Federal Court of Australia

CUQ18 v Minister for Immigration and Citizenship [2026] FCA 1071

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file a notice of appeal be dismissed.

2.    The applicant is to pay the first respondent’s costs of the application to be taxed or agreed.

3.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an application for an extension of time in which to appeal the judgment and orders of Judge Mansini made on 17 July 2024: CUQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 628 (PJ). In that decision, her Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was) (Tribunal) dated 7 May 2018, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), to refuse to grant to the applicant a protection (subclass 866) visa.

Background

2    The applicant is a citizen of Malaysia, who arrived in Australia on 28 October 2015 on a UD-601 electronic travel authority visa.

3    On 25 January 2016, he applied for a protection visa.

4    On 30 October 2017, a delegate of the Minister refused to grant the visa.

5    On 13 November 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

6    The Tribunal held two hearings in respect of the review application. The first was held on 5 April 2018, at which it appears the applicant had difficulties with the interpreter engaged to assist him. As a result, a further hearing occurred on 23 April 2018, at which he, with the assistance of a different interpreter, gave evidence and presented arguments. His wife accompanied him at both hearings and she also gave evidence.

7    The applicant sought a protection visa on the basis of a claimed fear of persecution arising from his family’s disapproval of his relationship with his wife. He asserted that his family was angered by his refusal to marry a woman they had selected for him, who was said to be a distant relative. He further claimed that the woman’s brother, who was allegedly associated with a criminal gang, had threatened to harm, and potentially kill, him if he did not marry her. According to the applicant, the risk of harm was compounded by the absence of protection from religious authorities in Malaysia, who regarded such matters as family disputes in which they would not intervene.

8    On 7 May 2018, the Tribunal rejected the application and affirmed the delegate’s refusal to grant a protection visa.

9    It is not necessary here to assay in any detail the Tribunal’s reasons. In summary, it found that:

(a)    the applicant and his wife were legally married, and would be considered husband and wife in Malaysia because they were married according to Syariah law;

(b)    the applicant and his wife would be able to register their marriage in Malaysia;

(c)    having regard to consistent and updated country information, notwithstanding that the applicant might face a threat from the brother of the woman he did not wish to marry, the Malaysian police would provide him with adequate protection if he, his wife or his child required or requested it;

(d)    the protection available and provided by authorities in Malaysia consisted of a reasonably effective police force and an impartial judicial system, as required by s 5LA(2)(c) of the Migration Act 1958 (Cth) (Migration Act);

(e)    it was open to the applicant to report any threats to Malaysian authorities, but he declined to do so because it might have caused embarrassment to his family;

(f)    in the result, by reason of the effective protection measures available to him, the applicant did not have a well-founded fear of persecution under s 5J(2) of the Migration Act;

(g)    the applicant’s claim that he had requested help from religious authorities without receiving assistance was not credible; and

(h)    it was also not credible that he and his wife, as a married couple, would endure State disapproval on the basis that their marriage was contrary to Malaysian law.

10    In the result, the Tribunal concluded that it was not satisfied that the applicant faced a real chance of persecution in Malaysia in the reasonably foreseeable future. It further found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there was a risk that he or his family would suffer significant harm.

Appeal to the FCFCOA

11    On 30 May 2018, the applicant filed an application in the Federal Circuit and Family Court (Division 2) for judicial review of the Tribunal’s decision.

12    That application was in vague terms, and the grounds on which it was said to be based were as follows:

1.    I came to Australia for visitor visa purpose and applied for protection visa.

2.     If I return to Malaysia the gangster can find me and my family and them will kill me and do something to my family.

3.     I have little baby born here (Australia) last year this situation make me worried if I return to my country.

4.     The member did not make proper assasment and consideration and did not make a decission according to the actual situation of defendant (Applicant).

5.     The member has made the decission based on the fact finding from the internet source which is not current and relevant.

6.     I am not really focus to remember thing happen during hearing sesion.

7.     I got nervous to answer the question during hearing session.

8.     I am not ready to return on my country because it was unsafe situation for me and my family.

(Errors in original).

