BAZ21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 727
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAZ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 727
File number(s): MLG 779 of 2021 Judgment of: JUDGE FARY Date of judgment: 22 May 2025 Catchwords: MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal of a lack of jurisdiction to hear the matter – where applicant failed to apply to the Administrative Appeals Tribunal within the prescribed timeframe – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs Legislation: Australian Constitution s75(v)
Migration Act 1958 (Cth) ss 5H(2), ss 36(1B), ss 36(1C), ss 36(2C)(a), ss 36(2C)(b), s 36, s 47(1), s 65(1), s 66(2), s 411, s 412(1)(b), s 474, s 476, s 477, s494
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) rg 4.31(2)
Cases cited: BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 753
Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15
BMY18 v Minister for Home Affairs (2019) 271 FCR 517 CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199
DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801
DFQ17 v Minister for Immigration (2019) FCR 492 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 DZAFH v Minister for Immigration and Border Protection [2017] FCA 984
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
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
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 19 May 2025 Date of hearing: 19 May 2025 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Ms Weir, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 779 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAZ21
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
22 MAY 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 19 April 2021, the Applicant seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 1 June 2020 (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 section 477(2) of the Migration Act. The Application was filed 287 days out of time. As a result, the Applicant requires an extension of time to prosecute her review Application.
The hearing of the Application took place at the Melbourne Registry of the Court on 19 May 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Mandarin 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 19 May 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Applicant has identified a proper basis upon which the Court should be satisfied 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 447(2) of the Migration Act.
BACKGROUND
The Applicant is a citizen of Malaysia.
On 3 May 2019, the Applicant arrived in Australia as the holder of an Electronic Travel Authority (Subclass 601) visa (ETA).[2]
[2] Court Book (CB) 5-6.
On 19 July 2019, the Applicant applied for a Protection (Subclass 866) visa (Visa). The Applicant did not list an ‘Authorised recipient’ and provided her email address for the First Respondent to provide correspondence to.[3]
[3] CB 5-6.
On 10 December 2019, a Delegate of the Minister refused to grant the Application for the Visa (Delegate’s Decision).[4]
[4] CB 37-44.
On 12 February 2020, the Applicant applied to the Tribunal for review using a hard copy version of the Application for review. The Applicant did not list an agent on the Application form but provided her email address. The Application form is not dated, but the Tribunal stamped a document in the bundle of documents enclosed with the Application as received on 12 February 2020. The Tribunal’s Review Application Receipt also records the Application as having been lodged on 12 February 2020.[5]
[5] CB 45 and Affidavit of Maryam Pola affirmed on 9 May 2025.
On 18 February 2020, the Tribunal wrote to the Applicant acknowledging the Application.[6]
[6] CB 60-62.
On 11 May 2020, the Tribunal wrote to the Applicant inviting her to provide comments on the validity of her Application, noting the Application had not been lodged within the relevant time limit, pursuant to regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). The Applicant did not respond.[7]
[7] CB 59.
On 1 June 2020, the Tribunal found it did not have jurisdiction in the matter.[8]
[8] CB 70-75.
On 19 March 2021, the Applicant wrote to the Tribunal seeking all information in relation to her case be released, with an FOI application and MR6 form attached.[9]
[9] CB 76-83.
On 21 March 2021, the Tribunal wrote to the Applicant acknowledging her request.[10]
[10] CB 84-85.
On 9 April 2021, the Tribunal wrote to the Applicant providing an update about the FOI status, noting that the Applicant would have a decision by 18 April 2021.[11]
[11] CB 97.
On 14 April 2021, the FOI decision was released in full to the Applicant.[12]
[12] 89-91.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at page 72 of the Court Book.
The Tribunal found that the Applicant had been notified in accordance with the requirements, and the prescribed period to apply for review ended on 6 January 2020. The Tribunal found that the Application was not received until 12 February 2020.[13]
[13] CB 63-64.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 19 April 2021, 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 17 March 2025, Orders were made by Registrar Cummings of this Court for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence. For the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name to be amended to the Administrative Review Tribunal. The Court also noted that the Applicant’s solicitor was in the process of withdrawing from the matter.
