CGC21 v Minister for Immigration and Citizenship [2026] FedCFamC2G 600

1. The applicant seeks an extension of time in which to review two decisions of the Administrative Appeals Tribunal (Tribunal): one a substantive decision with respect to his Protection (Class XA) (Subclass 866) visa (Visa) application and the second a decision that the Tribunal had no jurisdiction to entertain a further review of the same delegate's decision. In order to obtain the extension of time, the applicant must satisfy the Court that it is necessary in the interests of the administration of justice for time to be extended: s 477(2)(b) of the Migration Act 1958 (Cth) (Act).
2. For the reasons set out below, the applicant has not done so and the application for an extension of time must be dismissed.
3. References in these reasons to CB pages are references to the court book that was tendered at hearing by the first respondent (Minister) and admitted in evidence as exhibit R1.

1. The applicant is a citizen of Malaysia who first arrived in Australia on 21 January 2016 holding a visitor visa (CB 12, 19). On 17 November 2016 the applicant applied for the Visa (CB 1-38, 48). The applicant claimed that members of a criminal gang, of which he had allegedly been a member and had previously tried to leave, were pressuring him to rejoin, including through threats of, and incidents of, harm (CB 30-32).
2. On 8 March 2017 a delegate of the Minister refused to grant the applicant the Visa (CB 48-67). The delegate found that the applicant's claimed fear of harm did not relate to any of the reasons in s 5J(1)(a) of the Act (CB 53) and that, as he could obtain protection from the authorities of Malaysia, there was not a real risk that he would suffer significant harm (CB 61). He therefore did not meet the criterion in either ss 36(2)(a) or (aa) of the Act.
3. On 13 March 2017 the applicant applied to the Tribunal for review of the delegate's decision (first review application) (CB 68-69).
4. On 24 August 2020 the applicant was invited to attend a hearing by telephone of the first review application on 24 September 2020 (CB 76-79). The applicant attended that hearing to give evidence and present arguments with the assistance of an interpreter in the Malay language (CB 89-91).
5. By a decision dated 30 September 2020 (Decision), the Tribunal affirmed the delegate's decision (CB 94-110). The applicant was notified of the Decision by email sent to his nominated email address on 1 October 2020 (CB 92-93). The notification included a fact sheet titled "Information about decisions" (CB 93, 124-126) which set out that the Decision could be reviewed by applying to the Federal Circuit Court of Australia (as this Court then was) within 35 days (CB 125).
6. On 22 October 2020 the applicant applied to the Tribunal a second time for review of the same delegate's decision (second review application) (CB 111-112).
7. On 3 November 2020 the Tribunal invited the applicant to comment on the validity of the second review application (CB 116-118). The applicant did not respond (CB 123, [4]).
8. On 18 January 2021 the Tribunal found it did not have jurisdiction with respect to the second review application (NJ Decision) (CB 122-123). The applicant was notified of the NJ Decision by email to his nominated email address on 19 January 2021, which also attached the same "Information about decisions" fact sheet (CB 120-126).
9. On 8 February 2021 the applicant applied to the Tribunal a third time (third review application) (CB 127-134), although the third review application also referenced re-activation of the applicant's associated bridging visa WC 030 which was due to lapse on 16 February 2021 (CB 128, 131, 133). Treating the third review application as relating to the Visa application, the same day the Tribunal wrote to the applicant informing him that it could not consider the application further as he had previously made two applications for review of the delegate's decision (CB 135).

