FSF18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 917

1. Assessing whether the applicant was a refugee under s 36(2)(a) of the Act, the delegate was not satisfied that the applicant's claimed fears of persecution were well-founded, as required by s 5J(1)(a). The delegate referred to the 2014 Country Information Report for Malaysia prepared by the Department of Foreign Affairs and Trade in addressing the applicant's claims about racial discrimination. The delegate's decision records that the applicant's claims were minimal and vague, and that she failed to properly explain the reasons or background against which she experienced harm. Based on the available country information, the delegate was not satisfied that Indian-Malaysians experienced violence or discrimination daily, and that the applicant did not have a well-founded fear of persecution. The delegate reasoned the applicant thereby failed to satisfy s 5J(1)(a), was consequently not a refugee as described in s 5H, and was not therefore owed protection under s 36(2)(a).

1. On 31 October 2016, the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal acknowledged receipt of the application by letter on 2 November 2016, transmitted via email, noting the validity of the application had not been assessed and informing the applicant that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible.
2. On 3 October 2017, the Tribunal wrote to the applicant inviting her to attend a hearing on 10 November 2017 to give evidence and present arguments relevant to the review. The letter indicated that the Tribunal was unable to make a decision favourable to the applicant based on the information then before it. The letter enclosed a 'Response to hearing invitation - MR Division' form and requested the applicant complete and return the form within seven days of receiving the letter. The applicant provided the Tribunal with a completed response on 9 October 2017.
3. On 10 November 2017, the applicant attended the Tribunal hearing and was assisted by a Tamil interpreter. At the hearing, the applicant provided copies of various documents relating to her student visa, bank statements and a statutory declaration.
4. By letter dated 20 April 2018, the Tribunal notified the applicant that it had decided to affirm the delegate's decision. The notification letter was transmitted to the applicant by email on that day, which email attached a copy of the Tribunal's Statement of Decision and Reasons (Decision). The Decision is dated 19 July 2018, but as it was provided to the applicant on 20 April 2018, the date recorded in the Decision is incorrect.

1. The Tribunal begins by setting out the relevant statutory criteria relevant to the grant of a Protection visa: Decision at [3]-[7]. The Tribunal considers the applicant's claims and evidence from [9] to [84], noting at [9] and concluding at [85]-[87] that the delegate's decision is affirmed. The Tribunal records that it must consider a range of factors and materials in accordance with Ministerial Direction No. 56 (Direction No 56) made under s 499 of the Act. The Tribunal notes that it took into account the policy guidelines in the PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines (PAM3) prepared by the Department of Immigration, as well as country information prepared by the Department of Foreign Affairs and Trade, to the extent relevant: at [8].
2. Recounting the applicant's visa and immigration history, the Tribunal noted that the applicant arrived in Australia intending to study business management but was refused the required student visa. The applicant told the Tribunal she was unsure why her application for a student visa had been refused. She had applied for the visa assisted by a migration agent: Decision at [14]. The applicant told the Tribunal that she asked her migration agent for a refund so that she could return home, but the migration agent suggested that she apply for a Protection visa. The applicant appears to have conceded during the hearing that she would not have applied for a protection visa had she been granted a student visa: at [28]. The applicant told the Tribunal that her migration agent had completed all the documents on her behalf: at [14], [16]. The applicant acknowledged that the claims set out in her protection visa application were mostly correct, but that she had not referred to herself as suffering "mental torture": at [27]. The Tribunal recorded that after making the protection application, the applicant realised that the migration agent was "a crook" and she made a report to Victoria Police: at [31]-[32].
3. Queried about the discrimination she claimed to face, the Decision records the applicant said she had been subjected to discrimination and harassment in the workplace and in her community, and she claimed that the Malaysian authorities failed to afford her meaningful protection, or selectively applied the law in a manner which was discriminatory, because she is Indian-Malaysian: Decision at [20]-[23]. The applicant gave the Tribunal examples of discrimination, which included experiencing sexual harassment in the workplace and subsequent police inaction. The Decision records that the applicant did not accept any suggestion that the discrimination she faced in Malaysia was 'low-level', notwithstanding that discrimination did not deprive her access to stable employment where she was selected through an open and competitive application process: at [25].
4. Examining the country information for Malaysia, the Tribunal noted that the Malaysian law enforcement authorities are generally professional and effective, but that the police face issues with corruption: Decision at [33]-[55]. The Tribunal next examined country information relevant to the applicant's claims that she faced societal discrimination as a person of Indian-Malaysian ethnicity: at [56]-[57], before going on to discuss issues with the applicant's credibility: at [58]-[64].
5. The Tribunal dealt with the applicant's claims as summarised below:

(a) it accepted the applicant faced some discrimination, in that she was not afforded opportunities that ethnic Malays were in some areas, including economic pursuits: Decision at [61];

(b) it accepted that she felt degraded because of negative comments made about her religion and ethnicity, and that she felt she did not have the same opportunities in Malaysia as ethnic Malays: at [62];

(c) it accepted that she faced sexual harassment in the workplace: at [63]; but did not accept on the evidence that the harassment was related to her ethnicity, race or religion: at [73];

(d) it considered the applicant could access effective protection against physical and other significant harm by recourse to the Malaysian law-enforcement authorities: at [84];

(e) it noted that her evidence before the Tribunal was largely consistent with the claims in her application, save for her description of her experience in Malaysia as "mental torture": at [64];

(f) it did not accept that the applicant's past experiences amounted to serious harm: at [65];

(g) it did not accept that there was a real chance that on return to Malaysia the applicant would suffer serious harm, either at the time of the Decision or in the future, notwithstanding it accepted she would likely be demeaned due to her race, ethnicity and religion: at [67];

(h) it did not accept that the applicant would face a real chance of serious harm amounting to persecution, whether for the reasons listed under s 5J(5) of the Act or otherwise: at [69]; and

(i) it found that she did not have a well-founded fear of persecution: at [81].

1. In deciding that the applicant's past experiences did not constitute serious harm, the Tribunal noted the applicant came to Australia to study, not to seek protection, and that her evidence that she would not have applied for protection if her student visa had been granted was relevant to that finding: Decision at [66].
2. Assessing whether there was a real chance that the applicant would suffer serious harm upon return to Malaysia, the Tribunal concurred that being demeaned would be "unpleasant and difficult" but noted the applicant had been able to receive an education in Malaysia, and to obtain employment through a competitive recruitment process and maintain that employment: Decision at [67]. The Tribunal noted that the applicant's father and grandfather also maintained employment in Malaysia, but it does not explain how this relates to its assessment whether the applicant would suffer serious harm: at [68]. The Tribunal noted that the relevant country information indicated that Indian-Malaysians face some barriers, but these do not amount to serious harm: at [69]. The Tribunal observed that the treatment to which the applicant had been subjected because of her ethnicity, race or religion was "highly undesirable and morally repugnant", but found that it did not amount to serious harm under s 36(2)(a) of the Act, and there was, therefore, no 'real risk' or 'real chance' that the applicant would suffer significant harm as a necessary and foreseeable consequence of her removal from Australia: at [71]. The Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa).
3. The Tribunal also examined the applicant's claims in relation to the incident involving sexual harassment: Decision at [73]-[84], assessing whether it amounted to serious harm or persecution, and whether the applicant could access effective protection against such harm from the Malaysian authorities. The Tribunal decided:

(a) the harassment was not motivated by the applicant's race, religion or ethnicity, or by virtue of the applicant's membership of any particular social group: at [73];

(b) the harassment appeared to be a one-off incident, that law enforcement responded quickly, and although the applicant said she thought the police should have taken the matter further, she did not know the particulars of any action taken by the authorities against the perpetrators. She said that upon making her complaint to the police, they took the perpetrators into a separate room. The Tribunal considered that "[o]n any analysis it appears that the police dealt with the matter effectively in isolating the person or persons concerned and reprimanding them": at [74], reasoning that the police demonstrated a willingness to come to the applicant's aid and demonstrated they would not tolerate lewd comments. The Tribunal inferred that had the circumstances posed a risk to the applicant's physical safety, the police would have "acted proportionately";

(c) the applicant's fear of persecution in relation to this incident was not 'well-founded' under s 5J(2) because the police offered effective protection: at [76];

(d) it did not accept the applicant's claims that she would be denied effective protection because of her ethnicity, noting the country information did not support that contention: at [76]-[77]; and

(e) the level of protection from authorities reduced any risk of significant harm to a level below the threshold of a 'real risk', therefore the applicant did not satisfy s 36(2)(aa).

1. The Tribunal therefore determined that the applicant did not meet the criteria in ss 36(2)(a) or (aa) and was not a person in respect of whom Australia had protection obligations. On that basis the decision under review was affirmed.

