**MIGRATION** - Extension of time - principles - no explanation for delay - no arguable case of error - extension refused
Source
Original judgment source is linked above.
Catchwords
**MIGRATION** - Extension of time - principles - no explanation for delay - no arguable case of error - extension refused
Judgment (17 paragraphs)
[1]
The application to this Court, here a 28-day extension of a review of a Tribunal decision in 2020, was made in October 2020 and came on for hearing in October 2025. The stated grounds for extension of time, which were not expanded upon at the hearing, are simply these:
Because I need a decision for my visa and hope I can work legally.
Necessary with the current situation of the dangerous virus that is plaguing the world.
The application thus provides no explanation for the delay. That weighs against any grant of an extension, as the delay is not insubstantial. As noted, the Minister asserts no case specific prejudice.
What then of the substantive merits of the application should time be extended?
The relevant grounds (in the terms contained in the application) are:
The decision made to refuse my Protection Visa application has a jurisdictional error.
The decision maker's statement about the credibility of the applicant's claims is purely based on his/her personal opinion.
The decision maker's findings and decision was based on a report about the level of poverty in Malaysia that has been proven as not true.
None of these grounds show even an arguable case of jurisdictional error. At the hearing, I gave the applicant a brief indication of some types of jurisdictional error which are often raised. That did not result in any further details of the alleged errors being provided by the applicant.
The first ground is merely a broad disagreement with the result. It provides no details of any asserted jurisdictional error: it provides no arguable basis for relief.
In relation to the second ground, which is set out above, although the Minister's written submissions "[b]eneficially read" this ground as a potential allegation of apprehended bias, the applicant, when asked by me at the hearing what she meant by this ground, said that the Tribunal "didn't make a good decision for my visa". I thus do not take this as an allegation of either actual or apprehended bias, but merely as disagreement with the end result of the matter. That being so, it does not advance matters any further. As has often been said, disagreement, even emphatic disagreement, with the Tribunal's decision does not of itself establish jurisdictional error.
The final ground is that, in some unspecified way, the Tribunal misapplied country information, that is "[t]he decision maker's findings and decision was based on a report about the level of poverty in Malaysia that has been proven as not true."
It is necessary to note that the key claim by the applicant for a Protection (Class XA) (Subclass 866) visa before the Ministerial delegate and the Tribunal were her fears of financial hardship. The Tribunal concluded that such fears would not expose her to a real chance of serious harm or a real risk of significant harm, and it made those findings in part based on country information assessments expressly prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes.
As the Minister correctly submitted, it is not clear in the application, nor was it clear after giving the applicant an opportunity to identify further details of this ground, in what respect the country information relied upon by the Tribunal was wrong.
The Minister's submission was that the Tribunal was not bound to consider any country information, but it was open to it to do so and further made the following submissions:
... it is well established that the choice of, and weight to be attributed to, country information are matters for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 10 at [13]). Further, it is irrelevant whether that country information has changed since the Tribunal's decision was published such that, for example, the economic circumstances in Malaysia may have since worsened. The assessment of country information is ultimately a task for the Tribunal, and not one permissibly available to this Court (NAHI at [11]).
Insofar as the Tribunal did consider and rely upon country information to make its decision, it was plainly open for it to do so. It may also be noted that the Tribunal put that same country information to the applicant for her comment at hearing ... and expressly considered her responses to that information in its reasons ... Ultimately, it was open to the Tribunal to conclude that the applicant's claimed fear of financial hardship in Malaysia would not expose her to a real chance of serious harm or a real risk of significant harm for the reasons it gave, including by reference to available country information. The applicant's complaint by ground three has no reasonable prospect of success.
I accept this submission by the Minister for the reasons stated. I would also add, in addition to the reference to the Full Court of the Federal Court's decision in NAHI, the decision of Judge Fary in BPZ21 v Minister for Immigration and Citizenship[2025] FedCFamC2G 849 at [71], the terms of which I gratefully adopt as follows:
[2]
As for 'country information', other than country information assessments expressly prepared by the DFAT for protection status determination purposes:
[3]
(a) In NAHI v Minister for Immigration & Multicultural Indigenous Affairs[2004] FCAFC 10, the Full Court held (at [13]) that both the choice of 'country information' and assessment of its weight were matters for the Tribunal, and that the court should not substitute its own view of the material. In rejecting submissions that the Tribunal erred by failing to comment on 'country information' material submitted by the applicants, the Full Court stated:
[4]
The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item or attributed less weight to it than to another item.
[5]
(b) In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 91; (2005) 141 FCR 291, the Full Court held (at [41]) that the choice of country information available was a matter for the Tribunal, and that it was not required to accept more recent information even if it had been supplied, noting that such information might have come from a less reliable source.
