Federal Court of Australia

AYJ22 v Minister for Immigration and Multicultural Affairs [2025] FCA 510

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The application for an extension of time is dismissed.

4.    The Applicant pay the First Respondent’s costs, fixed in the amount of $4,000.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an application for an extension of time to appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2): AYJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 34 (J). The primary judge dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal, which had affirmed a decision not to grant the Applicant a protection visa.

2    For the reasons set out below, the Applicant’s proposed grounds of appeal are without merit. The application for an extension of time should be dismissed with costs.

Background

3    Arrival in Australia (Apr 2013): The Applicant is a citizen of Vietnam of Catholic faith. On 22 April 2013, he arrived in Australia by boat (J [2]-[3]).

4    Application for visa (Jul 2019): On 1 July 2019, the Applicant lodged a valid application for a protection visa (J [5]). His claims at that time related to being persecuted in Vietnam as a person of Catholic faith (see J [6]).

5    Delegate refuses visa (Aug 2019): On 27 August 2019, the Applicant was advised by letter that a delegate of the First Respondent (the Minister) had refused his visa application (J [7]).

6    AAT application (Sep 2019-Nov 2021): On 18 September 2019, the Applicant applied to the Tribunal for merits review of the delegate’s decision (J [8]).

7    AAT hearings (Oct, Nov 2021): The Applicant attended two hearings before the Tribunal, on 18 October 2021 and 19 November 2021. On both occasions, the Applicant was assisted with an interpreter in the Vietnamese language (J [9]).

8    AAT affirms decision (Feb 2022): On 2 February 2022, the Tribunal affirmed the delegate’s decision (J [11]).

9    Application for judicial review (Mar 2022): On 7 March 2022, the Applicant applied for judicial review of the Tribunal’s decision (J [29]). He was unrepresented. The application raised two grounds of review (J [37], [39], [42]). The first ground stated:

Appeal to the Immigration Department’s decision refusal: Returning back to Vietnam, highly risky of daily personal life. Relate to section 36(2) of the Immigration Act.

The second ground stated:

Appeal to the Administrative Appeals Tribunal’s decision: Refusal, possible of judgment error.

10    Primary judge dismisses application (Jan 2023): On 27 January 2023, the primary judge dismissed the application for judicial review, with costs. The parts of the judgment relevant to this application are as follows.

11    Request to provide translated documents: At the commencement of the proceedings, and in a response to a question whether he had filed any submissions or amended application, the Applicant indicated that he was not aware that he could provide any further material (J [31]).

12    The Applicant stated that he wished to provide to the court below English translations of two letters in Vietnamese which had been provided to the Tribunal. He said that he had not been able to have them translated before the Tribunal hearing, but that he had since obtained translations and he wanted to provide them to the court below (J [32]). The primary judge did not permit the Applicant to provide those translated documents to the Court: her Honour held that, as these documents had not been before the Tribunal, they could not be relevant to the question of whether there was a jurisdictional error in the Tribunal’s decision (J [33]).

13    Oral submissions: The primary judge explained the role of a court in a judicial review application, and asked the Applicant whether he wished to say anything as to the basis on which the Tribunal’s decision was affected by jurisdictional error. The Applicant stated (through an interpreter) that he did not know the law, and he was unable to make any comment about legal issues (J [34]).

14    Findings on the grounds of review: The primary judge found that the Applicant’s first ground, on its face, took issue with the decision of the Department. Her Honour held that the Court did not have jurisdiction to review such decisions, and dismissed this ground on that basis (J [41]).

15    The primary judge found that the Applicant’s second ground lacked particulars, and did not make any meaningful claim of jurisdictional error (J [43]). Moreover, her Honour held that a fair reading of the Tribunal’s reasons did not disclose any jurisdictional error: the Tribunal understood and considered the Applicant’s claims, and the findings made by the Tribunal were reasonably open to it on the evidence before it (J [44]).

16    The conclusion in J [44] should be read together with the primary judge’s summary of the Tribunal’s reasons at J [13] to [28]. Relevantly to this application, the primary judge summarised as follows the Tribunal’s treatment of the Applicant’s claims to fear persecution on the basis of his participation in protests:

    The Tribunal decision records that, at the conclusion of the November 2021 hearing, the Applicant referred to attending a demonstration in his parish in January 2013. He also referred to letters previously provided by his representative, which he said were from members of his parish, as well as his father. The letters, which were untranslated, confirmed the Applicant’s attendance at the January 2013 protest (J [18]).

