ESI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1737

1. In support of the Visa application, the applicant also provided a pro-forma petition, template for signature collection and various news articles.
2. On 24 March 2017, the Delegate refused to grant the applicant the Visa. The Delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
3. On 6 April 2017, the applicant applied to the Tribunal for review of the Delegate's decision. In his application for review, the applicant nominated the email address (applicant's email address) for correspondence.
4. On 8 April 2017, the Tribunal emailed the applicant confirming receipt of his application for review. In that correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
5. On 15 December 2017, the Tribunal emailed the applicant inviting him to attend a hearing on 12 February 2018 at 9.30am.
6. On 12 February 2018, the applicant attended a hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
7. On 9 March 2018, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On the same day, the Tribunal sent a copy of its decision and reasons to the applicant's email address.

1. The Tribunal issued its statement of decision and reasons on 9 March 2018 (Tribunal Decision).
2. At paragraph [15] of the Tribunal Decision, the Tribunal summarised the applicant's claims for protection at the time of the Visa application.
3. At paragraphs [20] - [23] of the Tribunal Decision, the Tribunal noted the applicant's oral evidence at hearing that he had paid a friend to complete the Visa application and that he had signed the application but did not know the contents of it. The Tribunal further noted the applicant's admission that the written claims in the Visa application were not correct, that he was not a member of the SSU-UK, he did not hold any fear of persecution nor was there a real risk of him being significantly harmed on return to Malaysia as a result of being a member of the SSU-UK. The Tribunal accepted the applicant's evidence in this regard and found that there was no real risk of persecution or any real risk of significant harm to the applicant on the basis of his written claims.
4. At paragraph [28] of the Tribunal Decision, the Tribunal noted that the applicant had not expressed any fears of returning to Malaysia, and that his evidence was that he had travelled to Australia to find work and did not hold any fear of returning to Malaysia.
5. Accordingly, at paragraphs [29] - [34] of the Tribunal Decision, the Tribunal found that the applicant did not face a real chance or real risk of serious or significant harm on return to Malaysia and therefore, that he did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and thereby affirmed the Delegate's decision.

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the migration decision.
2. The Tribunal Decision was made on 9 March 2018. An application for judicial review of that decision in this Court was therefore required to be filed by 13 April 2018. The Application for judicial review was not filed until 12 September 2018.
3. Accordingly, the Application was filed 152 days after the expiry of the statutory timeframe.

Should the Court be satisfied to make an order extending time?

1. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The Act does not specify any criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to grant an extension.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation "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". Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

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

(2) any prejudice to the respondent if an extension were granted;

(3) the impact on the applicant if the time was not extended;

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

(5) the merits of the substantive application.

1. In the Application filed 12 September 2018, the applicant specified the following grounds as to why it is necessary in the interests of the administration of justice to extent time, in the following terms (without amendment):
   1. The reasons I need to extend the given timeframe is due to financial and language issues.
   2. Even I had been granted with visa A before, which I had the working right, but I still find it hard to find a job. Furthermore, I'm also facing problem with language. The language barrier made it harder for me to find a job.
   3. In Addition, I'm also having the problem towards language. The language barrier made it hard for me to collect the accurate information regarding the process of reappealing to FCC. Most information is gained through from friends, in which some information is not accurate and it tooks time for me to collect the accurate information and for me to make the best decision on what I should do to get the reappealing of my application. Hence, that is part of the reason on why cim not submitting the form in given timeframe.
   4. In relation I also heard that some people told me that I need to hire a lawyer for application. Thus, since having problem with financial I was unable to do that. Until one day ive met with my friend to assisted me with the application. He also told me that I can reappeal my application to FCC by myself instead of hiring a lawyer. Thus, that what made me to drag my application until the given timeframe.
   5. Due to the obstacles that I'm facing I would like to appeal to FCC for reconsideration and for the extension of my application timeframe.

1. The delay is lengthy, being 152 days. The Court has, in other cases, described a delay of 74 days as "substantial" and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
2. Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 (Tran) at [38]. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38]. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [18] the majority observed that "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional".
3. The applicant has not provided an adequate explanation for the delay.
4. Firstly, that the applicant was financially constrained and could not obtain a lawyer cannot provide an acceptable explanation for the delay. It is well established that an inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for the delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37]. There is no entitlement to legal representation and, indeed, in the migration jurisdiction, it is more common than not that applicants are self-represented.
5. Secondly, as to the assertion that the applicant faced a language barrier and had some difficulties completing an application for review, this also cannot provide an acceptable explanation for the delay. It is the case that a great many applicants in the migration jurisdiction face similar language challenges. However, notwithstanding that, the legislature has determined that an application for review by the Court must be filed within 35 days of the Tribunal decision.
6. Thirdly, at the hearing the applicant contended that he was unaware of his rights to seek review. Ignorance of the law cannot provide an adequate explanation for the delay. Further, the Tribunal's fact sheet "Information about decisions - MR Division" provided to the applicant with the Tribunal Decision clearly informed the applicant of his ability to apply to the Court for judicial review of the Tribunal Decision and the timeframe within which an application must be made.
7. I consider this weighs against the grant of an extension of time.

1. The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
2. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
3. I assess this as a neutral consideration.

