Federal Court of Australia

CRI23 v Minister for Immigration and Citizenship [2026] FCA 1386

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal is dismissed.

2.    The applicants pay the first respondent’s costs of the application fixed in the sum of $5,000.

THE COURT NOTES THAT:

Pursuant to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 10, the Administrative Review Tribunal was substituted for the Administrative Appeals Tribunal as a party to this proceeding with effect from 14 October 2024.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicants seek an extension of time within which to bring an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) made on 17 November 2023. By that decision, the applicants’ application for judicial review of a decision of the Administrative Appeals Tribunal on the ground of jurisdictional error was dismissed. The Tribunal had affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants.

2    The applicants’ application for an extension of time was filed on 29 December 2023, which was 14 days outside the 28-day appeal period provided for by r 36.03 of the Federal Court Rules 2011 (Cth).

The conduct of the hearing

3    The applicants were self-represented. In accordance with the orders of the Court the Minister prepared a bundle of documents for the application and filed submissions first in time. The applicants filed a written submission in response which addressed their reasons for not filing a notice of appeal within time, the question of prejudice to the Minister, and the merits of the proposed grounds. Both applicants attended the hearing of the application. The first applicant presented the applicants’ oral submissions using the services of an interpreter.

The applicants’ explanation for their delay

4    The applicants relied on an affidavit of the first applicant dated 26 December 2023 in support of the application for an extension of time. The substance of the evidence in that affidavit is that the first applicant sought the assistance of a person in late 2023 to assist her in preparing and lodging documents in this Court and made payments to that person. It is not explicit from the affidavit whether the person whom the first applicant consulted was a legal practitioner or not, but I infer from the content of the text communications which the applicants tendered that the person was not a legal practitioner. The upshot was that the person whom the first applicant consulted did not prepare appeal papers within the prescribed time, and that the first applicant decided to prepare the papers herself. Because the appeal was out of time, the first applicant then prepared the application for an extension of time within which to appeal, which is now before the Court.

5    The applicants submitted that they had taken prompt and reasonable steps to commence an appeal within time and that they had an explanation for the delay that was reasonable in the circumstances. The applicants submitted that the delay was short and that the Minister claimed no prejudice. They submitted that there was merit in their proposed grounds of appeal.

6    The Minister criticised the applicants’ evidence in support of the application to extend time, submitting that it was imprecise and lacked detail such as the identity of the person whom the first applicant engaged to assist her. However, the first applicant’s affidavit was read without objection, and the Minister did not seek to cross-examine the first applicant.

7    The Minister did not claim any prejudice as a result of the applicants’ failure to appeal within time but submitted that there was no error in the primary judge’s decision and that the application to extend time should be dismissed.

8    In this instance, the merits of the proposed appeal are the leading consideration in relation to whether the Court’s discretion to enlarge time should be exercised. I ordered that upon the hearing of the application for an extension of time within which to appeal, the parties be prepared to present full argument as if on appeal, and I heard the application on that basis. I have therefore had a full opportunity to consider the merits of the proposed appeal.

Background

9    The applicants are citizens of Malaysia who last entered Australia in 2013. The applicants married in Australia in 2014, and they have one child who was born in Australia. In April 2015, the first applicant applied for a protection visa. The second applicant, who is her husband, was included in the application as a member of the same family unit.

10    In a statutory declaration made in support of her application for a protection visa the first applicant claimed to fear that, if she returned to Malaysia, she would be kidnapped, attacked, held for ransom or killed by a former business partner of her mother, or by criminal gangs with which he is connected. I will refer to the former business partner by the pseudonym “ZXQ”. The first applicant referred to an incident in late 2011 at her mother’s café (or bakery) in Malaysia, when a man whom she understood to be associated with the former business partner attended the premises and asked after her and her family. She stated that she gave a signal to her bodyguard who was nearby in the café, who took her to her aunt’s house for safety. She said that after her departure the man caused trouble at the café, sought her telephone number from staff, and that she then received calls from an unknown man posing as her uncle. She believed the man intended to kidnap her and hold her for ransom. She stated that she was afraid that she would have been attacked or killed by that man.

11    The first applicant described the family’s departure to Indonesia in November 2011, their return to Malaysia in February 2012 after being required to leave Indonesia, and a three-month visit to Australia from February 2012. On returning to Malaysia the family moved from Selangor to a condominium in Kuala Lumpur. The first applicant stated that in about March 2013 her mother’s former business partner arranged a meeting with her mother at the Putra World Trade Centre, and that he was accompanied by three men one of whom displayed a firearm. The first applicant stated that the former business partner demanded transfer of the family’s property, threatened her mother’s life, and said that if her mother did not sign in one month, he would come after her family. The first applicant’s family then travelled to Australia in July 2013.

12    As to the delay in applying for a protection visa, the first applicant stated that she had not known of the existence of a protection visa, that her parents had acted on migration advice directed to business and student visas, and that the family first learned of the protection visa in mid-2014.

