AUN21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1889

1. The applicant seeks an extension of time (pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act)) within which to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the first respondent (the Minister) to refuse to grant the applicant a protection visa (the visa). As will be explained, before the Court can consider the substantive application for judicial review, the applicant must satisfy the Court that 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 who first arrived in Australia on 24 May 2015 as the holder of a Subclass 601 (Electronic Travel Authority) visa (Court Book (CB) 10-11, 51).
2. On 16 July 2015, the applicant applied for the protection visa (CB 9-38).
3. On 8 February 2016, the applicant was notified that a delegate of the Minister had refused to grant him the visa (CB 48-60).
4. On 18 February 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 61-62).
5. On 6 September 2016, the applicant was invited to attend a Tribunal hearing scheduled for 4 October 2016 (CB 69-70).
6. On 4 October 2016, the applicant attended that hearing with the assistance of a Malay interpreter (CB 71-73).
7. On 29 June 2017, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa (CB 76-86).
8. On 29 March 2021, the applicant filed an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Act.
9. Section 477 of the Act requires an application for judicial review to be filed within 35 days from the date of the Tribunal decision. Accordingly, the application for judicial review was filed more than three and a half years out of time, and the applicant seeks an order under s 477(2) that the time for making such an application be extended.

1. The Tribunal began by identifying the visa under review and outlining the relevant criteria for the grant of a protection visa (at [1]-[8]).
2. The Tribunal outlined the applicant's claims in his protection visa application. Those claims were that he attended the Bersih 2.0 rally which had been deemed illegal by the Malaysian government and he was jailed for a week. He said that supporters of the Malaysian government would kill him because they are looking for a "political assassin". Due to his involvement in this cause, his home had been "listed" and police do not bother about his safety. If he returns to Malaysia, he fears he will face unemployment, blackmail, mental torture and death (at [10]).
3. The Tribunal set out the oral evidence which the applicant gave at the hearing (at [13]-[20]). The Tribunal noted that it asked the applicant to describe what had happened at Bersih 2.0, whether he had taken part in subsequent rallies, why he had come to Australia, and what he feared would happen if he returned to Malaysia (at [13]-[18]). The Tribunal also put to the applicant country information which indicated that he would face little or no risk of harm on the basis of his political involvement and involvement in past rallies, however the applicant declined to discuss or respond to that inference (at [19]-[20]).
4. The Tribunal found the applicant's evidence about his political activity to be vague and undetailed. The Tribunal therefore reached a "positive state of disbelief" with respect to the applicant's claims and made the following findings in that regard (at [21]):
   • The Tribunal did not accept the applicant's explanation that he was with a friend who was rioting and the police thought he was rioting as well.
   • The Tribunal did not accept the applicant's explanation for not raising further claims earlier in the hearing. The Tribunal found that the applicant's evidence changed through the course of the hearing after parts of his protection visa application had been read to him.
   • The Tribunal did not accept that the applicant supported the Pan-Malaysian Islamic Party. It found that he did not hold political opinions one way or another.
   • The Tribunal did not accept that the applicant was too afraid to attend other Bersih rallies.
   • The Tribunal did not accept that the applicant would suffer mental torture, joblessness, blackmail or killing if he returned to Malaysia.
   • The Tribunal did not accept that the applicant would seek to attend rallies or otherwise express a political opinion if he returned to Malaysia.
   • The Tribunal did not accept that the applicant was of interest to the authorities, or that he would be on his return to Malaysia.
   • The Tribunal did not accept that the applicant faced any real chance of harm in the future on the basis of his political opinion, his claims to have attended political rallies, his claim to have been jailed for a week, or for any other claimed reason.
   • The Tribunal did not accept that the applicant had relocated or tried to relocate at any stage.
   • The Tribunal did not accept that the applicant would face imprisonment or other harm for his past activities on return to Malaysia, or that he has any motivation or desire to protest politically in the future.
5. The Tribunal found that the applicant did not have a well-founded fear of serious harm amounting to persecution for any reason on return to Malaysia, now or in the reasonably foreseeable future (at [22]).
6. Noting that the Tribunal did not accept any of the applicant's claims, other than that he may have tried to set up one or more businesses which failed but was otherwise able to support himself in Malaysia, it further found there were not substantial grounds for believing that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Malaysia (at [24]).
7. The Tribunal was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act (at [25]-[27]).
8. Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant the visa (at [28]).

