CXB25 v Minister for Immigration and Multicultural Affairs [2026] FedCFamC2G 303

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 29 November 2024, the Administrative Review Tribunal (ART) affirmed a decision not to grant the applicant, CXB25, a protection visa.
2. On 7 March 2025, the applicant asked this Court to review that decision.
3. From the dates above, it is easily discernible that the applicant has made his application some 63 days after the 35-day deadline had passed. This means that the application is an application for an extension of time within which to file the application for review.
4. The hearing proceeded as an extension of time but the was submissions that were made as to the merits of the matter were a full argument on the merits so that, if the extension of time were successful, the substantive hearing would have also occurred.

1. It is trite to say that there are three aspects that a Court looks at as to whether the discretion, to order that time be extended, should be exercised. These are:
   • What is the reason for the late filing?
   • What, if any, prejudice flows to the respondent because of the extension being granted?
   • Is there an arguable case for the granting of the substantive relief sought?
2. The question of prejudice to the respondent is one which is easily disposed. The Minister concedes that there is no prejudice flowing to him that would outweigh the granting of the extension. This means that the two questions that I need to look at are: the merits question and the excuse question.

1. I will look at this issue firstly. Notwithstanding that I need only look at the merits on an "impressionistic" level, I have looked at the matter in some detail which, on the state of the most recent authorities, is perfectly permissible.

1. The applicant is a citizen of India. He came to Australia in June 2012 pursuant to a student visa. In February 2019, he was granted a Skilled Independent Visa. In October 2019, the applicant sexually assaulted a co-worker.
2. On 22 September 2021, the applicant was convicted of one count of rape and three counts of sexual assault. The result of those convictions meant that he, automatically, no longer passed the "character test" under the Migration Act. This meant that the Minister had to cancel the Visa of the applicant. This was done in October 2021.
3. The applicant applied to the Minister for the revocation of that cancellation. The delegate refused to exercise the power to revoke the mandatory cancellation on 27 June 2023. The applicant asked the AAT (now ART) to review that decision. The Tribunal set aside the delegate's decision. This had the effect of restoring the applicant's Visa on 20 September 2023.
4. The Minister exercised his power to set aside the Tribunal's decision in June 2024. This meant that the Visa was, once again, cancelled.
5. On 16 July 2024, the applicant lodged an application for a protection visa.
6. On 12 September 2024, a delegate of the Minister refused to grant that Visa. The applicant applied to the ART for review of that decision. As earlier noted, the ART affirmed the decision on 29 November 2024.

1. The applicant's claims arose as a result of the criminal convictions for rape and sexual assault. The applicant said that if he were to return to China, he feared that he would be detained, or imprisoned, for those offences for which he was already punished in Australia. He claimed that there was a real risk that he would be re-prosecuted in China for those offences.
2. He also claimed that if he were imprisoned in China, he would be exposed to inhuman or degrading treatment, or punishment, due to poor conditions in Chinese detention and prison facilities.
3. As support for these claims, the applicant provided the ART with documentation such as a Courier-Mail article, a DFAT report, a US Department of State human rights report and the criminal law of PRC. Also included were the submissions made by his legal representative in support of the request for revocation of the cancellation decision.
4. In those latter submissions, the applicant made reference to the issue of "impediments if removed". Those impediments were the mental health issues of the applicant, difficulties he might have in securing employment and restrictions on relocating to another area of China.

Did the applicant make claims regarding his mental health?

1. It was argued by the Minister that the claims made by the applicant were restricted to the fears of re-prosecution or recriminations stemming from his convictions in Australia. The Minister argued that the "mental health" aspects were not claims that were made but incidental observations as to the effect of the criminal convictions.
2. There is merit to this submission. The "mental health" aspects were not the reason why the applicant sought revocation of the cancellation decision as can be clearly ascertained from a reading of the submissions. In his application for a Visa (reproduced at CB 29 and 30), the applicant makes no mention of any "mental health" aspects when he answered the questions regarding what would happen to the applicant if he returned to China and what type of harm he would be likely to experience if he were returned to China.
3. The applicant was not interviewed by the delegate. The delegate made their decision "on the papers". There were no "mental health" claims assessed by the delegate for the simple reason that there was no such claim made by the applicant.
4. However, when the applicant appeared before the ART, he was interviewed. At paragraphs 34 and 35 of the reasons of the ART, it is clear that the applicant has given evidence to the Tribunal about what would happen to him if he returned to China with respect to his "mental health".
5. Whilst this was not part of the original claims, the fact that these matters were discussed between the ART and the applicant, means that the "mental health claims" arise squarely from this "new" evidence that was adduced by the ART questioning. (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263)
6. I am satisfied that the applicant did make a claim that he would suffer significant harm if he were returned to China because of the societal discrimination he would face due to his "mental health" and that he would be subject to societal stigma and discrimination due to his mental health.
7. I am satisfied that the applicant, as a corollary of that claim, did make a claim that he would suffer significant harm because his "mental health" would affect his employment prospects in China.
8. I am satisfied that the applicant did make a claim that he would be unable to access mental health treatment in China.
9. I am not satisfied that the applicant made a claim that he would suffer significant harm arising from the societal stigma relating to mental health because such would contribute to a reluctance to seek out treatment. I will expand upon this when dealing with the particular grounds of the application.

