ANQ21 v Minister for Immigration and Citizenship [2026] FedCFamC2G 399

1. Before the Court lies an application for an extension of time (pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act)) in which the applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal) made on 25 October 2019. As will be explained, before the Court can consider the substantive application for judicial review, the applicant must satisfy the Court that it is in the interests of the administration of justice that he be granted an extension of time.
2. For the reasons set out below, the Court has determined that an extension of time should not be granted.

1. The applicant is a citizen of Malaysia (Court Book (CB) 14, 38). He first arrived in Australia on 18 September 2016 as a holder of an Electronic Travel Authority (UD-601) (CB 44).
2. On 13 December 2016, the applicant applied for a Protection (Class XA) (Subclass 866) (the visa) (CB 1-37). In that application, the applicant claimed to have left Malaysia after fearing harm from the Malaysian government following his participation in a protest as a member of the Bersih 'Yellow Shirt' political movement (CB 33).
3. On 29 June 2017, a delegate of the Minister refused to grant the applicant the visa (CB 40-59). The delegate found that there was no evidence to support his claim that he was politically involved in Malaysia. Furthermore, the delegate was satisfied the applicant was not of adverse interest to the Malaysian authorities as claimed. The delegate was therefore not satisfied the applicant was a person in respect of whom Australia has protection obligations as set out in ss 36(2)(a) and (aa) of the Act (CB 53).
4. On 1 July 2017, the applicant applied to the Tribunal for review of the delegate's decision (CB 60-65).
5. On 30 September 2019, the Tribunal invited the applicant to attend a hearing scheduled for 25 October 2019 (CB 70). On 25 October 2019, the applicant attended the scheduled hearing with the assistance of a Malay interpreter (CB 75-77). On the same day, the Tribunal made an oral decision affirming the delegate's decision not to grant the applicant a protection visa (CB 79-84).
6. On 2 March 2021, the applicant filed an application for judicial review in this Court pursuant to s 476 of the Act. Section 477 of the Act requires that an application for judicial review be filed within 35 days from the date of the Tribunal's decision. Accordingly, the applicant has filed his application for judicial review one year, three months and two days out of time. The applicant sought an order under s 477(2) that the time for making such an application be extended.
7. On 5 March 2021, the applicant requested the Tribunal provide a written statement of its decision and reasons. On 18 March 2021, the Tribunal provided the applicant with a copy of its written reasons for decision as outlined below (CB 87-92).

1. The Tribunal began by identifying the visa decision under review (at [1]).
2. The Tribunal then provided a summary of the applicant's substantive protection claims as follows (at [4]):
   • He left Malaysia because he disapproves of the government's economic management of the country.
   • He participated in anti-government 'yellow shirt' protests because the Malaysian economy worsened and because the pressures of living increased.
   • He fears that everyone who joined the 'yellow shirts' would be prosecuted.
   • He does not want to be imprisoned and he came to Australia to be free.
   • He fears he will be imprisoned if he returns to Malaysia.
   • He does not believe the authorities will be able to protect him and he cannot relocate.
3. The Tribunal noted that the applicant's claims were very brief and that, following questioning, the applicant conceded he was too young to get involved in politics in Malaysia and that he had travelled to Australia for economic reasons (at [4]-[7]).
4. When asked by the Tribunal as to why the claims in his visa application were inconsistent with the evidence he had provided at the hearing, the applicant explained that his English was not good and that a friend who had assisted him in filling out the form had written information other than what was requested by the applicant. The applicant further submitted that, despite being asked to take part in the 'yellow shirt' protests, he had refused and that he was not involved in politics, had never taken part in any protests, and had never been in trouble or arrested by the Malaysian authorities (at [7]-[8]).
5. The Tribunal asked the applicant what he thought would happen to him should he return to Malaysia now that a new government had been elected. The Tribunal noted the applicant said he was not sure because the current government was not stable. The Tribunal found that, having regard to the applicant's evidence, he did not at any time claim to fear serious or significant harm in Malaysia or that he will suffer any harm upon his return (at [9]-[12]).
6. The Tribunal then considered the applicant's concerns regarding the current Malaysian government's policies. The Tribunal recorded that the applicant, who claimed to be Muslim, claimed that government policies "may be weakening the Islamic religion in Malaysia". The Tribunal had regard to relevant country information and accepted that Islam was the majority religion in Malaysia and that there were laws in effect which regulated the propagation of non-Islamic religions (at [13]).
7. The Tribunal concluded that the applicant did not articulate the above concern as a claim. Following his concession that he travelled to Australia for economic reasons, the Tribunal found that there was not a real chance that the applicant would face serious harm if he returns to Malaysia now or in the foreseeable future (at [14]-[15]).
8. The Tribunal was therefore not satisfied that the applicant is a refugee in accordance with s 36(2)(a) or that he otherwise satisfies the complementary protection criterion in s 36(2)(aa) of the Act (at [16]).
9. The Tribunal affirmed the decision not to grant the applicant a protection visa (at [18]-[19]).

