial review of the Tribunal’s decision and that if the applicant wished to apply for review, he must do so within 35 days of the date of the Tribunal’s decision (CB 116-118).
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 make an assessment of 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 identified that the application before it was a review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa ([1]) and that the issue is whether the applicant is a refugee to whom Australia owes protection obligations ([44]).
The applicant told the Tribunal that he had not filled in the visa application but that it was completed by a friend who could write English ([12]).
The Tribunal first set out the applicant’s personal information that he provided to the Tribunal and then summarised the applicant’s claims by reference to the visa application and by what the applicant told the Tribunal at the hearing ([14]-[15]). Relevantly, to determining the application before this Court, the Tribunal said the following as to the applicant’s claims:
(a)He had been arrested and charged by police for smuggling cigarettes in 2016 and had been fined by a court;
(b)That to pay the fine he had approached an unregistered moneylender because he was not eligible for an authorised loan. He received two cash payments. The transaction was not documented but he believes the total he received was 500,000 Malaysian ringgits. The Tribunal observed that this was different to the amount of 150,000 ringgits claimed in the visa application;
(c)After paying the court fine, he had a surplus which he used to start paying the monthly instalments. He believed that he paid 15,000 ringgits and perhaps another 5,000 or 10,000 ringgits from his own money;
(d)He stopped paying the instalments shortly afterwards in 2017 because he had no funds to do so. He was harassed by the moneylender and three gangsters in about June 2018 who approached him at his home, punched him and warned him to repay the money. They came to his home three more times, but he managed to avoid them by running away and he sent his wife and children to live with his wife’s mother;
(e)Because he could not pay the instalments he decided to “run away” to Australia;
(f)He intends to save money from working in Australia to repay the moneylender but had no idea how long that may take and assumes the debt is now larger as he has made no payments since 2017;
(g)He fears that if he returns to Malaysia the moneylender will be able to locate him and harm him if he does not pay;
(h)He has made no report to the police and sought no help in Malaysia before he left;
(i)He has no information about the moneylender since 2020 when his neighbours in his village told him that some people had come looking for him;
(j)He speaks to his wife two or three times a week and she has not made any complaints of being harassed;
(k)He believes the police can be reasonably effective in protecting people but there are too many cases for them to handle and they could not protect him “24/7”.
The applicant told the Tribunal that he wanted protection so that he could stay in Australia and earn money and be protected from the moneylender and gangsters by not having to return to Malaysia ([16]; [19]). The applicant told the Tribunal that he did not have any records of the loan transaction, either as to what he had received, any contract for the repayments, or any evidence what he actually repaid and no information about the current amount he would owe ([18]).
The applicant said that he had friends in the Malaysian police force who had told him that it was possible to be protected but they were extremely busy and could only offer him limited protection ([19]). The Tribunal put the country information to the applicant that Malaysian police respond to threats of harassment from moneylenders and that financial assistance is available from other organisations ([20]). The applicant said that he agreed the police could be effective but that he would not qualify for financial assistance ([20]). He told the Tribunal that he had not heard of the other organisations referred to by the Tribunal and that he had not made any enquiries about possible assistance as he believed he would not be eligible ([20]; [28]). The Tribunal also put country information to the applicant about the crackdown on moneylenders in 2021. The applicant told the Tribunal that he accepted this information but still believed that he could not be protected as there were too many cases for the police to deal with ([21]). The applicant thought the assistance provided ‘might be good’ but he preferred to remain in Australia where he could save money to service the debt ([29]).
The applicant said that he did not personally know of anyone who had been harmed by a moneylender but there were reports in the news of which he was aware and that this was the basis for his fear together with having been approached by the gangsters at his work which is near his home village ([25]). The Tribunal summarised the applicant’s evidence that in about June 2018 three men approached him, he was punched and slapped and warned to make full repayment ([24]). The applicant told the Tribunal that they had come to his home on three or four occasions where he had managed to avoid them by ‘running away’ ([24]). He told the Tribunal that he thought he would still be pursued ([26]).