1. The ART concluded that they were not satisfied that the applicant faced a real chance or a real risk of re-prosecution for his Australian criminal offending. The ART found that the applicant had no other profile that would cause him to be of adverse interest to the authorities when he returned to China which meant that there was no real risk that he would be subjected to imprisonment on return to China.
2. The applicant had claimed that he would face difficulties in securing employment in China due to being discriminated against because he was convicted of criminal offences in Australia. The ART accepted that the applicant would experience a degree of employment related discrimination due to his convictions, but he would still be able to secure work in China such that he would be able to subsist.
3. The ART concluded that the applicant would not have limitations regarding his movement that would cause him significant economic hardship or prevent him from securing work of any kind that would threaten his capacity to subsist.
4. The ART looked at the claim that the applicant would be subjected to societal discrimination because of his criminal offending. The ART concluded that even if this were so, they were not satisfied it would involve a threat to his life or liberty or significant physical harassment to such a level that it could be called "serious harm".
5. Having disposed of the claims made in the Visa application, the ART then looked at "mental health issues".
6. The ART concluded that there were limitations with mental health services in China, but this did not amount to persecution by the State. The ART also concluded that the discrimination or stigma that the applicant would face because of his mental health would not amount to "serious harm".
7. At paragraphs 76 and 77 of their reasons (reproduced at CB 644), the ART said the following:
   1. For the purposes of the complimentary protection criterion, I am not satisfied that limitations in mental health services in China amount to any of the types of significant harm in s 36(2A). Considering the above country information, I find that the Chinese government does not hold an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on persons suffering mental health conditions.
   2. For the same reasons as above, I accept there to be a real risk that the applicant will experience a degree of societal discrimination or stigma in the form of negative comments or attitudes if his mental health problems became known. However, I find this to not amount to any of the types of significant harm defined in s 36(2A). I am not satisfied that there would be a perpetrator with the intention to inflict on the applicant severe physical or mental pain or suffering or extreme humiliation which is unreasonable.
8. Having come to those conclusions, the ART affirmed the decision not to grant the applicant a protection Visa.

The Tribunal erred in considering the Applicant's complimentary protection claim that he would suffer significant harm arising from the societal stigma relating to mental health, in that the Tribunal considered that there would not be significant harm because the harm would not be "intend[ed] to [be] inflict[ed]" by the government, when the harm referred to was harm from society's stigma, not the actions of government.