1. The Decision made 30 September 2020 sets out the background to the application for review and the criteria for the Visa (CB 95-96, [1]-[17]).
2. The Tribunal summarised the applicant's claims for protection at the hearing (CB 96-99, [18]-[40] and CB 105, [63]). That included evidence that the applicant joined the gang due to influence from his friends (CB 97, [22]), that the applicant's role in the gang was being responsible for a designated area involving prostitution and illegal gambling houses (CB 97, [25]), that he was paid on an irregular basis by a Chinese person in the amount of RM200 (CB 97, [27]), followed by evidence that the gang started to harass him when he told them he wanted to quit after two years, that the applicant had no faith in the police, that the gang was very big in Malaysia and that he left for Japan for three years before returning to Malaysia and then deciding to come to Australia after the harassment recommenced (CB 98, [30]-[36]).
3. The Tribunal set out country information with respect to Malaysian police (CB 99-103, [41]‑[56]) and Malaysian criminal gangs (CB 104, [57]). The Tribunal summarised the relevant principles in assessing credibility in Visa applications (CB 104-105, [58]-[62]). It then set out its concerns with respect to the credibility of the applicant's various claims: in particular, the Tribunal noted the applicant provided very little information about his activities and found the applicant's description of leaving for Japan and then choosing to return to Malaysia undermined the credibility of his claims given he was unhindered in his departure to Japan or Australia (CB 105-106, [64]-[66]). The Tribunal was unconvinced of the applicant's evidence in part due to his failure to approach Malaysian police for protection and overall found his claims to have been provided for the purpose of embellishing the claim for protection, such that the claimed involvement with a criminal gang was neither real nor credible (CB 105‑106, [64]‑ [65]).
4. Overall, the Tribunal did not accept the applicant's claims, found that state protection of the type addressed by s 5LA(2)(c) of the Act was available, and was not satisfied the applicant was a person in respect of whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Act (CB 106-107, [66]-[69]).
5. There appear to be several factual errors in the Decision, namely:

(a) on the Decision cover page, the applicant's name is incorrect, as are the departmental file numbers (correctly referenced at CB 39, 68);

(b) at [5] the Tribunal refers to the applicant being assisted by an interpreter in the Thai (rather than Malay) language;

(c) at [17] the Tribunal includes wrong dates for the applicant's arrival in Australia and Visa application (the correct date for the Visa application was included earlier in the Decision at [2]); and

(d) at [67] the Tribunal referred to the applicant's possible return to Thailand rather than Malaysia.

1. With respect to the NJ Decision dated 18 January 2021, the Tribunal (differently constituted) found that the applicant had previously made the first review application in relation to the delegate's decision and that the Tribunal had made a decision about that application (CB 123, [3]). The Tribunal therefore found it did not have jurisdiction to hear the second review application as it had already made a valid decision in response to the first review application and could not review a delegate's decision twice (CB 123, [3], [5]).

1. On 15 July 2021 the applicant filed an application in this Court for review of the NJ Decision (Application). As part of that Application the applicant sought an extension of time. The affidavit filed in support of that Application did not address the extension of time but annexed a copy of the NJ Decision and the notification of decision letter.
2. The Minister filed a response on 29 July 2021 opposing the making of the orders sought in the Application.
3. The matter was listed for a callover before a Registrar of this Court on 14 November 2025. Both parties appeared by telephone (the Minister by a solicitor, the applicant with the assistance of an interpreter in the Malay language). Procedural orders were made including for the applicant to file and serve an amended application, written submissions and any additional evidence on which he sought to rely by 16 January 2026, and for the Minister to file and serve written submissions and any additional evidence by 30 January 2026. The notations to the orders include that the Registrar explained to the applicant the Court's function on judicial review and summarised the concept of jurisdictional error to the applicant.
4. On 15 January 2026 the applicant filed an amended application (Amended Application) which seeks review of the Decision and states that an extension of time was not sought. The applicant did not file written submissions in support of the Amended Application.
5. On 30 January 2026 the Minister filed an outline of submissions.
6. The parties were notified by email on 3 March 2026 of the listing for hearing of the extension of time application on 1 April 2026 at 10:00 am in person at the Melbourne registry.
7. On 25 March 2026 my Associate emailed the parties reminding them of the upcoming hearing and reiterating the time, date, mode and place for the hearing.

