Federal Court of Australia

DVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1390

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application.

3.    The name of the first respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an application filed on 9 May 2022, the applicant, DVH17, seeks an extension of time within which to appeal from the orders and judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2) (the primary judge), made and pronounced on 11 April 2022. The primary judge dismissed an application made in accordance with s 476(1) of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 July 2017. In its decision, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (as the first respondent to this appeal, the Minister, then was) not to grant the applicant a Protection (Subclass 866) visa.

2    The applicant was only just out of time to file her Notice of Appeal from the decision of the primary judge. Her application for an extension of time was filed one day after the deadline by which she was required to do so. Nevertheless, the Minister now opposes the grant of an extension of time on the primary basis that the proposed appeal lacks merit and there is no reason to doubt the correctness of the primary judge’s decision.

Background

3    The applicant is a national of Malaysia. She arrived in Australia on 4 December 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa.

4    On 6 February 2017, she applied for a Protection (Subclass 866) visa. Her claim for protection was set out in her visa application form, along with an accompanying handwritten statement. It can be summarised, essentially, as entailing the following points:

(a)    The applicant worked as a volunteer for the “Sabah Sarawak Union – United Kingdom” (SSU-UK) trying to collect signatures for a petition to send to the United Nations and the United Kingdom Government to review the Agreement relating to Malaysia, signed 28 August 1963, 750 UNTS 2 (entered into force 16 September 1963).

(b)    She was threatened by the Malaysian Government for collecting signatures and educating others about the Sabah independence movement.

(c)    Many natives of Borneo were being threatened and charged under the Sedition Act 1948 (Malaysia) (Sedition Act) for trying to educate others and, if the applicant returned to Malaysia, she too would be charged under the Sedition Act.

(d)    People native to Sabah had lost their customary rights and the Government had taken their land.

(e)    She would experience harm in Malaysia from illegal immigrants, having been threatened and robbed by illegal immigrants in the past.

(f)    She could not move elsewhere in Malaysia because of widespread ethnic and religious discrimination against native Malaysians and Christians.

5    The application was supported by copies of the applicant’s identity documents, a document purporting to identify ways in which the Malaysian Government had caused problems for the people of Sabah, and other information sourced from the internet in relation to Sabah’s incorporation into Malaysia and the difficulties following therefrom.

6    On 23 March 2017, the delegate refused to grant the visa.

The Tribunal’s decision

7    On 11 April 2017, the applicant lodged with the Tribunal an application for review of the delegate’s decision.

8    A hearing of the application was held on 11 July 2017. The applicant attended the hearing in person, without representation. She was assisted by a Malay interpreter.

9    On 21 July 2017, the Tribunal notified the applicant that it had decided to affirm the decision under review. It gave reasons on that date, which may be summarised as follows:

(a)    Whilst the Tribunal accepted aspects of the applicant’s oral evidence in relation to her background and personal circumstances, it was critical of her credibility. It found that her written claims were “highly embellished and exaggerated”. It also regarded her oral evidence of certain incidents as “vague and limited”.

(b)    In relation to her claimed involvement with the SSU-UK, the Tribunal noted the applicant’s evidence that she had been a volunteer with that organisation for some years. However, the applicant was unable to give details about when or how she first became involved. She did not remember the name of the founder of the organisation. Her oral evidence was merely to the effect that she had signed a petition along with many other villagers. However, she did not remember when she signed the petition. She informed the Tribunal that she had not had any further involvement with the organisation after signing the petition. Against this background, the Tribunal did not accept that she was a volunteer for the SSU-UK, or that she took any active role in the activities of that group. It did not accept that she was a volunteer for it, or that she was involved in collecting petition signatures and educating others about the Sabah independence movement. It did not accept that she was involved with the SSU-UK for several years.

(c)    The Tribunal further found that the applicant’s knowledge of the mission and goals of the SSU-UK was “vague and general”, and certainly not as extensive as would be expected from a volunteer with an active role in the organisation. It found that she had “minimal involvement” with the organisation both in Malaysia and since departing from Malaysia.

(d)    The applicant conceded in oral evidence that she had not shared any information on social media about the Sabah independence movement or human rights issues. On this basis, the Tribunal did not accept that she was involved in social media activities to educate people, from a distance, about the Sabah independence movement.

(e)    The applicant gave evidence that she had not experienced problems in Malaysia between her signing the petition and her departure for Australia. As a consequence, the Tribunal found that the Malaysian Government had no intention of taking adverse action against her, and that the possibility of it doing so in the future was remote.

(f)    The Tribunal accepted that members of the SSU-UK had previously been charged under the Sedition Act. In particular, in 2015, four volunteers collecting signatures for the SSU-UK petition were charged. However, those charges were dropped in 2016. On the evidence before it, the Tribunal did not accept that many Borneo natives were being threatened and charged under the Sedition Act in connection with the movement in relation to Sabah.