1. The applicant points to the manner in which paragraphs 76 and 77 are framed. The applicant submits that, when the ART speaks of "the same reasons as above" in paragraph 77, such is a reference to the reasoning in paragraph 76. The applicant submits that if the ART has used the same reasoning and has merely made some alterations to the final sentence in paragraph 76, then it is clear that the ART has misunderstood that the stigma referred to in paragraph 77 must have its cause within Chinese society rather than the Chinese government. If that is the reasoning of the ART, then it is an error which is jurisdictional in nature.
2. I cannot accept this submission.
3. On my reading of the reasons of the ART, the ART has dealt with the claims of the applicant that were part of his Visa application. They firstly dealt with how the claims related to the refugee criteria. Following that, the ART then dealt with how those claims related to the complementary protection criteria.
4. The ART then (from paragraph 60) dealt with the mental health issues. From paragraph 67, the ART has dealt with the mental health claims and how they relate to the refugee criteria. Paragraphs 76 and 77 deal with the mental health claims and how they relate to the complimentary protection criteria. Paragraph 76 relates to the lack of mental health services in China. That can only be caused by the governmental authorities in China. Paragraph 77 relates to societal discrimination or stigma. That can only be caused by the general population of China.
5. It seems to me, on a proper reading of the whole of the reasons, the ART (at the beginning of paragraph 77) are referencing the reasons that were given at paragraph 74 where the ART discussed how societal discrimination relates to the complimentary protection criteria.
6. In my experience, it is not unusual for the same reasoning to be used by decision-makers when assessing both the refugee criteria and the complimentary protection criteria. In my view, this is the only way that the opening clause of paragraph 77 could be interpreted.
7. At first blush, I had some consternation at the phrasing of the last sentences in both those paragraphs. However, when looking at the phrases "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" as they are found in s 36(2A)(d) and (e) of the Migration Act 1958 (Cth) (the Act), and then looking at the interpretation of those phrases in s 5(1), it is clear why the ART chose to phrase the final sentences in the manner in which they did.
8. The applicant took some issue with the word "perpetrator" in paragraph 77 and submitted that this illustrated that the ART was assuming that the Chinese government was the origin of the societal discrimination. I do not agree with this characterisation. It might be said that the ART could have used a different word than "perpetrator", but it seems clear that the ART meant any person within the community who would intentionally inflict severe pain or suffering whether physical or mental and any person within the community who would commit an act or omission that intentionally causes extreme humiliation which is unreasonable. Such is in accordance with the interpretation of the two particular phrases.
9. It has not been illustrated to me that the ART mistakenly believed that the "societal discrimination" had to be caused by the Chinese government. On a proper reading of the ART's reasons, it is clear that the ART understood that it was the Chinese community at large that would be causing any societal discrimination or stigma.
10. Having come to that conclusion, I cannot see that ground 1 provides an arguable case for the relief sought. I do not necessarily have to find that ground 1 does not illustrate any jurisdictional error, but if I had needed to make a finding at that level, I would do so.

The Tribunal failed to consider the claim or integer of the claim that the applicant feared harm from a lack of employability, as distinct from general societal "negative comments and attitudes".

1. The applicant submits that the claim was not considered. The applicant points to the revocation submissions (reproduced at CB 362) where, at paragraphs 88 and 89, the applicant said:
   1. [The applicant] has significant mental health issues. As noted above, Dr Freeman concluded he presents with Adjustment Disorder (with anxious distress), and his removal to China will "exacerbate his depressive symptomology". The DFAT report states that mental health services remain inadequate in China, and the rate of people receiving treatment was low in part because of social stigma, lack of funding and mental health professionals. Further, the majority of resources which are available are in provincial capitals in the more developed East Coast of the country. In these circumstances, [the applicant] is highly unlikely to access treatment for his mental health in China.
   2. The DFAT report also confirmed there is considerable social stigma directed towards people with mental illness in China. It was specifically noted that this stigma can impact a person's social integration and employment prospects in China - for example, a 2020 study published in BMC Psychology found that "almost 55 per cent of participants would not employ a person who was a former mental health patient". It follows that [the applicant] has a real chance of encountering societal stigma and discrimination due to his mental health if he returns to China.
2. It was submitted that the ART did not separately and distinctly speak about the claim that his mental health would disadvantage him when seeking employment. This may be so; however, it is clear from the revocation submissions that the applicant was complaining about the societal attitudes towards persons who have mental health issues and how those attitudes result in a "lack of employability".
3. When the ART did deal with the mental health issues, especially at paragraphs 74 and 77, the ART specifically spoke of the applicant being "subject to a degree of societal discrimination or stigma in the form of negative comments or attitudes [emphasis added] if his mental health problems became evident".
4. Having regard to the evidence that was before the ART, the applicant had raised that the societal discrimination or stigma would manifest itself in negative comments and negative attitudes, chief amongst those negative attitudes was the submission that "55% of participants would not employ a person who was a former mental health patient".
5. Whilst it may be that the ART did not specifically talk about "employability" in these two paragraphs, it is clear that what they had in mind when speaking of the "negative attitudes" that the applicant may face, is the attitude of prospective employers regarding persons with mental health issues.
6. In my view, the ART did consider this claim.
7. Ground 1A does not provide an arguable case for the relief sought. I do not necessarily have to find that ground 1A does not illustrate jurisdictional error, but if I had needed to make a finding at that level, I would do so.

The Tribunal erred in considering the Applicant's complimentary protection claim that he would suffer significant harm arising from the societal stigma relating to mental health, in that the Tribunal considered only whether stigma alone might constitute significant harm, when the Tribunal should have instead considered not just stigma but also its "contribut[ion] to a reluctance to seek out treatment".