(c) In VWFW v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCAFC 29, the Full Court held that in its true light, the appellant's challenge to the Tribunal's treatment of 'country information' was a challenge to the weight to be attributed to information contained in two documents, which was not a ground of jurisdictional error. The Full Court noted that it was not a case where a decision maker had failed to take into account a mandatory consideration (cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24 at 45).
(d) In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) the Full Court stated (at [73]):
[6]
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
[7]
All that remains here is an unparticularised and unsubstantiated challenge to a Tribunal finding of fact based on country information reports. There is no even arguable jurisdictional error identified by the applicant in her application, including on this ground. It is for the applicant to formulate and establish her case alleging jurisdictional error but here she has failed to do so. I thus cannot be satisfied under s 477(2)(b) of the Act.
[8]
Shortly before the hearing, the applicant filed a short affidavit which contained a submission and also some screenshots from the applicant's ex-boyfriend. I gave permission for the affidavit to be filed, although it was not in accordance with the Court timetable. The applicant there said:
[9]
ESCAPE TO AUSTRALIA On [a particular date] ... I migrated to Australia. The reason I migrated here was due to financial problems, and family problems that I was facing at that time and for that reason I had already submitted my protection application before. And now I have a strong reason why I do not want to return to Malaysia because I have received threats and intimidation from my ex-boyfriend where he has sent messages via his Facebook account and sent several threatening emojis to me and he also made calls but I did not dare to answer him and he also often sent emojis of sharp objects like knives and this has caused me to experience prolonged depression as a result of this problem and also harassment from there. This has traumatized me to return to Malaysia I am afraid of his threats because I feel unsafe.
[10]
Annexed to the affidavit are a series of screenshots of missed audio calls and various emojis which include disapproving face emojis and a series of knives. I received this evidence provisionally at the hearing, subject to forming a view on its ultimate admissibility.
Fundamentally, under section 55 of the Evidence Act 1995 (Cth), for evidence to be admissible, it must be relevant to a fact in issue:
[11]
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
[12]
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
[13]
By section 56 of the same Act, evidence that is not relevant is not admissible.
The Minister objects to the tender of that evidence on the basis that it does not go to any fact in issue, because at best, it seeks to possibly raise an additional new claim for a protection visa, but does not show any jurisdictional error in the decision of the Tribunal. None of this evidence was before the delegate or the Tribunal. Indeed, it post-dated both of those processes.
I accept the submissions of the Minister: thus, this evidence, even if accepted, does not go to establishing a jurisdictional error, because it could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of [any] fact in issue in the proceeding". For those reasons, I reject the attempt to read the affidavit or tender the annexures to it.
[14]
For the reasons set out above, I am not satisfied it is in the interests of justice to extend time. Fundamentally, this is because:
[15]
(a) The delay of 28 days, while not long, is not insignificant. The time limits are meant to be followed for the policy reasons adverted to earlier in these reasons. There is simply no explanation for the delay. That counts against an extension being granted.
(b) More fundamentally in this matter, the application is clearly without merit because it does not raise any arguable jurisdictional error and so, it would be futile to extend time.
[16]
Accordingly, the application to extend time for the application filed on 9 October 2020 is refused. Costs should follow the event. The Minister sought the full scale amount under the new Rules. However, the Minister's lawyer accepted that at least some of the work had been done before the new Rules came into force. It follows that in my discretion the costs should be slightly reduced to $4,400.
[17]
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.
Parties
Applicant/Plaintiff:
EMO20
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2030
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (4)
(a) Accepting that declining to do so will always adversely affect an applicant for review, an extension of time beyond the prescribed 35-day limit can only be made if the Court is "satisfied that it is necessary in the interests of the administration of justice to make the order": section 477(2)(b) of the Act.
(b) Leaving aside case-specific prejudice (and here the Minister does not assert any), such delay always prejudices the orderly and proper administration of the Act because it:
(i) defeats Parliament's expressed intention that applications be made within 35 days;
(ii) detracts from the Minister's legitimate interests in the timely disposition of visa decisions under the Act;
(iii) is contrary to the public interest that litigation, including public law litigation, comes to a timely end; and
(iv) often has a real resources impact for both the executive and judicial branches of government.
(c) In every case, explanation for the delay is required. The longer the delay, the more important the cogency of that explanation. If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even exceptional.
(d) The court may also engage in at least a reasonably impressionistic assessment of the merits of the jurisdictional errors of the Tribunal below as asserted by the applicant's grounds of review, but it may go further and as the plurality of the High Court said in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] HCA 28: