EUE17 v Minister for Immigration, Citizenship and Multicultural Affairs

BUTTON J: 1 The applicants are Malaysian citizens of Chinese ethnicity. They sought an extension of time in which to appeal orders of the Federal Circuit and Family Court of Australia dismissing their application for judicial review of a decision of the second respondent (the Tribunal) affirming the decision of a delegate of the first respondent (the Minister) not to grant protection visas: EUE17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 368 (PJ). On the Minister's calculations, the application for an extension of time (attaching a draft notice of appeal) was filed two days after the time fixed by r 36.03 of the Federal Court Rules 2011 (Cth). 2 The first applicant arrived in Australia in February 2010, and applied for a protection visa on 4 May 2015. The second applicant is the wife of the first applicant and was included in the first applicant's application for a protection visa as a member of the family unit. The first applicant claimed to fear harm on the basis of his Chinese ethnicity and due to being unable to repay a loan due to his reputation in construction having suffered through allegations made against him by a disaffected customer. The first applicant claimed that the "financial company" threatened him and an accusation he made online about police corruption and abuse of power resulted in police threatening his father. 3 The application for an extension of time was supported by an affidavit of the first applicant stating that the delay arose as the first applicant misunderstood the time limit. The notice of appeal advanced two grounds, in the following terms: 1. There exi[s]ts jurisdictional error. Some unfavourable findings were made based on irrelevant information. 2. My case was not fairly treated. [S]ome claims were not considered. 4 No particulars of either ground have been provided. The applicants did not put on any written submissions. The applicants appeared at the hearing of their application for an extension of time, and represented themselves with an interpreter. The first applicant appeared for himself and for the second applicant. 5 In SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, Murphy J discussed the circumstances in which an extension of time will be granted as follows (at [18]-[19] and [23]): [18] The Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen (1984) FCR 344 at 348-9 (which related to an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977[)] as the principles which should guide the court in determining whether an extension of time should be granted: Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17]; Sutera v Nelson [2011] FCA 1470 at [7]. [19] Accordingly, the application for an extension of time requires consideration of the following factors; (a) satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay; (b) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; (c) the merits of the appeal. … [23] It is well established that an extension of time, even for a short period, may be refused if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]. 6 The Minister opposed an extension of time being granted on the grounds that the delay, while short, had not been adequately explained and on the basis that the appeal lacks merit. The Minister accepted that he would suffer no prejudice if an extension of time were granted. 7 The explanation proffered by the first applicant for the delay was not detailed. The first applicant stated that he had misunderstood the time limit. Nevertheless, as the delay was very short - only two days - and the Minister is not prejudiced by the delay, I would not refuse an extension of time on the basis that the explanation for the delay was inadequate if I were persuaded that the appeal had any merit. 8 The Minister's submissions summarised the Tribunal's decision (TR) as follows: 14 The Tribunal did not accept the applicants were discriminated against due to their Chinese ethnicity (TR [77]). The Tribunal had regard to country information concerning the status of ethnic Chinese in Malaysia, and relying on that country information did not accept that Chinese Malays would not be provided with police protection is required (TR [78]-[80]). 15 The Tribunal found that the applicants were not credible witnesses (TR [81]). The Tribunal gave comprehensive reasons for rejecting the applicants' claims, including that: 15.1 There was a delay of five years and two months in making the visa application. The Tribunal placed little weight on the applicants' explanation that they were unaware of the visa and did not have the financial means to pay a migration agent (TR [82]). 15.2 The applicants gave inconsistent evidence as to the value of the loan between the visa application and oral evidence (TR [83]). 15.3 The first applicant gave inconsistent evidence as to whether his father was harassed in relation to the loan. The Tribunal considered the first applicant's explanation that loan sharks would not target his father implausible, and found that the fact that he had not been harmed raised concerns about the level of threat faced (TR [84]). 15.4 The applicants gave inconsistent evidence as to how much money the first applicant's customer demanded from the applicant before reporting the matter to the police (TR [85]). The Tribunal noted the applicants did not respond in writing to its concerns despite being provided the opportunity to do so to explain this inconsistency. 16 Considering the evidence and country information before it, the Tribunal found that the applicants had never borrowed money from loan sharks and it did not accept that they had been blackmailed by the customer or police. The Tribunal also did not accept the second applicant was followed by or otherwise harassed by loan sharks (TR [87]). 17 The Tribunal was satisfied the applicants could access effective state protection in Malaysia, rejected the applicants' claims they had suffered persecution or any harm in Malaysia as an ethnic Chinese Malay and found that they did not fear returning to Malaysia for any reason (TR [88]-[90]). 18 Accordingly, the Tribunal found that the applicants did not satisfy the criteria for the visa under ss 36(2)(a) or 36(2)(aa) of the Act (TR [91]). 9 The primary judge considered the two grounds of review advanced below and rejected each as follows: 8 The first ground of the application is: Jurisdictional error has been made. The tribunal does not accept my claims on the ground of irrelevant information and makes wrong conclusions. 