    The Tribunal referred to evidence provided by the Applicant in his first written statement to the Department about participating in church-related demonstrations, including a demonstration in Con Cuong when he was still in school. The Tribunal noted, however, that the Applicant’s protection visa application made no reference to any personal involvement in church protests and that, at the October 2021 Tribunal hearing, the Applicant “stated clearly he had no problems regarding his Catholic religion and practising his religion in Vietnam” (J [22]).

    The Tribunal was prepared to accept that the Applicant had attended the Con Cuong protest when he was a child, but concluded that nothing happened to him as a result. However, the Tribunal did not accept that the Applicant had participated in church-led demonstrations in January 2013, because the Applicant had only raised this incident at a late stage of the review process, as well as the internal and external inconsistencies in his account (J [23]).

17    Application for extension of time (Mar 2023): On 23 March 2023, the Applicant applied for an extension of time to appeal against the decision of the primary judge. A draft notice of appeal dated 15 March 2023 contains two grounds:

    Ground 1 contends that the primary judge erred “in finding that the translation documents had not been before the Tribunal and they could not be relevant to the question of whether there was jurisdictional error in the Tribunal’s decision.”

    Ground 2 contends that the primary judge erred “by not finding that the [Tribunal] failed to properly consider whether the … Appellant would face a real chance of persecution or real risk of significant harm as a result of him participating in protest in Vietnam”.

18    Reasons for delay (Mar 2023 affidavit): The Applicant has filed an affidavit dated 22 March 2023, which seeks to provide the reason for the delay in filing a notice of appeal from the judgment of the court below (at [2]). That affidavit states:

3.    I am acting for myself in the previous proceeding. When I received the Federal Circuit Court of Australia judgment, I did not know how to commence the appeal proceedings in the Federal Court of Australia.

4.    I was not able to afford a lawyer fee to appeal the decision. I have tried to work out the appeal procedure and apply by myself.

5.    On 24 February 2023, the last day to file an appeal application, I have managed to submit a completed application to the Federal Court of Australia by email.

6.    On 01 March 2023, I received an email from the Federal Court of Australia’s Client Service Officer informed that my application was submitted out of time because the deadline for filing documents each day is 4.30pm, and my appeal application was received at 4.55pm on my last day, therefore my application is out of time.

7.    The further delay was for me to work out how to file an application for extension of time.

19    Matters sought to be raised in argument (Apr 2025 affidavit): The Applicant has filed a second affidavit dated 24 April 2025 (lodged on 6 May 2025). The stated purpose of this second affidavit is said to be “to clarify the events that led to my departure from Vietnam and to outline my involvement with Montagnards for Justice (MSFJ) group in Australia” (at [2]). The affidavit deals with “Background and Political Persecution in Vietnam” (numbered [10] to [18]), and “Involvement with Montagnards for Justice (MSFJ)” (numbered [12] to [17]). As explained later, those topics are not relevant to this application: see [33] below.

20    However, the Applicant’s second affidavit also addresses the topic of the untranslated documents, which is relevant to this application. I have treated these paragraphs as submissions, rather than evidence.

The untranslated documents

3.    The issue around the untranslated documents is not new ground for appeal. I have raised the matter before the Tribunal and the previous Court. The judge has not considered my appeal ground on whether the Tribunal was wrong to consider my evidence in Vietnamese in their decision in paragraph 18 from e to j. The previous Court rejected my ground because the Judge considered my translated letter as new evidence.

4.    The letters are not new evidence. The letters were given to the Tribunal in Vietnamese. The Tribunal member made the decision based on the Vietnamese version of the letters. The Tribunal should have allowed me more time to provide an English translation. This is legally incorrect procedure.

5.    The English translations were provided to the previous Court and accompany by the Vietnamese version. The translation is to assist the Court to understand exactly the content of the letters and to determine whether the Tribunal has made an error to assess the letters in Vietnamese. The translations are not new evidence. The letters are existing evidence, but they were presented in different language to assist the Court. This is procedural fairness. I was not allowed this opportunity by the Tribunal and the previous Court.