This matter was heard on 19 May 2025 at the Hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application filed 19 April 2021; and
(b)The Affidavit of the Applicant sworn and filed 19 April 2021 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 26 May 2021;
(b)The Affidavit of Maryam Popal on 9 May 2025 and 12 May 2025; and
(c)The Minister’s Outline of Submissions filed 12 May 2025.
Both parties relied on the Court Book.
The Applicant raised the following three (3) grounds of review (Grounds of Review):
1. I believe that the Department of Home Affairs case officer has failed to investigate the applicant’s claim, especially the grounds of the situation in Malaysia. I was abused physically and mentally by my ex-husband, and I could not return to Malaysia. I suffered significant harm and will suffer more if I return to Malaysia. However, the case officer said he made research on the Malaysian Domestics violence issue and summarised that there is no real chance that I will suffer serious harm if I return to Malaysia. (Ground 1).
2. I believe that the Department of Home Affairs case officer made a jurisdiction error by misconstrued the details as set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The officer erroneously construed the existence of the risk of life or significant harm to the applicants upon their return to Malaysia. (Ground 2).
3. I believe that the AAT case officer made a jurisdiction error by saying that the Tribunal does not have jurisdiction in my application. The case officer said, ‘an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994. I Therefore, the prescribed period to apply for review ended on 6 January 2020.’. However, I refer to the case ‘DFQ17 v Minister for Immigration (2019) FCAFC 64 (18 April 2019)’, which said that ‘Full Court found that the applicant had not been properly notified of the refusal, that the time period for lodging an application for review had not begun to run, and that the Tribunal’s decision that it did not have jurisdiction to entertain the application was affected by jurisdictional error.’. So, the AAT has the jurisdiction to review the applicant case. It was similar to my case, and I believe that the AAT case officer made a jurisdiction error on my case. (Ground 3).
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISSIONS
While the Applicant did not file written submissions in support of her Application, the Applicant’s Affidavit contained the following explanation as to the reason for delay in filing the Application for review:
1. I applied for the Protection (subclass 866) visa with the help of an agent, and the application was refused. The agent told me that I could pay more to have an AAT review my case. When I paid the money, the agent stopped contacting me. I tried every method that I could and finally found them and pushed them to lodge the AAT review. The agent told me that the review was submitted, and the application would take years longer. So, I waited for feedback from the agent. However, they disappeared. I was so sad. I did not know about that at all. So, in this case, I would like to apply for FCC by myself instead of agents. I understand if I wish to apply for FCC review, I must do so within 35 days of the date of the AAT decision. But I have no choice but to apply for an extension of time.
(Words in bold added, otherwise as written).
The Applicant’s Affidavit also set out various matters said to constitute jurisdictional error, including reference to the decision in DFQ17 v Minister for Immigration (2019) FCR 492.
In oral submissions, the Applicant contended that the reason for her delay in bringing an application to review the Tribunal’s decision included what she initially described as “fraud”, but later retracted that allegation in relation to the agent who assisted her with her Application for judicial review; difficulty in accessing public transport, and difficulty with the English language. The Applicant told me (with the assistance of the interpreter) that she did not read or understand English.
At the commencement of the hearing, I stood the matter down so that the Tribunal’s Decision (which ran to less than one page) could be translated for the Applicant. I explained to the Applicant that if she wanted to rely on any factual matters put by way of submissions, that she would need to do so from the witness box. The Applicant initially indicated that she wanted to seek leave to give further sworn evidence but subsequently said that she was content for me to rely on the evidence contained in the Applicant’s Affidavit.
MINISTER’S SUBMISSIONS
The Minister seeks that the Applicant’s Application for an extension of time filed 19 April 2021 be refused, and the Applicant pay the Minister’s costs.
Length and explanation of the delay
The Applicant claims that she paid an agent to assist her with the Application and they failed to lodge the Application within the allotted timeframe. The Applicant alleges that she was unaware of the outcome of the Tribunal’s review, however, she has not provided any evidence to support her claim that she engaged an agent on her behalf.
The Minister submits that the length of delay is significant and there is a lack of evidence to support her explanation for the delay.