(g)    Taking these matters into account, the Tribunal did not accept that the applicant would be charged under the Sedition Act or detained upon return to Malaysia for her support of Sabah’s independence. Accordingly, it did not accept that the applicant had a well-founded fear of persecution arising from her political opinion. It found that the applicant did not face a real risk of “significant harm”, in the sense contemplated by s 36(2A) of the Act.

(h)    In relation to the applicant’s claims concerning human rights, the Tribunal considered that the information before it indicated that natives from Sabah and Sarawak were able to voice their concerns that state and private business interests were encroaching on native customary land rights, although they were disadvantaged in combating powerful business interests. It noted, however, that the applicant did not identify any particular ways in which her human rights had been affected by actions of the Malaysian Government. On the evidence before it, it was not satisfied that the applicant had experienced human rights concerns in the past. The Tribunal ultimately found, accordingly, that the applicant did not have a well-founded fear of persecution or face a real risk of significant harm for the reasons that she claimed.

(i)    The Tribunal considered the applicant’s claims concerning her fear of harm from criminal activities perpetrated by illegal immigrants in Sabah. It took into account information regarding the security situation in Eastern Sabah and reports regarding invading Sulu tribesmen from the Philippines. However, it found that the applicant’s evidence in relation to a particular alleged encounter with Sulu tribesmen, whilst plausible, was vague and lacked the spontaneity and detail that would be expected from someone recounting an incident from their own experience. It therefore had “serious doubts” about her credibility in respect of that claim. It concluded that the applicant did not have a well-founded fear of persecution or face a real risk of significant harm for the reasons that she claimed.

(j)    The Tribunal considered the applicant’s claim that she had been robbed of money and her cell phone at knife point. It considered this to be an isolated event and found that it did not involve serious or significant harm to applicant.

(k)    In relation to the applicant’s claims concerning religious and ethnic discrimination, the Tribunal referred to country information indicating that Christians in Malaysia remained generally free to practice their beliefs and did not face official or societal discrimination on a day-to-day basis. It noted that the applicant had put forward no evidence to indicate that she faced serious or significant harm on return to Sabah as a result of her Christian beliefs. It also noted that the applicant had made no claims to have experienced discrimination herself as an indigenous person. It took into account country information assessing that people of the ethnic group to which the applicant belonged “would very rarely face discrimination or violence on the basis of their ethnicity”. Accordingly, the Tribunal did not accept that the applicant had a well-founded fear of persecution or faced a real risk of significant harm for this reason.

(l)    The Tribunal also found that the applicant did not have a well-founded fear of persecution or face a real risk of significant harm as a result of her economic situation. It concluded that she would be able to obtain employment in Malaysia, having regard to country information regarding Malaysia’s generally positive economic performance and her education and freelance employment history. She would be able to obtain an income from employment, and this would be sufficient to afford her the capacity to subsist. Even if it was assumed that she might suffer economic difficulties, there was nothing to suggest that she would do so for any of the reasons set out in s 5J(1)(a) of the Act.

(m)    Having regard to all of the circumstances and its findings, both individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any of the reasons identified in s 5J of the Act. It was not satisfied that there were substantial grounds for believing that there was a real risk that she would suffer significant harm as a necessary and foreseeable consequence of her being returned to Malaysia. Accordingly, it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act. The delegate’s decision was affirmed.

The application to the Federal Circuit and Family Court of Australia (Division 2)

10    On 25 August 2017, the applicant filed an application in the Federal Circuit Court of Australia (as it was at that time), seeking judicial review of the Tribunal’s decision.

11    On 11 April 2022, the applicant appeared at a hearing before the primary judge. She was again self-represented, but assisted by an interpreter. At the conclusion of the hearing, the primary judge made orders and delivered ex tempore reasons dismissing the application with costs.

12    A written version of the primary judge’s reasons was delivered to the parties on 18 May 2022. His Honour’s reasons can be summarised as follows:

(a)    After setting out the background to the application and the Tribunal’s decision, the primary judge recorded that the applicant had told him that she did not know if what was said in her visa application was true. The application had been prepared on her behalf by another person, and she had merely agreed to everything stated within it — it being too difficult for her to read and understand. She told the primary judge that she wanted to come to Australia to be able to work and look after her children and her family.

(b)    The primary judge observed that, based on what the applicant had told the Court during the hearing, she had no grounds to say that there had been any jurisdictional error made by the Tribunal.

(c)    His Honour held that the first and second grounds of the application simply expressed the applicant’s disagreement with the Tribunal’s decision, and invited the Court to engage impermissibly in merits review.