1. The problem with this ground is that the applicant did not ever make a claim that he would be reluctant to seek out treatment because of the stigma of mental health issues in China. It may be that in the revocation submissions it was written "In these circumstances, the applicant is highly unlikely to access treatment for his mental health in China", but the context in which this was written was that the applicant was "highly unlikely to be able to access treatment for his mental health".
2. Whilst the ART, at paragraph 72, outlined that the country information clearly established that the "pervasive stigma surrounding mental illness in China contributes to a reluctance to seek out treatment", this was never a complaint made by the applicant himself. The claim (at paragraph 67) was that the applicant would be "unable" to access mental health treatment in China; not that he would be "unwilling" to access mental health treatment in China.
3. This is in keeping with what the applicant said to the ART during the hearing (and quite clearly what he was saying, in the revocation submissions, were his impediments if the cancellation were not revoked). This was that "the applicant had mental health issues which would not be properly treated because of the lack of mental health infrastructure in China". The ART dealt with this claim.
4. These discussions are summarised in paragraph 35 of the reasons where the ART said:
   1. I discussed with the applicant that, while I acknowledge there are limitations with mental health care in China and a degree of societal stigma towards mental illness, I may not be satisfied that in his particular circumstances he would face harm of a nature that would satisfy the refugee or complementary protection criteria.
5. There is no mention of any concern that the applicant had that he would not seek out mental health treatment because of the stigma. As the authorities say, a claim must be either "the subject of substantial clearly articulated argument relying upon established facts" or which "clearly emerged from the materials" (see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]).
6. But even if this circumstance were able to be said to be a "claim", it has not been established that there would be any significant harm that would flow from this.
7. Ground 2 does not provide an arguable case for the relief sought. I do not necessarily have to find that ground 2 does not illustrate jurisdictional error, but if I had needed to make a finding at that level, I would do so.

THE EXCUSE FOR NOT FILING THE APPLICATION WITHIN THE 35-DAY TIME LIMIT

1. The last aspect that I need to consider, in dealing with the question of whether the Court should exercise its discretion to extend the time within which the applicant has to file the application, is to examine why the application was not filed within time.
2. In the affidavit of Richard Anthony Timpson, lodged on 7 March 2025, the solicitor for the applicant deposed that the applicant was in immigration detention at the time of the delivery of the decision of the ART. He deposed that the applicant was unrepresented at the time of the decision of the ART. He deposed that the applicant was experiencing various mental health issues at the time of the decision and is still experiencing issues with his mental health.
3. He deposed that the applicant spoke briefly to other solicitors via telephone after he was notified of the Tribunal decision.
4. He deposed that the applicant did not then fully understand the contents of the Tribunal's decision, nor did he fully understand the advice he was being given.
5. He deposed that the applicant was told by Australian Border Force that there were no immediate plans to remove him from Australia.
6. Mr Timpson said that he was retained, in mid-January 2025, solely to assist with respect to another of the applicant's visa issues. He said that, upon receiving the file of the applicant, he noted that the ART had made a decision on 29 November 2024. He said that he recommended to the applicant that the applicant broaden his retainer so that Mr Timpson could consider the ART decision as well.
7. Mr Timpson said that he was instructed to consider the Tribunal's decision in February 2025, which he did. He said that he retained counsel to advise and he received that advice on 4 March 2025. He lodged the present application three days later.
8. The applicant submits that he has not been "dilatory" and that the "delay is understandable".
9. I do not agree. When the applicant received the ART decision, he was notified that he had 35 days within which to come to this Court to ask for a judicial review. He spoke to solicitors by telephone after the decision had been handed down (and presumably before the 35-day time limit had expired).
10. There is no evidence to back up the assertion by Mr Timpson that the applicant did not "fully understand" the contents of the Tribunal's decision. There is no evidence that he did not fully understand the advice he was being given.
11. I am not satisfied that the applicant has provided a satisfactory excuse for the lengthy delay in filing this application.

1. Adding up the conclusions I have made as to there not being an arguable case for the relief sought and the lack of a proper excuse for the late filing, I am of the view that I should not exercise my discretion to extend the time for filing.
2. This means that the Court has disposed of the matter at an interlocutory stage rather than having heard the matter as a final hearing. This has a marked effect on the quantum of costs that the Minister can recover, especially using the scale amounts.

1. I refuse the application for extension of time with costs fixed in the sum of $4,553.02.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.