13    As to protection in Malaysia and relocation, the first applicant claimed that the Malaysian police were unwilling to assist and were themselves corrupt and connected to criminals. She stated that her mother made reports after each major incident but was told only to be patient and await investigation. She said that lawyers whom her mother consulted in Kuala Lumpur advised that they could not assist and that the family should leave the country. She claimed that relocation within Malaysia was not available because the former business partner and his connections, and associated criminal gangs operating from Thailand, could easily find the family anywhere in the country. She stated that her younger sister was almost kidnapped from the family’s home. She sought a protection visa, asserting a continuing risk to her and her family at the hands of the former business partner and criminal gangs to which he was linked should she return to Malaysia.

14    Before the Tribunal the applicants also relied on two statutory declarations of the first applicant’s mother. The first was dated 29 November 2014, and the second was dated 2 November 2016 and was sent to the Tribunal on 28 April 2017. Amongst other things, in the first declaration the first applicant’s mother addressed the reasons for which applications for protection visas were not made in February 2012 when the family first travelled to Australia. She maintained that what had occurred in Malaysia at the hands of ZXQ was true and that the family was afraid to live there. She said that the first reason no claim for asylum had been made earlier was that the family did not know of the existence of a protection visa. She stated that before coming to Australia the family had consulted a migration agent in Kuala Lumpur, who advised them about a business visa for her and student visas for her children. She stated that the family relied on that advice and that had they known of the protection visa they would have applied for it in 2012. She said the family stayed three months in Australia and that the agents said they could arrange everything if paid. She said that the family believed applications had been made but that nothing had been done.

15    The first applicant’s mother annexed to her declaration copies of several documents from a migration agent in Kuala Lumpur. She also annexed an invoice dated 18 November 2011 from the migration consultant in Kuala Lumpur in the sum of $5,400 which appears to cover half the professional fees in connection with what is referred to as a Business Subclass 163 visa. The documents included receipts dated 24 November 2011 and 1 March 2012 in the sums of $2,400 and $10,000 respectively. The annexed documents also included a letter dated 5 March 2012 to the first applicant’s mother at an address in Melbourne from the migration agent which nominated both a Melbourne office and its Kuala Lumpur office. The letter set out a proposal to obtain a mix of business, guardian, and student visas for the family, and quoted charges for the services. The letter acknowledged receipt of $9,600 and appeared to quote fees that required additional payments. The first applicant’s mother stated in her declaration that although $10,000 had been paid a further $5,000 was sought, which the family could not afford, and that no visas were obtained.

16    In April 2016 a delegate of the Minister refused to grant protection visas to the applicants, rejecting the first applicant’s claim to refugee status, and rejecting her claims for complementary protection. The applicants then sought review of that decision by the Administrative Appeals Tribunal.

The Tribunal’s decision

17    The applicants were represented before the Tribunal by a registered migration agent, who attended the hearing: R [4]. The Tribunal conducted hearings on 27 April 2017 and 25 May 2017, the first hearing having been adjourned after an hour and ten minutes to accommodate time constraints affecting the applicants’ representative: R [3], [27]. The Tribunal received oral evidence from the first applicant and from her mother. The second applicant did not give evidence: R [3], [5]. The hearing was conducted with the assistance of an interpreter in the Malay and English languages: R [3].

18    On 5 June 2017, the Tribunal affirmed the delegate’s decision. In its statement of reasons, the Tribunal did not accept central elements of the first applicant’s claims.

19    The Tribunal accepted that the first applicant’s mother was an industrious businesswoman who had a number of small business interests in Malaysia, that she had dealings with a business partner, ZXQ, and that she had political and philanthropic connections: R [30]. The Tribunal did not, however, accept that ZXQ or his agents attempted to kidnap the first applicant from her mother’s bakery in 2011, or that they continued to present a threat to her. That conclusion rested on inconsistencies in the evidence of the first applicant and her mother as to whom the men at the shop were said to be seeking, and on aspects of the account that the Tribunal regarded as implausible, which led it to be not satisfied that the first applicant’s account was credible: R [34]–[37].

20    The Tribunal considered it purely speculative that three telephone calls the first applicant received on the day of the alleged incident from an unknown caller claiming to be her uncle came from ZXQ’s agent or that the person indicated an intention to harm her. The Tribunal did not accept that those calls provided credible substance to her claim that she faced the prospect of kidnapping, ransom or harm: R [38]–[39]. Having not accepted that ZXQ’s agents came to the premises, the Tribunal did not accept the first applicant’s claim that they made a mess there: R [40].

21    The Tribunal took into account that neither the first applicant nor her mother reported the claimed incident to the police: R [41]–[42]. It expressed serious doubts about the credibility of the explanation given for not reporting the incident to the police, having regard to country information from the Department of Foreign Affairs and Trade (DFAT) that the Royal Malaysian Police was a professional and effective force and that the majority of cases in the civil courts were processed in accordance with the rule of law, and to the first applicant’s position as the daughter of a well-connected and successful businesswoman: R [43]–[45]. The Tribunal also noted the first applicant’s written evidence that her mother had approached the police after other incidents, which it considered showed no reluctance on her mother’s part to do so: R [46]. Submissions directed to qualifications in the DFAT advice, to police corruption, and to the presence of bodyguards did not alter the Tribunal’s view: R [47]–[50]. The Tribunal therefore did not accept that the first applicant had a well-founded fear of persecution or faced a real risk of significant harm on this basis: R [51].

