DOO19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 275

(a) his family composition, arrival in Australia and unlawful work in the horticultural sector prior to applying for the visa: at [24]-[25];

(b) elaborating on his written claims regarding borrowing 40,000 ringgits from one money lender, then another 50,000 ringgits from a different money lender to partially repay the first: at [26]-[27];

(c) explaining his attempts to relocate to other parts of Malaysia: at [28]-[29];

(d) explaining his attempt to report the money lenders to police but not doing so either or both because, on his way to the police station, one of the moneylenders pointed a gun at him, and because his friend had reported a similar matter to police and received no assistance: at [27]-[28]; and

(e) explaining that he had taken photographs of harm to his car and himself but no longer had those photographs available when the Tribunal requested copies: at [31].

1. The Tribunal assessed the applicant's claims both in writing and made at the hearing and found significant parts vague, inconsistent, hesitant, and ambiguous (see e.g. at [43], [44], [45], [48], [53]). It also found much of the applicant's explanations or answers to queries made by the Tribunal to be implausible (see e.g. [46], [49]). Based on its significant credibility concerns, the Tribunal did not accept that the applicant (CB 105 [54]-[55]):

(a) had accrued any debt of any amount owing to one or more unlicensed money lenders, loan sharks or ah long of Chinese or any other ethnicity in the past;

(b) had been forced to relocate within Malaysia prior to his departure from Australia; or

(c) had been threatened or harmed in the past either directly with physical beatings or by damaging his personal property as claimed.

1. Overall, the Tribunal found the applicant did not have any credible, urgent or personally held fears of persecution and found his protection claims, in both his written claims at the time of the application and during the hearing, to have been fabricated for migration purposes (CB 105 [56]). As a result of those extensive adverse credibility findings, the Tribunal found the applicant did not have a well-founded fear of persecution and was not a refugee under the Act (CB 105 [59]). For the same credibility reasons, it found there were not credible substantial grounds for believing that, as a necessary or foreseeable consequence of the applicant being removed from Australia to Malaysia, there was real risk he would suffer significant harm (CB 106 [65]). The delegate's decision was therefore affirmed.

1. The applicant lodged his Application on 18 September 2019, supported by an affidavit annexing the Tribunal's and delegate's decisions (CB 1-9).
2. On 9 October 2019, the Minister filed a response to application seeking that the Application be dismissed with costs.
3. On 9 November 2021, orders were made in chambers by consent of the parties setting out a procedural timetable and listing the Application to be heard on a date to be advised.
4. The Minister filed a court book in accordance with those orders on 15 November 2021.
5. The matter then remained unlisted for some time before, on 27 August 2024, the parties were notified by email that the matter was listed for a callover on 10 September 2024.
6. Both parties attended the callover by telephone (the Minister by a solicitor). According to the notations to the orders made that day, the applicant confirmed he had a copy of the court book. Orders were otherwise made changing the first respondent's name, listing the Application to be heard on a date to be advised, and requiring the parties to file their written submissions and any other documents 28 (for the applicant) or 14 (for the Minister) days ahead of the hearing.
7. On 2 December 2025 the parties were notified by email that the Application had been listed for hearing before another Judge of this Court on 27 January 2026 at 10:15 am.
8. The applicant did not file any materials. On 13 January 2026, the Minister filed submissions and an affidavit in accordance with the orders made on 10 September 2024.
9. On 21 January 2026, the parties were notified by email that the matter needed to be relisted due to judicial unavailability. The new hearing date and time of 17 February 2026 at 10:00 am was provided.
10. The matter was redocketed to the current Court, retaining the same hearing date and time, with the parties notified by email on 4 February 2026.

1. The applicant appeared before the Court unrepresented. He had indicated in his Application that he did not require an interpreter. Upon arrival at the hearing, the applicant in fact confirmed with the Associate that he desired an interpreter in Malay. Efforts were made to secure a Malay interpreter at short notice but were unsuccessful. Prior to the Court calling the matter, the applicant indicated to the Associate that he was content to proceed without an interpreter.
2. When the Court called the matter, the applicant confirmed that he considered himself able to proceed without an interpreter. The Court indicated that it was content to adjourn the matter to a different date to enable the applicant to have the services of an interpreter available. The applicant stated that he preferred to proceed. The Court informed the applicant to let it know at any stage during the hearing if that position changed and to raise concerns if the Court, or the Minister's representative, spoke too fast or if he could not understand. At no stage did the applicant raise any concern during the hearing.
3. At the commencement of the hearing, the Court explained that its role was limited to undertaking judicial review, not merits review, and that the Court was unable to grant the applicant a visa. The Court set out the issues it would consider in relation to the extension of time application consistent with [31] below. It also explained the procedure by which the hearing would be undertaken.
4. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant was asked about each of the factors to be considered in the extension of time as well as each of the grounds in his Application and any other errors he asserted in the Tribunal's decision or procedures. Those submissions are reflected to the extent necessary in the Court's consideration below.
5. The Minister relied on his written submissions and the court book previously filed and tendered as Exhibit R1, and read an affidavit of Ms Baras-Miller affirmed 13 January 2026 which annexed a further copy of the Tribunal's notification of its decision to the applicant, this time including a Tribunal fact sheet which had not been reproduced in the court book. The Minister's representative also spoke to each of the extension of time factors, the applicant's grounds, and the oral submissions made by the applicant.
6. At the conclusion of the Minister's oral submissions, the applicant was asked if he wished to state anything in reply. He made brief reply submissions generally consistent with his earlier oral submissions.