6.    For example …

7.    For another example, a recording of an interview is the same evidence as the transcript. They are only written in different format and form. The transcript is not new evidence.

8.    My witnesses are Vietnamese, and they cannot write English. It is unfair for me because both the Tribunal and the previous Court did not allow me an opportunity to provide a translated English documents and made decision on the presumption of what the decision makers think is right.

9.    I am self-[re]presented. I am sorry to the Court that I don’t know how to present my case as good as the lawyers. The delay in lodging the appeal would not cause any disadvantage to the Minister apart from costs, but would cause huge problems to my life if I were returned to Vietnam. I asked the Court to consider my above explanation. (emphasis added)

CONSIDERATION

21    Extension of time required: The Applicant requires an extension of time: he was required by r 36.03 of the Federal Court Rules 2011 (Cth) to bring an appeal from the decision of the primary judge within 28 days after the orders of the primary judge were made (that is, by 24 February 2023). However, he did not lodge a notice of appeal within that time, and this application for an extension of time was lodged on 23 March 2023.

22    Extension of time – general principles: The principles on whether to grant an extension of time to bring an appeal can be summarised as follows: see ALM22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 7 at [19] (the Court); Quach v RU [2024] FCAFC 32 at [24]-[25] (the Court):

    An extension of time will be granted if the Court is satisfied that it is in the interests of justice to grant one.

    In assessing the interests of justice, the Court considers factors such as the length of the delay, and the reasons for it; the degree of prejudice to the respondent if an extension were granted; and the merits of the substantive case on appeal, if an extension were granted.

    It will often be appropriate to assess the merits of the proposed appeal at a reasonably impressionistic level, although there may be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment (for example, if the delay is lengthy and unexplained): see Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

23    Duty to unrepresented litigants: Another relevant factor to consider is that the Applicant is legally unrepresented. The duties that courts owe to unrepresented litigants have been discussed in cases such as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing), and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). The principles are conveniently summarised by Moshinsky J in Wahed v Minister for Home Affairs [2019] FCA 247 at [26] as follows (citations omitted):

Courts have an overriding duty to ensure that a trial is fair to all parties. In the context of an unrepresented litigant, that duty requires the Court to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case … However, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law … In civil proceedings, procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be …

24    The obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 at [106] (Murphy and Rangiah JJ).

25    These principles are particularly relevant when assessing the merits of any proposed arguments on appeal. I have decided to consider any argument of substance that arises out of the materials filed by the Applicant, particularly his second affidavit, and have not confined my attention strictly to the draft notice of appeal.

26    Length and reasons for delay: The first factors in deciding whether to grant an extension of time are the length of the delay, and whether there is an explanation for it:

    Here the delay is 27 days (from 24 February 2024 until 23 March 2023). I accept the Minister’s submission that this period of delay is “not insignificant”, being more or less the same period that is allowed for bringing an appeal. In other words, the Applicant has taken approximately twice as long as permitted to file this application. At the same time, this period is not so long that I would require the Applicant to demonstrate a particularly meritorious case (cf the discussion in Katoa).

    The Applicant’s first affidavit indicates that the reasons for the delay are that he was unrepresented, because he did not have enough money for a lawyer, and he did not know how to bring an appeal: see [18] above. A lack of legal representation may not be a sufficient explanation by itself, but it is a relevant part of the circumstances: see BCW16 v Minister for Immigration and Border Protection [2021] FCA 1086 at [30]-[31] (Moshinsky J). The Applicant’s first affidavit also indicates that he was only very slightly out of time in lodging an original notice of appeal, and then needed to start again in preparing an application for an extension of time.

27    These factors weigh against granting an extension of time, but not heavily. The delay is not insignificant, but is far from disqualifying; and the reasons for delay indicate that an unrepresented litigant who does not speak English took what steps he could to bring proceedings within time.

28    No prejudice to Minister: The Minister correctly accepts that he cannot point to any particular prejudice if an extension of time were granted, beyond the cost of responding to the application and the public interest in finality in decision-making. This factor carries little weight.

29    Merits of proposed appeal: The final and decisive factor is the merits of the proposed grounds of appeal. These merits can be assessed in a reasonably impressionistic manner: Katoa at [17].

