ANZ21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 371
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ANZ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 371
File number(s): SYG 322 of 2021 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 14 March 2025 Catchwords: MIGRATION – extension of time – seven days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss52(3C), 66, 477, 494B(5) and 494C(5)
Migration Regulations 1994 (Cth) subreg 4.31(2)
Cases cited: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; [2019] FCAFC 189
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Chiu v Minister for Home Affairs [2018] FCA 1774
DZAFH v Minister for Immigration [2017] FCCA 387
Jess v Scott (1986) 12 FCR 187
Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
Rana v Minister for Immigration and Border Protection [2014] FCA 1233
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35
SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
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] HCA 28; 276 CLR 579
Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 30 January 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Ms T Copping of Sparke Helmore ORDERS
SYG 322 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANZ21
Applicant
AND: Minister for Immigration and Multicultural Affairs
First Respondent
Administrative Review Tribunal
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application filed on 3 March 2021 be dismissed.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 January 2021.
By that decision, the Tribunal found it did not have jurisdiction to review a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 3 March 2021, (originating application), seven days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND AND RELEVANT FACTS
The background of the matter was outlined in the Minster’s written submissions filed on 23 January 2025, which I largely adopt.
The applicant is a male national of India who last arrived in Australia on 11 August 2016.[1]
[1] Court Book (CB) 65.
Protection visa application
On 20 September 2016, the applicant applied for a protection visa. The applicant’s spouse was included in that application on the basis that she was a member of the applicant’s family unit. The applicant’s spouse did not raise any of her own protection claims.[2] Within the protection visa application form lodged with the Minister’s Department, each of the applicant and the applicant’s spouse indicated their agreement for the Department to communicate with them by email and provided the same Gmail address (first Gmail address) for that purpose.[3]
[2] CB 76.
[3] CB 21 and 60.
On 4 June 2020, the applicant provided the Department with a completed ‘Form 1022 – Notification of changes in circumstances’, which included the details of two children of his relationship with his spouse. By way of lodging that form, the applicant and his spouse requested their two children be included in the protection visa application.[4] At question 11 of that form, the applicant indicated his agreement for the Minister’s Department to communicate with him by email and he provided another Gmail address (second Gmail address) for that purpose.[5]
[4] CB 113 to 121.
[5] CB 119.
On 31 July 2020, the applicant sent an email to the Department from his second Gmail address, attached to which was a completed ‘Form 929 Change of contact and/or passport details’. At question 10 of that form, the applicant indicated his agreement for the Department to communicate with him by email and provided the second Gmail address for that purpose.[6]
[6] CB 141.
On 10 September 2020, the delegate made a decision to refuse to grant a protection visa to the applicant, his spouse and their two children.[7] That same day, the notification of refusal of the protection visa application (notification) and the decision were sent to the applicant at the second Gmail address.[8]
[7] CB 158.
[8] CB 145 to 158.
Review application
On 15 October 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[9]
[9] CB 159 to 165.
On 15 December 2020, the Tribunal invited the applicant to comment on the validity of the review application.[10] The Tribunal noted that pursuant to subreg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations):
(a)the period in which the application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision; and
(b)in accordance with DZAFH v Minister for Immigration [2017] FCCA 387, this period ‘commences on, and includes, the day the applicant is taken to have been notified of the decision’.[11]
[10] CB 169 to 171.
[11] CB 170.
On 28 October 2020, the applicant responded in writing to the Tribunal’s invitation. That response read, in part, as follows (reproduced without alteration): [12]
“… I was Represented by Migration agent PRABJOT SINGH SANDHU, I paid them $2000 to be My Agent.
I was Never Told that the Email should come to Me. The Agent was Responsible to Act on my behalf and Lodge the Review on My behalf.
I am Now not Responsible to Lodge The Review Late. It is the responsibility of My agent Not to lodge.
On time, My circumstances are beyond my control, I have two babies and I am depressed and have genuine fear to Return to India. I believe I have a strong fear to return to India. Please Accept my review because I am innocent and It is my agent fault and not mine.
[12] CB 173.
