AZR22 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZR22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1455

File number(s):

MLG 285 of 2022

Judgment of:

JUDGE BINGHAM

Date of judgment:

5 September 2025

Catchwords:

MIGRATION LAW – Extension of time application - applicant filed 249 days out of time – insufficient explanation as to delay – Tribunal’s found that the review application was filed out of time and it had no jurisdiction – reasonable prospects of success not established – extension of time not warranted – costs ordered  

Legislation:

Migration Act 1958 (Cth) ss 36(2), 476, 477, 494C

Migration Regulations 1994 (Cth) reg 4.31(2)

Cases cited:

DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475

GOK18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZZGC v Minister for Immigration & Border Protection [2015] FCA 842

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442

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

WZAVWv Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submission/s:

28 August 2025

Date of hearing:

28 August 2025

Place:

Melbourne

The Applicant:

Appeared in person

Solicitor for the Respondents:

Clayton Utz

ORDERS

MLG 285 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZR22

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BINGHAM
DATE OF ORDER:	5 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time for filing of the Application lodged on 4 February 2022 is refused and the Application be otherwise dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $3,930.00.

3.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

4.The name of the Second Respondent be amended to ‘Administrative Review Tribunal’.

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE BINGHAM

1. By an application filed in this Court on 4 February 2022 (Application) the Applicant seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal) dated 23 April 2021 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Application was filed 249 days outside of the 35-day time limit prescribed in s 477(1) of the Migration Act. The Applicant therefore requires an extension of time to seek review of the Tribunal’s Decision.

2. On 23 April 2021 the Tribunal determined that the application for review was not received by the Tribunal within the period prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations) and that the Tribunal has no jurisdiction in the matter.

   BACKGROUND

3. The Applicant is a citizen of Malaysia. The Applicant arrived in Australia on 13 November 2016 as a holder of a UD-601 Electronic Travel Authority visa. That visa ceased on 13 February 2017.

4. The Applicant applied for a Protection Visa (Subclass 866) (Protection Visa) on 12 June 2019 (Visa Application).

   Delegate’s Decision

5. On 18 July 2019 the Delegate refused the Applicant’s application for a Protection Visa because she did not satisfy the requirements of subsection 36(2) of the Migration Act (Delegate’s Decision). The Applicant was notified of the Delegate’s Decision by email at the email address provided by the Applicant to the Department on 18 July 2019.

6. The notification letter provided to the Applicant with the Delegate’s Decision included a paragraph relating to the Applicant’s “Review Rights” that included the following advice: “[…] you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be give to the AAT within the period of 28 calendar days, commencing on the day you are taken to receive this letter. As this letter was sent to you by email, you are take to have received it at the end of the day it was transmitted”.

7. Any review application made by the Applicant of the Delegate’s decision was required to be made by 14 August 2019.

   Application for review to the Tribunal

8. On 23 March 2021 the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal (Review Application). The Review Application was 585 days out of time.

9. For the sake of completeness, I note that the Review Application was sent from a different email address to the nominated email address provided by the Applicant in her Visa Application. The Applicant did not raise any issue with service or notification. All further correspondence from the Tribunal was sent to the Applicant’s updated email address and as such nothing turns on this fact.

10. An acknowledgment of application letter was sent to the Applicant on 25 March 2021 to the Applicant’s new email address. In that letter the Tribunal invited the Applicant to provide material or written arguments for the Tribunal’s consideration.

11. On 1 April 2021 the Tribunal sent a further email inviting the Applicant to comment on the apparent invalidity of the Review Application, noting the Application was filed 585 days out time. In this email the Tribunal stated that the Applicant may provide any further comments or evidence in writing to the Tribunal by the 15 April 2021. The Applicant did not provide any further information.

    TRIBUNAL’S DECISION

12. On 23 April 2021 the Tribunal determined that it had no jurisdiction to determine the Review Application because it was made outside the prescribed time period. The Tribunal referred to regulation 4.31(2) of the Regulations and s 494C of the Migration Act which set out the 28 day limit for a review application to be made. The Tribunal found that the Applicant was correctly notified of the Delegate’s Decision on 18 July 2019 and as such found that the Applicant was require to file the Review Application by14 August 2019.