22    The Tribunal regarded the claim that the first applicant’s sister had been the subject of an attempted kidnapping as far-fetched and did not accept it as credible. It was claimed that the man said to be involved offered money to a maid to hand over the child and left when the maid refused. The Tribunal expected that a “more successful” effort to kidnap a child would be put into action if that was what was intended having regard to the resources allegedly at the disposal of ZXQ. The Tribunal considered that if the incident had occurred as claimed, then it expected that the first applicant’s mother would have made a report to the police, which she did not: R [52]–[53]. The Tribunal considered that a claim by the applicants that on another occasion someone had come to the family house looking for the first applicant and her siblings was also purely speculative as an indication of risk of harm to the first applicant: R [54].

23    As to the period between 2011 and the family’s departure from Malaysia in 2013, the Tribunal noted the first applicant’s evidence that her mother had sold the businesses held in her name in 2012 but had continued to manage her husband’s cleaning company until the family’s departure in 2013, a role that involved going out to the various work sites of the business. The Tribunal considered that if ZXQ had intended to extort or harm the first applicant’s mother, he had considerable opportunity over more than twelve months to take such action as she went about her work outside the home, and that it was far-fetched that, having failed to take that opportunity in the past, he intended to harm her or those associated with her in the future. For that reason, the Tribunal did not accept the claim to be credible: R [55]–[56].

24    The Tribunal acknowledged the first applicant’s evidence that after the incident at the shop her mother did not permit her to go out without her bodyguard, and her evidence as to the effect of those restrictions upon her. The Tribunal considered that there were many reasons why her mother might place such restrictions upon her, including that she was over-protective, and did not consider that her mother’s conduct in relation to the first applicant was probative of a well-founded fear of persecution or a real risk of significant harm: R [57]–[58].

25    As to delay in applying for a protection visa, the Tribunal took into account that the first applicant raised no protection claims when she visited Australia for three months in 2012, and that following her arrival in July 2013 she did not apply for protection until April 2015, almost two years later, for most of which time she was in the community unlawfully: R [59]. The Tribunal considered that, had the first applicant’s mother held concerns for her own safety and that of her daughter, she would have used the initiative demonstrated by her business entrepreneurship to make inquiries about ways in which she and her family might seek protection, notwithstanding the advice the family had received from migration agents concerning business and student visas: R [60]. The Tribunal also expected that migration agents would have provided advice about protection visa applications and did not consider plausible the explanation that the family first heard of a protection visa in mid-2014: R [61]. The Tribunal therefore did not consider credible the claim that the family did not know about protection visas, which caused it to have further doubt as to the credibility of the first applicant’s claims: R [62].

26    For those reasons the Tribunal was not satisfied as to the first applicant’s general credibility, and rejected the underlying factual substratum of the claims, including that the business relationship with ZXQ had soured or that the first applicant or her family had been threatened in any way: R [63]. The Tribunal did not accept that the applicants had a well-founded fear of persecution within s 5J(1) of the Migration Act 1958 (Cth), and held that the same findings answered the complementary protection criterion, so that there were no substantial grounds for believing there was a real risk of significant harm on removal to Malaysia: R [64]–[67]. As a result of these findings, any question of relocation did not arise: R [68]. The applicants accordingly did not satisfy s 36(2)(a) or (aa), and the Tribunal affirmed the delegate’s decision: R [69]–[70].

The applicants’ grounds of review before the primary judge

27    On 2 July 2017, the applicants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The applicants sought relief in the exercise of that Court’s jurisdiction under s 476 of the Migration Act.

28    The applicants were self-represented below, as they are on appeal. The first applicant appeared at the hearing before the primary judge, but the second applicant did not appear: J [18].

29    The primary judge noted that the applicants’ application for judicial review contained lengthy text identifying principles, and extracts of the Tribunal’s reasons. The applicants’ grounds of review below appeared over five pages of the application and at J [16] the primary judge set out the following summary of the applicants’ grounds which was fair and accurate –

(a)    The first part of the ground refers to legislation and most notably includes an extract of s 36(2) of the Migration Act. No jurisdictional error is asserted.

(b)    Under the heading ‘Background’, biographical information is set out in relation to the applicants, including their birth, marriage, arrival in Australia and immigration history, application for a protection visa and birth of their child. No jurisdictional error is asserted under this heading.

(c)    The next heading in the ground is ‘AAT Decision’. Under this heading, the applicants have extracted various parts of the Tribunal reasons that mostly appear under the subheadings ‘Credibility’ and ‘Attempted kidnap of the applicant’. The applicants have not asserted any jurisdictional error under the subheading, but they have emphasised certain findings made by the Tribunal. The emphasised findings are:

(i)    the Tribunal’s finding at [34] of its reasons that ‘[o]n the evidence before it the Tribunal is not satisfied in the applicant’s general credibility and does not accept the applicant’s claims in this respect are for the following reasons’;

(ii)    the Tribunal’s finding at [37] of its reasons that ‘the Tribunal does not accept the applicant’s account that men came to the shop or that she was the subject of a foiled kidnap attempt is credible’;

(iii)    the Tribunal’s finding at [40] of its reasons that it ‘has looked at these events in their totality, and in the context of the issues discussed below, but does not accept [the business partner’s] agents came to the shop. It follows the Tribunal does not accept the men allegedly made a mess in the shop’; and

(iv)    in relation to the first applicant’s claim that there was an attempted kidnap of her sister, the Tribunal’s finding at [53] that ‘[g]iven that it is claimed that [the business partner] had the resources of a gang at this disposal, the Tribunal would expect that a more successful effort to kidnap the child would be put into action if intended’.