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 the following matters were held to be relevant as 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. The High Court held in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [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 High Court 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". 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, "it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case ...".
2. To the above, the Court 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] HCA 42; (2015) 90 ALJR 89 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 and Multicultural and 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. To this can be added that it is generally relevant for the Court to understand what information was in fact made available to an applicant, and what steps, if any, did the applicant take 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; 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. To the extent that an applicant claims a language barrier caused delay, the Court is not unsympathetic to the challenges faced by unrepresented litigants with limited English language comprehension. However, those difficulties, without more, do not satisfactorily explain a very lengthy delay: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]- [26]; CER19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 37 at [18], [20].

1. The applicant's application was lodged on 18 September 2019, approximately 2 years and 4 months outside of the specified 35 day timeframe provided under s 477 of the Act. The extent of the delay is, by any measure, extremely large.
2. A very brief explanation for the delay can be found in the Application and at [5] and [6] of the supporting affidavit. Cumulatively, those explanations are that:

I was unable to get legal advise [sic] until 19 August 2019

I did not have assistance from a lawyer as I was unable to afford one. I was assisted by a translator but it was not effective and I had great difficulty understanding and being understood.

I received free legal advice about my case on 16 August 2019. This is why I was only able to apply to the court for review of the decision now.

1. At the hearing on 17 February 2026, the applicant was invited to further expand upon the reason for his delay in applying for judicial review. He explained that he did not understand his options or the process and, by the time he realised the time frame, it had already passed and he did not understand that he could still make an application to the Court. He also had no money to afford any assistance. It was not until later that friends assisted him to obtain free legal advice about the process, including that he could apply out of time. The applicant confirmed that he prepared and filed the Application himself: the assistance received was simply as to process.
2. The Minister's written submissions set out the Minister's position that the extent of the delay is extreme and the explanation provided by the applicant is not adequate, particularly in circumstances where the applicant has not explained what steps, if any, he took to obtain advice from a lawyer after the Tribunal's decision, noting the applicant was "squarely on notice" of the time limit for review by reason of the Tribunal's fact sheet provided with the Tribunal's decision (annexed to the Baras-Miller affidavit). At the hearing, those written submissions were relied upon and it was submitted that the applicant put on no evidence to support his oral explanation. The Minister noted it was the applicant's responsibility to take the steps necessary to progress his review application.
3. The reasons given by the applicant for the very long delay are not persuasive, a fact that mitigates against an extension of time being granted. In particular, the Tribunal's notification put the applicant on notice of the time frame to apply for review and added "If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time." As the authorities recited above at [34] to [38] explain, the types of matters asserted by the applicant are generally not considered an adequate explanation. That is even more the case where the delay is, as here, over two years.

1. The Minister properly conceded that no substantive prejudice would flow to him by the applicant's delay, but noted the public interest in ensuring prescribed time limits are adhered to so as to ensure a predictable and orderly conclusion to appeal processes in the finality of administrative decision making.
2. This factor is essentially neutral in the Court's consideration, albeit noting that absence of prejudice alone is not a basis to grant an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

Merits of the underlying judicial review application

1. The applicant's proposed grounds of review are (set out verbatim):
   1. The decision is affected by error because part of my is not considered.
   2. The Tribunal did not take relevant factors into account.
   3. The Tribunal took irrelevant factors into account.
   4. The Tribunal made an unreasonable decision.