1. The applicant appeared before the Court unrepresented with the assistance of an interpreter in the Malay language. The Minister appeared by a solicitor.
2. At the commencement of the hearing, I explained that the Court's role was limited to undertaking judicial review, not merits review, and that I was unable to grant the applicant a Visa nor consider the merits of his Visa application. I set out the issues the Court would consider in relation to the extension of time application consistent with [32] below. I also explained the procedure by which the hearing would be undertaken.
3. I asked the applicant if he still pressed for review of both the NJ Decision and the Decision: he confirmed that he sought review of both decisions.
4. The Minister relied on his written submissions and the court book previously filed and tendered (without objection) as exhibit R1.
5. Both parties made oral submissions at the hearing, which are addressed in my consideration below.

LAW RELATING TO AN APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act relevantly provides:

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit 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.

1. In considering whether to grant an extension of time, there are no mandatory relevant considerations. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, Wigney J held that the following matters were relevant to whether an extension of time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. A majority of the High Court held in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu'uta Katoa) at [12]:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

1. At [17] and [19] of Tu'uta Katoa, the majority explained that "in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a 'reasonably impressionistic level'" but that ultimately the provision "entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application".
2. To the above, I would add that the greater the delay, the more persuasive or "exceptional" the explanation for the delay has to be: Tu'uta Katoa at [18]; Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; [2015] HCA 42 at [3]. As to the content of those explanations, some points can be made.
3. Ignorance of the necessary time limits or method and pathway for seeking review does not justify delay as it remains an applicant's responsibility to ascertain their review rights and applicable time limits: QAAH v Minister for Immigration &Multicultural & Indigenous Affairs [2004] FCAFC 9; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108; NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. It is generally relevant for the Court to understand what information was in fact made available to an applicant, and what steps, if any, the applicant took to remedy any gap in their understanding.
4. To the extent that an applicant claims that they did not have or were unable to obtain or afford legal assistance, that will not, of itself, provide an adequate explanation for delay, noting there is no right to legal representation in migration proceedings: Englezos v Secretary, Department of Social Services [2023] FCA 31 at [38]; ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37].
5. Likewise, impecuniosity alone is an inadequate explanation for delay, in the absence of any evidence that an applicant took any steps in relation to raising the amount of a filing fee or seeking waiver of that fee: SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [16]; DWK17 v Minister for Home Affairs [2019] FCA 66 at [12].
6. In considering the merits of the proposed grounds of review it is, as stated by Mortimer J (as her Honour then was) in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] in the context of a different discretionary procedural power, "not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case ...". However, the appropriate standard of assessment should also be borne in mind: as stated by Given J in CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 376 FLR 336; [2023] FedCFamC2G 309 at [52]:

When examining the relative merits of a proposed substantive application at an impressionistic level the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, is a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia and Others [2013] FCA 1284; (2013) 236 FCR 442 at [47] and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349 per Wilcox J.

1. The Application was filed on 15 July 2021, some 20 weeks outside of the specified 35 day timeframe provided under s 477 of the Act with respect to the NJ Decision and over 8 months with respect to the Decision. The extent of the delay is, as the Minister submits, significant.
2. An explanation for the delay can be found in the Application:
   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.
3. As submitted in the Minister's written submissions and as summarised at [37] to [38] above, impecuniosity and an inability to obtain or afford legal advice are not generally considered a reasonable explanation for a delay, particularly of the length in this case. The lack of evidence to support that ground, including to explain any steps the applicant took at an earlier date to apply for pro bono assistance or fee relief from the Court, provides no assistance to the applicant in establishing a reasonable explanation for the delay.
4. At the hearing the applicant submitted that he had no legal assistance before the Tribunal, only the assistance of a friend. He explained that he did not have correct knowledge of the law and believed what his friend told him, and so reapplied to the Tribunal for review despite it having already given the Decision. He submitted that when the Tribunal refused his second application for no jurisdiction (the NJ Decision) he realised what he did wrong and "straight away" realised the correct thing was to apply directly to the Court; he then applied to the Court "without delay". He submitted the mistake was not on purpose but was caused by his limited knowledge of the law and reliance on "unreliable guidance", which he tried to fix as soon as he understood the correct procedure.
5. The Minister submitted in response, in addition to the matters in the written submissions, that the applicant's delay in filing his Application was significant, noting it was not filed until 14 July 2021, when the Decision was made in September 2020 and the NJ Decision in January 2021. The Minister submitted that the delay remains significant despite the applicant's explanation that he applied as soon as he found out he made a mistake. It was, the Minister submitted, the applicant's responsibility to obtain information regarding his review rights and to seek legal representation if it was necessary. Lack of legal representation or language barrier issues are not explanations for the delay.
6. I consider the applicant's delay is significant and I do not consider it is adequately explained. Even assuming, in the applicant's favour, that both the second and third review applications were erroneously filed in an attempt to seek review of the Decision based on his misunderstanding of the process or unreliable guidance, there remains no acceptable explanation for the delay from 8 February 2021 - when the third review application was rejected - until 15 July 2021 when the Application was filed, a period of over 5 months. The applicant was notified of his review rights in the fact sheet that accompanied the notification of the Decision (see [8] above) but did not take the appropriate steps to seek judicial review until some 8 months later. This factor weighs against the grant of an extension of time.