13    The application before the primary judge was heard on 10 July 2024 and dismissed on 17 July 2024.

The primary judge’s reasons

14    In relation to grounds 1, 2, 3 and 8, the primary judge correctly concluded that these did not raise any jurisdictional error, and were appropriately characterised as an invitation to the Court to redetermine the application on its merits: PJ [18].

15    As to grounds 6 and 7, her Honour considered that those grounds were, in substance, a contention that the applicant had not been afforded a proper opportunity to present his case and participate effectively in the hearing before the Tribunal, by reason of his unfitness to give evidence. In that regard, the primary judge referred to Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30], where it was held that, to succeed on such a claim, the applicant must demonstrate that they were so unfit as to be unable to give evidence, present arguments or answer questions during the hearing. The primary judge recognised that whilst the initial hearing was adjourned due to difficulties with the interpreter, a second hearing was convened at which a different interpreter provided support: PJ [19]. It does not appear that any translation difficulties arose on that occasion. For completeness, her Honour also considered whether the applicant was fairly afforded an opportunity to present his case, unimpeded by language difficulties, and concluded that he had been given that opportunity: PJ [19]. On that basis, the primary judge identified no error in the procedure or approach adopted by the Tribunal.

16    The issues sought to be raised by grounds 4 and 5 were somewhat obscure, and the applicant had not identified any particular paragraphs of the Tribunal’s decision said to be infected by reliance on an incorrect internet source. That being so, it was impossible to ascertain the essence of the grounds. Nevertheless, after considering the Tribunal’s reasons, the primary judge generously construed grounds 4 and 5 as amounting to a complaint that the Tribunal’s findings (summarised at supra [9]) were made based on a misapplication or misunderstanding of country information concerning the circumstances and laws in Malaysia.

17    In this regard, her Honour found that, to the extent that the applicant sought to contend that those findings were not open, the contention was not developed by reference to the available material and there was, therefore, no sound basis upon which such a conclusion could be reached: PJ [24]. Ultimately, her Honour concluded that the Tribunal had given logical reasons for rejecting the applicant’s submissions and that its findings were open on the material before it: PJ [24].

18    In the result, the application for judicial review was dismissed.

The present application

19    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (Rules), any appeal from the primary judge’s decision was required to be made within 28 days of the decision. In this case, the last day for filing a notice of appeal was 14 August 2024. Evidently, none was filed within that time.

20    On 6 September 2024, the applicant filed an application pursuant to r 36.05 of the Rules seeking an extension of time in which to appeal from the primary judge’s decision. The application was supported by an affidavit to which a proposed notice of appeal was annexed. The grounds of appeal set out therein are as follows:

1.     My visa was refused by AAT, and I appealed to Federal Circuit Court

2.     Federal Circuit Court Refused my case.

3.     I am not satisfied how my case was reviewed.

4.     The assessment was unfair because the Tribunal failed to consider things that they must as a matter of law to carry out the decision.

5.     The Tribunal made its decision based on their own opinion and not based on truth and facts.

6.     My explanation was not considered at all, and all my arguments was turned down.

7.     The Tribunal decision was based on non-existent biased evidence.

(Errors in original).

21    In general terms, the Court’s discretion to grant an extension of time is not confined by express criteria, though an extension will not ordinarily be granted unless the Court is satisfied that it is in the interests of justice to do so. In AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at 343 – 344 [10] – [12], the Full Court observed:

10    In exercising the discretion to grant or refuse an extension of time, the considerations to be taken into account have been variously expressed. Thus, for example, in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, Collier J has summarised these considerations as follows:

[15]    In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include:

•    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

•    whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

•    the merits of the substantial application.

More recently, in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Tracey J has observed:

[12]    An application for an extension of time within which to file a notice of appeal may be made pursuant to Rule 36.04 of the Rules. The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that “the respondent to the application has a vested right to retain the judgment, the subject of the appeal”: see Jackamarra v Krakourer (1998) 195 CLR 516 at 519–20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A “full rehearsal” of the argument on appeal is not required. Any assessment of “the merits” must necessarily be undertaken “in a fairly rough and ready way”: see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191–2 and the authorities therein referred to.

