CLU19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1250

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. By an application filed in this Court on 25 June 2019 (Application) the Applicant seeks judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
2. On 2 December 2016 the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) (Tribunal's Decision). The Application was filed 900 days outside of the 35-day time limit prescribed in s 477(1) of the Migration Act. The Applicant therefore requires an extension of time to seek review of the Tribunal's Decision.

1. The Applicant is a citizen of Malaysia. The Applicant arrived in Australia on 14 November 2015 as a holder of an electronic travel authority visa.
2. The Applicant applied for the Visa on 21 January 2016 (Visa Application).
3. The Applicant's protection claims were:

(a) The Government were tracking Bersih group members.

(b) The media hid the truth.

(c) There were street demonstrations.

(d) If he returned the police would catch and jail him.

(e) He could be found anywhere.

1. In order to be granted the Visa the Applicant had to satisfy criteria at the time of the Tribunal's Decision.
2. Pursuant to s 36(1A) of the Migration Act an applicant for a protection visa must satisfy:

[...]

(b) at least one of the criteria in subsection (2)

1. Section 36(2) provided the following:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; [...]

1. Section 36(2A) of the Migration Act provided that a non citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subject to torture; or

(d) the noncitizen will be subject to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subject to the great degrading treatment or punishment.

1. Section 5H defined the term 'refugee'. The definition included a person who has a nationality, is outside the country of their nationality, and owing to a 'well-founded fear of persecution' is unable or unwilling to avail themselves of the protection of that country.
2. Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2) to (6) and 5K to 5LA additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out.

1. On 25 February 2016 the Delegate refused to grant the Applicant the Visa (Delegate's Decision). The Applicant was notified of the Delegate's Decision on 1 March 2016.
2. The Delegate found that the Applicant did not meet the relevant criteria for s 36(2) of the Migration Act for the grant of the Visa. The Delegate was not satisfied that there was a real chance of persecution in Malaysia for one or more of the reasons mentioned in s 5J(1)(a). The same conclusion was reached with respect to whether there was a real risk the Applicant will suffer significant harm as required by s 36(2)(aa) of the Migration Act.

1. On 3 March 2016 the Applicant lodged an application for review of the Delegate's Decision with the Tribunal. An acknowledgment of application letter was sent to the Applicant on 4 March 2016. In that letter the Tribunal invited the Applicant to provide material or written arguments for the Tribunal's consideration.
2. On 28 October 2016 the Applicant was invited to attend a hearing on 25 November 2016. This correspondence required the Applicant to complete a response form to confirm attendance and attach any additional information should the Applicant have new material he wished the Tribunal to consider. The response form was completed and sent back to the Tribunal on 16 November 2016. The Applicant indicated that he had two (2) supporting witnesses, being his Australian employer and supervisor.
3. On 25 November 2016 the Tribunal hearing was held (Tribunal Hearing). The Applicant attended with the assistance of a Malay interpreter.
4. On 2 December 2016 the Tribunal affirmed the Delegate's Decision and notified the Applicant.
5. The Tribunal noted that the Applicant told the Tribunal he had been assisted by a man at Southern Cross Station and he signed the Application before it was complete.
6. The Tribunal considered new evidence from the Applicant regarding the man who filled out his application and his personal history. The Tribunal considered the new claims raised by the Applicant concerning his employment and potential financial hardship. The Tribunal recorded that it would not hear from the Applicant's witnesses unless they could provide evidence relating to the harm or risk to the Applicant. The Applicant confirmed the witnesses could not provide that evidence. The witnesses were not called or otherwise relied upon by the Applicant.
7. The Tribunal accepted the Applicant's concerns about government economic policies and fraud, and that the Applicant may have participated in rallies. The Tribunal found that the Applicant was not an organiser, a leader, or of high profile in the protest movement. The Tribunal found that the Applicant may again participate in rallies but found that he was not being sought by authorities. The Tribunal did not accept that there was a real chance he would be imprisoned or mistreated, seriously harmed or killed in prison. The Tribunal was not satisfied that any of the Applicant's claims amounted to a real chance of significant harm. The Tribunal also found that difficulties with employment or financial hardship would not amount to significant or serious harm.
8. The Tribunal held that the Applicant does not meet the criteria in s 36(2)(a) or the complementary protection criterion under s 36(2)(aa). Further, it was held that the Applicant does not have a well-founded fear of persecution pursuant to s 5J or face a real risk of suffering significant harm as defined in s 36(2A).

