ABL19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1248
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1248
File number(s): MLG 45 of 2019 Judgment of: JUDGE FARY Date of judgment: 6 August 2025 Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s36(a) or (aa) – affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – whether in the interests of administrative of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s 5J(1), s 5H, s 36, s 47(1), s 65(1), s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2
Migration Regulations 1994 (Cth) cl 866.1 – 866.6 of Sch 2
Cases cited: AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Jess v Scott (1986) 12 FCR 187
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 5 August 2025 Date of hearing: 5 August 2025 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Ms Bosnjak, Mills Oakley Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 45 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABL19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FARY
INTRODUCTION
By way of Application filed on 8 January 2019, the applicant (Applicant) seeks an extension of time to seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 14 December 2016 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The Application was filed outside of the prescribed 35 day timeframe pursuant to s 477(2) of the Migration Act. The Application was filed 720 days out of time. As a result, the Applicant requires an extension of time to prosecute his Application.
The hearing of the Application took place at the Melbourne Registry of the Court on 5 August 2025 (Hearing). The Minister was represented by Mr Barrington of counsel. The Applicant was self-represented with the assistance of an interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 5 August 2025, Order 2.
ISSUE IN DISPUTE
The issue in dispute is whether the Applicant has satisfied the Court that it is necessary in the interests of the administration of justice to make an order extending time for the filing of an Application, pursuant to s 477(2) of the Migration Act.
BACKGROUND
The Applicant is a citizen of Malaysia.
On 2 December 2015, the Applicant arrived in Australia as the holder of a Tourist visa.
On 8 January 2016, the Applicant applied for the Protection (Subclass 866) visa (Visa).[2] The Applicant claimed to fear harm from the government on the basis of his involvement in a political group and that authorities attacked him with acid gas when he participated in political demonstrations.[3]
[2] Court Book (CB) 1-35.
[3] CB 30-32.
On 10 March 2016, a delegate (Delegate) of the First Respondent (Minister) refused to grant the Applicant the visa (Delegate’s Decision).[4] The Delegate found that the Applicant did not have a well-founded fear of being persecuted in Malaysia given the lack of adequate details in his protection claim and on the basis of country information.
[4] CB 48-57.
On 26 March 2016, the Applicant applied to the Tribunal for review (Review Application).[5]
[5] CB 58-59.
On 15 November 2016, the Applicant was invited to attend a hearing before the Tribunal on 14 December 2016.[6]
[6] CB 68-73.
On 14 December 2016, prior to the hearing, solicitors for the Applicant wrote to the Tribunal and requested an adjournment purportedly on behalf of the Applicant. [7] An unsigned copy of an appointment of representative form was attached to this email.[8] The correspondence advised that the solicitors had instructed the Applicant not to attend the hearing.
[7] CB 74-78.
[8] CB 77.
On 14 December 2016, the Applicant attended the Tribunal hearing with the assistance of an interpreter.[9]
[9] CB 79-81.
On 15 December 2016, the Tribunal wrote to the Applicant providing written reasons for the Tribunal’s Decision dated 14 December 2016.[10]
[10] CB 82-93.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 87 to 90 of the Court Book.
The Tribunal noted that on the morning of the hearing, a request for postponement was sent in writing from a solicitor claiming to act on behalf of the Applicant. The solicitor indicated they had advised the Applicant not to attend the hearing. However, the Applicant did attend on the scheduled date and confirmed to the Tribunal that he did not have a representative and did not wish to appoint any for the purposes of the Review Application.
The Tribunal outlined the relevant criterion required to be satisfied by the Applicant in relation to his Review Application: Tribunal’s Decision [5] to [10].
The Tribunal identified the relevant issue as whether the Applicant had a well-founded fear of being persecuted for one or more of the reasons set out in s 5J(1) of the Migration Act and if not, whether were substantial grounds for believing that as a necessary and foreseeable consequence of removal, the Applicant had a real risk of harm.
The Tribunal noted that at the hearing, the Applicant explained the reason for his departure from Malaysia was to help his family financial and that he “has no fear of being persecuted on return to Malaysia”.[11] When questioned on his protection visa claims, the Applicant said that his written claims ‘are untrue, made up by his then ‘agent’’.[12] Given the evidence before it, the Tribunal did not accept that the Applicant had ever been involved with the political group or that he was ever attacked by authorities.
[11] CB 90.
[12] CB 90.
The Tribunal had regard to the circumstances of the case, including matters raised by the Applicant at the hearing, DFAT country information and policy guidelines in accordance with Ministerial Direction 56 in finding that the Applicant did not face a real chance of persecution, now or in the foreseeable future, from authorities in Malaysia due to his political opinion.