(d)    The next heading in the ground is ‘Establishing the facts’. Under this heading, the applicants have extracted various observations about assessing the credibility of applicants seeking protection and giving applicants the benefit of the doubt in assessing refugee claims. Again, no jurisdictional error is asserted.

(e)    The next heading in the ground is ‘The presumption of innocence’. Under this heading the applicants referred to the presumption of innocence as a fundamental principle of the common law, referring to a statement of the United Nations Human Rights Committee and policies in relation to the requirement for Commonwealth employees to consider the right to the presumption in innocence when working on certain legislation, policies and programs. The applicants assert that the Tribunal’s finding that their account of events is not credible is an opinion only and in contradiction to the presumption of innocence.

(f)    The final heading in the ground is ‘Derogation’. Under this heading, the applicants refer to various articles of the International Covenant of Civil and Political Rights (ICCPR) and the Criminal Code Act 1995 (Cth) in relation to proof of criminal responsibility. The applicants assert that the Tribunal decision is speculative at best with no proven responsibility to suggest the applicants are not credible. The applicants also assert that in reaching its decision, the Tribunal used words such as ‘not credible’ and referred to ‘self incrimination paragraphs of the hearing’ and as a result the decision deprived the applicants of the presumption of innocence and is in breach of article 14 of the ICCPR.

30    The primary judge noted that her Honour had explained to the first applicant the nature of judicial review and gave the first applicant time to consider her oral submissions. Her Honour stated that the oral submissions were considerably different from the issues raised in the applicants’ application, but that her Honour had regard to both the claims in the application and the oral submissions: J [19]–[20].

The primary judge’s path of reasoning

31    The primary judge framed her consideration of the applicants’ claims by identifying the role of a Court in a judicial review proceeding where the ground of review is jurisdictional error. Her Honour stated that the role of the Court was to rule upon the legality of the Tribunal’s decision by reference to the applicant’s complaints about its decision, and not to consider its merits: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272. Her Honour stated that relief could be granted only if the applicants established that the Tribunal’s decision was affected by jurisdictional error, and set out the principles essayed by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [81] (SZMTA), including that the categories of jurisdictional error are not closed and encompass identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, in some cases making an erroneous finding or reaching a mistaken conclusion, and failing to observe an applicable requirement of procedural fairness. Her Honour concluded by noting that disagreement with the Tribunal’s decision, even emphatic disagreement, does not of itself establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

The applicants’ challenge before the primary judge to the Tribunal’s credibility findings: J [24] to [32]

32    The primary judge addressed first the applicants’ challenge to the Tribunal’s credibility findings. Her Honour began by observing that credibility findings made by an administrative decision-maker may be challenged on recognised grounds, including a failure to afford procedural fairness, the absence of a logical or probative basis for the finding, or unreasonableness, citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [38] (McKerracher, Griffiths and Rangiah JJ).

33    The primary judge held that the applicants had not identified the type of jurisdictional error they contended the Tribunal had made, asserting only that its adverse credibility findings were made contrary to the presumption of innocence and to the right against self-incrimination. Her Honour held that neither assertion established jurisdictional error: the presumption of innocence had no role to play in the proceeding. The applicants were not facing criminal charges and gave no evidence that they had been accused of any crime. Her Honour held that there was no evidence before the Court that the applicants or the first applicant’s mother gave any evidence that could be seen as self-incriminating in relation to a crime or civil penalty provision. The primary judge stated that the ground as a whole appeared to be an attempt to assert that the Tribunal should have believed the applicants’ account and should not have relied on matters in their own evidence against them. It followed that no jurisdictional error was established on this basis.

34    At J [28] the primary judge set out the judicial guidance relating to the evaluation of credibility that the Tribunal had identified at R [12]–[17]. In addition, her Honour referred to the Minister’s submissions that it was for an applicant to provide evidence and argument in sufficient detail to enable the decision-maker to establish the relevant facts (Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; 151 FCR 214 at [76]), that the Tribunal was not required to accept uncritically any and all claims made (SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 at [20]), and that the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events (Wu Shan Liang at 281–282). Her Honour found nothing in the Tribunal’s decision to suggest that it had not applied those principles. Accepting the Minister’s submission, her Honour held that the credibility findings were open to the Tribunal on the material before it, that it was open to it to identify aspects of the evidence that were inconsistent or implausible and to rely upon them in making adverse credibility findings as it did, and that it did not need evidence positively disproving the applicants’ claims before rejecting aspects of them. Accordingly, no jurisdictional error was established on the basis of the Tribunal’s adverse credibility findings.

The applicants’ challenge before the primary judge to the Tribunal’s reliance on the failure to make a police report: J [33] to [40]

35    The primary judge addressed the first applicant’s oral submission that she was aggrieved by the Tribunal’s questioning of her as to whether her mother had made a police report on the day of the alleged kidnapping incident, the first applicant submitting that she had been only 16 years old at the time, that her mother was a single parent who had to care for her and who had hired bodyguards for her protection, and that she had been unable at the time to explain why her mother had not made a police report.