11    In the circumstances of the present case, the respondent Minister obviously enough does not claim prejudice. But an extension of time may be refused even in the absence of prejudice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [37]-[39] per Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [36] per Rares, Flick and Griffiths JJ.

12    In concluding that an extension of time should be granted, it is concluded that the extension required is minimal; a satisfactory explanation for the delay has been provided; and that the alleged denial of procedural fairness warrants scrutiny by this Court. The respondent Minister, moreover, quite properly does not oppose an extension being granted.

22    Of course, it must be borne in mind that any assessment of the merits of a proposed appeal must be undertaken with some caution: Mentink v Registrar of the Australian Register of Ships (2014) 320 ALR 137, 142 [30]. The inquiry is necessarily impressionistic and should not descend into the determination of what would, in effect, be a preliminary appeal.

Should an extension of time be granted?

Length and explanation for delay

23    At the outset, it can be accepted that the delay in this case, being 23 days, was not substantial. That is significant to the extent that it tends to diminish any suggestion that the Minister has suffered prejudice by reason of the delay. However, it must also be borne in mind that the time limit prescribed by r 36.03 of the Rules is deliberate and reflects the Court’s overarching purpose of resolving disputes as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M. In that sense, the grant of any extension of time necessarily occasions some degree of prejudice to the attainment of those statutory objectives.

24    Here, the applicant has not furnished the Court with an adequate explanation of his failure to file a notice of appeal in time. In his affidavit in support of the present application, he deposed as follows:

I was not able to submit this application within the 28 days given because I needed extra time to prepare the documents.

I also made an error in the previous lodgement by getting a wrong witness and all these have delayed my application

25    It is not entirely clear what is meant by those paragraphs, though it might generously be inferred that the applicant’s unfamiliarity with legal processes contributed to his failure to file a timely appeal. Nevertheless, it is well established that all litigants, whether legally represented or self-represented, are required to comply with the procedural rules applicable to their proceedings: see Englezos v Secretary, Department of Social Services [2023] FCA 31 [38] – [39].

26    It might also be inferred that the applicant encountered difficulties in filing the appeal because he was unable to obtain legal advice. However, that is also not a sufficient explanation for the delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 [17].

27    For these reasons, whilst the length of the extension sought is relatively modest, the absence of any reasonable explanation for the applicant’s failure to file a timely appeal does not assist him.

Merits of the proposed appeal

28    As to the merits of the proposed appeal, although the analysis is necessarily impressionistic (see supra [22]), the authorities establish that this consideration is the most significant of the three general criteria: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 [23]; DVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1390 [26]; Quach v Registrar of Trade Marks (No 2) [2026] FCA 57 [35]. In this regard, the applicant faces considerable difficulty in that the grounds identified in his proposed notice of appeal appear to be bereft of merit.

29    The proposed grounds numbered 1, 2 and 3, which are set out at supra [20], are not directed to identifying any error of the primary judge. They merely identify the applicant’s dissatisfaction with the outcome of the proceedings.

30    Of the remaining proposed grounds, none is particularised in a way which identifies any basis upon which it could be concluded that the Tribunal’s reasons were infected by some jurisdictional error. They are deficient for that reason alone.

31    It must be remembered that an appeal to this Court is by way of rehearing rather than a hearing de novo: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 434 – 435 [20] – [21]; Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1, 13 – 14 [40] – [42]. Accordingly, a notice of appeal must identify appellable error in the primary judge’s reasons. In cases like the present, that will generally involve an allegation that the primary judge failed to identify a jurisdictional error in the Tribunal’s reasons: CKL21 v Minister for Home Affairs (2022) 293 FCR 634, 637 [3], citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 and AFD21 v Minister for Home Affairs (2021) 287 FCR 308, 319 – 320 [40]. Determining whether such an error has occurred requires this Court to examine the administrative decision for itself in order to assess whether the primary judge’s conclusion was correct. However, that task does not permit the Court to embark upon an independent search for some hitherto unidentified error.