Prejudice to the Minister
The Minister does not consider that there is any prejudice other than the significant public interest in the finality of judicial decisions.[14]
[14] Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491.
The Minister submits that the mere absence of prejudice alone is not sufficient reason to grant it.[15]
[15] Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 349; per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86.
Ground 1 and 2
The Minister submits that both ground 1 and 2 seek review of the Delegate’s Decision.
The Court does not have the jurisdiction to consider the Delegate’s Decision, as it is a primary decision within the meaning of ss 476(4) and 476(2) of the Migration Act.
Merits of the proposed substantive application
The Minister submits that the grounds of the judicial review do not establish any jurisdictional error in the Tribunal’s decision and a lack of merit in the underlying Application weighs against the granting of an extension of time.
Ground 3
The Minister contends that the Tribunal’s conclusion as to its lack of jurisdiction was correct for the following reasons:
(a)The Delegate’s Decision was a ‘Part 7 – reviewable decision’ and it was a decision to grant a protection visa, that was not made in reliance of ss 5H(2), 36(1B), 36(1C), 36(2C)(a) or 36(2C)(b) and s 411 of the Act;
(b)An Application for review of a ‘Part 7 – reviewable decision’ must be given to the Tribunal within the prescribed period as per s 412(1)(b);
(c)The Applicant was not in detention on the day she was notified, and the period in which an Application for review of a decision must be given to the Tribunal in 28 days commencing on the day the Applicant is notified of the decision pursuant to s 494B(5);
(d)The Applicant was notified of the Delegate’s Decision in the prescribed way being a method specified in s 494B of the Act. The Applicant was notified by email, being the last email address provided to the Minister for the purposes of receiving documents;
(e)The Applicant was taken to have received the document at the end of the day on which the document was transmitted as per s 494C(5) and it does not matter if the Applicant did not receive the relevant document on the day on which they are taken to have received it by force of s 494C.[16] The Applicant was taken to have received a copy of the Delegate’s Decision on 10 December 2019;
[16] Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172.
(f)The notification letter complied with the requirements of s 66(2) of the Act as the Applicant was notified of the criterion that was the basis upon which the grant of the visa was refused, and given written reasons as to why the Delegate was not satisfied;
(g)The notification letter stated that the Delegate’s Decision could be reviewed within the specified timeframe;
(h)The notification of the decision was required to specify the timeframe pursuant to s 66(2)(d)(ii). The Minister submits that the notification in this case satisfies the standard, as the letter:
(i)Specified the correct prescribed time limit which the Applicant could seek review;
(ii)Explained when the Applicant was deemed to have received the notification letter; and
(iii)Was sent on the same day to the Applicant by email to the last email address provided;
(i)The Minister submits that this information was not piecemeal, obscure or incomprehensible; and
(j)Both the first and last day of the relevant period must be counted in determining the 28 day period, the last day. The period of time in which the Applicant could seek review of the Delegate’s Decision ended at the end of the day. The Applicant did not file their Tribunal Application until 12 February 2020 by which the prescribed time period had ended.
The Minister submits that the Tribunal correctly calculated the time, and that the notification letter correctly summarised the legislative requirements.
The Full Federal Court has previously held that once it is found that the Applicant was properly notified and failed to make an Application for review within the prescribed time, that the Tribunal had no power to extend the time within which to apply.[17]
PRINCIPLES
[17] Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15, BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 753, CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199, DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801.
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.[18]
[18] 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.[19]
[19] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[20] 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”.[21] Different kinds of error may overlap.[22] The categories are not closed.[23] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[24]
[20] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[22] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].
[23] LPDT at [3].
[24] Yusuf at [82].
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.[25] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[26] It has been described as an “undemanding” standard.[27]
[25] LPDT at [7].
[26] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[27] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection Visas
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.
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.[28]
[28] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550.
The court should not grant an extension unless it is positively satisfied that it is “proper” to do so. Factors relevant to the exercise of the discretion to extend time include:[29]
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the respondent by the delay;
(d)impact on the applicant of a refusal to grant an extension;
(e)the public interest; and
(f)the merits of the substantive application.