1. The Application was filed in this Court on 25 June 2019, outside 35 days from the date of the Tribunal's Decision as prescribed by s 477 of the Migration Act. The Application was filed 900 days out of time.
2. On 4 August 2021 and 20 February 2025 Orders were made by consent for the filing of material. The Applicant has not filed material in accordance with these Orders.
3. This matter was heard on 16 July 2025 in person at the Melbourne Registry (Hearing). The Applicant appeared as a litigant in person with the assistance of a Malay interpreter. A solicitor for the Minister appeared.
4. At the commencement of the Hearing I confirmed that the interpreter and the Applicant understood each other, and that the Applicant was willing to proceed with the hearing with the assistance of the interpreter. I explained to the Applicant the nature of the hearing, that is, that I was dealing with an extension of time for the filing of the Application. I also explained the manner in which the Hearing would be conducted. I established that Applicant had copies of the Court Book, the Minister's submissions, the Application and his supporting affidavit. I was satisfied that the Applicant was able to participate meaningfully in the Hearing.
5. The Applicant relied upon the following documents:

(a) The Application; and

(b) The Affidavit of the Applicant filed on 25 June 2019.

(a) The Response filed on 4 July 2019; and

(b) The Outline of Submissions filed on 2 July 2025.

1. The Court has a Court Book filed by the Minister on 28 August 2019 and the Minister's list of authorities filed 7 July 2025.

1. Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the 'migration decision'. The Tribunal's Decision is a migration decision and therefore the time period for the Applicant to have filed an application for judicial review ended 35 days after 2 December 2016, that date being 6 January 2016. The Application was filed on 25 June 2019.
2. The Applicant has not satisfied the requirements of s 477(1) and requires an extension of time under s 477(2) of 900 days. Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if it is "necessary in the interests of the administration of justice". The Applicant relied on two (2) grounds for the extension of time:
   1. I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME
   2. I ALSO VAN NOT TO PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT. SO TO MAKE SURE I IN LAWFUL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.

1. Section 477 of the Act does not prescribe criteria by which to determine the 'interests of the administration of justice': see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:

(a) The length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];

(b) Whether there is any prejudice to the Minister; and

(c) Whether the applicant's substantive grounds seeking judicial review justify the extension of time, noting that "[w]hether that standard of veracity is described as being 'arguable'; 'reasonably arguable', or 'sufficiently arguable' or having 'reasonable prospects of success'", the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 at [76].

1. The Application was filed 900 days out of time. The extent of the delay is substantial.
2. The ground relied upon in the Application for the extension of time was that the Applicant did not have the money to pay for the appeal or to get legal advice.
3. I asked the Applicant why there had been a delay in filing his Application. The Applicant explained that he lost his job when his visa was cancelled and was without employment for 900 days (until he received a bridging visa for the judicial review). He said that he was supported by the community and that two (2) months before filing the Application he sought advice regarding judicial review. The Applicant said that he thinks he may have applied for a fee waiver but could not recall for sure given the time that had elapsed.
4. The Minister submitted that the delay is so significant and in light of the explanation given by the Applicant an extension of time is not justified. The Minister submitted that the Applicant's explanations are not satisfactory. Neither financial hardship nor is the inability or difficulty in affording for and obtaining legal advice are satisfactory explanations for such a substantial delay. It was further submitted that the Applicant has not filed or tendered any affidavit in support of his submissions with respect to his reasons for the delay in filing the Application.
5. The Information about decisions - MR Division factsheet sent by the Tribunal to the Applicant along with the Tribunal's Decision on 2 December 2016 informed the Applicant that he had 35 days to file a judicial review application.
6. I agree with the Minister submission that the 900 day extension of time sought by the Applicant is indeed significant and militates against an extension of time. Further, financial hardship is not generally considered to be a reasonable or adequate explanation for delay: GOK18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25]. On the Applicant's own submission he was supported by the community for 900 days. There is no evidence that he asked the community to assist him by funding or otherwise lending him the funds to make the judicial review application. Nor is there any evidence regarding the Applicant making inquiries of the Court or others in the community regarding assistance that can be provided when a potential applicant is impecunious including a fee waiver. The Applicant's submission was that he received advice approximately two (2) months prior to making the Application that he could do so. It is not clear from the submission whether that advice came from a member of the community or a legal practitioner. In any event the Applicant did not treat making the Application with any urgency, he waited for two (2) months after receiving advice before he lodged the Application with the Court. The fact that the Applicant contends that he did not have legal advice is not in itself a reason for such a substantial delay: SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24].
7. The Applicant has not provided an adequate explanation for the delay. The length of the delay and the fact that no reasonable excuse could be offered by the Applicant weighs in favour of dismissing the Application.