1. The Minister properly conceded that no substantive prejudice would flow to them due to the applicant's delay, but noted that the mere absence of prejudice to the Minister (or third parties) alone is not a basis to grant an extension. Prejudice to the applicant if the extension of time is not granted would follow in that his Application and Amended Application will not be heard on their merits. However, I will have regard, at least at an impressionistic level, to those merits in assessing whether to grant the extension.
2. This factor is essentially neutral in my consideration.

Merits of the underlying judicial review application

1. The judicial review grounds in the Application are as follows:
   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 RELEVENT 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. The grounds of the Amended Application are as follows:
   1. The Tribunal failed to consider the applicant's claims in the alternative, in that it rejected the claims solely on adverse credibility findings without assessing whether, even if the claims were accepted at their highest, the applicant faced a real chance of persecution or a real risk of significant harm upon return to Malaysia.
   2. The Tribunal adopted an illogical and legally unreasonable approach to credibility, by concluding that a lack of detail necessarily rendered the applicant's entire account false, contrary to established authority requiring consideration of whether the claims may be true despite doubts as to credibility.
   3. The Tribunal engaged in irrational reasoning by treating the applicant's return to Malaysia and ability to depart the country as decisive evidence that no fear of harm existed, without considering alternative explanations or the applicant's personal circumstances.
   4. The Tribunal failed to undertake a separate and independent assessment of complementary protection under s 36(2)(aa), instead dismissing that claim by merely repeating the reasoning applied to the refugee criterion, without applying the distinct legal test of "real risk of significant harm".
   5. The Tribunal made speculative and unsupported findings, including that the applicant had embellished his claims solely for the purpose of securing protection, without any evidentiary foundation for such a conclusion.
3. While the applicant (and Minister) only addressed the grounds in the Amended Application, and with respect to the Decision, at the hearing, I have nonetheless addressed all ten grounds by reference to the Decision, as well as addressing the NJ Decision, in my consideration below, noting the applicant indicated towards the beginning of the hearing that he still sought review of both decisions.

1. By these grounds the applicant alleged the Tribunal did not consider integers of his claim or failed to ask him questions about the harm relevant to his claims. While the Decision somewhat unusually sets out the applicant's evidence at the hearing in a question and answer format (CB 97-98, [21]-[39]), it is clear from a review of the Tribunal's consideration that all the claims made to the Department or in the Tribunal hearing, as recorded in the decision record, were considered by the Tribunal (CB 105-107, [63]-[69]), they simply were not accepted.
2. Contrary to ground four, the Tribunal records asking the applicant questions relevant to his claimed fear of harm arising from his former gang membership, including:

(a) about any issues with the police (CB 97, [28]);

(b) why he decided to leave the gang (CB 98, [31]);

(c) after hearing evidence about when the gang started to harass him and how it developed over time, about where the gang would threaten him (CB 98, [32]);

(d) why the applicant was afraid to return to Malaysia (CB 98, [39]); and

(e) if there was anything further he wished to add, to which the applicant apparently said he had nothing further to add (CB 99, [40]).