[29] 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,[30] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[31]
[30] Jess v Scott (1986) 12 FCR 187 at 195.
[31] 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.[32]
[32] 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,[33] which may include “impressionistic” assessment.
[33] 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 287 days (9 months and 13 days), which is significant in the context of a statutory time period of 35 days.
The Applicant’s explanation for the delay in filing the application for review of the Tribunal’s Decision is that an agent lodged the application for review with the Tribunal, but the agent failed to advise her what had happened to her application and then “disappeared”.
It is worth setting out those parts of the Applicant’s affidavit that concern the late filing of the application for review:
I applied for the Protection (subclass 866) visa with the help of an agent, and the application was refused. The agent told me that I could pay more to have an AAT review my case. When I paid the money, the agent stopped contacting me. I tried every method that I could and finally found them and pushed them to lodge the AAT review. The agent told me that the review was submitted, and the application would take years longer. So I waited for feedback from the agent. However they disappeared. It was not until recently that I applied for the AAT FOI to have my files I found my AAT outcome was made about a year ago I was so sad I did not know about that at all so in this case I would like to apply for FCC by myself instead of agents. I understand if I wish to apply for FCC review, I must do so within 35 days of the date of the AAT decision but I have no choice but to apply for an extension.
The following chronology is relevant to the question of delay:
(a)On 1 June 2020, the Tribunal found it did not have jurisdiction in the matter.[34]
(b)On 19 March 2021, the Applicant wrote to the Tribunal seeking all information in relation to her case be released, with an FOI application and MR6 form attached.[35]
(c)On 21 March 2021, the Tribunal wrote to the Applicant acknowledging her request.[36]
(d)On 9 April 2021, the Tribunal wrote to the Applicant providing an update about the FOI status, noting that the Applicant would have a decision by 18 April 2021.[37]
(e)On 14 April 2021, the FOI decision was released in full to the Applicant.[38]
(f)On 19 April 2021, the Applicant filed her application in these proceedings.
[34] CB 70-75.
[35] CB 76-83.
[36] CB 84-85.
[37] CB 97.
[38] 89-91.
In short, the Applicant’s explanation for the delay would appear to be because of a failure by her agent to advise her as to the progress and outcome of the application to the Tribunal meant that she did not become aware of the decision. She also referred in oral submissions to a lack of awareness of the law and inability to speak and read English.
An applicant seeking to impugn the decision of the Tribunal by reason of fraud of a third party, such as his or her migration agent, bears a heavy onus.[39] To give rise to jurisdictional error, the fraud on the part of the migration agent must be such as to constitute a matter that would unravel the Tribunal’s decision.[40] Mere negligence on the part of the migration agent is not sufficient.[41]
[39] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 (SZLIX).
[40] SZFDE at [53].
[41] SZLIZ at [30] – [33].
In the context here (namely an application to extend time), it seems to me that the evidence, taken at its highest is that the agent’s failure to notify the Applicant was nothing more than mere negligence, incompetence or inadvertence, including by way of a possible failure to inform.[42] I asked the Applicant whether she contended that the agent’s conduct was fraudulent, and she indicated that she did not know.
[42] Compare SZFDE at [53] and SZLIX at [30] – [33].
I shall take the Applicant’s explanation, that at least one person that she relied upon in connection with the Delegate’s Decision failed to adequately communicate with her, and that she does not speak or read the English language, into account in the exercise of my discretion as to whether to extend the time provided for by s 477(2) of the Migration Act, but note that the explanation would appear to be incomplete. I do accept for the purpose of the application for an extension, that the Applicant was not aware of the Tribunal’s Decision when it was made.
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”.
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 court, 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.
The prejudice to the Applicant by refusing an extension is that her Application for judicial review will not be heard on its merits. Given the nature of her underlying application, this is significant.
I turn then to the merits of the underlying application. The underlying application in the present case is the Application for judicial review of the Tribunal’s Decision.
Grounds 1 and 2 of the Applicant’s application are that the Department of Home Affairs case officer (i.e. the Minister’s delegate) committed certain errors, including failure to investigate and misconstruction of s 36 of the Migration Act.