1. The Minister submitted that the Minister suffers no prejudice other than costs.
2. This factor weighs in favour of the grant of an extension of time, however the lack of prejudice to the Minister does not in itself justify the grant of the extension of time.

1. Importantly, I am to consider whether the Application is "sufficiently arguable" to warrant the grant of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review: In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 the Court observed, at [68], that:
   1. [...] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. [...]

1. A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18].
2. The question before the Court is whether any of the grounds are 'arguable, 'reasonably arguable', 'sufficiently arguable' or have 'reasonable prospects of success'.
3. The grounds of judicial review in the Application provided as follows (Grounds of Review):
   1. AS LONG AS THE HEARING SESSION TOOK PLACE, I WAS DISSATISFIED WITH THE INTERPRETER BECAUSE SHE OF POOR LANGGUAGE USE. ALSO SHE FROM INDONESIA AND I FROM MALAYSIA, OUR USAGE AND DIALECT DIFFER FROM THE POINT OF UNDERSTANDING. (Ground 1)
   2. I ALSO MENTIONED TO THE MEMBER DURING THE HEARING SESSION. I HAVE A PARTNER AND HE PLANS TO KEEP US TOGETHER. BUT MEMBER DOES NOT WANT TO TAKE INTO ACCOUNT MY EXPLANATION. SAME LIKE THE TRIBUNAL MEMBER DEPRIVED ME OF PROCEDURAL FAIRNESS AND FAILED TO DO HIS DUTY. (Ground 2)
   3. THE TRIBUNAL MEMBER RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER TRIBUNAL CASE. (Ground 3)
   4. SOME IN PARAGRAPH 36, THE TRIBUNAL SAYS THAT TRIBUNAL ACCEPTS WITH THE STATEMENT OF THE APPLICANT. BUT IN PARAGRAPH 40, AFTER CONSIDERING WITH EVIDENCE TRIBUNAL DOES NOT ACCEPT. WHERE AS I HAVE PRESENTED THE EVIDENCE AND THE ORIGIN OF THE TRIBUNAL MAKING THE DECISIONS WITH EMOTION. SAME LIKE THE TRIBUNAL MEMBER DEPRIVED TO DO HIS DUTY. (Ground 4)

In bold and italics added. Otherwise as written.

1. The Minister contended that the Grounds of Review lack sufficient merit and therefore weigh against the grant of an extension of time.
2. At the Hearing the Applicant said that he cannot be returned back to Malaysia as his life would be harmed. I explained to the Applicant that I cannot grant him a visa and if I grant him an extension of time I can consider whether there is a serious mistake by the Tribunal and if I do find such a mistake, send it back to the Tribunal to be reheard.
3. For the purpose of ascertaining whether the Applicant had reasonable prospects or a sufficiently arguable case I took the Applicant to each ground of review and asked him to tell me what the "big" or "serious" mistake the Tribunal had made.

1. When asked by me what was the serious mistake the Tribunal made with respect to Ground 1, the Applicant responded that this ground was not a big mistake. In response to another question from me he confirmed that this was not a big mistake and that he understood the interpreter at and during the Tribunal hearing.
2. When asked by me what was the serious mistake the Tribunal made with respect to Ground 2 the Applicant submitted that he felt there was no big mistake in relation to this ground.
3. The Applicant withdrew both Grounds 1 and 2 after being asked by me whether he wanted me to determine whether there were reasonable prospects with respect to these grounds or whether he wished to withdraw the grounds.
4. Consequent on the withdrawal of Grounds 1 and 2 the Minister did not make any oral submissions with respect to them.

1. The Applicant submitted that the Tribunal referred to protests in Malaysia at the time. The Applicant said that he informed the Tribunal that his case had nothing to do with those protests. He explained that he came to Australia due to debt and the threat related to that debt, and how it would be costly. The Applicant submitted that he explained to the Tribunal that he did not know much about the visa application process and that someone applied on his behalf without his knowledge.
2. The Applicant was unable to take me to specific paragraphs of the Tribunal's Decision which showed this but believed there was a record. The Applicant further submitted that during the interview, which was recorded, he did say these things to the Tribunal.
3. The Minister submitted there is no proper basis underpinning Ground 3 as the Applicant did not identify incorrect information or facts taken into account by the Tribunal. The Minister took me to [19] and [20] of the Tribunal's Decision which, it was submitted by the Minister, recorded the Applicant's explanation and responses to his protection claims. At [16] the Tribunal recorded that the Applicant was involved with Bersih 3 and Bersih 4 and therefore the Applicant's submission that his case had nothing to do with the protests is not made out. The Minister submitted the Tribunal dealt with the claims of economic harm.
4. The Applicant confirmed that paragraph [13] correctly recorded the person he says prepared his Visa Application.
5. The Applicant at the Tribunal Hearing said he was assisted in preparing his application for a protection visa by a man he met at Southern Cross Station to whom he paid $700.00. It is clear that the Applicant in his Visa Application made claims that he was involved in the Bersih group (Political Activist Claim). He also made an additional claim that the economic situation in Malaysa is bad, there are no job prospects for him, and that his business failed in 2015 (Economic Claim).
6. It is evident from the Tribunal Decision that it considered both claims. In particular the Economic Claim was considered by the Tribunal comprehensively at paragraph [41] of the Tribunal's Decision. I am of the view that the Applicant is unable to establish that he has a reasonable arguable case that the Tribunal committed a jurisdictional error on the grounds set out in Ground 3.