1. The application for judicial review filed by the applicant on 2 March 2021 contains five grounds of review as follows (reproduced verbatim):
   1. The Tribunal filed to consider many vital integer of my case
   2. The Tribunal deprived me of procedur fairness
   3. The Tribunal member failed relied on incorrect information and decided my case using facts form some other case;
   4. The Tribunal member failed to ask me questions abaout the types of harm relevant in my case.
   5. According in section 44 of the Administrative Appeal Tribunal Act 1975 there is a description and authorizing me to make such action appeal to Federal Circuit Court.
2. As outlined above, the applicant also seeks an extension of time in which to make his application for judicial review. Section 477(1) requires the applicant to file his application for judicial review in this Court within 35 days of the date of the Tribunal's decision. As the Tribunal's decision in this matter was made on 25 October 2019, any application was required to be made by 29 November 2019. The applicant did not file his application until 2 March 2021, which was therefore one year, three months and two days out of time.
3. Nevertheless, this Court may extend the time period within which an applicant may bring an application for judicial review if an application for an extension of time is made in writing specifying why the applicant considers that it is necessary, in the administration of justice, that the Court make an order extending time and the Court is so satisfied.
4. The applicant has made an application for an extension of time in writing, setting out his grounds as follows (reproduced verbatim):
   1. I did not have enough money for the court appeal process at the time.
   2. I also can not pay legal service for appeal to this court at that moment, so to make sure I in lawfull I get volunteered in union of workers to help me in this appeal process.
5. The applicant appeared before the Court on 24 February 2026 without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
6. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 2 March 2021 (the affidavit being taken as read and in evidence at the hearing on 24 February 2026), a Court Book numbering 92 pages (marked as Exhibit 1 at the hearing), and written submissions filed on behalf of the Minister on 2 February 2026.
7. The Court explained that it would listen to whatever the applicant had to say in respect of why he said he should be granted an extension of time, but that the following matters were usually considered to be relevant (see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579):

(a) the length of the delay;

(b) whether the explanation for the delay is adequate;

(c) whether the Minister would suffer any prejudice due to the delay; and

(d) whether the proposed substantive application for judicial review has merit.

1. The Court also explained to the applicant that it would consider whether the application for judicial review had merit at a "reasonably impressionistic level" (MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]). It was explained to the applicant that the Court would consider whether the applicant had identified an arguable case, even if that case had not been fully developed.
2. The Court took some time to explain that, in assessing the merits of the substantive application, the Court cannot undertake a merits review of the Tribunal's decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and can only consider whether or not the Tribunal's decision reveals jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

(a) where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 (Craig));

(b) where the decision-maker ignores relevant material (Craig at 178);

(c) where the decision-maker relies on irrelevant material (Craig at 178);

(d) where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24; (2005) 228 CLR 294 at 354-355) including compliance with notification requirements;

(e) where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]);

(f) where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

(g) where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445).

1. However, it was also explained to the applicant that this was not an exhaustive list, and he should attempt to explain to the Court why he thought the Tribunal had fallen into error.

1. The length of delay in this matter is one year, three months and two days. The Minister submitted that this length constituted a very significant delay.
2. The applicant was invited to provide reasons as to why it took over a year to file his application. The applicant told the Court that:

Because at that time, I was still living in uncertainty, in lack of money, and towards the end of 2019 was when Covid hit. It was a difficult life for me.

1. The Court notes that an extension of time is not granted as a right (Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at [2]), and is mindful of the observations of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [16] (Ex parte Marks) where His Honour found it was difficult to see how time could be extended to allow for a delay of 17 months, in that instance, unless some conduct of the respondent or the public body or official had brought about the delay. His Honour further stated:

The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

1. The Court agrees with the Minister's submission that the delay in this matter is significant and weighs against the grant of an extension of time.
2. The applicant's grounds in relation to his application for extension of time provide that he did not have enough money to apply for judicial review within the required timeframe and could not afford legal advice. In response, the Minister submitted that financial difficulties should not be accepted as a satisfactory explanation for the delay (see QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]) and further, lacking the necessary funds to institute proceedings within the prescribed time has been held to be an unsatisfactory reason for delay (see Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279). Counsel for the Minister submitted that it remained the applicant's responsibility to be aware of his review rights and the applicable timeframe within which to submit his application (see MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]; DWK17 v Minister for Home Affairs [2019] FCA 66 at [7]- [14]).
3. The Court acknowledges the challenges faced by self-represented litigants in navigating Court and Tribunal processes (particularly those for whom English is not their first language), and it accepts that this could perhaps explain a short period of delay before lodging an application with this Court. In that respect, the Court notes the following comments of Foster J in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]:

Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.

1. Similarly, in this matter, the Court does not accept that the difficulties the applicant has referred to provide an adequate explanation for such a significant delay. This weighs against the grant of an extension of time.