30    Issue is whether Tribunal’s decision contained jurisdictional error: In assessing the merits of the Applicant’s arguments, it is useful to spell out the nature of the task in the Court below and on appeal. The issue before the primary judge was whether the Tribunal’s decision contained a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid’): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ). In this appeal, the issue is whether the primary judge was correct to find that the Tribunal’s decision did not contain jurisdictional error. Crucially, the issue before the primary judge, and before me, is not whether the Tribunal’s decision is correct on its merits.

31    Proposed ground 1 (untranslated documents): The Applicant’s proposed ground 1 is that the primary judge erred “in finding that the translat[ed] documents had not been before the Tribunal and they could not be relevant to the question of whether there was jurisdictional error in the Tribunal’s decision”. The translated documents are attached to the Applicant’s second affidavit.

32    It is clear that the translated documents were not in fact before the Tribunal: the primary judge records that the Applicant stated in the Court below that he had not been able to have these documents translated before the Tribunal hearing, and that he had obtained translations since that hearing (J [32]). The Applicant’s second affidavit reveals that his argument is that the translated documents should not be considered new evidence in substance, because they are merely existing evidence in a different form (said to be similar to providing a transcript of an interview when previously there was only a sound recording): see [20] above.

33    Contrary to the Applicant’s argument, the issue is not whether the translated documents are “new” evidence as such, but whether these translated documents are relevant in judicial review proceedings to the issue of whether the Tribunal committed jurisdictional error. The lawfulness of the Tribunal’s decision is generally assessed on the material that was actually before the Tribunal: it is not permissible to provide a translation of these documents to a court in judicial review proceedings simply to argue that the Tribunal made an error of fact: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [51] (the Court); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [76]-[77] (Perry J); MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J). Accordingly, there was no error in the primary judge’s reasons for refusing to receive the translated documents. For the same reason, the additional evidence in the Applicant’s second affidavit about the circumstances in which he left Vietnam, or his involvement with MSFJ in Australia, is not relevant in these proceedings either: that material was not before the Tribunal, and is not relevant to whether the Tribunal’s decision contains jurisdictional error. Indeed, in the case of the Applicant’s involvement with MSFJ in Australia, these events occurred in 2023, after the Tribunal’s decision.

34    However, the Applicant’s second affidavit suggests a different argument (not put to the primary judge, at least not in this form): that the Tribunal erred by not permitting the Applicant to obtain a translation of these documents: see [20] above. Putting aside for the moment questions of leave to raise new arguments on appeal, and considering this possible argument at an impressionistic level, the argument encounters at least two separate difficulties:

    The first difficulty is that there is no evidence before the Court to suggest that the Applicant asked the Tribunal for more time to obtain translations of these documents: cf MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [36] (Mortimer J). The Tribunal’s invitation to a hearing, dated 28 September 2021, states that “[a]ny documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator”. The Tribunal’s summary of the hearings in October and November 2021 states only that the Applicant’s representative at the time provided untranslated documents to the Tribunal the day before the November 2021 hearing, and referred to the Applicant’s family providing English translations at a later date. There was no obligation on the Tribunal to wait until these translated documents were provided (in the absence of any representation made by the Tribunal that it would wait): the Tribunal was only required to give the Applicant a reasonable opportunity to present his case: MZAGE at [32]. It appears, based on the date of certification in the translations attached to the Applicant’s second affidavit, that the translations may have been completed by 22 January 2022. That date is before the Tribunal made its decision (on 2 February 2022), and before the Applicant’s representative provided a post-hearing submission to the Tribunal (on 27 January 2022). Whatever the precise timing on the availability of these translated documents, I am satisfied that the Tribunal provided the Applicant with a reasonable opportunity to present his case in this respect, and there is no breach of procedural fairness and no legal unreasonableness.

