EBN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1746

1. The applicant seeks an extension of time in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. For reasons given below, the application before the Court will be dismissed.

1. The applicant is a citizen of Malaysia. The applicant applied for a protection visa in August 2016.
2. On 4 January 2017, the Delegate refused the application.
3. The applicant applied for review of the Delegate's decision on 19 January 2017. On 16 March 2017, the applicant attended a hearing before the Tribunal.
4. On 20 March 2017, the Tribunal affirmed the Delegate's decision.

1. The Tribunal gave the following reasons for affirming the Delegate's decision at [12]-[18] of its decision:
   1. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. The delegate had no concerns about the applicant's identity. Therefore the Tribunal has assessed the applicant's claims against Malaysia as his country of nationality and receiving country.
   2. At the Tribunal hearing the applicant said he left Malaysia in March 2016 because of the economy. Specifically wages were low, the cost of living was rising and it was difficult to find a job. He had been living with his brother and grandparents in [redacted] and worked as a sales promoter at a boutique for around six months. Before that he had done various odd jobs as a labourer. He said it was difficult for him to survive because he does not have proper qualifications or skills or experiences and is only able to undertake work as a labourer. He also has to support his mother who works as a seamstress and whose husband is unwell. The Tribunal accepts the applicant's claims to have left Malaysia for economic reasons. However it does not accept that he had difficulty surviving given his oral evidence to the Tribunal that he worked for a sales promoter before coming to Australia and prior to that worked for a number of years in various jobs as a labourer. The applicant gave evidence to the Tribunal that in Australia he has been working on farms. The Tribunal is satisfied that he would be able to find work on return to Malaysia, given his work experience in Australia and in Malaysia in the past, and does not find that he faces a real chance of persecution on return to Malaysia in terms of being unable to subsist or for any other reason related to economic insecurity.
   3. At the Tribunal hearing the applicant said he married a (Muslim) Malaysian woman in Australia on [a specified date]. He does not feel like returning to Malaysia because his mother has not given her his blessings. The Tribunal cited a photograph of the applicant's marriage certificate on his mobile telephone at the hearing and accepts his claims to have married recently. It accepts that his mother may be upset that he has married however on his own evidence at hearing she is upset because they married in Australia, not Malaysia, not for any other reason. The applicant also did not indicate that his mother has any intention to harm him as a result. Further he told the Tribunal that his in-laws in Malaysia have no problem with his marriage to their daughter, and that his father who lives in Indonesia (with his second wife) does not even know about this marriage. On these bases the Tribunal is satisfied that the applicant does not face a real chance of serious harm from family members or anyone else because he married a Malaysian woman in Australia in January 2017.
   4. At hearing when asked if he is a member of bersih and holds any fears on return to Malaysia on this basis, as set out in his visa application (detailed above at paragraph [10]), the applicant said that someone else filled out his application form; he knows of bersih but he was not a member; and he never experienced any problems in relation to bersih in Malaysia. On the basis of his oral evidence the Tribunal finds the applicant was not a member of bersih in the past, did not experience problems as a result, and will not be a member of bersih on return. The Tribunal finds the applicant does not face a real chance of persecution from the authorities on return to Malaysia as a member of bersih.
   5. For the reasons above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.SJ of the Act and therefore finds the applicant is not a refugee within the meaning of s.5H.
   6. Nor for the above reasons and based on the above findings does the Tribunal accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from his mother or other family members because he married a Malaysian woman in Australia, the Malaysian authorities as a member of bersih, or for economic reasons. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
   7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

1. The applicant sought an extension of time through an application filed on 18 October 2019. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing.
2. The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa).
3. The Court is required "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice": BTI15 [40] (per Jagot and Halley JJ); see also Katoa at [12] (Kiefel CJ, Gageler J as his Honour then was, Keane and Gleeson JJ).
4. Whilst the matters to which regard may be had are not expressly confined by the Migration Act 1958 (Cth) (Act), matters that may be relevant include the following:

(a) the extent of the delay and the explanation for it;

(b) any prejudice;

(c) the impact on the applicant if time is not extended;

(d) the interests of the public at large; and

(e) the merits of the substantive application: see BTI15 at [25]-[26] (Logan J) and Katoa at [40] (Gordon, Edelman, and Steward JJ).

1. Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. The relevant decision was dated 20 March 2017. The application to this Court was filed on 18 October 2019. It is therefore years out of time.
2. The explanation given by the applicant was that he did not "have a lawyer and advice that [he] could go to court". I accept the Minister's submission that this is not an adequate explanation. Whilst I do not wish to underestimate the difficulties that may affect a self-represented litigant, it has been held that ignorance of such matters, though understandable, does not on its own provide a satisfactory explanation for delay: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] (Foster J) and SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] (Cowdroy J). Further, material provided with the notification of the Tribunal's decision advised the 35-day time limit (CB 87).
3. The extent of the delay and lack of satisfactory explanation weigh against granting an extension of time.

Prejudice, the public interest and impact upon the applicant

1. I do not place significant weight upon the issue of prejudice in this case, in the absence of any specific prejudice being identified by the Minister.
2. There is a public interest in ensuring that administrative decisions are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in public law matters being resolved in a timely and efficient manner: Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24 at [14] (Farrell, Burley and Lee JJ).
3. As to the impact upon the applicant, if the extension of time is refused then the Tribunal's decision will stand. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.