1. The application for judicial review filed by the applicant on 29 March 2021 contains the following two grounds of review (without alteration):

Having concluded that me does not meet the refugee criterion in s 36(2)(a)

As a Liberal Muslim I dont accept in my community that think this is no right

1. As outlined above, the applicant also seeks an extension of time. The applicant was required by s 477(1) of the Act 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 29 June 2017, any application was required to have been made by 3 August 2017. The applicant did not file his application until 29 March 2021 and he was therefore 3 years, 7 months and 26 days out of time.
2. 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 interests of the administration of justice, that the Court make an order extending time and the Court is so satisfied.
3. The applicant has made an application for an extension of time in writing, setting out his grounds in almost identical terms to the substantive grounds of his application (see [21] of these reasons).
4. The applicant appeared before the Court on 3 September 2025 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.
5. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 29 March 2021 (the affidavit being taken as read and in evidence at the hearing on 3 September 2025), a Court Book numbering 92 pages (marked as Exhibit 1 at the hearing), and written submissions filed on behalf of the Minister on 3 July 2024.
6. The Court explained to the applicant that there are a number of factors it should have regard to in considering his application for an extension of time, the most important of which being the length and reason for the delay in applying to this Court. The Court also explained that it will need to consider whether the applicant's substantive application for judicial review has any merit.
7. 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 (Wu Shan Liang)) 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 [2012] HCA 61; (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.
2. Against this background, the applicant told the Court that there was a two-month delay in him receiving email notification of the Tribunal's decision and that he did not know what the next course of action would be. He told the Court that he had tried to get information about potential next steps and that he "did ask around but...just didn't get anywhere".
3. When asked about whether there was an error in the Tribunal's decision (and consequently an arguable case of jurisdictional error on the part of the Tribunal), the applicant said he told the Tribunal that he would not feel safe if he were to return to Malaysia "because there possibly may be someone that doesn't like [him]" and he should therefore be permitted to stay in Australia. The applicant was reminded that the Court does not have the power to consider the merits of his protection claims and that he should try to explain what he says was wrong with the Tribunal's decision and/or procedure. The applicant replied that he told the Tribunal why he couldn't go home and the Tribunal didn't accept what he told them.

1. As adverted to above, the principles relevant to the Court's discretion to grant an extension of time are well established and include (as per Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (Hunter Valley); 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 length of the delay in this matter is 3 years, 7 months and 26 days. The Minister submitted this was a significant delay and may even be described as "extreme", alluding to the language of Thomas J under similar circumstances in CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610. In that matter, his Honour said (at [53]-[55]):

As was said in Katoa, the imposition of a time limit represents the legislature's judgement that the welfare of society is best served by judicial review applications being instituted within a particular period of time, and the focus of the section is not on the interests of the applicant but on the broader interests of the administration of justice. This cannot be ignored.

A longer delay will, in my view, require further and compelling explanation as to the explanation for the delay and steps taken. It has been said that, in general, the longer the delay, the more persuasive the explanation needs to be: Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195 (per Lockhart, Sheppard and Burchett JJ); Tran at [38].

Here, the applicant's delay was some three and a half years, which has correctly been described as extreme. Such an extreme delay verges on ignoring the time limit. This factor weighs heavily against the grant of an extension of time. Of course, this is but one factor which must be taken into account.

1. The applicant did not provide a written explanation for the delay in his application to this Court, and he has not filed any further affidavit or written submissions in these proceedings. In oral submissions, the applicant stated that he did not receive (or read) the email notification from the Tribunal until two months after the date of its decision. The Court explained to the applicant that, even if it accepted that as a reason for the delay, that would only explain a very small portion of the time and that another three years remained unaccounted for. The applicant's further explanation was that he had made enquiries about what to do next but "just didn't get anywhere".
2. Counsel for the Minister submitted that the applicant's aforementioned explanations were not adequate reasons for such a lengthy delay. Further, the Minister submitted that, absent any further evidence, a self-represented litigant's mere ignorance of the time limit for filing an application is not a satisfactory explanation for the delay (citing SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]- [9]). The Minister noted that the applicant had been provided with an information sheet accompanying the Tribunal's written decision, which stated that the applicant could apply to this Court for judicial review. That letter relevantly provided (CB 88):

If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why.