1. When offered the opportunity to expand on the above grounds at the hearing, the applicant explained that the first two grounds reflected his complaint that he came to understand, after the Tribunal hearing, that the Tribunal was required to rely on Department of Foreign Affairs and Trade (DFAT) reports about Malaysia. However, the applicant complained that the Tribunal only looked at what he said and what it thought rather than looking into his trouble with the loan shark, and it did not refer to the DFAT reports. The applicant agreed he had not provided the Tribunal with any documentary evidence to consider nor requested the Tribunal look at the DFAT reports (or any other material).
2. The Minister submitted that the Tribunal considered the applicant's written claims and oral testimony in detail. With respect to the DFAT reports, the Minister submitted that it was clear the Tribunal was aware of its obligation to have regard to any DFAT reports "to the extent that they are relevant to the decision under consideration", as reflected at CB 98 [8], but given this was a decision which turned entirely on the credibility of the applicant's claims, which were comprehensively rejected by the Tribunal, the DFAT reports had "no part to play".
3. The Court accepts the Minister's submissions. The Tribunal comprehensively set out the applicant's oral testimony, including its exchanges with him at hearing. There is no suggestion that it did not consider any particular claim, rather what appeared from the applicant's submission was that the applicant disagrees with the Tribunal's conclusions on those claims. It is not the role of this Court to enter into the merits of the applicant's protection claims.
4. With respect to the DFAT reports, the Tribunal was alive to its obligation, under s 499 of the Act, to have regard to relevant country information assessments prepared by DFAT. However, in circumstances where the Tribunal rejected the factual underpinning of the applicant's protection claims on credibility grounds in the manner that it did, DFAT's assessment of the threat posed by unlicensed money lenders, or of the adequacy of Malaysian state protection measures, did not fall to be considered.

1. The applicant explained this ground as being related to the Tribunal's assessment of the applicant's past, and potential future, attempts to relocate within Malaysia. In short, the applicant complained that the Tribunal suggested he should consider relocating to places within Malaysia that the applicant knew more about, given it was his own country.
2. A Tribunal posing possible relocation destinations to an applicant in the course of a hearing is not impermissibly considering irrelevant considerations. Testing those locations with an applicant, and questioning or even dismissing an applicant's basis for submitting those locations are not appropriate, is also not impermissible. The Tribunal's role is inquisitorial (within the bounds of its jurisdiction) and the Tribunal did not err in posing possible relocation destinations to the applicant in the manner it did including at [48] of its decision. Moreover, as the Minister submitted, the Tribunal's decision did not ultimately turn on an assessment of the possibility of relocation within Malaysia. Those matters were discussed at the hearing, but the Tribunal's decision was based on its credibility findings which comprehensively disbelieved the applicant's claims.

1. In oral submissions, the applicant asserted that the Tribunal's decision was unreasonable in its assessment of relocation destinations and in not considering the DFAT reports. To that extent, the Court's consideration of this ground is subsumed in its prior consideration of grounds 1 to 3.
2. The applicant also asserted that he was concerned with the level of translation provided at the Tribunal hearing. He stated that a "couple of times" he would give a "more precise" or "more accurate" statement to the interpreter but that the interpreter translated only "very simple English". He also asserted that he was concerned there were errors in translation.
3. When asked, the applicant agreed he had not specifically raised the issue with the Tribunal, although did say that he tried to engage with the Tribunal in English for some questions and to explain "in my way". He also conceded he took no notes of any possible errors, nor raised any possible errors with the Tribunal during or after the hearing, and had no evidence available to support the submission before the Court. He could not point to any particular error in the decision that he said might arise from poor translation.
4. As submitted on the Minister's behalf, the Tribunal's reasons show a detailed summation of the applicant's evidence. While on numerous occasions the Tribunal noted the evidence as being vague, hesitant, or implausible, there is nothing to suggest that those issues arose from poor translation. In the absence of evidence to support a ground of this nature, it cannot be said, nor did it appear the applicant contended, that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal nor that there were errors made by the interpreter that were so material as to undermine the conclusions of the Tribunal adverse to the applicant (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]).
5. The applicant's proposed grounds of review set out in his Application and oral submissions made before this Court (assessed at a reasonably impressionistic level only) do not identify any arguable case of jurisdictional error on the part of the Tribunal. The Court has also been unable to identify any jurisdictional error on the part of the Tribunal.
6. 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 in the interests of the administration of justice for the Court to grant the applicant an extension of time in which to seek judicial review of the Tribunal's decision.

1. At the conclusion of the hearing the Minister confirmed that, if successful, he sought an order that his costs be fixed in the amount of $4,000. That is less than 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 Division 1, Part 3 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. As the Court discussed with the applicant, any concerns he may have about an inability to pay do not affect the Minister's entitlement to his costs, if successful, but instead is a matter that the applicant may take up with the Minister or his department were costs ordered against the applicant.
3. The Court considers the costs should follow the event and that the amount sought by the Minister is fair and reasonable in this case.

1. The name of the first respondent is amended to "Minister for Immigration and Citizenship".
2. The application for an extension of time filed on 18 September 2019 be dismissed.
3. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the sum of $4,000.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mitchell.