The Tribunal affirmed the Delegate’s Decision under review.
PROCEEDINGS IN THIS COURT
On 8 January 2019, the Application was filed in this Court, outside the 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
The Applicant seeks an extension of time to apply for judicial review of the Tribunal’s Decision pursuant to s 477(2) of the Act.
On 18 August 2020, Orders were made by Registrar Carlton of this Court for the First Respondent’s name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. For the First Respondent to file and serve a copy of the Court Book by 2 September 2020. For the Applicant to file and serve 28 days before the hearing: any amended application with proper particulars, any Supplementary Court Book and written submissions. For the First Respondent to file and serve written submissions 14 days before the hearing.
On 18 February 2025, Orders were made by Registrar Chapman of this Court for the First Respondent’s name be amended to Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name be amended to the Administrative Review Tribunal. That all extant Orders inconsistent with these Orders be vacated. That the application be listed for hearing of the application for an extension of time and if granted, a final hearing. That the Applicant file and serve at least 28 days before the hearing: any amended application with proper particulars, written submissions and any further evidence. That the First Respondent file and serve at least 14 days before the hearing: written submissions and any further evidence. The Court noted that the Applicant retained a copy of the Court Book and required an interpreter.
This matter was heard on 5 August 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 8 January 2019; and
(b)The Affidavit of the Applicant affirmed and filed on 8 January 2019 (Applicant’s Affidavit);
The Minister relied upon:
(a)The Response, filed 7 March 2019;
(b)The Minister’s Submissions filed 15 July 2025;
(c)Affidavit of Natasha Bosnjak filed 29 July 2025; and
(d)List of Authorities filed 4 August 2025.
Both parties relied on the Court Book.
The Applicant’s Application takes the Court to his Affidavit which contains the following grounds for an extension of time (Extension of Time Grounds):
1. I tried to make an application to the court in 2017 about the decision of the administrative appeals tribunal in my case.
2. At the time I couldn’t afford to pay the court fees so I applied to have them waived.
3. But then the court asked me to give a copy of my bank statement from Malaysia.
4. It took me a long time to get a copy of the bank statement from Malaysia. By the time I got it, it was more than 35 days from the tribunal decision. I thought I could not bring my case anymore.
5. I talked to some friends and now I can afford to make the court application, I am trying again.
(Words in bold added, otherwise as written)
The Application contains the following grounds of review (Grounds of Review):
The Tribunal did not make it’s decision on 14/12/2016 according in law, in that:
1. The Tribunal committed jurisdiction error by taking indoor account irrelevant confideration. (Ground 1).
1.1A third fundamental concept in administrative decision making is that the decision-maker must have regard to considerations which are relevant to the exercise of a power and must, conversely, ignore considerations which are irrelevant to that. A be a matter which the decision-maker was bound to take into account in making the decision.
The tribunal was made decision without asking me more question because on that day at 14/12/16 only 30 minute the hearing was. (Ground 2).
(Words in bold added, otherwise as written)
APPLICANT’S SUBMISSIONS
No written submissions were filed by the Applicant.
In oral submissions during the Hearing, the Applicant submitted that he enjoyed being in this country. He stated that he wanted to be part of Australian society and that he had to “bring the situation to this point” because his Application was rejected. The Applicant further submitted that if he did not take action, he “would not have a visa to continue working here”.
The Applicant stated that his mother had used her savings to send him to Australia so that he could change his life. The Applicant said that he was not from a well-to-do family. He referred to his parents’ ill health, and their need for medication which he was paying for.
The Applicant emphasised that he wanted to stay in Australia and contribute to society. He said that there was nothing left for him in Malaysia, except for disappointment.
RESPONDENT’S SUBMISSIONS
Application for extension of time
The Applicant applied for judicial review 720 days out of time, being more than 20 times outside of the period prescribed by s 477(1) of the Migration Act.
In considering relevant principles, the Minister notes that the Court will have regard to whether it is in the interests of the administrative of justice to exercise discretion to grant an extension.[13] The Court has observed that where a delay is lengthy and unexplained, the Applicant should demonstrate that their Application is strong or ‘expectational’.[14] Generally, the longer the delay, the more persuasive the explanation needs to be.[15]
[13] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[14] Katoa at [13].
[15] Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) at [38] (Wigney J).
The Minister submits that the Applicant’s Affidavit fails to provide any satisfactory explanation to substantiate his reasons for delay. The Minister also notes that it is now generally acknowledged that lack of legal advice is not of itself an acceptable explanation for delay.[16]
[16] AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379 at [11] (Derrington J), citing Tran at [35] (Wigney J).