The applicant told the Tribunal that he had made no enquiry about the loan or the moneylender since 2020 when he spoke with some neighbours. He said that his family were safe and had not been approached or harassed and he thought this was because the moneylender could not find them ([22]). The applicant told the Tribunal that he would have to work in a large city to be able to support his family and he would likely be found by the moneylender through his employment. He said he thought the moneylender would harm him because ‘they can and will do anything’ ([22]).
The Tribunal noted that the applicant did not provide any financial details from bank statements or income receipts and had no documents to support his claims ([32]).
The Tribunal then set out the relevant statutory provisions with respect to the criteria for a protection visa, the mandatory considerations and summarised the relevant country information ([34]-[42]). The Tribunal found that the applicant had established his identity and Malaysian nationality ([47]).
The Tribunal said that it accepted that the applicant borrowed money from an unlicensed moneylender and that he has not repaid what it is claimed that he owes ([50]; [68]). The Tribunal did not accept what the amount borrowed was. In that regard, the Tribunal said that the measure of the total debt and any balance owing is not known and that the applicant had submitted two ‘wildly different’ amounts in the application and orally ([51]).
The Tribunal accepted the applicant’s family are living safely in Malaysia ([52]) and there has been no family harassment ([54]).
The Tribunal said that it did not accept that there is any evidence that the moneylender has pursued or continues to pursue the applicant in or near his home village and that he has no information in that regard apart from the anecdotal evidence from his neighbours. There has been no enquiry as to his whereabouts ([54]).
The Tribunal referred to the fact that the applicant had worked in several places in Malaysia. The Tribunal found that it would be still be safe for the applicant to do so and that there was no threat were the applicant to return to Malaysia for him living anywhere in the country ([55]) and that the evidence about what would happen to him on return to Malaysia was speculative ([57]) and the applicant had made no attempt to inform himself of any contemporary events in Malaysia concerning his own circumstances or the population generally who are affected by illegal moneylender activity ([57]).
The Tribunal noted that the applicant’s evidence of being approached on one occasion by gangsters was in June 2018 but that the applicant had not decided until four months later that it was best for him to leave the country ([58]).
The Tribunal referred to the fact that the applicant had not reported anything to the police ([59]) and had made no attempts to seek help from any source ([60]; [71]). The Tribunal accepted the country information that the police force is an effective force which does pursue and investigate illegal moneylending and has prosecuted a large number of moneylenders ([61]-[63]). The Tribunal noted that the applicant acknowledged the country information, which the Tribunal put to him, but maintained that he still feared harm and did not believe the police could protect him ‘24/7’ ([61]-[63]).
The Tribunal said that overall, it found the applicant’s evidence was vague and bereft of detail as to times, dates and places, names of those involved and when and where things may have occurred and importantly, what was borrowed or repaid ([64]). When offered the opportunity to provide further information, the Tribunal said that the applicant was unwilling to do so ([65]). The Tribunal found that applicant not to be a credible witness overall for the information elicited and his oral evidence ([66]).
The Tribunal said there was no information which shows the applicant remains of any interest to a moneylender in 2024 or that the moneylender would be able to locate him upon return to Malaysia where his family safely reside ([69]). The Tribunal said that the applicant had not been seriously harmed in the past and gave evidence of very limited interest in pursuit by a moneylender or gangster ([70]; [89]). The Tribunal said that it did not find as reliable the applicant’s presentation of his evidence which was manifestly absent of relevant details and formed the view that the applicant’s concern of being harmed in the future on his return was not genuine ([70]). Accordingly, the Tribunal found that the applicant does not have a well-founded fear of persecution for one of the reasons in s 5J(1) of the Act or that the evidence establishes a real chance of persecution and which might involve serious harm ([74]; [90]). Further, the Tribunal said that it was satisfied that the applicant would be able to work anywhere he chose in the country without being found ([75]; [76]; [93]).
Accordingly, the Tribunal found that the applicant did not satisfy s 36(2)(a) or s 36(2)(aa) ([94]-[96]).