1. Neither of these grounds, if still pressed, have reasonable prospects of success.

1. There is nothing in the court book or raised by the applicant at the hearing that would suggest he was not afforded procedural fairness with respect to the Decision. He was properly invited to a hearing, which he attended with the assistance of an interpreter. All of the information relied upon by the Tribunal fell within one or more of the exemptions in s 424A(3) of the Act (as then in force) and so did not need to be put to him for comment. The applicant would have been aware from the delegate's decision that his claims were considered "vague and lacking in detail" (CB 52) and that the availability of protection from Malaysia authorities was in issue (CB 61). It is clear from the Decision that at least some of the Tribunal's credibility concerns, and the availability of state protection, were put to the applicant at the hearing and that he was asked on several occasions for further details of his claims, with little apparently provided in response (CB 98, [34], [37] and CB 105, [64]). He was sufficiently on notice of the issues arising in relation to the decision under review.
2. This ground, if still pressed, does not have reasonable prospects of success.

1. By this ground the applicant complains that the Tribunal relied on incorrect information or information from another case. While the applicant did not make any submission on this ground, given the factual errors identified at [17] above and particularly the use of another applicant's name on the Decision cover page, I expressly raised those errors with the Minister and sought their position on this ground in light of those apparent errors.
2. The Minister submitted that those errors, while unfortunate, should be seen as typographical in nature. The Decision record includes the correct Tribunal file number, and the claims and relevant background (aside from the error above at [17(c)]) all relate only to the applicant and are consistent with his claims made to the Department. The country information considered all related to Malaysia, not Thailand, and the Tribunal clearly understood and addressed the applicant's claims as made. The Minister submitted that there was no evidence to suggest that the Tribunal did not engage with the applicant's claims or that the Tribunal in fact obtained information from another case.
3. The applicant was given the opportunity to reply to the Minister's oral submission, including with respect to this matter, but confirmed he had nothing further to add to his submissions about the Decision (which are addressed by reference to the Amended Application below).
4. The errors in the Decision, especially in the applicant's identity on the cover page, are certainly unfortunate. However, other than the bare assertion in ground three of the Application, it does not appear to be in dispute that the Decision is substantively about the applicant and his claims. Nor can I identify that the errors led to the Tribunal asking itself the wrong question or misunderstanding the applicant's claims and evidence. These may be errors but they are factual, not jurisdictional, and not material errors that affect the lawfulness of the Decision: AWU15 v Minister for Immigration and Border Protection [2019] FCCA 496 at [37]-[40] and Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 at [30].
5. This ground, if still pressed, does not have reasonable prospects of success.

1. This ground does not assert error (jurisdictional or otherwise) but simply refers to the (wrong) provision authorising review of the Decision. It does not have any prospect of success.

1. These grounds can usefully be considered together as both assert, in different ways, that the Tribunal erred by not also assessing the applicant's claims on the basis that they might be true, rather than dismissing them due to the overarching credibility concerns. The illogicality part of ground two is assessed with ground three below.
2. In oral submissions the applicant pointed to the statement of the law with respect to credibility at [61] of the Tribunal's reasons, which is in the following terms:

The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

1. The applicant complained that despite that statement of the law, the Tribunal did not assess his claims on the basis that they might be true and so erred.
2. The Minister's written submissions assert that these grounds (and the remainder of the Amended Application) rise no higher than emphatic disagreement with the Tribunal's decision and invite impermissible merits review by the Court. The Minister submitted that the Tribunal's assessment of the applicant's credibility was based on the evidence before it, that it was for the applicant to advance all his claims (under s 5AAA of the Act) and the Tribunal was not required to accept those claims uncritically.
3. In my opinion the applicant's complaint, and these grounds, overlook that the "what if I am wrong" analysis is only required to be undertaken where the Tribunal cannot be confident in its dismissal of the applicant's credibility. It is worth setting out [67] of Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (per Sackville J, North J concurring) in full:

In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

1. Read fairly, the Decision shows no uncertainty or lack of confidence by the Tribunal in its conclusion that the applicant's claims were simply not credible. It was not therefore required to embark upon a "what if I am wrong" analysis and assess the applicant's claims as though they were true.
2. A more fundamental issue faces these grounds. While the Tribunal did not expressly assess the applicant's claims as though they were true, the Tribunal made the following findings (CB 106, [66]):

... having regard to the information provided by the Department of Foreign Affairs & Trade, the Tribunal finds that protection is in existence and available (if needed) and is provided by the authorities in Malaysia and consists of an appropriate criminal law and legal system, a reasonably effective police force and impartial judicial system as is required by s.5LA (2) (c) of the Act. The Tribunal considers on the evidence before it that this protection is durable and effective and that the applicant could access it, if he needed it. The Tribunal therefore considers and finds that effective protection measures as defined in s. 5LA of the Act are available to the applicant in Malaysia and that he may access those if and when he returns to Malaysia in the reasonably foreseeable future. [italics in original]

1. That is, the Tribunal assessed whether state protection would be available to the applicant if his claims were true and found that it would. By finding that the authorities in Malaysia provided a level of protection that meets the requirements under s 5LA(2)(c) of the Act, the Tribunal necessarily found that the applicant's claimed fear of persecution, even if true, was not well-founded by reason of s 5J(2) of the Act.
2. These grounds do not have reasonable prospects of success.

1. Ground two asserts (in part) that the Tribunal adopted an illogical and legally unreasonable approach to credibility by concluding that a lack of detail necessarily rendered the applicant's entire account false. Ground three asserts the Tribunal's reasoning was irrational where it assessed the applicant's return to Malaysia from Japan, and his ability to depart the country (to Japan and Australia), as "decisive evidence" that no fear of harm existed without considering alternative explanations.
2. In oral submissions relevant to ground two, the applicant argued that the Tribunal's assessment of his credibility at [64] and [65] of the Decision (CB 105-106) was based only on the lack of elaboration of the details of his claims, and that to conclude on that basis that the whole of his claims were not credible was unreasonable particularly as he was not represented by a lawyer before the Tribunal.
3. On ground three, the applicant took me to [64] of the Decision (CB 105-106), which relevantly includes the following reasoning (with the two propositions raised in ground three bolded for ease of reference):

... Also, the credibility of the applicant's claims is further dealt a blow by his own evidence - telling the Tribunal that he after a period of time in Japan returned to Malaysia only to then leave because of the problems with the gang continuing this time - for Australia. Why would a person return to the place where he claimed he run the risk of persecution and harm if he was to again encounter it? Moreover, the Tribunal was told that this gang was influential throughout Malaysia and yet the applicant was able to leave Malaysia for Japan and again for Australia in 2016 without being hindered in his departure. When the applicant was asked by the Tribunal to explain this, the applicant offered no reason (see para. 37 supra) Again, the applicant's actual actions add to the credibility issues surrounding his claims of harassment, and fear of actual harm.