36    The primary judge understood those submissions to be directed to the Tribunal’s reasons at R [41]–[45], where the Tribunal had taken into account, in making its adverse credibility findings, that neither the first applicant nor her mother had reported the alleged attempted kidnapping to the police. Her Honour set out R [41]–[42] of the Tribunal’s reasons, and referred at J [36] to the Tribunal’s expression of serious doubts at R [43] about the credibility of the explanation given the claimed seriousness of the incident, and its reasoning at R [44]–[45] where the first applicant’s claims about the inaction by Malaysian police were weighed against contrary country information from DFAT to the effect that the Royal Malaysian Police was a professional and effective police force. Her Honour held that the Tribunal’s reasons showed that it was cognisant that the first applicant had been a teenager at the time, expressly acknowledging this at R [42], and that the first applicant had in fact been able to answer the Tribunal’s questions as to why the incident was not reported, her answer having been taken into account but not accepted. Noting that there was no transcript of the Tribunal hearing before the Court, her Honour found nothing to suggest that the questioning had been inappropriate. Her Honour held that it was open to the Tribunal to question the first applicant about the matter and to take her responses into account as it did. Her Honour characterised the first applicant’s complaint as, in substance, an expression of disagreement with the Tribunal’s decision which did not amount to jurisdictional error.

The applicants’ claim before the primary judge that the Tribunal did not give permission to the first applicant to bring her mother to the hearing as a person to give evidence: J [41] to [45]

37    The primary judge addressed the first applicant’s oral submission that the Tribunal had not given her permission to bring her mother to the hearing as a person who could give evidence. Her Honour held that the claim was not established on the evidence before the Court. Her Honour stated that the Tribunal had convened hearings on two occasions, and the court book contained a hearing record for each occasion. Her Honour found that the record for the hearing on 27 April 2017 stated that the first applicant’s mother attended as a witness, and the record for the hearing on 25 May 2017 stated that the first applicant’s mother attended for “support”. Her Honour noted that the Tribunal had recorded at R [3] of its reasons that it received oral evidence from the first applicant’s mother, and at R [27] that it had explained to the first applicant at the hearing on 27 April 2017 that her mother’s statutory declaration and oral evidence would be taken into account in assessing her claims. Her Honour identified the respects in which the Tribunal had in fact considered the mother’s evidence in reaching its decision: it summarised her statutory declaration at R [22]–[23]; at R [30] it accepted certain facts as to her business interests and political connections on evidence expressly including that declaration; at R [35]–[36] it considered her oral evidence about the alleged kidnapping of the first applicant, which it regarded as inconsistent with the first applicant’s evidence and upon which it invited comment under s 424AA of the Migration Act; at R [40] it considered her evidence that the business partner’s agents created a disturbance and mess at the shop after the first applicant left; at R [42] it considered her evidence as to why she did not report the alleged attempted kidnapping to the police; and at R [52]–[53] it considered her evidence about the alleged attempted kidnapping of the first applicant’s sister. The primary judge held that it was therefore clear that the Tribunal had allowed the first applicant’s mother to give evidence and the Tribunal did have regard to that evidence. Accordingly, the first applicant’s submission did not establish jurisdictional error.

The applicants’ claim before the primary judge of alleged interpretation errors: J [46] to [51]

38    The primary judge addressed the first applicant’s oral submission that the Tribunal had not provided the correct interpreter, providing an Indonesian rather than a Malay interpreter, and that some words and sentences had not been interpreted correctly. Her Honour held that the assertion as to the language of the interpreter was not established on the evidence. The hearing records for both the hearings of 27 April 2017 and 25 May 2017 recorded that the first applicant was assisted by a Malay interpreter, as did the Tribunal at R [3] of its reasons. Her Honour stated that at the hearing she had noted that there was no evidence before the Court of interpretation errors at the Tribunal hearing, and that her Honour had asked the first applicant why she believed such errors had been made and whether she had obtained a transcript.

39    The primary judge noted that she had explained that interpretation need not be exact and that jurisdictional error would arise only if interpretation errors denied the applicants a fair hearing. The matter was stood down at the first applicant’s request, but on resumption she did not identify to the primary judge any alleged errors in interpretation.

40    Applying the principles summarised by Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508; 242 FCR 310 at [52], her Honour found no jurisdictional error. That was because there was no evidence to indicate any interpretation error, the first applicant’s submissions from the bar table were vague and did not suggest that she could not understand or participate effectively in the hearings, and nothing in the Tribunal’s reasons indicated confusion or interpretation difficulties. The applicants therefore did not establish any denial of procedural fairness on the basis that there were any issues with interpretation at the Tribunal hearing.

The applicants’ claim before the primary judge that the Tribunal failed to consider evidence in relation to phone calls: J [52] to [54]

41    The primary judge addressed the first applicant’s submission that the Tribunal had not taken into account evidence that, on the day of the alleged attempted kidnapping, one of the business partner’s agents had telephoned her claiming to be a relation. Her Honour rejected this submission, holding that the Tribunal had clearly considered and had regard to that evidence at R [38]–[39] of its reasons, which her Honour set out, and in which the Tribunal recorded the first applicant’s evidence that she received three telephone calls from someone she did not know claiming to be her uncle and asking where her father was, and her belief that the caller was the business partner’s agent. The Tribunal concluded that it was purely speculative that the calls came from that person or indicated an intention to harm her, and that, in the context of the insubstantial and speculative evidence of an attempted kidnapping, the calls from an unidentified source did not cumulatively provide credible substance to the first applicant’s claim to face kidnapping, ransom or harm. Her Honour held that the first applicant’s submission appeared simply to be an expression of disagreement with the Tribunal’s finding, which did not establish jurisdictional error, and that it was open to the Tribunal on the evidence before it to make the findings it made in relation to that evidence for the reasons it gave.