9 The applicant said at the hearing before this court that he could not say anything in support of that ground. He said, simply, that if he was sent back to Malaysia, he will have a lot of trouble and he asked the court to reconsider the decision. The applicant did not identify any irrelevant information that the Tribunal took into account. It does not seem to me that the Tribunal did take into account any irrelevant information. It seems to me that the Tribunal's conclusion was open to it on the material before it. Essentially, this ground is seeking merits review, which this court is not authorised to provide. The court is not permitted to assess whether the applicant will have a lot of trouble when he goes back to Malaysia. The court can only see if the Tribunal has made a jurisdictional error. I do not consider that the Tribunal has made a jurisdictional error as alleged in ground 1. 10 The second ground in the application is: Tribunal member does not consider my case unfairly and properly. Tribunal did not properly consider whether I would be harmed if I returned to Malaysia. 11 Again, the applicant did not elaborate on this ground in oral submissions. The Tribunal decision shows that it did consider whether the applicant would be harmed if he returned to Malaysia. The Tribunal considered the various elements of the applicant's claims and gave reasons for rejecting those claims. The reasons given by the Tribunal, in my view, were open to it. Ground 2 is not made out. 12 The applicant has not identified any jurisdictional error on the part of the Tribunal. I have looked at the material and have been unable to identify a jurisdictional error myself. In these circumstances, the application will be dismissed. 10 The grounds of appeal sought to be advanced in this court were similar (but not identical) to the grounds advanced below. The primary judge recorded that the first applicant appeared in person but did not make any submissions elaborating on either ground of review. Accordingly, this is not a case where an understanding of the errors contended for in this court can be gleaned from the submissions made below. 11 When this matter was called on for hearing, I invited the applicants to tell the court what unfavourable findings they contended had been made based on irrelevant information. The first applicant stated that he did not consider he had had a fair trial because the risk to him of returning to Malaysia was not considered. I address this concern under ground 2. Upon being invited again to explain what unfavourable finding (or findings) they considered had been made based on irrelevant information, the applicants did not raise any points. 12 While the Tribunal made a number of unfavourable findings, each such finding was explained by reference to the evidence before the Tribunal. I am unable to discern any "irrelevant information" forming the basis of unfavourable findings made by the Tribunal. As such, ground 1 does not have merit so as to justify the grant of an extension of time. 13 As to the second ground of appeal, I invited the applicants to tell the court how they considered the case had not been fairly treated, and what claims they contended had not been considered. The only matter raised by the applicants was their contention that the Tribunal had not considered the risks posed if they returned to Malaysia. 14 Contrary to the applicants' submission, the Tribunal did consider the question of the risk posed on return to Malaysia. The Tribunal referred to, and put to the applicants, country information concerning the Royal Malaysian Police (TR [37]-[39]), referred directly to the first applicant's fear of the loan sharks and his fear that he could not obtain protection from the police against the loan sharks (TR [52]-[53]), and referred to the second applicant's fear that she may be forced into prostitution by the loan sharks and that the Malaysian police did not protect Chinese people (TR [61], [69]). The Tribunal held significant concerns about the applicants' credibility, advised them of this, and gave them an opportunity to make further submissions after the hearing, which opportunity they did not take up (TR [74]-[75]). 15 In its findings and reasons, the Tribunal referred extensively to the country information concerning the performance of the Malaysian police (TR [78]-[80]) and concluded that it did not accept that ethnic Chinese would be unable to avail themselves of police protection from loan sharks or anyone else in Malaysia (TR [80]). The Tribunal also concluded that the applicants were not credible witnesses and that their claims were not credible (TR [81]). The Tribunal rejected key aspects of the applicants' claims (TR [87]) but also concluded that the Malaysian authorities have in place effective protection measures and that the applicants could access protection, which was durable, and that there was a reasonably effective police force in Malaysia (TR [87]-[88]). 16 The Tribunal concluded that the applicants did not satisfy the criteria in either s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Migration Act) for a protection visa. That conclusion was based on a combination of rejecting factual aspects of their claims, and also on a conclusion as to the availability of effective protection measures from any threat posed by the loan sharks. As such, the Tribunal did consider the issue of the risk posed by the applicants' return to Malaysia, but did not accept that there was a risk of the kind that would satisfy the criteria in either s 36(2)(a) or (aa) of the Migration Act. 17 In my view, ground 2 does not have merit so as to justify the grant of an extension of time. 18 Accordingly, the application for an extension of time will be refused. 19 The Minister sought an order fixing his costs in the amount of $5,000.00. While that sum is less than the sum set for an appeal or application involving a migration decision that is dismissed after hearing (namely $7,965.00 set under Sch 3, item 15 of the Federal Court Rules 2011 (Cth)) given that: the Minister was only put to the cost of putting on short submissions which essentially rehearsed the findings of the Tribunal and the primary judge, and addressed the failure of the applicants to articulate their claim; the Minister did not retain counsel; the appeal book used below was reused in this hearing; and the hearing was of very short duration, I consider the sum of $5,000.00 to be slightly excessive in the circumstances and will award $4,000.00. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.

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