32    For present purposes, it may be assumed in the applicant’s favour that grounds 4 to 7 allege that the primary judge erred in failing to identify a relevant error in the Tribunal’s reasons. Even on that assumption, however, the proposed grounds are deficient.

33    Ground 4 appears to allege that the Tribunal failed to take into account a relevant consideration. That contention was not advanced before the primary judge. Nor is it apparent from the applicant’s written or oral submissions, or from the material before the Court, that such an error occurred. Grounds 5, 6 and 7 are meaningless assertions and, in any event, were likewise not advanced before the primary judge.

34    It follows that the proposed appeal is bereft of merit.

The late submissions

35    In advance of the hearing of this application, the applicant was ordered to file written submissions no later than ten business days before the hearing. Unfortunately, he failed to do so, and the Minister consequently filed his submissions responding to the matters which were anticipated to be raised, by reference to the proposed notice of appeal.

36    However, two days before the hearing, the applicant filed a substantial written outline of submissions, consisting of 167 paragraphs. It was immediately apparent that they had been prepared by, or with the assistance of, a person with a legal qualification or education. At a minimum, it is clear that they had been prepared by someone other than the applicant, as he was largely unable to elaborate upon them at the hearing. However, the identity of the author remained unclear. Although the applicant initially indicated that his wife had prepared the submissions, when it was put to him that they appeared to have been drafted by a person with legal knowledge, he asserted instead that they had been prepared by a friend of his wife, though he said that he was unable to identify that person.

37    Acting reasonably, the Minister did not object to the applicant’s reliance on the late submissions, notwithstanding that they purported to raise additional proposed grounds of appeal. In the circumstances, it is appropriate to briefly address those additional grounds.

Misapplication of country information

38    The first additional ground of appeal is as follows:

The primary judge erred in failing to find jurisdictional error in the Tribunal’s treatment of effective State protection, including whether the Tribunal lawfully applied the statutory requirements to my particular circumstances and whether its conclusion was legally reasonable on the material before it.

39    Whilst this ground correctly purports to identify an error in the primary judge’s reasons, it is expressed at a high level of abstraction and does not clearly identify the nature of the error alleged. Moreover, and in any event, this matter was not raised before the primary judge, and there was no application for leave to raise it on appeal.

40    The thrust of the submissions in support of the first additional ground appears to be that the Tribunal unreasonably gave greater weight to some sources of country information – particularly a “Country Information Report” prepared by the Department of Foreign Affairs and Trade (the “DFAT Report”) – than others. In essence, it appears to be an assertion that the Tribunal unreasonably misunderstood the factual evidence of the circumstances in Malaysia, particularly the effectiveness of the authorities and police. So much appears from [54] of the submissions, which reads:

54.    I submit that the legal question is whether the Tribunal adequately connected general statements about Malaysian institutions with the conclusion that effective protection would actually be available against the particular threats it accepted could occur.

41    Later in the submissions, the applicant asserts that the relevant question is not whether there was material supporting the Tribunal’s conclusion, but whether the statutory test for effective protection was lawfully applied to the particular circumstances. There was, however, no identification of any error in the Tribunal’s understanding of that test. There is also no identification of any cognate error in the primary judge’s reasons.

42    Putting to one side the ambiguity with which the ground is expressed, it is otherwise devoid of merit. The Tribunal’s reasons demonstrate that it carefully analysed the country information before it. It set out the nature and effect of the information relating to the state protection available in Malaysia, and applied that to estimate the likelihood of the applicant and his family receiving such protection were they to return. It also paid specific attention to the DFAT Report’s explanation of the steps taken by Malaysian authorities to eradicate corruption.

43    It follows that the Tribunal sufficiently considered the available country information in the context of the submissions made by the applicant. No unreasonableness arises out of the manner in which it did so.