13. The Applicant was notified of the Tribunal’s Decision on 26 April 2021. This notification included the Applicant’s review rights. Specifically, this stated that the Applicant had 35 days to apply for judicial review of the Tribunal’s Decision.  An application for judicial review was required to be filed by 31 May 2021.

    PROCEEDINGS BEFORE THE COURT

14. The Application was filed in this Court on 4 February 2022, 249 days outside the time prescribed by s 477 of the Migration Act which is 35 days from the date of the Tribunal’s Decision.

15. On 28 March 2024 Orders were made for the filing of material.

16. This matter was heard on 28 August 2025 in person at the Melbourne Registry (Hearing). The Applicant appeared with the assistance of a Mandarin interpreter. The Minister was represented by a solicitor. At the commencement of the Hearing I confirmed that the Applicant and the interpreter understood each other and that the Applicant had copies available to her of the Court Book, her application and supporting affidavit and the Minister’s submissions.

17. I explained to the Applicant my role in determining an extension of time and judicial review application. She was informed that she would have to tell me why I should extend the time for filing the Application by telling me why there was a delay in filing it and why she thought that she would be successful with respect to the grounds of review of the Tribunal’s decision.

18. The Applicant relied upon the following documents:

    (a)The Application filed 4 February 2022; and

    (b)The Affidavit of the Applicant filed on 4 February 2022.

19. The Minister relied upon:

    (a)The Response filed 11 April 2022;

    (b)The Outline of submissions of the Minister filed 26 August 2025; and

    (c)An Affidavit of Mr Jared Mintz filed 26 April 2025.

20. A Court Book was filed by the Minister in this matter on 24 June 2022.

    EXTENSION OF TIME

21. Section 477(1) of the Migration Act requires an application to this Court be made within 35 days of the date of the ‘migration decision’. The Tribunal’s Decision is a migration decision made on 23 April 2021. The Applicant was required to file her application for review no later than 28 May 2021.

22. The Applicant filed the Application outside the 35 days prescribed s 477(1) and requires an extension of time under s 477(2) of 249 days. Section 477(2) provides that the Court may order that the 35-day prescribed period be extended if it is “necessary in the interests of the administration of justice”.

23. Section 477 of the Migration Act does not prescribe criteria by which to determine the “interests of the administration of justice”: see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:

    (a)The length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];

    (b)Whether there is any prejudice to the Minister; and

    (c)Whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’; ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (DHX17) at [76].

    CONSIDERATION

    The delay

24. The Application was filed 249 days out of time. The extent of the delay is substantial. The Applicant submitted that the extension of time ought to be granted for the following reasons:

    1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.

    2.I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.

    As written.

25. The Applicant said that she did not have the money to pay for each step. The Applicant said she was pregnant and got a friend to assist her. She further submitted that she had depression. There was no evidence provided by the Applicant to support those claims or how the depression or pregnancy resulted in her being unable to meet the proscribed time for filing the Application.

26. In addition the Applicant submitted that the Delegate’s Decision went to the wrong email address and that email address was created by her agent. There was no evidence that the Applicant was assisted by an agent regarding the preparation of her Visa Application.

27. The Minister submitted that the delay is significant and in light of the explanation given by the Applicant an extension of time is not justified. The Minister submitted that the Applicant’s explanations are not satisfactory, and that neither financial hardship nor the inability or difficulty in affording for and obtaining legal advice are satisfactory explanations for such a substantial delay. It was further submitted that the Applicant has not filed or tendered any affidavit in support of her submissions with respect to her reasons for the delay in filing the Application.

28. The Information about decisions - MR Division factsheet sent by the Tribunal to the Applicant along with the Tribunal’s Decision on 26 April 2021 informed the Applicant that she had 35 days from the date of the migration decision to file a judicial review application.