1. The Minister accepted that he will not suffer prejudice if the applicant were to be granted an extension of time.
2. The Court accepts that the absence of prejudice alone does not, in itself, justify the grant of an extension of time (see SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]). The Court acknowledges that there is still a significant public interest in the finality of judicial decisions (Ex parte Marks at 495-496).
3. Nevertheless, in these circumstances, the Court does not view this factor as weighing against the grant of an extension of time and should instead be regarded as neutral.

1. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to remain alert to the possibility of an arguable case of jurisdictional error on the part of the Tribunal which might support an extension being granted (MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158).
2. As outlined above, the applicant raised five proposed grounds of review in his application for judicial review. At the hearing, the applicant advised that he was having difficulty in finding a suitable visa, and that he found it difficult to find someone to help him with the visa application process due to the COVID-19 lockdown restrictions. When asked about whether there was anything else he wished the Court to consider in relation to what the Tribunal did wrong, the applicant ventured nothing further.

1. Ground one contends that the Tribunal failed to consider vital integers of the applicant's case in relation to his claims of economic and political harm upon his return to Malaysia. The applicant has not provided any details of what is said to have been overlooked by the Tribunal.
2. As submitted by the Minister, the Tribunal set out the applicant's claims which were contained in his application. The Tribunal also considered his evidence before the Tribunal that his reasons for coming to Australia were economic. The Tribunal further set out in some detail the applicant's evidence at the hearing and the matters which were put to him by the Tribunal.
3. Against that background, the Court accepts that the Tribunal had considered all of the claims raised by the applicant.
4. Furthermore, the Court accepts that the Tribunal decision demonstrates thorough engagement with the applicant's reasons for leaving Malaysia, notwithstanding the applicant's express concession that he did not fear harm in Malaysia.
5. No jurisdictional error arises in respect of ground one.

1. Ground two contends that the Tribunal failed to afford the applicant procedural fairness. However, the applicant has provided no clarification as to how he says he was denied procedural fairness.
2. The Court accepts that the Tribunal's decision reveals no procedural unfairness for the reasons advanced by the Minister. The Minister submitted that the Tribunal complied with its procedural fairness obligations in accordance with Division 4 of Part 7 of the Act. The Tribunal complied with s 425 of the Act by inviting the applicant to attend a hearing assisted by a Malaysian interpreter for the purpose of presenting arguments and providing supporting evidence. The applicant was also squarely on notice of the determinative issues on review from the delegate's decision.
3. No jurisdictional error arises with respect to ground two.

1. Ground three contends that the Tribunal relied upon incorrect information and decided the matter using facts from another case. The Court notes that the applicant has not identified any other case from which the Tribunal has relied upon other evidence.
2. As submitted by the Minister, the Tribunal's decision demonstrates it considered information provided by the applicant, inclusive of his protection claims and newly submitted oral evidence presented at hearing. The Court accepts there is no evidence to support the claim that the Tribunal considered erroneous information from another applicant's case. It remains clear that the Tribunal considered the claims which had solely been raised by the applicant.
3. Furthermore, the Court agrees with the Minister's submission that all of the matters which were ultimately considered by the Tribunal were relevant. Ultimately, the Tribunal made findings which were rationally open to it based on the evidence that came before the Tribunal.
4. No jurisdictional error arises with respect to ground three.

1. Ground four contends that the Tribunal failed to ask the applicant questions about the types of harm relevant to his case.
2. It is well established that it is the applicant's responsibility to advance his own case (see Abebe v The Commonwealth (1999) 197 CLR 510), and that it is not the role of the Tribunal to elicit information to better support the applicant's case (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]).
3. The Court is satisfied that the applicant was afforded ample opportunity to expound upon his claims in relation to the political and economic hardship he would face upon returning to Malaysia. Furthermore, the Tribunal had demonstrated thorough engagement with the applicant's newly submitted evidence relating to economic hardship and his concerns regarding the weakening of the Islamic religion in Malaysia.
4. No jurisdictional error arises with respect to ground four.

1. Ground five states that the applicant had authorisation to appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It appears that the applicant has misunderstood the source of the Court's jurisdiction which is s 476 of the Migration Act. There is no dispute that this Court has jurisdiction to hear this application, nor is there any suggestion that the application is invalid in any way. In any event, this ground does not in its terms assert jurisdictional error.
2. The Court also asked counsel for the Minister, whose client is subject to a direction to behave as a model litigant, whether there were any matters which her client wished to draw to the Court's attention. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.
3. The Court is satisfied that, even adopting the broad approach referred to at [39] of these reasons, the proposed substantive application does not possess sufficient merit or prospects of success to warrant such a lengthy extension of time being granted.

1. The Court therefore finds that it is not in the interests of the administration of justice to grant the applicant an extension of time in this matter.
2. Accordingly, the application for an extension of time is dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.