Section 476(2) of the Migration Act provides that the Federal Circuit Court (now Federal Circuit and Family Court of Australia (Division 2)) has no jurisdiction in relation to a “primary decision” which means a privative clause decision or a purported privative clause decision that is reviewable under, amongst other things, Part 7 of the Migration Act, or would have been so reviewable if an application for such review had been made within time.
The absence of jurisdiction in the Federal Circuit Court (now Federal Circuit and Family Court of Australia (Division 2)) with respect to Grounds 1 and 2 means that they should be treated as unmeritorious for the purpose of the application for an extension of time.
Ground 3 is that:
I believe that the AAT case officer made a jurisdiction error by saying that the Tribunal does not have jurisdiction in my application. The case officer said, ‘an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994. I Therefore, the prescribed period to apply for review ended on 6 January 2020.’. However, I refer to the case ‘DFQ17 v Minister for Immigration (2019) FCAFC 64 (18 April 2019)’, which said that ‘Full Court found that the applicant had not been properly notified of the refusal, that the time period for lodging an application for review had not begun to run, and that the Tribunal’s decision that it did not have jurisdiction to entertain the application was affected by jurisdictional error.’. So, the AAT has the jurisdiction to review the applicant case. It was similar to my case, and I believe that the AAT case officer made a jurisdiction error on my case.
The Applicant’s central contention in Ground 3 is that the Tribunal was in error in concluding that her application for review was out of time, and that the Tribunal had no jurisdiction.
Ground 3 requires consideration of the statutory scheme for review as it applied here:
(a)Section 411 of the Migration Act designates certain decisions to be ‘Part 7-reviewable decisions’, including a decision to refuse to grant a protection visa, that was not made in reliance on certain provisions of the Act.
(b)Section 412(1)(b) of the Migration Act provides that an application for review of a Part 7-reviewable decision must:
(i)be made in the approved form;
(ii)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(iii)be accompanied by the prescribed fee (if any).
(c)Regulation 4.31(2) of the Regulations provides that for the purposes of s 412(1)(b), if the applicant is not in immigration detention, the period in which an application for review must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
(d)Both the first and last day of the relevant period must be counted in determining the 28-day period.[43]
(e)Section 494B of the Migration Act prescribes the methods for notification of the delegate’s decision. They include email by sending to the last email address provided to the Minister for the purposes of receiving documents.
(f)Section 494C(5) of the Migration Act provides that the Applicant is taken to have received the document at the end of the day on which the email is transmitted.[44]
(g)Section 66(2) of the Migration Act sets out the requirements of a valid notification letter as follows:
(i)If the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and
(ii)If the grant of the visa was refused because a provision of the Migration Act or the regulations prevented the grant of the visa, specify that provision.
[43] DZAFH v Minister for Immigration and Border Protection [2017] FCA 984.
[44] See Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ.
Applying these provisions to the present case:
(a)On 10 December 2019, the Delegate’s Decision was emailed to the Applicant. She is taken to have received notification of it at the end of that day;
(b)The period of 28 days, commencing on the day the Applicant is notified of the decision, ended on 6 January 2020;
(c)The last day on which the Applicant could validly apply to the Tribunal for review of the Delegate’s Decision was 6 January 2020; and
(d)The Applicant’s application for review was filed on 12 February 2020, which was out of time.
Ground 3 refers to the decision in DFQ17 v Minister for Immigration (2019) FCR 492 (DQF17) which concerns the mandatory requirements of s 66(2) of a notification letter, concerning the time in which the application for review can be made.
Section 66(2) of the Migration Act provides that notification of a decision not to refuse an application for a visa must, if the applicant has the right to have the decision reviewed by application under Part 5 or s 500, state, amongst other things “the time in which the application for review can be made”.
In DQF17, a Full Court of the Federal Court held that a letter containing a statement for the purposes of s 66(2) must do so clearly and completely. Peram J (with whom Rares and Farrell JJ, agreed) held that the relevant notification failed to “state” the time for review because it was “piecemeal, entirely obscure and essentially incomprehensible”. The problem was described as follows (at [60]):
…the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.