Although not specifically prejudiced, the Minister submits there is prejudice in a general sense in that the Minister holds a legitimate interest in decisions concerning the cancellation of visas.[17] Granting an extension in circumstances where delay is lengthy causes prejudice to this legitimate interest. In any event, absence of prejudice alone is not a sufficient reason to warrant the grant of an extension.
[17] WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [42] (Derrington J).
The Minister submits that it is not in the interests of the administrative of justice to grant an extension of time, particularly where the proposed grounds for review are not strong.
Application for judicial review
Ground 1
The Applicant alleges error in the Tribunal’s Decision for taking into account an irrelevant consideration. The Minister notes Particular 1.1 is copied almost precisely from a speech of Justice Steven Rares.[18]
[18] “Blind justice: The pitfalls for administrative decision-making” (FCA) [2006] FedJSchol 12 at [30].
The Minister submits that the Tribunal’s findings were based entirely on the Applicant’s oral evidence at the hearing, in which he expressed that his written claims were not true; that he had no fears of being persecuted and instead came to Australia to help his family financially. The Minister contends it cannot be said that the Applicant’s oral evidence in this regard was an irrelevant consideration.
The Minister submits that as particularisation is absent, this ground should be dismissed.
Ground 2
The Applicant alleges that the Tribunal erred by not asking him more questions and that the hearing was only 30 minutes long.
The Minister notes that there is no set time prescribed for Tribunal hearings, or requirement that the Tribunal ask “more questions”. The Minister submits the reason for the short duration was precisely due to the Applicant’s oral submissions disclaiming his protection claims at the hearing.
The Minister submits that Ground 2 does not disclose error.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[19]
[19] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[20] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[21]
[20] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[21] Yusuf at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[22] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[23] Different kinds of error may overlap.[24] The categories are not closed.[25]
[22] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[23] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[24] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[25] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[26] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[27] It has been described as an “undemanding” standard.[28]
[26] LPDT at [7].
[27] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[28] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection Visas (Subclass 866)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[29] as defined by s 5J.
[29] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONSIDERATION
The Applicant applies pursuant to s 477(2) of the Migration Act to extend the time provided for in s 477(1) of the Act for review of the Tribunal’s decision.
Section 477(1) of the Migration Act provides that an application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under s 476A(1)(b) or (c) of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
Section 477(2) of the Migration Act provides the Federal Circuit and Family Court of Australia (Division 2) may, by order, extend the 35 day period as the court considers appropriate if an application for an order extending the time is made specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The time prescribed by the legislative provision should not be ignored.[30]
[30] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550.
The court should not grant an extension unless it satisfied that it is appropriate to exercise the discretion to do so. Factors relevant to the exercise of the discretion to extend time include:[31]
(a)the length of the delay and the explanation for the delay;
(b)any prejudice to the respondent by the delay;
(c)impact on the applicant of a refusal to grant an extension;
(d)the public interest; and
(e)the merits of the substantive application.
[31] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (per Wilcox J at pp 348-349); compare Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).
Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[32] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[33]
[32] Jess v Scott (1986) 12 FCR 187 at 195.
[33] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].
Absence of prejudice is not sufficient, in itself, to justify an extension of time.[34]
[34] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579, the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the court,[35] which may include “impressionistic” assessment.
[35] Katoa at [19].
In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, in relation to a delay of 26 months, Derrington J stated (at [41]–[44]):
There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):
[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].
In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister’s legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal’s decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.
The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.
I turn then to the Applicant’s Application for an extension of the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal’s Decision.
The length of delay in the present case is 720 days (or a little under 2 years), which is significant in the context of a statutory time period of 35 days. The Minister points out that the delay is more than 20 times the period prescribed by Parliament.
The Applicant’s explanation for the delay in filing the application for review of the Tribunal’s Decision is set out in his affidavit in the following terms:
1.I tried to make an application to the court in 2017 about the decision of the Administrative Appeals Tribunal in my case.
2.At that time I couldn’t afford to pay the court fees so I applied to have them waived.
3.But then the court asked me to give a copy of my bank statement from Malaysia.
4.It took me a long time to get a copy of the bank statement from Malaysia. By the time I got it, it was more than 35 days from the Tribunal decision. I thought I could not bring my case any more.
5.I talked to some friends and now I can afford to make the court application, I am trying again.