1. The applicant submitted the Tribunal's reasoning was not reasonable because it did not consider his alternative explanation of his situation at that time. When I asked the applicant if he explained his situation or alternative explanation to the Tribunal, he said that he did. When asked what that alternative explanation was, the applicant reiterated that he explained about his circumstances at the time.
2. The Minister's written submissions note that an unreasonable or illogical finding is a high bar and requires more than emphatic disagreement with the Tribunal's Decision. With respect to ground three, it was said to be open to the Tribunal to find that the applicant's ability to depart Malaysia freely for Japan and then Australia reduced his chance of fearing harm. The Minister did not address the first of the two propositions raised in ground three in written or oral submissions, but reiterated that this ground was effectively impermissible merits review.
3. In oral submissions, the Minister submitted the Decision shows the Tribunal engaged with the applicant's claims and evidence in detail, engaging in an active intellectual process in assessing those claims and evidence in order to make findings as to their credibility.
4. As the Minister submits, the bar to establish an error of this type is high. A finding of fact will generally only be considered irrational, unreasonable or illogical where no rational, reasonable or logical decision maker could arrive at that finding on the same evidence. Mere disagreement with a finding made by a decision maker will not be sufficient to disclose jurisdictional error, instead the authorities make clear that what is required is extreme irrationality or illogicality: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131] and [135]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]. If the conclusion is one on which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].
5. I do not consider the Tribunal's reasoning at [64] and [65] (CB 105-106) is so irrational or unreasonable that no rational decision-maker could come to the same conclusions. That is not to say there may not be differences of opinion: for instance, another decision-maker might well have reasoned, on the first challenged proposition, that a person might have fled their home country to another for several years and returned home after a period in the hope that the threat had sufficiently subsided such that they would not face harm, only to discover that that was not the case and again seek to depart. Such a decision-maker would not reason, as the Tribunal apparently did in the Decision, that the applicant's return to Malaysia from Japan was indicative of a lack of fear. However, it is not irrational that the Tribunal considered the applicant's return to Malaysia undermined his claimed fear of harm, nor that his ability to safely depart Malaysia twice unhindered by the gang contradicted his claim that the gang was influential throughout Malaysia.
6. As to the approach to credibility findings generally, it is not unusual, and certainly not unreasonable, for a decision-maker to find that vague and unsubstantiated claims, and claims where an applicant cannot or will not provide supporting details, simply cannot be accepted. It is the applicant's responsibility to specify all particulars of their claim and to provide sufficient evidence to establish the claim: s 5AAA of the Act. Moreover, the Tribunal's credibility findings did not rest solely on the lack of detail but also on the lack of a credible timeline and the Tribunal's reasoning that the applicant's actions (including not approaching police for protection) were inconsistent with the claimed fear of harm.
7. These grounds do not have reasonable prospects of success.

1. By this ground the applicant alleges the Tribunal erred by using the same reasoning addressing the refugee criterion in assessing the applicant against the complementary protection criterion. In oral submissions the applicant took me to [69] of the Decision (CB 107) and submitted the Tribunal assessed complementary protection without considering the real risk he would face harm, which he asserted was a jurisdictional error.
2. The Minister's written submissions note that the Decision indicates an assessment and findings were made on the complementary protection criterion, simply by reference to the earlier findings that the applicant did not face intimidation, beatings and threats from a gang. The Minister's written submissions also argued that the Tribunal's findings indicated that there would be effective protection measures available to the applicant, such that he did not satisfy the complementary protection criterion.
3. I consider the Minister's attempt to rely on the effective protection measures finding to support the Tribunal's complementary protection analysis troubling: whether a country has effective protection measures under s 5LA(2)(c) of the Act is a different test to that under s 36(2B)(b) of the Act, which requires the decision-maker to be satisfied that the protection available would reduce the risk of significant harm to something less than a real risk: Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [36]- [40].
4. Likewise, to the extent (if at all) the Tribunal purported to rely on its effective protection measures finding (CB 106, [66]) to support its further finding that it did not accept "... the local RMP will not be interested in assisting him because they would not be interested in his issues ..." (CB 107, [69]) in assessing complementary protection, it may have asked itself the wrong question. Instead, it should have asked if it was satisfied the protection available from an authority of Malaysia would reduce the risk of significant harm to less than a real risk.
5. However, the Minister is correct that the Tribunal's earlier findings, that the applicant did not face a real chance of serious harm because it did not accept the claims were credible, could be applied, as the Tribunal did, to conclude that the applicant also did not face a real risk of significant harm based on the same claims. The relevant harm claimed would meet the definition of either serious or significant harm if accepted, and the real risk and real chance tests are effective equivalents: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [232]- [246]. Having found the applicant did not face that harm, the Tribunal did not need to assess whether s 36(2B)(b) was met, as it assessed the applicant did not have any risk of significant harm, let alone a real risk. Any error in assessing state protection in complementary protection, if there was one, would not be material.
6. As such, assessed as a whole this ground does not have reasonable prospects of success.