Tribunal’s decision
By way of its decision dated 20 January 2021, sent to the applicant that day by email under cover of a letter of same date, the Tribunal:[13]
(a)found that the applicant was effectively notified of the delegate’s decision in accordance with the statutory requirements on 10 September 2020;[14]
(b)observed that because the applicant was not in detention on the day he was notified of the delegate’s decision, an application for review had to be made within 28 days, commencing on the day of notification;[15]
(c)determined, in accordance with s 494C of the Act and subreg 4.31(2) of the Regulations, the prescribed period to apply for review ended on 7 October 2020;[16] and
(d)concluded that as the review application was not received until 15 October 2020, it was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.[17]
[13] CB 174 to 177.
[14] CB 177 at [3].
[15] CB 177 at [3].
[16] CB 177 at [5].
[17] CB 177 at [6].
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) 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 section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
Section 52(3C) of the Act provides a basis upon which multiple applicants who apply for a particular visa together are deemed to have been given a notification from the Minister. At the date of notification of the delegate’s decision, it read as follows:
(3C) If, in accordance with the regulations, 2 or more non‑citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: Section 494D deals with giving documents to a person’s authorised recipient.
At the date of notification of the delegate’s decision, section 66 of the Act relevantly read as follows:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed by application under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Section 494B(5) of the Act provides for the method by which the Minister gives documents to a person by way of email transmission. At the date of notification of the delegate’s decision, it relevantly read as follows:
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
…
(b) email;…
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents…
Section 494C(5) provides for when a person is taken to have received a document from the Minister which has been transmitted by email. At the date of notification of the delegate’s decision, it read as follows:
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of the originating application filed on 3 March 2021. That application was accompanied by an affidavit attached to which were copies of the Tribunal’s decision, the Tribunal’s letter to the applicant enclosing that Tribunal decision, the notification and the delegate’s decision.
As the Tribunal’s decision was dated 20 January 2021, the applicant had until 25 February 2021 to bring this proceeding. Because the application was not filed until 3 March 2021, it was brought seven days out of time.
CONSIDERATION
The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant sought leave of the Court to grant him an extension of time, relying on his affidavit in support of his claim. In his originating application, the applicant stated that:
3. The decision notification was sent to myself, but I did not receive it because my phone was broken at the time.
4. Previously the Department had the contact details of myself and the Agent, but the Agent removed himself as a contact without informing me about it. That was the reason why I did not know about the notification.
5. I only found out about the refusal notification when my wife’s work told her that she does not have a valid visa.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may 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 principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
The extent of the delay and explanation for it
As stated above, the applicant’s delay in filing his judicial review application amounts to seven days out of time.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) per Wigney J at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
By way of paragraph 14 in his affidavit sworn on 23 February 2021, the applicant states he did not receive the notification because his phone was broken. The applicant also states that his agent had removed himself from the Departmental file without informing him. At hearing before me, the applicant submits his agent was responsible for the delay in filing the judicial review application. The applicant added he had signed a form but was unaware of its contents. When pressed for further detail, the applicant stated that it was his agent’s fault.
The Minister submits that the extent of the delay is slight, but maintains the applicant has not provided a satisfactory explanation for the delay. In relation to any delay attributed to an agent, the Minister submits there is no evidence of an agent having assisted the applicant and that it was the applicant’s responsibility to monitor his email account and to ascertain his review rights and any applicable time limits: see SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [43]; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].
There is considerable force in the Minister’s submissions. There is no evidence to indicate that any agent had been involved in the Tribunal proceedings or the judicial review proceedings. In the Tribunal review application form, the applicant indicated he did not have a representative.[18] Furthermore, I note the Tribunal’s decision was sent to the second Gmail address which is the same email address used by the applicant in these judicial review proceedings for which he is unrepresented. There is also no evidence to suggest that the applicant was prevented from applying within the 35 day time limit. The applicant has claimed that his phone was broken but has not provided any evidence to substantiate that matter or an explanation of how such a consequence would have prevented him from monitoring his email account to ensure that he was in receipt of communications from the Department and potentially seeking advice or assistance in order to ascertain his review rights and any applicable time limits.