    The second difficulty is that, in any event, it is apparent from the Tribunal’s reasons that the Applicant conveyed the substance of what was contained in the untranslated documents to the Tribunal at the November 2021 hearing. The Tribunal’s reasons record that the member asked the Applicant what the documents are that the representative had submitted, and the Applicant stated that they were letters from the priest in charge of the parish, the manager of the parish and the Applicant’s father. The substance of each letter is then set out: for example, the priest’s letter states that the Applicant participated in a demonstration in 2013, and that two parishioners were arrested and hundreds of others were beaten at that and other demonstrations during that period. A comparison with the translated documents (attached to the Applicant’s second affidavit) indicates that the summary of these documents in the Tribunal’s decision captures the points being made in those letters. The Tribunal’s reasons state that the member asked the Applicant why the letters appeared very similar, and put to the Applicant that their similar appearance might indicate they are not genuine. The member also asked the Applicant why his father would write a letter for him when the Applicant had stated that they were estranged. The Tribunal gave cogent reasons for not accepting the Applicant’s claim that he participated in demonstrations in 2013, and there is no breach of procedural fairness or legal unreasonableness in the Tribunal proceeding on the basis that the untranslated documents contained the information claimed by the Applicant: see MZAGE at [33]-[34].

35    Proposed ground 2 (assessment of claims relating to demonstration): The Applicant’s proposed ground 2 is that the primary judge erred “by not finding that the [Tribunal] failed to properly consider whether the … Appellant would face a real chance of persecution or real risk of significant harm as a result of him participating in protest in Vietnam”. This argument was not put in the court below, and the Applicant therefore requires leave to raise it on appeal. Although this is a distinct question from whether to grant an extension of time, the issue of leave also requires an assessment of the merits of the argument: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 at [14] (Bromwich J, with Yates and McElwaine JJ agreeing). For the following reasons, this proposed ground lacks substance. It is not necessary to consider the other factors relevant to whether to grant leave.

36    It may be accepted that the Tribunal was required to read, identify, understand and evaluate the Applicant’s claims, and that the Tribunal would commit jurisdictional error if it ignored, overlooked or misunderstood relevant facts or materials, or a substantial and clearly articulated argument: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24], [27] (Kiefel CJ, Keane, Gordon and Steward JJ). However, these principles do not allow a court in judicial review proceedings to scrutinise the merits of the Tribunal’s decision: Plaintiff M1 at [26].

37    Here, the summary of the reasons of the Tribunal contained in the judgment of the court below (set out in [16] above) is sufficient to demonstrate that the Tribunal read, identified, understood and evaluated the Applicant’s claims that he faced a real chance of persecution, or real risk of significant harm, as a result of him participating in protests in Vietnam. That impression is confirmed from a reading of the Tribunal’s reasons (including its summary of the Applicant’s claims made orally before the Tribunal), and the Applicant’s written claims in the Tender Bundle. The Applicant’s second ground merely takes issue with the merits of the Tribunal’s decision, and does not demonstrate any jurisdictional error.

38    Finally, and for completeness, I have reviewed the decision of the primary judge and the Tribunal, and am satisfied that neither contains any self-evident error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). At the hearing, the Applicant stated that it was 100% certain that he would be harmed if he were returned to Vietnam. However, that is a matter going to the merits of the Tribunal’s decision, and outside the scope of this Court’s task on appeal.

Conclusion

39    Application dismissed: The application for an extension of time should be dismissed with costs. The decisive factor is that the proposed arguments to be put on appeal, considered at an impressionistic level and making due allowances for the fact that the Applicant is legally unrepresented, lack sufficient merit to warrant granting an extension of time. The other factors are of much lesser importance, as explained above.

40    Amount of costs: On the amount of costs, the Minister seeks costs in the fixed sum of $4,000. The Court has power to award costs in a fixed sum: see Federal Court of Australia Act 1976 (Cth), s 43(3)(d); Rules, r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing, and a higher amount that may be claimed if an appeal or application is dismissed after hearing: see Rules r 40.43, Sch 3 items 15.1 and 15.2.

41    The amount sought by the Minister is less than the amount provided in the Rules for an appeal or application that is discontinued before hearing (currently $5,278), and is significantly less than the amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,323). I am satisfied that the amount sought by the Minister is reasonable.

42    Respondent names: It is also necessary to amend the name of the First Respondent (to reflect the Minister’s current title), and to amend the name of the Second Respondent (to reflect the fact that the Administrative Appeals Tribunal has been replaced by the Administrative Review Tribunal).

Associate:

Dated:    21 May 2025