The Tribunal accordingly affirmed the delegate’s decision not to grant the applicant a protection visa ([97]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 5 August 2024. The applicant also filed an affidavit on 5 August 2024. 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, 26 July 2024. Accordingly, the application was filed 10 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 he 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 he had these documents in Court with him. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person 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 his application for extension of time within which to file his 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 his 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 5 August 2024. Accordingly, as already noted, the application was filed 10 days outside the 35-day time limit.
In the application, the applicant provides the following as the grounds in support of the application for extension of time (without alteration):
1.First time dealing Formal Documentation which a bit struggled for me to fill Up.
2.I’m facing Financial difficulties to get lawyer for handle my cases
Although the applicant had not filed any material in support of his application for an extension of time, he was given an opportunity to make oral submissions explaining the delay. At the hearing, the applicant told the Court that when he first received the email from the Tribunal, he did not understand it because it was written in English. He explained that he was trying to get someone to translate it for him, but he works in a mine and is the only Malay speaker there. He said that he needed to go to Emerald for assistance. The Court observes that the applicant told the Tribunal that he was working in Chinchilla installing solar panels and that he also does lawn mowing and maintenance work and is employed five days a week (Decision [30]).
The Court asked the applicant when it was that he was able to go to Emerald after being notified of the Tribunal’s decision. The applicant said that he went to Emerald in June and had it translated. The Court asked the applicant to explain why it was, if he went to Emerald in June, he then did not file his application for judicial review within the 35-day time limit. The applicant said that he did not understand how to do it and needed to find another person to help him.
The first respondent concedes that ten days is a short delay (first respondent’s submissions (“FRS”) [27]). The Court agrees.
The first respondent submitted that the applicant’s explanation for delay in the application for judicial review is unsatisfactory. The first respondent submitted that it was for the applicant to establish his review rights and the applicable time limits (FRS [29] referring to 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]) and that a lack of legal representation or inability to obtain legal representation is not a sufficient explanation alone for an extension of time (FRS [29] referring to Manna v Minister for Immigration & Citizenship [2013] FCA 400 at [17]). In oral submissions, the first respondent pointed to the fact that the applicant said he had the correspondence from the Tribunal translated to him in June but did not file the application until 5 August and submitted that the applicant had not given a satisfactory explanation for the intervening delay. The first respondent also drew the Court’s attention to the advice to the applicant in the notification of decision as to the availability of translating services and that the Fact Sheet notified the applicant of his rights and the time limit.
As already noted, the Tribunal informed the applicant of the time limit for making an application for judicial review to this Court by attaching the Fact Sheet to the notification of decision (CB 116-118). The Fact Sheet (at CB 117) explains to applicants under the heading ‘Review of Decisions’ that they can apply to the Federal Circuit and Family Court of Australia for judicial review of the Tribunal’s decisions and that the Court will consider whether the Tribunal made a jurisdictional error. The passage goes on to say that if an applicant wishes to apply for review, they must do so within 35 days of the date of the Tribunal’s decision.
The Court also observed at the hearing that the applicant was able to apparently receive correspondence from the Tribunal about the proceedings before the Tribunal and make an application within the time limit for the making of an application for reinstatement of the proceedings before the Tribunal (CB 80-89). The applicant did not make any submission about this.
Overall, the Court tends to the view that the applicant has not given a satisfactory or persuasive explanation for the delay. However, the Court is mindful that the applicant is unrepresented and that he required an interpreter in proceedings before the Tribunal and this Court. The Court also accepts the difficulties an unrepresented applicant may have in adequately articulating the reasons for delay and in providing supporting evidence. Having regard to the limited extent of the delay, overall, the Court tends to the view that these factors taken together weigh in favour of an extension of time being granted. However, for the reasons explained below, the Court is of the view that it should not extend time because the grounds of review in the proposed substantive application are not reasonably arguable.
Prejudice, impact on the public and the applicant
The first respondent conceded that there was no prejudice to it in the granting of the extension of time beyond the public interest in the finality of administrative decision making but the mere absence of prejudice to the first respondent is insufficient to warrant the grant of an extension (FRS [30] citing Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491).