29. I agree with the Minister’s submission that the 249 day extension of time sought by the Applicant is indeed significant and militates against an extension of time. Further, financial hardship is not generally considered to be a reasonable or adequate explanation for delay: GOK18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25]. There is no evidence regarding the Applicant making inquiries of the Court or others regarding assistance that can be provided when a potential applicant is impecunious including a fee waiver. The fact that the Applicant contends that she did not have legal advice is not in itself a reason for such a substantial delay: SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24].

30. The Applicant has not provided an adequate explanation for the delay. The length of the delay and the fact that no reasonable excuse could be offered by the Applicant weighs in favour of dismissing the Application.

    Prejudice

31. The Minister submitted that the Minister would not suffer any prejudice should an extension of time be granted that could not be cured by a costs order.

32. The considerations with respect to this factor weighs in favour of the grant of an extension of time, however the lack of prejudice to the Miniter does not in itself justify the grant of the extension of time.

    Reasonable prospects of success

33. Importantly, I am to consider whether the Application is “sufficiently arguable” to warrant the grant of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review: In DHX17, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], the Court observed, at [68], that:

    […] As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. […]

    Emphasis added.

34. A closer examination of the merits is appropriate in some cases: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18].

35. The question before the Court is whether any of the grounds are ‘arguable, ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.

36. The grounds of judicial review in the Application provided as follows (Grounds of Review):

    1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE

    2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS

    3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM SOME OTHER CASE;

    4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABOUT THE TYPES OF HARM RELAVENT IN MY CASE

    As written.

37. The Minister contended that that Grounds of Review lacked particulars and should be dismissed on this basis alone: WZAVWv Minister for Immigration and Border Protection [2016] FCA 760 at [35]; NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. Further the Minister submitted that the Applicant’s Grounds of Review did not engage with the substance of the Tribunal’s Decision, being that it did not have jurisdiction to entertain the Applicant’s Review Application. This became plainly evident when I asked the Applicant to address the grounds of her judicial review application.

38. I took the Applicant to each of her grounds and asked her to identify the serious error or mistake made by the Tribunal and why she might be successful on each ground.

39. The Applicant was unable to make submissions with respect to any on the four (4) grounds relied on by her. She submitted through the interpreter that she did not understand the grounds and proceed to make merit review submissions regarding grounds upon which her Visa Application was made. The Applicant was unable to point jurisdictional error in relation to Grounds 1 to 4 of her Review Application. The Applicant’s submissions did not embrace the subject matter of the Tribunal’s Decision. The Applicant has no reasonable prospects of success of establishing a jurisdictional error with respect to Grounds 1 to 4.

40. In reply the Applicant asserted that the email provided to the Department was not her own and that she did not received notification of the Delegate’s Decision. The Minister submitted that there was no evidential basis for such an assertion. I accept this submission as the Applicant’s Visa Application records her email address. The Applicant did not authorise a person to receive communications on her behalf. The email address in the Visa Application is identical to the address used by the Department to notify the Applicant of the Delegate’s Decision. The Applicant has no reasonable prospect of success in establishing a jurisdictional error made by the Tribunal on the ground expressed by her orally in reply.

    CONCLUSION

41. Taking into account the length of the delay, the lack of a reasonable excuse for the delay and the limited prospects of success of all the Grounds of Review, I am not satisfied that it is in the interests of the administration of justice to extend the time for filing of the Application. The extension of time is not granted and therefore the Court has no jurisdiction to review the Tribunal’s Decision. The Application must be dismissed.

42. At the Hearing the Minister sought costs in the amount of $7,467.00. That amount is above scale for an interlocutory hearing which is prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). No submissions were made as to why an amount greater than scale ought to be granted. In those circumstances, costs will be ordered according to the scale.

43. Accordingly, the Applicant is to pay the Minister’s costs in the sum of $3,930.00.

44. The Minister sought administrative orders amending the names of the first and second respondents.

45. Orders will be made accordingly.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.

Associate:

Dated:       5 September 2025