1. 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; (2012) 135 ALD 17 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. Even if the Court accepts that there was a two-month delay before the applicant became aware of the Tribunal's decision, the Court does not accept that the applicant required a further three and a half years to make enquiries about his next available steps in circumstances where the Tribunal's decision was accompanied by an information sheet which included directions on how to apply to this Court under the sub-heading 'What happens next?'. Unfortunately, the applicant failed to take the necessary steps and there is no evidence before the Court to suggest that he sought assistance from the Court, or anybody else, about how to file an application for review or otherwise challenge the Tribunal's decision.
2. In the above circumstances, and having regard to the absence of any adequate explanation for such a lengthy delay, the Court considers this weighs against the grant of an extension of time.

1. The Minister accepted that he would not be prejudiced if the applicant were to be granted an extension of time.
2. The Court accepts that the absence of prejudice does not, in itself, justify the grant of an extension of time (see Hunter Valley at 349). The Court acknowledges there is still a significant public interest in the finality of judicial decisions (Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 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.

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. The Minister submitted there is no merit in the applicant's underlying substantive application as neither of the proposed grounds disclose a recognisable ground of judicial review, even at a reasonably impressionistic level.

1. By ground one, the applicant appears to challenge the Tribunal's finding that he does not meet the refugee criterion in s 36(2)(a) of the Act.
2. Section 36(2)(a) provides that a relevant criterion for the grant of protection visa is that the applicant is "a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee". A refugee is relevantly defined in s 5H(1)(a) of the Act as a person "outside of the country of their nationality and, owing to a well-founded fear of persecution, is unable to unwilling to avail themselves of the protection of that country". Section 5J defines a 'well-founded fear of persecution' as fearing persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that there is a real chance they would be persecuted for one or more of those reasons if they returned to that country.
3. In oral submissions, the applicant added that he told the Tribunal why he could not return to Malaysia but the Tribunal did not accept what he told them. To the extent that the applicant expresses mere disagreement with the Tribunal's findings, the Court accepts the Minister's submission that this represents an impermissible invitation to engage in merits review, which the Court explained to the applicant it cannot do (Wu Shan Liang at 272).
4. The Minister submitted that the Tribunal made a detailed assessment of the applicant's protection claims and evidence, and properly considered that in the context of relevant country information. That assessment is outlined at [21] of the Tribunal's reasons (and summarised at [16] of this decision).
5. The Minister submitted that the Tribunal made clear and cogent findings that have an evident and intelligible basis. The applicant was invited to and attended a hearing before the Tribunal where he had the opportunity to give oral evidence and present arguments. It is clear from the Tribunal's decision that the Tribunal put its concerns to the applicant for comment. The Tribunal is entitled to accept or reject or give such weight to the applicant's evidence as it thinks appropriate in all the circumstances (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
6. To the extent that the applicant objects to the Tribunal's reliance on country information, the weight given to such country information is a matter for the Tribunal as part of its fact-finding function. Similarly, the question of the accuracy of any country information is a matter for the Tribunal, not for this Court (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2010] FCAFC 10 at [11]; SZUEP v Minister for Immigration and Border Protection (2017) 160 ALD 35 at [27]).
7. The Court accepts that the Tribunal properly considered the applicant's claims and evidence, and made clear and cogent findings that were open on the material that it had before it.
8. Accordingly, there is no merit in proposed ground one.

1. By ground two, the applicant appears to do no more than again express disagreement with the Tribunal's factual findings and conclusion.
2. As previously noted, the Court explained to the applicant that it cannot engage in merits review of the Tribunal's decision (Wu Shan Liang).
3. This ground does not otherwise appear to raise any recognisable ground of jurisdictional error.
4. Accordingly, there is no merit in proposed ground two.
5. Counsel for the Minister, whose client is subject to a direction to behave as a model litigant, expressed the view that the Tribunal's decision is otherwise without error and does not give rise to any matters that should be drawn to the Court's attention. It is also not evident to the Court that any other potential arguable error arises in respect of the Tribunal decision.
6. The Court is satisfied that, even adopting the broad approach referred to at [42] of these reasons, the proposed substantive application does not enjoy 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 fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.