AMZ22 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1612

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AMZ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1612

File number:

SYG 244 of 2022

Judgment of:

JUDGE MCCABE

Date of judgment:

2 October 2025

Catchwords:

MIGRATION – application for an extension of time – decision made by the Administrative Appeals Tribunal– protection visa – whether the Tribunal acted unreasonably – whether the Tribunal denied the applicant procedural fairness – explanation for delay unsatisfactory – underlying application for judicial review lacks merit – extension of time refused.

Legislation:

Migration Act 1958 (Cth) ss 476, 477

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

24

Date of hearing:

21 August 2025

Place:

Sydney

Applicant:

The applicant appeared in person

Counsel for the first respondent:

Ms F McNeil

Solicitor for the first respondent:

MinterEllison

Second respondent:

Submitting appearance, save as to costs

ORDERS

SYG 244 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AMZ22

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	2 OCTOBER 2025

THE COURT ORDERS THAT:

1.The application for an extension of time is refused pursuant to s 477(2) of the Migration Act 1958 (Cth).

2.The applicant pay the first respondent’s costs in the fixed amount 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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules)), or to record a variation to the order pursuant to r 24.04 of the Rules.

REASONS FOR JUDGMENT

JUDGE MCCABE:

1. The applicant, Ms AMZ22, has sought judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal decided to affirm an earlier decision that refused Ms AMZ22's application for a protection visa. The Tribunal's decision to that effect was made on 23 July 2021. Ms AMZ22 did not lodge her application for judicial review until 16 February 2022. The application was accepted for filing on 22 February 2022. That is a problem because s 477(1) of the Migration Act 1958 (Cth) gives the applicant 35 days from the date of the decision to file an application.

2. The Court has power to extend the time for filing an application for judicial review in some circumstances. The power is found in s 477(2) of the Act. That sub-section says time may be extended where the Court is satisfied it is necessary in the interests of the administration of justice to do so. The High Court discussed a relevantly identical power which regulated appeals to the Federal Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28. Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [12]:

   On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

3. When deciding whether to exercise the discretion, the joint judgment in Katoa recognised (at [13]) it was common to have regard to a non-exhaustive list of factors like those identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. For present purposes, the relevant factors include:

   ·The length of the delay and the reasons for that delay;

   ·Any prejudice that will accrue to the respondent if the extension is given; and

   ·The merits of the underlying application. There is no point giving an extension if the case does not have reasonable prospects of success going forward.

4. In this case, the delay is lengthy: the application was filed at least 173 days after the deadline was reached. That is a problem: the review process is already attended by extensive delays, so further unnecessary and avoidable delays are a concern.

5. The applicant's reasons for the delay were outlined in the affidavit which accompanied the application. The applicant referred to “technical issues” with her email account that took some time to resolve. She said the time for filing the appeal had passed in the meantime. I asked the applicant to elaborate on that explanation at the hearing. After some confusion, she acknowledged she had received the email containing the Tribunal's decision around the time it was sent. There were no technical issues that prevented her from learning the outcome of the Tribunal's process in a timely way. She acknowledged she had not read the entire decision. She said the delay in filing her appeal was occasioned by her straitened financial circumstances: she did not know what to do and was not aware of her legal rights, and she was unable to afford a lawyer to advise her.

6. The explanation is unsatisfactory, especially given the length of the delay. While I am not without sympathy for the applicant's circumstances, ignorance of the law or impecuniosity are not acceptable reasons for failing to approach the Court in a timely way. This consideration weighs against the exercise of the discretion.

7. The minister did not refer to any specific prejudice that would be experienced if the extension of time were granted. I accept there is a public interest in timely decision-making, particularly in this cohort of cases which are already plagued by extended delays. The applicant had nothing to say about this consideration. This consideration does not weigh heavily against the exercise of the discretion.

8. What of the merits of the case? This is an application for judicial review of a Tribunal decision relating to a protection visa application. The Court's jurisdiction is defined under s 476 of the Act. The Court's review focuses on whether the Tribunal's decision is affected by material jurisdictional error. If the Court is satisfied the decision is affected by such an error, it has the discretion to provide relief. That relief comes in the form of orders that (a) quash or set aside the decision under review and (b) remit the question to the Tribunal for reconsideration.

9. I discussed the concept of jurisdictional error with the applicant at the hearing. I explained the Tribunal was exercising decision-making powers established in a statute, which means the decision that results must be lawful if it is to be effective. I explained a jurisdictional error is a legal defect in the decision or the decision-making process which is such that the decision cannot be allowed to stand. That error might be a result of some flaw in the information gathering process - e.g. a want of procedural fairness, or bias. It might also be because the Tribunal got the law wrong, or because it applied the law incorrectly; or because the decision or some aspect of it is unreasonable in some respect. Unreasonableness might be found where the decision is illogical, or made without any evidentiary basis, or because no reasonable decision-maker could have reached that conclusion in the circumstances. The decision-maker might also have missed important and relevant evidence or submissions.