44    Moreover, although this issue was not squarely raised before the primary judge, it is apparent that her Honour perceived the applicant to be unsatisfied with the Tribunal’s consideration of the country information. Her Honour addressed this apparent concern as follows:

24    To the extent that the Applicant sought to contend that these findings were not available because the Tribunal had erred in its application of or misunderstood the country information on which they were based, that claim was not developed before the Court and there is no sound basis to make any such finding. The Tribunal gave logical reasons for its rejection of the Applicant’s claims and those findings were open for the Tribunal to make on the materials before it. There is no discernible jurisdictional error in this respect.

45    It follows that, to the extent it was raised, this issue was appropriately addressed below. No error in the primary judge’s consideration can be discerned.

Procedurally unfair use of country information

46    A second proposed ground of appeal was identified as being:

The primary judge erred by failing adequately to consider whether the Tribunal’s material reliance upon country information dated 18 April 2018 occurred consistently with the applicable statutory procedural requirements and my opportunity to respond to material adverse information.

47    Like the first, this ground is also difficult to understand. It is not immediately apparent from the submissions how any procedural unfairness might have arisen from the Tribunal’s reliance upon the country information. For that reason alone, the ground should fail. It was also not suggested that the primary judge erred in failing to identify any procedural unfairness in the proceedings before the Tribunal. That is another reason why the ground cannot succeed.

48    Taking the submissions at their highest, the applicant appears to contend that he was denied procedural fairness because the Tribunal obtained country information in the interregnum between the two hearings. However, importantly, the applicant does not assert that the information was not made available to him, nor does he contend that he was not afforded an opportunity to respond to it. Rather, he submits that he does not know whether or not he was given such an opportunity. That question could have easily been resolved by reference to the transcripts of the hearings before the Tribunal, which the applicant failed to adduce before the primary judge.

49    In any event, the ground lacks merit because, at the time of the Tribunal’s decision, it was not required to disclose to the applicant, or invite comment upon, the country information on which it proposed to rely. That follows from s 424A of the Migration Act, which then provided:

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

…

(3)    This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)     that is non‑disclosable information.

50    In this case, the country information on which reliance was placed did not specifically relate to the applicant or another person. As such, it fell within the scope of s 424A(3) and was excluded from the operation of s 424A(1).

51    That conclusion is supported by Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 586 – 587 [72] – [73], where the Full Court identified that country information of a similar nature – relating to the extent of violence in Dhaka, particularly against certain activists – was not specifically about the applicant, nor even a class of persons of which the applicant was a member. The information was found to fall within the scope of the exception in s 424A(3) and was not required to be put to the applicant in accordance with s 424A(1).

52    Lest there be any doubt, the material demonstrates that the Tribunal took particular care to ensure that the applicant received a fair hearing. That is evidenced by its decision to discontinue the initial hearing when it became apparent that the interpreter was not providing effective assistance, and to recommence the hearing only after a more suitable interpreter had been engaged.

Other matters

53    The applicant’s written submissions traverse a number of other matters, though none can be characterised as a substantive ground of appeal. Among those is the applicant’s assertion that there is utility in extending time because his daughter has since been granted a protection visa. Whilst it may be accepted that some utility might arise in those circumstances, that alone is not a sufficient basis on which to grant an extension of time, particularly in the absence of any reasonably arguable grounds of appeal. Moreover, and in any event, the granting of the protection visa to the applicant’s daughter post-dated the Tribunal’s decision, as did several of the other matters on which he seeks to rely. These matters are not to be considered in an assessment of the adequacy of the Tribunal’s decision, or of the reasons of the primary judge.

An extension of time should not be granted

54    For the foregoing reasons, it is not in the interests of justice to grant an extension of time in which to appeal. Although the extension sought is relatively modest, the applicant has provided no adequate explanation for his failure to file an appeal within time. More importantly, an impressionistic assessment of the proposed grounds of appeal reveals that none has any apparent merit.

Conclusion

55    It follows that the application for an extension of time should be dismissed, and the applicant should pay the Minister’s costs of the application.

56    As a result of changes to Commonwealth administrative arrangements since the primary judge’s decision, it is also appropriate to order that the name of the first respondent in these proceedings be changed to “Minister for Immigration and Citizenship”.

Associate:    

Dated:    7 August 2026