1. The application filed by the applicant contained the following grounds:
   1. The Tribunal found that it could not hear my case because it did not meet the criteria for a protection visa and was not satisfied applicant is a refugee.
   2. During my appearance at the tribunal hearing to present my arguments, I had provided all evidences for my claim but was not considered with a investigation being made to valid my evidences. Also the Interpreter's translation wasn't clear enough for me to understand the Information or order's that was given to me at the hearing.
   3. I had explained and told the risk I would be facing if I return back to my home country but was not much concerned.
   4. Therefore the decision made by the tribunal on my application for review was very unfair to me and I seek further judicial review.
2. In an affidavit filed with the application, the applicant stated: "the decision made by the tribunal was very unfair to me because I requested for Re-hearing to provide more evidences".
3. At the hearing before the Court, the merits of the grounds were discussed with the applicant within the context of an adjournment application that he had made. The applicant had sought an adjournment, at the commencement of the hearing, expressing that he needed to find someone to represent him.
4. However, the applicant did not identify any steps taken to find or engage a lawyer in the years prior to the hearing. I raised matters that may count against an adjournment, including the lateness of the application and concern (in the absence of further detail or evidence) that if an adjournment were granted it may not result in legal assistance being obtained. I also noted that if an adjournment were granted, then the Minister would likely incur additional costs in the matter. If the Minister were successful, those costs may be sought from the applicant. The applicant was invited to address the concerns that I had raised.
5. Instead, the applicant withdrew his adjournment application and stated that he wished to proceed with the hearing that day. I suggested that he consider whether or not adjournment was sought after we discussed some issues with the grounds that he had raised.
6. After explaining the role of the Court, I observed that the applicant had raised an issue regarding the standard of interpretation at his hearing before the Tribunal. I observed that, in some cases, issues with interpretation may provide a basis for setting aside a decision of the Tribunal. However, this would depend upon evidence regarding what had occurred at the Tribunal hearing.
7. I observed that the applicant had also raised that he had sought further opportunity before the Tribunal to provide evidence. I observed that if this request had not been dealt with reasonably by the Tribunal, then this also could provide a basis for setting aside the Tribunal's decision. Again, this would depend upon evidence of what had occurred before the Tribunal.
8. I noted that a problem raised by the Minister was that there was not clear evidence (such as a transcript) of what had happened at the hearing before the Tribunal. Without evidence demonstrating how and when any request for additional time was made, how the Tribunal responded or what interpretation errors were alleged, I explained that I may not be able to find that relevant error on the part of the Tribunal had been demonstrated.
9. I asked the applicant about the circumstances in which he contended that he sought a further hearing before the Tribunal and/or further opportunity to provide evidence. The applicant said that he thought he had done this but he wasn't sure. He did not provide details of what he believed had occurred.
10. In relation to the interpretation issue, the applicant expressed that he believed that he had understood what had been interpreted at the hearing before the Tribunal. However, he considered that the wrong interpretation had occurred in his application for protection. I observed that the issue of his visa application containing incorrect claims had been raised by the applicant before the Tribunal and had been considered by the Tribunal. In these circumstances, I noted that it was unclear how this could be said to have resulted in error on the part of the Tribunal. The applicant was unable to explain this. He reiterated that he may need to find someone to help with his case.
11. The applicant advised that, despite his grounds of review, he had not been provided with a copy of the audio of the Tribunal hearing. I informed the applicant that, in these circumstances, I may be prepared to grant an adjournment to allow him to consider the audio and his grounds in light of the issues raised during the hearing. However, I observed that this may result in the Minister seeking additional costs if the application were unsuccessful. In response, the applicant expressed a preference for proceeding with the hearing that day. He also expressed that he did not seek any further opportunity to provide material in writing after the hearing before the Court. The applicant expressed that he understood the problems that I had identified at hearing with the evidence before the Court and the potential consequences of this for his application. He confirmed that he no longer wished for the matter to be adjourned because he was concerned about potential exposure to additional costs on the part of the Minister.
12. In the above circumstances, I am not persuaded that the merits of the application warrant the grant of an extension of time. I did not understand the applicant to press his ground regarding interpretation error. In any event, insufficient content has been given to the ground to allow me to be satisfied of its merit. In circumstances where the Tribunal considered (and accepted) the applicant's evidence that the claims for protection in his application form were not his claims for protection (at [15]), I do not see how this issue provides an arguable basis for finding relevant error on the part of the Tribunal.
13. Without clear evidence (or even detailed assertion) regarding any request for a further opportunity to provide evidence before the Tribunal, or the Tribunal's response, I am also not satisfied that this aspect of the grounds has reasonable prospects of success. The applicant expressed at the hearing before the Court that he was not sure that he made such a request before the Tribunal. The applicant declined to seek any opportunity to consider the audio of the Tribunal hearing to assess this, or to provide further evidence in this regard.
14. As was submitted by the Minister, there is insufficient basis for finding that the Tribunal failed to consider any evidence that was submitted by the applicant. The Tribunal's decision record indicates that it considered the evidence given by the applicant at hearing. Evidence has not been provided to the Court that is capable of demonstrating that this did not occur. The Tribunal appears to have complied with its obligations under Division 4, Part 7 of the Act. The applicant was invited to a hearing in accordance with s 425 of the Act. The Tribunal had no general obligation, beyond this, to investigate the applicant's claims and it has not been explained how the approach taken by the Tribunal in this regard is capable of demonstrating relevant error: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429.
15. The grounds otherwise raised by the applicant appeared to disagree with the Tribunal's decision or approach. However, as was discussed at the hearing, the role and powers of this Court in this type of proceeding are limited. This Court has no power to set aside the Tribunal's decision based upon disagreement alone.
16. It follows from the above that I am not persuaded that the merits of the application warrant an extension of time being granted.

1. Taking into account the above considerations, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended in this matter. I am therefore obliged to dismiss the application before the Court.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.