The applicants’ submissions before the primary judge in relation to the first applicant’s mother’s business and the demand for money: J [55] to [57]

42    The primary judge next addressed a submission made by the applicants in reply, in which the first applicant referred to submissions advanced by counsel for the Minister that the Tribunal had found that her mother’s business did not drop and that the business partner did not exploit the family or threaten them in any way. Her Honour recorded that the first applicant submitted that there was a police report in relation to this.

43    The Minister had submitted that because of the Tribunal’s finding that her mother’s business did not drop and that the business partner did not exploit the family or threaten them in any way, there was no requirement for the Tribunal to make factual findings on some of the first applicant’s mother’s more specific claims because the factual premise on which each of those claims rested fell away and had been subsumed in the Tribunal’s findings of greater generality. Her Honour held that the first applicant’s reply submissions did not establish jurisdictional error because the finding of the Tribunal referred to in the Minister’s submissions accurately reflected the Tribunal’s finding at R [63]. Her Honour held that the Tribunal was plainly aware of the first applicant’s evidence that her mother had reported some of the alleged incidents involving the business partner to the police, having referred to that evidence at R [46] of its reasons, but held that the Tribunal’s finding reflected its adverse assessment of the first applicant’s evidence.

The applicants’ request to adduce fresh evidence before the primary judge: J [58]

44    The primary judge did not allow the first applicant to adduce further evidence going to her claim that if she returned to Malaysia, she would be in danger. Her Honour held that any such evidence would not be relevant to the question whether there was any jurisdictional error in the Tribunal’s decision.

Other matters raised before the primary judge in the Minister’s submissions: J [59] to [61]

45    Finally, the primary judge recorded that the Minister’s written submissions addressed matters beyond those raised in the applicants’ ground of review, most of which her Honour had addressed in the course of considering the applicants’ grounds and the submissions advanced by the first applicant at the hearing. The Minister submitted to the primary judge that the applicants had been afforded procedural fairness by the Tribunal and referred to the express obligations on the Tribunal under Div 4 of Pt 7 of the Migration Act with which the Minister submitted that the Tribunal had complied. Her Honour held that there was nothing in the evidence before the Court to suggest that the applicants were not afforded procedural fairness by the Tribunal.

The applicants’ proposed grounds of appeal to this Court

46    The applicants filed with their application a draft notice of appeal which sets out six proposed grounds. Before going to the individual grounds, I will summarise the applicants’ submissions.

47    In their written submissions the applicants accepted that this appeal was not an occasion for merits review of factual findings of the Tribunal. However, they submitted that it was arguable that aspects of the Tribunal’s reasoning process involved assumptions and inferences that warrant appellate consideration, and that it is arguable that the primary judge failed to identify and address that issue.

48    The applicants identified four features of the Tribunal’s reasons they submitted led to the rejection of the claims concerning threats, extortion and risk of harm. First, they submitted that the Tribunal treated the claimed attempted kidnapping in 2011 as central to the claims and described the evidence of it as “insubstantial and purely speculative”. Secondly, they submitted that the Tribunal relied upon the absence of a police report in assessing credibility. Thirdly, they submitted that the Tribunal relied upon the absence of further harm between 2011 and the family’s departure from Malaysia in 2013 and found it “far-fetched” that harm had not occurred in that period but might occur in the future. Fourthly, they submitted that the Tribunal relied upon the delay in seeking a protection visa and rejected the explanation that the family was unaware of the availability of a protection visa.

49    As to each, the applicants submitted that the inference drawn was “not compelled”. They submitted that the absence of later harm did not necessarily establish that earlier threats or attempted harm never occurred. They submitted that the absence of a police report did not necessarily establish that the claimed incident did not occur. And they submitted that the delay in seeking a protection visa did not necessarily establish the absence of a genuine fear on their part. The applicants submitted that it was arguable that those matters were given determinative weight in a manner that affected the Tribunal’s reasoning process.

50    The applicants then responded to two submissions of the Minister. To a submission that the proposed grounds were not argued before the primary judge, the applicants submitted that they were self-represented and lacked legal training, but submitted that the substance of their complaint has always been directed to the Tribunal’s adverse credibility reasoning, that they did not seek to advance an entirely new factual case, and that they sought only to articulate the legal significance of matters that have always formed part of their challenge. At the hearing, the Minister did not press the submission that the applicants sought to raise new matters on appeal. To the Minister’s submission that the proposed grounds amounted only to disagreement with the Tribunal’s factual findings, the applicants stated in their written submissions that they acknowledged that characterisation but submitted that the proposed appeal nevertheless raised an arguable question concerning the Tribunal’s reasoning process, and whether certain conclusions were reached by reference to assumptions and inferences that were “not necessarily compelled by the evidence”.