In BMY18 v Minister for Home Affairs (2019) 271 FCR 517, the Full Court considered the requirements of s 66(2) of the Migration Act in the context of notification by email. The court stated at [30]-[32]:
The fact that the notification was sent by email does, however, remove one of the difficulties present in DFQ17. As explained in DFQ17 at [45] where a notification is sent by post it is taken to have arrived on the seventh day after the date it bears but the 28 day review application period (or 21 days for Part 5-Reviewable Decisions under s 347(1)(b)) is taken to commence on that day with the consequence that the seventh day counts twice. In consequence, the time to apply for a review is within 34 days of the date the letter bears. This is the sum of the number of days the letter is taken to arrive (7) plus the review period (28) less the fact that the review period starts on the seventh day (-1). The temptation to add 7 to 28 to get 35 must be resolutely resisted.
In contrast, where a notification is sent by email, the time to apply for a review is a 28 day period commencing on the day the email is sent; that is to say, the review must be lodged before the end of the 27th day after the email was sent. So the appeal time for notifications sent by post is 34 days and for those sent by email 27 days. Both of these are confusing, especially since a correct statement of what the regulation necessitates-using the number 28-does not feature in either outcome. But the 34 day requirement, it may accepted, is more confusing than the 27 day requirement.
Consequently, DFQ17 does not directly control this case. Be that as it may, the placing of the information as to when the notification is taken to have been received on p 3 under the incorrect heading 'Financial or case worker assistance' and away from the pertinent section on p 2 headed 'Review Rights' means that the letter was confusing and misleading. Consequently, it does not state clearly the matter required by s 66(2)(d)(ii).
In Singh v Minister for Immigration and Border Protection [2020] FCAFC 31, the Full Court (at [10]) stated:
It is important not to depart from the words of the section and replace them with judicial words of explanation. The requirement in s 66(2)(d)(ii) is to “state … the time in which the application for review may be made”. Whether or not a notification meets this requirement is a question of fact. Examining whether the notification is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances, are unobjectionable as tools for determining whether the statutory requirement has been met, but should not be allowed to replace the statutory text – see: Baini v The Queen (2012) 246 CLR 469.
The Minister contends, and I accept, that the notification letter[45] complied with the requirements of s 66(2) of the Migration Act; in particular, it notified her of the criteria that was the basis of the refusal to grant the visa, it gave written reasons as to why the delegate was not satisfied that the Applicant met the relevant criteria; the notification letter stated gave particulars of the availability of review with sufficient clarity; it specified applicable time limits and associated information, and did not provide information in a piecemeal, obscure or incomprehensible manner or utilising inapt or inappropriate subject headings.
[45] CB 33.
The notification letter included the following:
An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
If an applicant has been properly notified and failed to make an application for review within the prescribed time period, the Tribunal has no power to extend the time within which to apply.[46]
[46] Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at 39.
In the premises, and in circumstances where the Applicant filed her application for review out of time, Ground 3 would not appear to have any substantial merit.
The Applicant was self-represented in the hearing before me. I have been mindful of the guidance set out in decisions like SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 concerning the Court’s obligation to act in a procedurally fair manner when dealing with self-represented litigants; in particular, the requirement to put an unrepresented litigant in a position to make an effective choice about how to conduct his or her case. Having noted these matters, I have not otherwise identified any arguable jurisdictional error in the Tribunal’s Decision that I have not specifically addressed above.[47]
[47] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Having regard to the matters set out above, particularly the lack of apparent merit in the Applicant’s Application for judicial review, and the length of the 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 her 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 $5,600, being an amount above the scale amount of $4,189.38.[48] While I am satisfied that costs ought to follow the event,[49] I proposed to make an order for costs at the scale amount of $4,189.38 and not the higher amount sought.[50] The Minister contended that the higher amount was justified because preparation for an extension of time application required the Minister to file material addressing the substantive merits of the judicial review application. As a general proposition, I accept that to be true, however, it is tempered in the present case by the brevity of the Tribunal’s decision (which runs to less than one page) reflecting the fact that the application to the Tribunal itself was made out of time. I also note that the court book is comparatively short, at 83 pages.
[48] 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.
[49] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[50] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 22 May 2025
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