1. On 29 October 2018, the applicant applied for judicial review of the Tribunal's decision, and she seeks an order under s 477(2) of the Act extending the 35-day period within which an application for judicial review under s 477(1) may be made. Section 477(2) allows the Court, on application, to order an extension of the 35-day period as the Court considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider "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": Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because 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": Tu'uta Katoa at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, 3 FCR 344 at 348-9: Tu'uta Katoa at [13].
3. The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made, were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:

1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566 at [40].

1. In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level" because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].

1. The extent or period of the delay - 158 days, is not insignificant. In a relative sense, the delay is more than four times longer than the 35-day period in which an application may be made. It may also be accepted as a general proposition the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7]. The explanation for the delay set out in the applicant's grounds of the application for extension of time is her assertion that she did not have any financial support and had to borrow money from friends to lodge the application. During the interlocutory hearing the applicant said she needed to raise money to pay for a migration agent to assist with the preparation of the application and the court filing fee. No application appears to have been made for a waiver of the filing fee on financial incapacity grounds. The applicant provided no evidence by way of affidavit or documents verifying the extent of the applicant's financial circumstances, or any particulars of her financial position. There is no evidence about how much she borrowed, when she borrowed, or from whom she borrowed funds. In any event, and speaking generally, an applicant's financial circumstances or difficulties alone will be an insufficient explanation for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]; DWK17 v Minister for Home Affairs [2019] FCA 66 at [7]-[14]; GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25].
2. There is no evident reason in this case why a departure from the general proposition just stated should be made and so the applicant's explanation for the delay is not persuasive. Consequently, the absence of an acceptable explanation for the delay in making the judicial review application and the relatively lengthy period or extent of that delay are matters that weigh against a conclusion that it is necessary in the interests of the administration of justice to extend time.

1. The first respondent accepted that he is not specifically prejudiced if an extension of time were granted, but as noted earlier, the absence of prejudice is an insufficient basis to warrant the grant of an extension: Hunter Valley at 348-9 and SZTRY at [6]. The first respondent also contended that there is a public interest in the finality of administrative decision making. So much may be accepted. Against this, it might be said that since this case involves a protection claim, if there be merit in the judicial review application favouring the grant of an extension of time, there would be prejudice to the applicant in denying her an opportunity to fully ventilate the application by disposing of it on an interlocutory basis. But the first respondent says the proposed substantive application does not disclose sufficient merit to warrant the Court exercising its discretion to extend time. For the reasons explained below, I agree with that assessment.

1. The substantive application for judicial review sets out 7 paragraphs purporting to be the applicant's proposed grounds of review. The first two paragraphs and the first sentence of the third paragraph contain a brief procedural narrative but do not allege nor identify jurisdictional error. The sixth and seventh paragraphs contain requests that the Court accept the applicant's application and remit the matter to the Tribunal for reconsideration, but they do not identify or allege any jurisdictional error. That which remains of the proposed grounds of review or complaints about the Tribunal's decision, are not particularised, but in substance the applicant would contend that the Tribunal:

(a) failed to make a fair and correct decision by affirming the delegate's decision;

(b) erred in law by misinterpreting the definition of "refugee" under the Act;

(c) failed to undertake a fair assessment of her case, and exercised poor judgement in concluding she was not a refugee;

(d) misinterpreted the definition of genuine student, applied Direction No 56 and made an error of law by misinterpreting Ministerial Direction No. 69 (Direction No 69); and

(e) misinterpreted ss 5 and 36(2)(a) of the Act, or that the department has erred in finding the applicant did not satisfy the criteria in sub-ss 36(2)(a), (aa), (b) or (c).