10. The categories of jurisdictional error are not closed. The important point to remember is that jurisdictional errors are legal flaws that are such that the decision is not really a decision at all, meaning the Tribunal has not completed its job. Having said that, I cannot interfere in the Tribunal's decision simply because I disagree with it, or because I would have made the decision differently if I had been the decision-maker.

11. The applicant in this case is not legally represented. She has filed an application for review that purports to identify 10 grounds of review. As it happens, only grounds 6-10 are potentially grounds of review; the first five grounds do not contend any error. I discussed each of the potentially viable grounds with the applicant at the hearing. She did not draft the grounds herself. I also asked her to explain her criticisms of the Tribunal's decision in her own words.

12. Ground six is a bare assertion that the Tribunal's decision is in error because it was an unlawful exercise of power. The applicant does not particularise or explain this contention. When I asked her to explain in her own words what was meant by this ground, she was unable to do so.

13. Ground seven contends the Tribunal failed to consider that each case has its own facts and merits that should be considered. It is certainly true that each case must be decided on its own facts and arguments, but it is not clear how the Tribunal failed to do that here. In its decision, which is reproduced in exhibit one (the court book) at pp 143ff, the Tribunal discusses the claims made in this case and considers them having regard to the relevant law. It gave reasons for its decision. The applicant was unable to identify anything the Tribunal had missed.

14. Ground eight suggests the exercise of power was unreasonable. Ms McNeil, counsel for the minister, pointed out any assessment of reasonableness required an analysis of the reasons for decision. As the High Court explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [105], legal unreasonableness is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process". The applicant was unable to refer me to any aspect of the reasons that suggested unreasonableness.

15. Ground nine contends the Tribunal's decision was affected by jurisdictional error on account of a denial of procedural fairness. I should say at once there does not appear to be any dispute that the Tribunal issued a valid and timely invitation to a hearing. The applicant recalled an extensive discussion with the presiding member about aspects of her claim. The ground does not particularise any shortcomings in the Tribunal's approach.

16. The applicant did raise one potential issue when I asked her to explain her criticisms or concerns in her own words. She mentioned that she felt inhibited in giving her evidence at the hearing because the interpreter was a male. She suggested it was confronting for her to talk about some of the sensitive issues that the (female) presiding member was asking about.

17. The applicant has not previously raised this concern in these proceedings. It is not mentioned in her grounds of review or her affidavit. She has not provided a transcript of the hearing nor has she explained the evidence that made her feel awkward in the circumstances. She acknowledged at the hearing before me that she had not asked for a female interpreter in advance of the Tribunal's hearing, nor had she explained her concerns to the member at the time.

18. I accept there could be circumstances where cultural constraints might prevent an applicant from freely discussing some matters in a hearing. Evidence that she was inhibited might form the basis of a claim that she was denied procedural fairness. Having said that, the decision in this case did not really turn on findings made on the strength of the applicant's evidence. While the Tribunal was not convinced by some aspects of her claim regarding the risk she experienced at the hands of her abusive former husband, the Tribunal's key finding is set out at [52]-[53] of its reasons. The Tribunal records there it is satisfied from country information reports and other material that the Malaysian authorities were equal to the task of providing protection from an abusive husband.

19. It follows I am satisfied there is potentially more substance to this ground, but it is not strong.

20. The final ground contends the applicant "clearly raised an arguable case." The ground is not otherwise particularised, and the applicant was unable to assist me when I asked her at the hearing about what was meant. It appears to be nothing more than an expression of disagreement regarding the outcome. It would be inappropriate for the Court to entertain what is presumably an invitation to undertake a review of the merits of the decision.

21. While acknowledging the claim that the applicant felt inhibited in giving her evidence might have greater prospects of success than the other grounds, I am not satisfied the applicant has a strong case on the merits. This consideration weighs heavily against the exercise of the discretion.

    CONCLUSION

22. Having weighed the matters referred to above, I am not satisfied an extension of time is necessary in the interests of the administration of justice. The lack of merit in the underlying case is decisive in that calculation. The application must therefore be dismissed.

23. I heard from the parties regarding costs at the end of the proceedings. Ms McNeil confirmed the minister was asking for an award of costs in the fixed amount of $4,189.38. She pointed out that was the amount indicated in the Court's scale. She also confirmed that amount is less than the amount actually incurred by the minister.

24. The Court is not obliged to order costs, but I do not see any reason why it would be inappropriate to do so in this case. The applicant had nothing to say on the matter when I asked her. The minister has clearly been put to the expense of defending proceedings which had little chance of success. The amount sought appears to be reasonable and appropriate in the circumstances. In those circumstances, I will make an order that the applicant pay the minister's costs in the fixed amount of $4,189.38.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       2 October 2025