(d)    His Honour also rejected the third ground of the application, finding that the Tribunal did consider whether there was a real chance that the applicant would suffer persecution or significant harm upon her return to Malaysia. Indeed, the Tribunal was found to have spent “quite some time” coming to that conclusion in its decision.

(e)    The primary judge rejected the fourth ground of the application, which he summarised as being that “the Tribunal should have asked itself whether people in Malaysia thought that [the applicant] would be in danger by [reason of her] race of religion”. His Honour found that the Tribunal had done exactly that by reference to material from the Department of Foreign Affairs and Trade and from the United States Department of State.

(f)    The final ground was summarised as being that “the record makes clear that the Tribunal did not reach conclusions based on the findings made by it, to which it applied the correct law”. His Honour rejected that ground on the basis that the record made clear that the conclusions reached by the Tribunal were indeed based on findings that it had made.

13    Ultimately, his Honour found that none of the grounds was made out. There was no jurisdictional error on the part of the Tribunal. The application was therefore dismissed.

The application to this Court

14    The applicant commenced this proceeding by filing an application for an extension of time at 5:37 pm on 9 May 2022. As the document was filed after 4:30 pm, it was taken to have been filed on the next business day, pursuant to r 2.25 of the Federal Court Rules 2011 (Cth) (the Rules). That was 10 May 2022.

15    She did not subsequently file any written submissions in support of her application. Indeed, the only other document that she filed in the proceeding before this Court was a brief supporting affidavit, which annexed a copy of the orders and judgment of the primary judge, as well as a copy of her proposed Notice of Appeal. There was accordingly very little written material from which support for her application might be gathered.

16    The applicant appeared in person, without representation, at the hearing of the appeal on 8 November 2023. She was assisted by an interpreter.

17    Unfortunately, at the hearing, the applicant did not advance any substantive reasons as to why the extension of time ought to be granted. The main points that she raised at the hearing were, in summary, that:

(a)    she did not know about the SSU-UK;

(b)    somebody else had prepared her visa application and made the allegations about her association with that organisation;

(c)    she wished to stay in Australia to support and provide for her family;

(d)    she needed to stay in Australia to pay off debts that she had incurred in this country;

(e)    she was seeking to appeal the decision of the primary judge in order to “buy time”;

(f)    she sought leniency from the Court to permit her additional time in which to work in Australia; and

(g)    she had problems in her relationship with her current partner, which would be worsened if she returned to Malaysia.

Principles concerning the application for an extension of time

18    The applicant was required to file a Notice of Appeal from the decision of the primary judge within 28 days after the date of the orders and judgment, pursuant to r 36.03 of the Rules. In this case, the orders and judgment of the primary judge were made and pronounced, respectively, on 11 April 2022. As a result, the Notice of Appeal needed to be filed on or before 9 May 2022. Once this deadline expired, the applicant was required to file an application for an extension of time in accordance with r 36.05 of the Rules.

19    As noted above, the applicant commenced this proceeding by filing an application for an extension of time on 10 May 2022. It follows that she now requires an extension of time of one day.

20    It is well accepted that r 36.05 of the Rules confers on this Court a broad discretion as to whether or not it ought to grant an extension of time: see DZAAD v Minister for Immigration and Citizenship [2013] FCA 204 [28]. The discretion is not limited expressly by any particular criteria, but must nevertheless be exercised in a principled manner, constrained by the interests of justice and the subject matter and purpose of the legislation: Dunlop v Fishburn (No 3) [2012] FCA 315 [9]; BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 [2].

21    On numerous occasions, regard has been had in the exercise of the discretion to the factors listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) at 348 – 349 in the context of a different, but analogous, provision: see, eg, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6]. They include the length of the delay, the explanation offered for the delay, any prejudice that the respondents may suffer by reason of the delay, and the merits of the proposed appeal. None of those factors is a precondition to the grant of an extension; rather, the discretion is to be exercised having regard to all relevant factors: AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 [19].

Determination

The length of, and explanation for, the delay

22    Although the delay in this case is of one day only, that does not mean that an extension should automatically be granted. The magnitude of the delay does not compel any particular result, one way or the other.

23    Importantly, there was no explanation for the applicant’s failure to file a Notice of Appeal in time. The absence of an explanation for the delay is a factor weighing against an exercise of the discretion conferred by r 36.05 to grant the applicant an extension of time.

24    The fact that the applicant is unrepresented would not suffice as an explanation, even if that was assumed to be the reason, or a part of the reason, for the delay: see BQQ15 v Minister for Home Affairs [2019] FCAFC 218 [38].