[18] CB 161.
Having considered the parties’ submissions and the available evidence, I am of the view that although the delay is relatively short, the applicant has not offered a satisfactory explanation for his delay in making this application. In the absence of a satisfactory and acceptable explanation, this albeit short delay weighs against the grant of an extension.
Prejudice
The Minister concedes he would not suffer substantial prejudice if the extension were to be granted. However, the Minister submits that the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. I consider this factor neutral regarding the grant of an extension.
Impact on the applicant
If the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for the applicant in relation to his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant is significant in that he would be returned to his country of nationality which is a circumstance he claims to fear. I consider this to be a matter weighing in favour of the grant of an extension.
Interests of the public at large
The Minister submits that there is a public interest in the finality of administrative decision making, particularly given the statutory timeframe in which to seek review, and that the present case does not offer any ‘exceptional’ circumstances and the proposed grounds lack merit which would justify an extension of time being granted: see Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42 at [3]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30].
I agree that any delay caused by the extension of time would undermine the public interest in the finality of decision making, which causes ‘some prejudice’ to the public at large: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J. I consider this factor weighs somewhat against the granting of the extension.
Merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted: see MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.
The applicant’s grounds
The applicant raises the following four grounds of review (reproduced without alteration):
Ground 1:
I have been deprived of natural justice because the Department of Home Affairs did not consider that my application for protection visa is genuine.
Particulars:
The delegate of the Minister stated that, in the light of evidence before him, he is not satisfied that the applicant has a current heightened political profile as either a political activist, party or militant sympathiser.
Ground 2:
The delegate of the Minister made a jurisdictional error by concluding that Sikhs are not targeted by Muslim militants.
Particulars:
The delegate of the Minister stated that there is no evidence to support the assertion that Sikhs are targeted for recruitment by Muslim militants or mistreated for not joining the militants in Jammu and Kashmir.
Ground 3:
I have been deprived of natural justice because of the negative inferences made by the Administrative Appeals Tribunal.
Particulars:
The delegate of the Minister stated that he does not consider that the applicant is a person who will be viewed as a political activist, militant or militant sympathiser in the reasonably foreseeable future.
Ground 4:
The delegate of the Minister made an administrative error in concluding that I will not face serious harm if I return to my country of origin.
Particulars:
The delegate of the Minister stated that he is satisfied that the applicant does not face a real change of serious harm in the reasonably foreseeable future for reason of his actual or imputed political opinion.
At hearing, the applicant stated he did not wish to elaborate upon his grounds. Grounds 1, 2 and 4 take issue with the delegate’s decision and are thereby not open for consideration as the Court has no jurisdiction in relation to a primary decision: see ss 476(2)(a) and 476(4) of the Act. Furthermore, while reference is made to the Tribunal in ground 3, the particulars reveal that the allegation of negative inferences having been drawn is solely raised against the delegate. Again, the Court has no jurisdiction in relation to the delegate’s decision. On that basis, I agree with the Minister’s submission that no error has been revealed by these grounds.
Allegation of negligence on the part of an agent
At hearing, the applicant insisted he was not at fault and his agent was to blame for the late filing of the review application. The applicant further complained about his agent not having properly included the applicant’s spouse and two children in the review application.
Insofar as the applicant contends that an agent failed to meet any necessary deadline or include the applicant’s spouse and two children in the review application, bare negligence or inadvertence on the part of that agent does not give rise to a finding of jurisdictional error. There is insufficient evidence of an agent having been involved in the applicant’s case, let alone having acted in a fraudulent way that directly impacted upon the Tribunal’s decision-making process: see Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [33]; see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35. Therefore, this claim cannot succeed as it fails to rise above a claim of bare negligence and is not supported by any probative evidence. On that basis, I conclude this contention is devoid of merit.
Was the Tribunal’s jurisdiction to conduct the review enlivened?