1. At the Hearing the Applicant said that he explained to the Tribunal that he did not know why the person who did his Visa Application had made the claims in paragraphs [36] and [40]. The Applicant said that these were not the reason for seeking a protection visa and he told the Tribunal this. He said his reason was because he had borrowed money and his life was in danger. I asked the Applicant whether he had requested a copy of the transcript of the Tribunal Hearing he said he could not recall doing so.
2. The Minister submitted that the Tribunal accepted that the Applicant may participate in protests on return to Malaysia but did not accept that he would be arrested, detained or imprisoned for involvement with the Bersih movement or for any other reason. The Minister characterised the Applicant's submissions as taking issue with how the Tribunal recorded the Applicant's claims and the findings that followed.
3. The Minister contended that the Tribunal was under no obligation to uncritically accept allegations made by the Applicant and that the Applicant takes issue with the findings of the Tribunal, inviting the Court to undertake impermissible merits review. At paragraphs [37] to [39] the Tribunal referred to and relied on country information to justify its findings. The Minister submitted that there is no error in the Tribunal's reasoning.
4. At paragraph [30] of the Tribunal's Decision the Tribunal recognised both the Political Activist Claim and the Economic Claim as the two (2) bases for the Applicant's protection claims. The Tribunal dealt with the claims as follows:

(a) At paragraph [36] it is stated that, "The Tribunal accepts that if he returned to Malaysia the applicant may again participate in protests against the government, such as future Bersih rallies".

(b) At paragraph [40] it is recorded that, "After considering the available evidence the Tribunal does not accept that Malaysian police wish to detain, arrest or charge the applicant or that he faces a real chance of being imprisoned because of his involvement with the Bersih movement, or for any other reason, should he return to Malaysia, now or in the foreseeable future. The Tribunal does not accept, therefore, that there is a real chance that the applicant would be mistreated, seriously harmed or killed in prison in Malaysia if he returned to Malaysia".

(c) At paragraph [41] the Tribunal dealt with the fear of economic harm having set out country information regarding the economy at paragraph [31]. The Tribunal made a conclusion at paragraph [42].

1. I agree with the submissions of the Minister. Ground 4 is difficult to understand. The Tribunal is under no obligation to uncritically accept any or all the allegations made by the Applicant. The findings made in paragraphs [36], [40] and [42] were open to the Tribunal. The Applicant with respect to this ground is complaining about the substance of the Tribunal's Decision and as such is seeking an impermissible merits review. I am of the view that the Applicant is unable to establish that he has a reasonably arguable case that the Tribunal committed a jurisdictional error set out in Ground 4.

1. The Applicant said that his main point for Grounds 3 and 4 being strong was that he would face danger upon return, that the Tribunal should have called him for another hearing to understand what his real problem was, and that he would have been able to give evidence regarding what happened. The Applicant said that the Tribunal did not explain what evidence he needed to provide and he does not know what evidence he needs to submit to show he cannot go back to Malaysia. He also submitted that the Tribunal's process was not explained to him.
2. The Minister contended that there was no obligation for the Tribunal to hold another hearing with the Applicant and in absence of the Applicant raising any issues himself with the Tribunal regarding another hearing there is no error. I agree with this submission. I am of the view that the Applicant is unable to establish that he has a reasonably arguable case that the Tribunal committed a jurisdictional error with respect to the additional grounds.

1. The significant delay has not been adequately explained and the Application fails to identify jurisdictional error in the Tribunal's reasons for decision. I am not satisfied that it is in the interests of the administration of justice to extend the time for filing of the Application. The extension of time is not granted and therefore the Court has no jurisdiction to review the Tribunal's Decision. The Application must be dismissed.
2. The Minister sought costs in the sum of $4,189.38, which is the scale amount prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister's costs in the sum of $4,189.38.
3. Orders will be made accordingly.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.