51    In oral submissions, which were presented by the first applicant through an interpreter, the applicants accepted that the Court could not conduct a merits review of their claims. The first applicant submitted that the Tribunal had reached questionable conclusions in relation to its adverse credibility findings, which had depended upon conflicts in the evidence, the absence of a police report, the absence of harm, and the lateness of her application for protection, each of which she submitted was open to an alternative explanation. The first applicant submitted that she did not contend that the Tribunal was unable to have regard to differences in the accounts given, but that differences in perception did not mean that what she had claimed did not happen. The first applicant submitted that her mother had explained what she believed to be the intention of the men concerned, and she had explained why she had undergone those experiences and why she believed that she would not be safe. As to the police report, the first applicant submitted that the absence of a report did not mean that the incident had not occurred, and that the material disclosed her family’s previous experiences with the police on account of which the family had relied upon bodyguards.

52    In her reply submissions, the first applicant submitted that her point was not that any particular factual finding should be disregarded, but that the Tribunal had used several matters — the inconsistencies, the absence of a police report, and the delay in seeking protection — to arrive at its adverse credibility finding, and that the primary judge had failed to consider those matters. As to the delay in applying for a protection visa, the first applicant submitted that her family had received assistance directed to other visa pathways and had not understood the availability of a protection visa at the time, so that the delay did not show an absence of fear of harm or of a need for protection. She repeated her submissions that the question was how much the absence of a police report had weighed in the general scheme of the adverse credibility findings, and that the absence of a report did not mean that the incident had not occurred.

53    I will address the merits of the proposed grounds in turn. All proposed grounds are set out verbatim and without correction.

Proposed Ground 1

54    Proposed Ground 1 is as follows –

The Federal Circuit Court failed to consider several vital integers of my case. When at Tribunal was not all my story translate properly by the Indonesian Malay Interpreter and in Federal Court they use Malay Interpreter but I noticed the interpreter wrongly translate my words in the federal court Summary report refer No. 33 was mentioned that my mother was single parents, but she is not actually. I did not say such for my mother’s status. I strongly believed that the whole of my case story was not hearing properly in Tribunal. I need Malay Interpreter (Malaysian) for translate my words exactly to convey my words. Although these two language Indonesia Malay and Malaysia Malay from Malay clumps but there are many different on some words meaning and the dialect as well that may occur confusing and error translate.

55    As to proposed Ground 1, the primary judge did consider the first applicant’s claim that there had been interpretation errors at the Tribunal at J [46] to [51] and held that no jurisdictional error had been shown. This was for reasons including that there was no evidence to show that there had been any interpretation error. There is no arguable appealable error in relation to this issue.

56    The applicants also make the discrete claim that the primary judge at J [33] stated that the first applicant had submitted to her Honour that her mother was a single parent when she was not. There is certainly material capable of showing that the first applicant’s mother was not a single parent. If the primary judge was mistaken as to the submission that was made, then this may have been the product of inaccurate interpretation and provides an illustration of the point made by her Honour at J [48] that interpretation is not always 100% accurate. However, any misinterpretation of the first applicant’s oral submission in the Court below on that issue was not material to the outcome and discloses no arguable appealable error.

Proposed Ground 2

57    Proposed Ground 2 is as follows –

Refer no.8 . In the statement of the tribunal did not believe that my mother’s partner was not from a gangster , I objected to the statement because my mother made a police report against her partner when my mother partner’s showed a gun when meeting them based on statement this matter has been proven my mother’s police report its not fair for the court to reject my mother’s statement.

58    Ground 2 does not disclose any arguable jurisdictional error. The Tribunal did not make any discrete finding that the first applicant’s mother’s business partner was not a gangster or associated with gangsters. Rather, the Tribunal did not accept the whole substratum of facts that had been presented, and at R [63] the Tribunal did not accept that the first applicant’s mother had received any threats or sought police help in relation to her dealings with the business partner, to whom I have referred as ZXQ. The primary judge stated at J [57] that the Tribunal “was plainly aware of the first applicant’s evidence that her mother reported some of the alleged incidents involving her business partner to the police as it referred to this evidence at [46] of its reasons” and held that the Tribunal’s finding at R [63] reflected its adverse credibility assessment. No appealable error is disclosed.

Proposed Ground 3

59    Proposed Ground 3 is as follows –

Refor no.9 . The tribunal said that the tribunal did not believe that there was an accident to kidnap me , and the tribunal did not believe that the phone call I received was from the kidnapping gang . I objected to that statement and I took into account the event that happened to me even on the basic tribunal did not believe . Because my mother didn’t make police report , because she paid two bodyguards to keep me safe . I still protested because the bodygurd my mother paid were from special action unit and the bodyguard credibility is the same as police , in fact they are more protective . I still protested if my mother didn’t make a police report because there is too much corruption because my mother’s partner is famous for many members and the truth is that not making a report is not necessary . The tribunal cannot say is not true just because there’s no report .

60    Proposed Ground 3 does not disclose any arguable jurisdictional error because it does no more than dispute the merits of the Tribunal’s decision by claiming that the Tribunal should have accepted the substance of the first applicant’s account. As the primary judge correctly observed at J [23] citing Minister for Immigration and Multicultural Affairs v Eshetu at [40], disagreement with the Tribunal’s findings, however emphatic, does not establish jurisdictional error.