At hearing, the applicant reiterated the contents of the letter he sent by email to the Tribunal on 28 December 2020, extracted above at [13], and submitted the agent had provided the applicant’s email address to the Department without his permission.[19]. A further complaint was made in relation to the applicant’s spouse and two children having not been properly notified of the refusal to grant them protection visas. Taken at their highest, the applicant’s submissions amount to a contention that the applicants were not properly notified on the delegate’s decision in accordance with the requirements of s 66 of the Act, thereby not enlivening the Tribunal’s jurisdiction to conduct the review.
[19] CB 173.
In relation to compliance with s 66(1) of the Act, it is my view the notification was properly sent to the applicant’s nominated email address which was his second Gmail address. There is no evidence of the applicant having used an agent in connection with his protection visa application, let alone any evidence of an agent notifying the Department of an email address to be used for notification purposes in connection with that application. It is clear that the second Gmail address was provided to the Department for the purpose of the notification sent on 10 September 2020. That second Gmail address was the applicant’s last known email address provided by him to the Department on 31 July 2020.[20] Whilst the second Gmail address is different to the first Gmail address given for notification purposes within the original visa application form,[21] there is no evidence to suggest that the second Gmail address was provided to the Department by anyone other than the applicant. On that basis, the delegate’s decision was properly sent to the applicant in accordance with s 494B(5) of the Act, which allows the Minister to give documents by way of transmitting them to the last email address provided for the purpose of receiving documents. Furthermore, in relation to the alleged failure to notify the applicant’s spouse and two children of the delegate’s decision, the Minister submits that, by virtue of s 52(3C) of the Act, those three individuals were also notified of the decision to refuse their protection visa applications by way of the notification sent to the applicant. My attention was drawn to Chiu v Minister for Home Affairs [2018] FCA 1774 in which Collier J found at [33]-[44] that the legislative scheme contemplated notification to a primary visa applicant as being notification to the secondary visa applicant(s), even though the notification letter was addressed only to the primary visa applicant. I also note the effect of s 494B(5)(e), whereby if the recipient is a minor, the notification can be sent to the last known email address of a carer of the minor. On that basis, I reject the applicant’s contention as the applicant’s spouse and two children were properly notified of the delegate’s decision. Therefore, by operation of ss 494B(5)(b) and 494C(5) of the Act, the applicant, his spouse and two children are taken to have received the delegate’s decision on 10 September 2020.
[20] CB 126 and 141 to 142.
[21] CB 17.
In relation to compliance with s 66(2) of the Act, it is my view the notification complies with the requirements of that provision because:
(a)it specified the criterion of the visa for which the grant of the visa was refused: s 66(2)(a);
(b)the grant of the visa was not refused because a provision of the Act or the Regulations prevented visa grant, thereby obviating a need for such a provision to be specified within the notification: s 66(2)(b);
(c)it gave written reasons why the criterion was not satisfied: s 66(2)(c); and
(d)under the subheading ‘Review Rights’, it stated the decision can be reviewed, the time in which the application for review may be made, who could apply for review, and where the application for review can be made: s 66(2)(d); see also BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; FCAFC 189 at [18]-[19] per Reeves, Perram and Charlesworth JJ.
Accordingly, on 10 September 2020, the applicants were properly notified of the delegate’s decision in accordance with the requirements of s 66 of the Act. It follows that, pursuant to reg 4.31 of the Regulations, the Tribunal correctly found that the period within which an application for review could be made ended on 7 October 2020. As the review application was not received until 15 October 2020, the Tribunal correctly found that it had no jurisdiction to review the delegate’s decision.[22]
[22] CB 177.
Finally, insofar as a plea was made to the Tribunal to accept the review application as valid because the applicant was blameless for having not filed it on or before 7 October 2020, the Tribunal made no error in failing to entertain or address that matter. It is well established that the Tribunal has no power to extend the timeline for a valid application for review: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; FCAFC 228 at [83] per McKerracher, Reeves and Thawley JJ; SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 at [3] per Heydon J; Rana v Minister for Immigration and Border Protection [2014] FCA 1233 at [3] per Wigney J.
Given the foregoing analysis, I conclude the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case was filed with this Court seven days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the albeit short delay in filing the application and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 14 March 2025
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