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] FCA 1391; (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review in the application are (without alteration):
Ground One:
No Guarantee will not happen to me in the future and should or can be referred to in the context of assessing the risk of harm from loan shark in any form in every way.
Ground Two:
Hardship in an economic context, is not excessive if a member refers and gives an opportunity to my case in significant economic hardship that threatens the person’s capacity to subsist is without limiting what serious harm for the purpose.
Ground Three:
Member denies all forms of harms from the loan shark which can lead my live in danger.
Ground Four:
As far been reported that Loan shark cases is more likely that some of them got Involved in uniform authority which mean they got back up form black hands.
The applicant told the Court that a friend had helped him draft the grounds in the application. He said that he told the friend what his grounds of review were, and the friend wrote them down. The Court read out each of the grounds of review and asked the interpreter to translate them for the applicant. The Court asked the applicant to explain to the Court what he meant by each ground of review.
Grounds one and three
In these grounds the applicant appears to take issue with the findings made by the Tribunal as to whether he was at risk of harm from the loan shark if he returned to Malaysia.
The Court asked the applicant to explain what he meant by grounds one and three. The applicant told the Court that the Tribunal did not accept that he would not be going back to Malaysia, that the Tribunal terminated his visa and now he cannot get a job in Australia. The applicant also said, in relation to ground three, that the Tribunal did not pay attention to what he said at the hearing.
The Court has carefully considered the reasons of the Tribunal as set out above. The Court is of the view that in finding that the applicant did not have a well-founded fear of persecution for one of the reasons in s 5J(1) of the Act and in finding that the evidence did not establish a real chance of persecution which might involve serious harm, the Tribunal made a decision that was rational, logical and open to it on the evidence. To the extent that the applicant’s complaint is that he disagrees with the Tribunal’s conclusion, it is an invitation to the Court to engage in impermissible merits view.
Grounds one and three are not reasonably arguable grounds of review.
Ground two
Ground two appears to be a complaint that the Tribunal did not consider the applicant’s economic circumstances were he to return to Malaysia as an aspect of considering the harm he said he would face if he were to return.
The applicant told the Court that he still owes money to the loan shark and that if he went back to Malaysia, he would be harmed by the loan shark. He said that he told the Tribunal ‘everything that would happen’ but the Tribunal refused his application. He said that he wanted the Tribunal to look at it again and let him stay in Australia. These complaints about the Tribunal’s conclusions on the evidence are an invitation to the Court to engage in impermissible merits view.
Having regard to the material before the Court including the visa application and the evidence the applicant gave to the Tribunal, the Court agrees with the first respondent’s submission (FRS [35]) that no claim of economic harm was made by the applicant nor was it squarely or sufficiently raised by the material (FRS [35] referring to NAHI v Minister for Immigration, Multicultural Affairs and Citizenship [2004] FCAFC 10 at [13]). The applicant told the Tribunal that he wanted to stay in Australia to work and earn money to support his family and that it was easier for him to find employment in Australia (Decision at [14]). The applicant told the Tribunal that to support his family he would have to find employment in a large city in Malaysia if he returned (Decision at [22]). These were matters which, as set out above, were considered by the Tribunal.
Ground two is not a reasonably arguable ground of review.
Ground four
In ground four, the applicant appears to be saying that loan sharks are involved with the police and that the Tribunal did not consider this.
The applicant’s explanation for ground four was to tell the Court that the Tribunal did not pay attention to what he said. This was not particularised.
The Tribunal did consider the country information regarding the police crackdown on loan sharks and put this to the applicant (Decision at [21]). The Tribunal preferred the country information (Decision at [62]). That was open to the Tribunal and there was no error in it doing so.
Ground four is not a reasonably arguable ground of review.
In conclusion, the Court is of the view that the grounds of review in the proposed application are not reasonably arguable and that it would be futile for the Court to exercise its discretion to extend time.
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 seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 21 March 2025
0
9
1