61    Moreover, the premise of the proposed ground is not accurate. The Tribunal did not reject the claimed attempted kidnapping solely because no report was made to the police. It rejected that claim by reason of inconsistent details between the evidence of the first applicant and that of her mother as to whom the men at the shop were seeking, and by reason of features of the account that it did not accept: R [34]–[37].

Proposed Ground 4

62    Proposed Ground 4 is as follows –

Refer no.11 . The tribunal said the first applicant mother there is no real risk that is she return that she is in danger . I still objected to the tribunal decision saying there is no backup that can support my mother claim , the tribunal itself say that the tribunal does want to research a case like my mother . So how can the tribunal give a decision my mother not in danger . While the tribunal did not find the truth and only gave a decision on the basis that my mother did not make a police report that shows the tribunal was not fair in making decisions so I still object to the decision that tribunal has given because the tribunal can conduct an investigation in the same case as my mother’s where the victim who made a police report did not get proper justice and there were victims who get killed.

63    Proposed Ground 4 does not disclose any arguable jurisdictional error because it does no more than dispute the merits of the Tribunal’s decision by claiming that the Tribunal should have accepted the substance of the first applicant’s account and that of her mother. To the extent that the proposed ground rests on a claim that the Tribunal rejected the applicants’ claims on the basis that there was no police report of the claimed attempted kidnapping, this is not a fair reflection of the Tribunal’s reasons. The absence of a police report was one element that the Tribunal considered. As I have identified at [61] above, the Tribunal also relied on inconsistencies in the evidence as well as other matters such as the delay in applying for a protection visa.

64    To the extent that proposed Ground 4 suggests that the Tribunal erred by failing to conduct its own investigation into the applicants’ claims, the duty imposed on the Tribunal was a duty to review. It was under no general duty to make inquiries, and a failure to inquire will only rarely give rise to jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). There is no claim by the applicants that the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, still less any basis for thinking that the Tribunal’s failure to do so was unreasonable.

Proposed Ground 5

65    Proposed Ground 5 is as follows –

In consideration of my mother’s credibility which result in why my mother did not apply for protection earlier . When we come in 2012 she was deceived by an agent registered in Australia on the mother’s side I showed the payment receipt by the agent why did the tribunal ignore ignore my mother’s statement ? And in 2013 my mother did not about this protection visa until she meet Malle Family Care in Swan Hill . The officer help her . I applied for this protection visa the tribunal also ignored that statement the same as the tribunal’s answer saying that my mother did not realize the evidence but there is evidence that my mother relise on aside from tribunal and is not fair for us .

66    In substance, proposed Ground 5 claims that the Tribunal ignored the first applicant’s mother’s statutory declaration and the documents annexed to it evidencing payments made to a migration agent and ignored the claim that the family first learned of the availability of a protection visa in 2014 through a welfare organisation at Swan Hill. So expressed, the ground is capable of raising a complaint of a kind that may amount to jurisdictional error, namely that the Tribunal ignored relevant material: see SZMTA at [81] (Nettle and Gordon JJ). The complaint is not, however, made out.

67    The Tribunal did not ignore the explanation. At R [22]–[23] the Tribunal summarised the first applicant’s mother’s statutory declaration of 29 November 2014. At R [30] it accepted certain facts concerning the mother’s business interests and connections on evidence that included that declaration. At R [60] the Tribunal reasoned that, had the first applicant’s mother held concerns for her own safety and that of her daughter, she would have used the initiative demonstrated by her business entrepreneurship to make inquiries about ways in which she and her family might seek protection. The Tribunal referred expressly to the invoices and a letter indicating that the first applicant’s mother had engaged the services of a migration agent. At R [61] the Tribunal stated that it expected that migration agents would have provided advice about protection visa applications. It did not accept as plausible the claim that the family first heard of a protection visa in mid-2014. The Tribunal thus addressed the explanation and rejected it. Whether it should have accepted it was a matter for the Tribunal.

68    The primary judge did not consider any argument resembling proposed Ground 5 in her Honour’s comprehensive reasons. The subject of proposed Ground 5 was not reflected in a ground of review that was before her Honour, and on the basis of her Honour’s reasons the first applicant does not appear to have raised it in oral argument. However, nothing turns on the first applicant’s failure to have argued the point below because I have considered it for myself and determined that it lacks merit.

Proposed Ground 6

69    Proposed Ground 6 is as follows –

Refor no 14-16 , I object to all the decisions of the tribunal and I ask the court to give me a chance to get justice and and that I deserve to be given proper protection.

70    Proposed Ground 6 is expressed as a conclusion and does not advance any independent ground of appeal.

Conclusions

71    In considering whether to grant the applicants an extension of time within which to appeal I find in the applicants’ favour that they took steps (albeit misguided steps) within the appeal period to bring an appeal, that the delay was not substantial, and that the Minister does not claim any prejudice. However, for the reasons I have given there would be no merit to the appeal, and for that reason the application for the extension of time is refused.

72    The Minister sought costs of the application fixed in the sum of $5,000. I gave the applicants an opportunity to be heard on costs and they submitted that the amount sought by the Minister was “heavy” and that account should be taken of the fact that the applicants were self-represented litigants.

73    Costs should follow the event. I consider that the sum of $5,000 is reasonable.

Associate:

Dated:    22 September 2026