1. These may be further distilled into three broad groups. First, a complaint that the Decision was not fair, and that the Tribunal did not conduct a fair assessment of the applicant's claims. Second, a complaint that the Tribunal misinterpreted or misapplied the relevant legislative provisions in assessing whether the applicant was a refugee or met the conditions to engage the complementary protection obligations. Third, a complaint about a misapplication of Direction No 69. During the interlocutory hearing the applicant was unable to elaborate on any of the review grounds and sought merely to relitigate the merits of her protection visa claims. She could not identify any other basis on which it might be said, even on an arguable-case basis, that the Tribunal's decision is attended by jurisdictional error. Accordingly, I will deal with the proposed review grounds as found in the application.
2. Dealing first with the applicant's proposed contentions that the Tribunal's decision was not fair, or that it did not conduct a fair assessment, it is evident on a review of the material in the Court Book and the Decision that the Tribunal complied with its procedural fairness obligations under Pt 7, Div 4 of the Act. The Tribunal wrote to the applicant when it received the review application informing her that if she wished to provide any materials or written arguments for the Tribunal to consider, she should do so as soon as possible. The Tribunal invited the applicant to attend a hearing before it in a manner consistent with ss 425 and 425A. The invitation alerted the applicant to the fact that the Tribunal could not decide the review favourable to her based on the material it had to hand and made clear that she could attend the hearing to give evidence and present arguments in relation to the issues in her case. The applicant was also invited to provide the Tribunal with any additional or new information in advance of the hearing if she wished to do so. The applicant attended and was assisted by an interpreter. She provided the Tribunal with some additional documents. She was on notice that the credibility of her claims would be the determinative issue in the review based on the delegate's decision and the questions the Tribunal posed at the hearing which are disclosed from the Tribunal's reasons. In this there is no evident procedural unfairness.
3. As the first respondent correctly points out, there was no information that the Tribunal was required to put to the applicant pursuant to s 424A of the Act. As is evident from the Tribunal's reasons, the Tribunal based its decision on country information, the applicant's written materials given to the Department, the information in the delegate's decision which the applicant provided to the Tribunal, the applicant's written and oral evidence given to the Tribunal and the documents she had provided. All this information appears to engage with s 424A(3), so that the requirement in s 424A(1) did not apply.
4. Consequently, the applicant's proposed contention about the absence of fairness in the Tribunal's assessment of the applicant's claims or in the decision does not disclose any arguable case of jurisdictional error.
5. Next, the applicant would argue that the Tribunal misinterpreted the earlier identified provisions. The allegations underpinning this contention are not particularised. On a review of the Tribunal's reasons, there is no error on the part of the Tribunal in construing or applying the relevant legislative provisions when it considered whether the applicant was owed protection because she was a refugee as contemplated by s 36(2)(a) of the Act, or because there was a real risk the applicant would suffer significant harm if removed from Australia and returned to Malaysia as contemplated by s 36(2)(aa). The Tribunal's reasons disclose that it considered the applicant's claims and evidence about them, that it assessed these by reference to the statutory criteria, and that it made findings which, on the available material, appear open for it to have made. The Tribunal considered, as it was entitled to do, relevant country information in making its assessment. As the first respondent also correctly points out, the Tribunal was not required to accept, uncritically, the applicant's claims, and the weight it ascribed the applicant's evidence about her claims was a matter for the Tribunal. In substance, these unparticularised proposed grounds or allegations which are dressed up as a misapplication of the law, amount to little more than a quarrel with the outcome of the review application before the Tribunal, and a request that the Court engage in merits review. They do not disclose any arguable case of jurisdictional error.
6. As to the final matter, the applicant complains that the Tribunal failed to correctly apply Direction No 69. This complaint is misconceived and does not disclose any arguable case of jurisdictional error. Direction No 69 was not relevant to the Tribunal's merits review. Direction No 69 is concerned with assessing whether a person is a genuine temporary entrant for the purposes of dealing with student visa applications. The matter before the delegate and the Tribunal was the applicant's application for a protection visa. The applicant's application for a student visa was, as noted in the background, refused by a ministerial delegate at an earlier time, but the applicant did not seek merits review of that refusal. As noted at [8] of the Decision, the Tribunal applied Direction No 56.
7. The merits of the applicant's proposed review grounds therefore are very weak - they have no reasonable prospect of succeeding. As none of the proposed grounds of review raised by the applicant have any reasonable prospect of success, the merits of the applicant's case also tell against a conclusion that it is necessary in the interests of the administration of justice to allow an extension of time. Save for prejudice, which may be assessed as neutral, the other matters discussed above also weigh against such a conclusion. Consequently, I am not persuaded that it is in the interests of the administration of justice to extend time, and so the application for an order under s 477(2) of the Act to extend the 35-day period within which a judicial review application of a migration decision of the Tribunal may be made is refused.
8. The name of the first respondent is to be amended to reflect the most recent name change effective from 13 May 2025.

1. The first respondent sought an award of costs in the amount of $5,000.00 in the event the application for an extension of time failed. The amount is higher than the amount currently fixed by item 2, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at an interlocutory stage. The first respondent did not make any submission explaining why an award of costs in an amount greater than that which is provided in the scale should be made. There was also no cogent reason advanced by the applicant why an order for costs ought not be made. I consider the amount in the scale for a proceeding concluding at an interlocutory stage is reasonable and reflective of the reasonable costs incurred by the first respondent. The higher amount sought is not justified. The applicant is to pay the first respondent's costs fixed in the sum of $4,189.38.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.