(As written)
In his oral submissions, the Applicant said that he didn’t have a bank account in Malaysia (“I tried but didn’t have anything in Malaysia, not even a bank account”), which appears to contradict paragraph 5 of his affidavit. The Applicant also said that he sought the extension after contacting the union, prompted by something on Facebook, which appears to be at odds with paragraph 5 of his affidavit.
Having regard to these matters and the lack of detail in the Applicant’s explanation, I do not consider the Applicant to have a satisfactory explanation for the delay of 720 days even making due allowance for his self-represented status.
The prejudice to the Minister by the delay in filing the Application for review is not particularly significant in the instant case, but he has a “legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas”.[36]
[36] WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 per Derrington J (at [42]).
The prejudice to public interest as a result of the delay is that the default, again, is not particularly significant in the instant case, nevertheless the consequent additional burden on the system, is not a matter that cannot be ignored in a context where there is a significant backlog of cases, and a compelling need for the just and efficient resolution of cases. As a general proposition, the efficient management of cases is advanced by adherence to time limits. There is a public interest in the “prompt disposition of administrative matters”.[37]
[37] WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 per Derrington J (at [41]).
The prejudice to the Applicant by refusing an extension is that his Application for judicial review will not be heard on its merits. Given the nature of his underlying application, this is significant. Against this, I shall have some regard to the merits of the underlying application in exercising my discretion under s 477(2) of the Migration Act.
I turn then to the merits of the underlying application.
Ground 1 is that:
The Tribunal did not make its decision on 14/12/2016 according in law, in that:
1. The Tribunal committed jurisdiction error by taking indoor account irrelevant consideration.
1.1 A third fundamental concept in administrative decision making is that the decision-maker must have regard to considerations which are relevant to the exercise of power and must, conversely, ignore considerations which are irrelevant to that. A be a matter which the decision-maker was bound to take into account in the making the decision.
As a bland statement of the law, the statement that an administrative decision maker must have regard to consideration that are relevant to the exercise of power, and ignore those are not, is uncontroversial.[38] However, the difficulty with Ground 1 is that it fails to identify what relevant matters were not taken into account by the Tribunal, or conversely, what irrelevant matters were taken into account by the Tribunal. The relevant/irrelevant matters are not otherwise apparent from a consideration of the Tribunal’s Decision.
[38] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J.
Further, given the matters recorded in paragraph 14 of the Tribunal’s Decision (reproduced below), the scope for error of the type alleged was significantly reduced.
In the absence of particulars, I am not satisfied that there is any substantial merit to Ground 1
Ground 2 is that:
The tribunal was made decision without asking me more question because on that day at 14/12/16 only 30 minute the hearing was.
There is no prescribed period for a Tribunal hearing. Without more, brevity does not give rise to jurisdictional error. The length of the hearing will be dictated by the particular circumstances of the hearing and the “issues arising in relation to the decision under review.”
At the hearing in the present case, the Applicant told the Tribunal that his written claims were not true, that he did not fear persecution upon his return to Malaysia and that he came to Australia to help his family financially.[39] In light of these statements, it is unsurprising that the hearing was of 30 minutes duration. These same circumstances explain why the Tribunal did not ask the Applicant more questions. Given the statements that were made, the “issues arising in relation to the decision under review” had narrowed.
[39] CB 90 [14]-[15].
I am not satisfied that there is any substantial merit to Ground 2.
I am fortified in my conclusion that the Application lacks merit having regard to paragraph [14] of the Tribunal’s Decision:
At the Tribunal hearing the applicant was asked why he left Malaysia and about his fears upon return there now. He said he left Malaysia in order to help out his family financially, noting that his father is retired and his younger sister is still studying. He said he has no fear of being persecuted on return to Malaysia. When asked about his claims in his visa application to fear harm as a member of Bersih, the applicant said that the person who gave him a job in Australia and filled out his visa application form told him to say the reason he left Malaysia was to do with Bersih. The applicant said when asked that he has never been involved in Bersih in Malaysia, and therefore holds no fears about returning to Malaysia as a member of Bersih. He said his written claims in his protection visa application are untrue, made up by his then ‘agent’.
Having regard to the matters set out above, particularly the lack of apparent merit in the Applicant’s Application for judicial review, the very significant length of the delay, and the absence of a satisfactory explanation for that delay, I am not satisfied that it is in the interests of the administration of justice that the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal’s Decision be extended.
CONCLUSION
As the Applicant has not succeeded in his Application to extend the time provided for in s 477(2) of the Migration Act, the Application must be dismissed.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $4,189.38 being the scale amount.[40] I am satisfied that costs ought to follow the event,[41] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[42]
[40] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[41] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[42] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: MC
Dated: 6 August 2025
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