Any prejudice to the respondents

25    There would be no real prejudice to the Minister if an extension of time was granted. However, the mere absence of prejudice does not justify the grant of an extension: Hunter Valley Developments at 349; Parker v R [2002] FCAFC 133 [6].

The merits of the proposed appeal

26    In this case, the most important factor is the merits of the proposed appeal. 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: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 [23], and the cases there cited.

27    In this connection, the Court may consider whether the proposed grounds of appeal are “arguable”, “reasonably arguable”, or “sufficiently arguable” to warrant the grant of an extension of time: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, 598 [63] (approved by the Full Court on appeal in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 486 [38]); DWK17 v Minister for Home Affairs [2019] FCA 66 [15].

28    Whilst it will often be appropriate for the Court to assess the merits of the proposed grounds of appeal at a “reasonably impressionistic level”, there will be some cases in which the Court ought to devote more detailed consideration to the merits: see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819, 825 [17] – [18]. The discretion to extend time is conferred in broad terms that do not prevent the Court from undertaking a thorough examination of the merits, if the circumstances warrant it.

29    The draft Notice of Appeal that is annexed to the applicant’s affidavit filed on 10 May 2022 states only one ground of appeal. It reads:

The decision of the honourable court below is erroneous as the court failed to consider that the decision of the AAT was affected by jurisdictional error.

Particulars: The AAT failed to consider merits of my application as put forward in completed which resulted in crucial factors regarding my application not being assessed and considered against the relevant legal criteria.

30    It is regrettable that the applicant did not file any written submissions to supplement this proposed ground of appeal, or to support her application for an extension of time more generally, despite having been afforded the opportunity to do so. Her oral submissions did not materially further her case. Whilst the applicant’s honesty at the hearing was appreciated, her admissions that she did not know about the SSU-UK and that the appeal was pursued only to “buy time” tended to reinforce the conclusion drawn by the primary judge rather than demonstrate error in it.

31    The assertion in the draft Notice of Appeal that the decision of the primary judge is “erroneous” merely expresses the applicant’s disagreement with his Honour’s ultimate conclusion that no jurisdictional error had been committed by the Tribunal. That is insufficient to establish an appealable error: see, eg, AQP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 463 [36] – [38].

32    The complaint expressed in the paragraph described as “particulars”, to the effect that the Tribunal failed to consider the merits of the application, seems not to have been raised squarely before the primary judge. To the extent that it constitutes a new argument, in this sense, it can only be advanced before this Court with leave: see, generally, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598 – 599 [46] – [48]; Francuziak v Minister for Justice (2015) 238 FCR 332, 335 [11]; Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 [105].

33    The question as to whether leave ought to be granted in this case can be dealt with straightforwardly. Leave must be refused on the basis that the complaint lacks merit: see Han v Minister for Home Affairs [2019] FCA 331 [8]; EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 129 [5]. That conclusion also bears on — and, in the circumstances, resolves — the application for an extension of time. The want of merit in the proposed ground of appeal decides the whole of the case.

34    As presently framed, the allegations in the ground of appeal (including the paragraph described as “particulars”) are vague and devoid of meaningful particularisation. They were not clarified to any substantial extent at the hearing of the application. The assertion that the Tribunal did not consider “crucial factors” regarding the application does not identify with sufficient specificity any error on the part of the Tribunal. The failure to particularise a ground of review is itself a sufficient basis upon which to dismiss that ground: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 [37]. Necessarily, the assertion does not raise any appropriate ground of appeal.

35    In any event, the reality is that the Tribunal comprehensively considered the applicant’s claims in relation to her application for a visa. It did so, properly, by reference to the criteria in s 36(2)(a) and (aa) of the Act. The Tribunal’s reasons expose the full range of the matters that it took into account. Its assessment was thorough, and it addressed each and every one of the applicant’s concerns. The great difficulty for the applicant is that the Tribunal did not regard her as a credible witness, given the nature of the written and oral evidence that she gave. It might also be added that her concerns in relation to potential persecution were not supported in any specific way by the country information. That weighed against the Tribunal’s acceptance of the validity of those concerns.

36    The additional points that the applicant made at the hearing, regarding the debts that she owes in Australia and her relationship issues, do not seem to have been raised before the Tribunal or the primary judge. There was no material before the Court to support them, and the applicant did not explain them in any detail. They do not reveal any error in the decision of the primary judge.

37    It follows that the proposed ground of appeal lacks merit.

Conclusion

38    The application for an extension of time must be refused. The applicant’s delay in bringing the appeal has not been explained and, on the basis of the applicant’s own submissions, the proposed ground of appeal is without merit.

39    There is no reason why the applicant should not pay the Minister’s costs of the application as agreed or taxed.

40    Finally, it should be ordered that the first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs” to reflect the Minister’s current title.

Associate:    

Dated:    14 November 2023