1. By this ground the applicant asserts the Tribunal erred in finding that the applicant embellished his claims in order to secure protection when there was no evidentiary basis for that finding. In oral submissions the applicant reiterated the ground and took me to [65] of the Decision (CB 106), which includes the following finding:

... In the opinion of the Tribunal having considered the applicant's evidence, the applicant's claims about a gang, and the pressures he endured and that gang's persistent intimidation of him after he allegedly left the gang, thus forcing him to leave for Australia were a mere embellishment of the truth by the applicant for the sole purpose of securing for himself Australia's obligation under the Act to protect him. ...

1. A similar finding is in [64] of the Decision in the following terms (CB 105):

... The description of persons involved was very limited and the description of the applicant's activities again were very sparse on detail and this leads the Tribunal to conclude that the applicant had provided this information only for the purposes of embellishing his claim for seeking protection from Australia and that his whole involvement with a criminal gang was not real or credible...

1. The Minister's written submissions as to the Tribunal's assessment of credibility referenced above at [76]‑[77] also address this ground.
2. As set out by Given J in EQU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 609 at [47]:

... The threshold for establishing [a no evidence ground] ... is that there is not a "skerrick" of such evidence (see Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587 [575] per Weinberg J, quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 239, which was most recently cited by the plurality of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403). The Oxford English Dictionary defines a skerrick as "a small amount; a small fragment; the slightest bit". It is a high bar. [italics in original]

1. The Tribunal set out in its Decision the evidence on which it made the two impugned findings, being the same evidence (or lack thereof) on which it concluded the applicant's claims were not credible: the lack of information and details, the lack of a credible timeline and the Tribunal's reasoning that the applicant's actions (including not approaching police for protection) were inconsistent with the claimed fear of harm. The Tribunal's finding had an evidentiary basis, simply one with which the applicant disagrees.
2. This ground does not have reasonable prospects of success.

1. I cannot identify any potential error in the NJ Decision that might justify a grant of an extension of time.
2. It is uncontroversial that, having already validly reviewed a delegate's decision, the Tribunal does not have jurisdiction to re-review the same decision: SZBWJ v Minister for Immigration and Citizenship (2008) 171 FCR 299; [2008] FCA 1175 at [16] and [21]-[22]. For the reasons set out above, even at an impressionistic level I do not consider the applicant has reasonable prospects of establishing jurisdictional error in the Decision. As such, the Tribunal was correct in making the NJ Decision.
3. Further, to the extent the Tribunal owed the applicant any procedural fairness obligations in making the NJ Decision, it met those obligations by inviting the applicant to comment on its preliminary view that it did not have jurisdiction: see for example SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [36]- [38]. The applicant chose not to take up the opportunity to respond to that invitation. There was no breach of procedural fairness with respect to the NJ Decision.

Conclusion on merits of judicial review application

1. The applicant's proposed grounds of review set out in his Application and Amended Application and his oral submissions (assessed at a reasonably impressionistic level only) do not identify any arguable case of jurisdictional error on the part of the Tribunal. I have also been unable to identify any jurisdictional error on the part of the Tribunal.
2. This weighs heavily against granting an extension of time.

1. The lack of any arguable case of jurisdictional error on the part of the Tribunal, judged at an impressionistic level, is such that it is not necessary in the interests of the administration of justice to grant the applicant an extension of time in which to seek judicial review of the Decision (or, for the avoidance of doubt, the NJ Decision).

1. At the conclusion of the hearing both parties were asked their position on costs if successful. The Minister confirmed that, if successful, a costs order fixed in the amount of $4,553.02 was sought. That is the scale amount for costs and disbursements for a proceeding concluded at or before an interlocutory hearing of a migration proceeding as set out in sch 2, pt 3, div 1, item 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. As I discussed with the applicant, any concerns he may have about an inability to pay or a desire to pay by instalments, if a costs order were made against him, do not affect the Minister's entitlement to costs, if successful, but instead is a matter that the applicant may take up with the Minister or their department if necessary.
3. I consider the costs should follow the event and that the amount sought by the Minister is fair and reasonable in this case.

1. The application for an extension of time filed on 15 July 2021, as amended on 15 January 2026, be dismissed.
2. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the sum of $4,553.02.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mitchell.