1. There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this. However, it has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15] - [17].
2. As to the impact upon the applicant, if the extension of time is refused then the Tribunal's decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act, the refusal of an explanation for an extension of time forecloses any right of appeal: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [65].
3. The applicant informed the Court at the hearing that he intended to return to Malaysia and that his wife had already done so. He was remaining in Australia to obtain his son's Malaysian citizenship. Further, he has not at any time contended that he fears harm upon return to Malayasia. Accordingly, the impact on the applicant of a refusal to extend time appears less significant than would otherwise be the case.
4. I consider this weighs against the grant of an extension of time.

1. While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time.
2. The substantive Application provides the following grounds for judicial review (without amendment):
   1. The decision made by AAT on 09/03/2018 is refused to grant a protection visa. Hence I would like reappeal to FCC to reopen because AAT has not treated fairly when refused my application.
   2. Myself decide to move to Australia because have a lot of problem in my own country.
   3. The major issued that I have in my own country because are financial matter. I was unable keep done all debt previously do by my parents due are hard of financial. AAT not threat me fairly when not to accept my application.
   4. I had explain to AAT that I facing a misunderstanding while do the application due are the third party people give a error information on that time. AAT not done a right thing to me when refused to accept my application.
   5. Besides the rampant corruption. Myself also oppressed because of our religion. Coming from country that proclaimed muslim as the official religion, the non-muslim like me became a second class citizens. Most job opening are given to the Muslim. this made myself feel depressed and desperate for better place that offers a fair treatment to human kind.
   6. AAT did not accept my application and AAT was fully aware on the fact that I have lodged an application for protection due having and facing a lots of problem in Malaysia but AAT not use they discretion as this is clearly unfair decision to myself.
   7. I would like to request to FCC to set aside old orders and replaced by new orders and accept my application for review as a valid application and decide on this matter and FCC.
3. At the hearing the applicant was invited to elaborate on the grounds in the substantive Application but was unable to do so.

1. Ground 1 is unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16). Further, at the hearing, the applicant was unable to particularise what unfairness he said had arisen.
2. If by Ground 1 the applicant is asserting that he was denied procedural fairness, this ground must fail.
3. As submitted by the Minister, the Tribunal complied with its procedural fairness obligations. The Tribunal's proceedings were conducted under Part 7 of Division 4 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal's procedural fairness obligations in this regard. The applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicant attended the hearing on 12 February 2018 and gave evidence with the assistance of an interpreter in the Malay and English languages. Further. the applicant was on notice of the determinative issue on review from the Delegate's decision and the Tribunal's questioning at the hearing: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. Additionally, there was no "information" that was required to be put to the applicant in accordance with s 424A of the Act. This was in circumstances where the Tribunal Decision was based on the applicant's Visa application, the Delegate's decision and the applicant's oral evidence to the Tribunal, all of which fell under the exemptions in s 424A(3)(b) and (ba).
4. Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
5. Ground 1 of the substantive Application does not disclose any reasonably arguable jurisdictional error by the Tribunal.

1. By Ground 2 the applicant merely states that he moved to Australia because of problems in Malaysia. Ground 2 does not assert any jurisdictional error on behalf of the Tribunal.

1. Insofar as Ground 3 asserts that the Tribunal failed to consider the applicant's claims regarding financial issues he had in Malaysia, this ground is not reasonably arguable. It is not apparent on any of the material before the Court that the applicant made any such claim regarding financial issues before the Tribunal and at the hearing he conceded that he "doesn't think" he raised this with the Tribunal.
2. Insofar as Ground 3 asserts that the Tribunal did not accord the applicant procedural fairness, I refer to and repeat my comments as set out at paragraphs [43] above.
3. Ground 3 of the substantive Application does not disclose any reasonably arguable jurisdictional error by the Tribunal.

1. As to Ground 4, the Tribunal said at paragraph [20] of its decision that the applicant abandoned his written claims before it. At paragraphs [21] and [22] of its decision, the Tribunal recorded the applicant's evidence that a friend had completed his application form, he did not know the contents of it and that his written claims were not correct. At the hearing, the applicant confirmed that this accurately reflected his evidence to the Tribunal and the Tribunal Decision as to these matters did not disclose any error.
2. Accordingly, Ground 4 of the substantive Application does not disclose any reasonably arguable jurisdictional error by the Tribunal.

1. Similar to Ground 3 above, it is not apparent on any of the material before the Court that the applicant made claims before the Tribunal for protection on account of religion and at the hearing he conceded that he did not.
2. Ground 5 of the substantive Application therefore does not disclose any reasonably arguable jurisdictional error by the Tribunal.

1. Ground 6 alleges that the Tribunal Decision was unfair because it refused the applicant's application despite being aware of his problems in Malaysia. In circumstances where the applicant abandoned his claims for protection before the Tribunal, otherwise gave oral evidence that he did not have any fear of harm of returning to Malaysia and conceded before the Court that he did not raise any claim based on financial circumstances or religion before the Tribunal, Ground 6 also does not disclose any reasonably arguable jurisdictional error by the Tribunal.

1. Ground 7 seeks the assistance of the Court and does not assert any jurisdictional error on behalf of the Tribunal.
2. Accordingly, none of the grounds in substantive Application disclose any reasonably arguable jurisdictional error by the Tribunal.

1. The Application in this case is 152 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
2. None of the above considerations weigh in favour of the grant of an extension of time. Accordingly, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review.
3. The Application is therefore dismissed.
4. The Minister seeks an order that the applicant pay its costs in the amount of $4,189.38. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.