BDG23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 899
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDG23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 899
File number(s): SYG 718 of 2023 Judgment of: JUDGE DOUST Date of judgment: 11 June 2025 Catchwords: MIGRATION – application for protection visa – visa refused by delegate – application for review by Tribunal lodged out of time – where Tribunal found it had no jurisdiction – application for judicial review lodged out of time – extension of time application – not necessary in the interests of the administration of justice to make order extending time – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 36(2), 66(2), 66(2)(a), 66(2)(c), 66(2)(d)(i), 66(2)(d)(ii), 66(2)(d)(iii), 66(2)(d)(iv), 411(1)(c), 412, 476, 477, 477(1), 477(2), 477A(2), 494C(5)
Migration Regulations 1994 (Cth) r 4.31(2)
Cases cited: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189
Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; [2010] FCAFC 79
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 11 April 2025 Date of hearing: 31 January 2025 Place: Sydney The Applicant: In person, with the assistance of a Mandarin interpreter Solicitor for the First Respondent: Ms G Gutmann, MinterEllison The Second Respondent Submitting appearance ORDERS
SYG 718 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDG23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The applicant’s application pursuant to 477(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time in which to lodge an application pursuant to s 476 of the Act be dismissed.
2.The applicant’s originating application lodged 2 May 2023 be dismissed.
3.The applicant pay the first respondent’s costs.
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 DOUST:
BACKGROUND
The applicant, a citizen of the People’s Republic of China, made an application to the Department of Home Affairs (Department) for a protection visa on 19 July 2021 (the visa application). In the visa application, the applicant specified an email address (the applicant’s email address) and indicated her agreement to the Department communicating with her by email.
The visa application was refused by a delegate of the then Minister for Home Affairs (now Minister for Immigration and Citizenship (Minister)) (the primary decision). A copy of that decision record was sent to the applicant by email to the applicant’s email address on 24 August 2022.
On 9 November 2022, the applicant made an application to the then Administrative Appeals Tribunal (now Administrative Review Tribunal) (the Tribunal) for review of the primary decision. Although that application nominated a decision date of 20 October 2022, there was no evidence before the Court of any decision made on that date.
On 22 February 2023, the Tribunal determined that it had no jurisdiction as the applicant’s application for review was not made within the time specified in what was then r 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations), namely, the period of 28 days commencing on the day the applicant is notified of the decision (the Tribunal decision).
The Tribunal notified the applicant of the Tribunal decision by a letter emailed to the applicant at the applicant’s email address the following day, that is, on 23 February 2023.
The applicant then made an application to this Court on 2 May 2023 (the originating application) for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 (Cth) (the Act) in respect of the Tribunal decision.
Section 477 of the Act (as at the date of the originating application) provides as follows:
(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 and Family Court of Australia (Division 2) 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.
(3) In this section:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or
(d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
It is apparent from the above chronology that the originating application was made outside the 35-day time period specified in s 477(1) of the Act.
The originating application records that the applicant seeks an order that the time for making the application be extended under s 477 of the Act (the extension application).
In response to a prompt in the originating application form to specify the reasons the applicant considered it necessary in the interests of the administration of justice to extend time, the applicant recorded the following (without alteration):
1.I was not properly given fairness and justice by the Administrative Appeals Tribunal.
2. The Minister for Home Affairs refused my application without merits.
3. I should be given another fair procedure for my application.
The matter was prepared for hearing in the customary way, with the first respondent filing, in accordance with the orders of the Court, a court book containing relevant documents from Departmental records. That court book was received into evidence without any objection from the applicant. The Court also received into evidence an affidavit filed by the applicant in support of her application, which affidavit annexed a copy of the Tribunal decision, along with an affidavit filed by the first respondent which was directed to proving the receipt by the applicant of both a copy of the court book and the first respondent’s outline of submissions.
In the event, the latter affidavit did not assume any significance. The applicant agreed that she had received an email enclosing the court book, and the interpreter who attended the hearing interpreted the first respondent’s written submissions to the applicant.
At the hearing, the applicant was given an opportunity to make submissions in support of her application. In the event, she did not enlarge upon the contents of her extension application to any extent, despite being directed to the grounds recited in her originating application and being invited to address the Court as to each of those grounds.
The question whether an order should be made extending time pursuant to s 477(2) of the Act now falls to be determined.
PROPER APPROACH TO DETERMINING AN APPLICATION TO EXTEND TIME PURSUANT TO S 477(2) OF THE ACT
The power to extend time in s 477A(2) of the Act (which is relevantly identical to s 477(2) of the Act) was considered by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu’uta Katoa). At [12], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) observed (footnotes not included):
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP), Mortimer J (as her Honour then was), said (at [58]) that the language of the subsection “does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s 11 of the AD(JR) Act”. The latter was a reference to the oft-quoted passage in the decision of Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176 (Hunter Valley). Her Honour went on to say that in applications to extend time to review decisions made under the Act, it is appropriate to have regard to:
(a)The nature of the visa decision sought to be reviewed;
(b)The fact that a refusal to extend time will have the consequence that the Applicant will not have an appeal from that decision as of right; and
(c)Case management considerations in the busy Federal Circuit and Family Court of Australia migration list.
In Tu’uta Katoa, the majority said (at [17]) that, in determining what is necessary in the interests of the administration of justice, an assessment of the merits of the underlying application at a “reasonably impressionistic level” will ordinarily be appropriate as the interests of justice are likely to be advanced by granting an extension of time where the application has some underlying merit. The majority went on (at [18]) to observe that more rigorous examination may be undertaken where a delay is lengthy and unexplained (and the Court therefore considers it appropriate that the Applicant demonstrate prospects warranting such an exercise of the discretion), or where the proposed ground of review may be hopeless, which conclusion may only be reached upon a more detailed examination of a matter.
Having regard to the above, I address a number of relevant matters in turn as follows.
Nature of application
I have regard to the fact that the decision in respect of which the applicant seeks review is one concerning her application for a protection visa. That is, she claims that Australia has protection obligations to her because she is a refugee (as defined in the Act), or because if removed from Australia, she would be at a real risk of suffering significant harm.
Length of delay
The applicant’s delay in approaching this Court is not substantial. The Tribunal’s decision was made on 22 February 2023. The latest date upon which the applicant could have made her application, consistent with the time specified in s 477(1) of the Act, was 29 March 2023. In the event, she lodged her application with the Court in early May 2023. The applicant’s application was a little more than a month outside the statutory time limit.
Explanation
I do not read the matters advanced by the applicant in her application as seeking to provide an explanation for her failure to make her application within time, nor did the applicant attempt at the hearing to advance any reason why she had failed.
The applicant presented at the hearing as a shy person with limited English and a limited grasp of the Court process. She did not have legal assistance. Ignorance of time limits is ordinarily not regarded as an acceptable explanation for delay. In the circumstances, given the relative brevity of the delay, I do not regard the absence of an explanation for it as a matter that militates against an order extending time.
Prejudice
The first respondent has properly conceded that there has been no prejudice to him by reason of the applicant’s delay in bringing the present proceeding, but points to the public interest in the finality of litigation.
The merits of the underlying application
Given the above matters, I would not regard the public interest in the finality of litigation as warranting a refusal of the application for an extension of time. Rather, if I were persuaded that there was some arguable case, even a weakly arguable case, that the Tribunal decision involved jurisdictional error, I would in all likelihood regard it as necessary in the interests of the administration of justice to grant the relatively short extension of time sought by the applicant.
However, I am not persuaded that there is even a barely arguable error in the Tribunal’s decision for the following reasons.
The applicant advanced the following grounds in her originating application (without alteration):
1.My application for review with the Tribunal was incomplete and lack of details regarding my application for protection visa.
2.The Tribunal made a jurisdictional error by not correcting the mistake made by Home Affairs.
3.The Tribunal is not making the decision according to the requirments (sic) of the law and didn’t really review my application for protection visa in details.
Without any criticism of the applicant, it may be observed that the grounds she advances do not grapple with the content of the Tribunal’s decision (as opposed perhaps, to its impact upon her). The grounds appear to be contending with the Tribunal’s failure to engage with the merits of the applicant’s originating application. The grounds do not engage with the Tribunal’s conclusion that it had no jurisdiction because the application for review the applicant made to it was outside the time prescribed for such application. I therefore do not consider the applicant has advanced any ground pointing to the existence of any arguable jurisdictional error.
Nor, upon a careful review of the Tribunal’s decision is any barely arguable ground revealed.
The primary decision of which the applicant sought review was a “Part 7 Reviewable Decision” within the meaning of s 411(1)(c) of the Act, as it was a decision to refuse to grant the applicant a protection visa.
Pursuant to s 412 of the Act, the applicant was required to give her application for review to the Tribunal within a prescribed period. The longest period prescribed for the purposes of r 4.31(2) of the Regulations is the period applicable to persons not in immigration detention, being 28 days commencing on the day the applicant was notified of the decision.
The primary decision was notified to the applicant by email to the email address provided by her in the visa application. The applicant also gave that email address as her contact email for the purpose of the present proceeding. The court book contains a record of the Department (described in the index as an “enterprise record”) showing dispatch of an email to the applicant at about 9:19 a.m. on 24 August 2022 with the letter under cover of which the primary decision was notified to the applicant. I am satisfied that the record shows dispatch of the primary decision to the applicant’s email address.
The applicant was taken, by operation of s 494C(5) of the Act to have received the primary decision at the end of the day on which it was transmitted, namely, at the end of 24 August 2022. The latest day on which the applicant could have lodged her application for review with the Tribunal was, therefore, 20 September 2022. In the event, the applicant did not lodge her application for review until 9 November 2022.
I am satisfied that the letter which gave the applicant notice of the primary decision notified the applicant in the prescribed way, with the result that the time for bringing the application to the Tribunal commenced to run. The notification of the decision was effective because it contained the elements required by s 66(2) of the Act, namely, it:
(1)specified, as required by s 66(2)(a) of the Act, the criterion for the visa which the applicant was found not to satisfy, being the criterion in s 36(2) of the Act that the applicant be a non-citizen in Australia to whom Australia has protection obligations or a member of the same family unit of such person;
(2)contained, as required by s 66(2)(c) of the Act, the written reasons why that criterion was not satisfied, namely, it attached the Protection Visa Decision Record;
(3)stated, as required by ss 66(2)(d)(i) and (iii) of the Act that the applicant was entitled to apply to the Tribunal for merits review of the decision;
(4)stated, as required by s 66(2)(d)(ii) of the Act, that such application for review was required to be made within 28 days of the day the applicant was taken to have received the letter, which it specified was the end of the day on which the email was transmitted. Significantly, the advice about the calculation of that time was not bifurcated so as to cause confusion, rendering the notice ineffective, as found in BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189; and
(5)stated, as required by s 66(2)(d)(iv) of the Act, where such application for review could be made, specifying the street addresses, email addresses and fax numbers for filing such an application. In particular, the letter contained the details for online lodgement, which was the method used by the applicant, and the street address and fax number for the registry in the applicant’s city. There is no basis to distinguish the present circumstances from those that obtained in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; [2010] FCAFC 79.
Unlike the position in this Court, the Tribunal had no power to make an order extending the time for the filing of the application that was before it. The power to extend time which is found in the Administrative Appeals Tribunal Act 1975 (Cth) is not available in respect of an application for review of either a Part 5 reviewable decision or a Part 7 reviewable decision (like the primary decision): Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228. Accordingly, there can be no argument that the Tribunal erred by declining to consider extending time for the filing of the application.
During the consideration of the application, I raised with the parties the fact that the applicant’s application for review to the Tribunal referred to the decision in respect of which review was sought as having been dated 20 October 2022. If in fact the applicant had been seeking review of a decision of that date, then her application for review of such decision by the Administrative Appeals Tribunal on 9 November 2022 would have been within time. The applicant did not, in response to the Court’s invitation, provide any further evidence to identify any such decision. I was, however, ultimately satisfied, by reference to a further affidavit filed by the first respondent which addressed the applicant’s visa history in detail, that there had been no decision made in respect of the applicant on 20 October 2022. Accordingly, I was satisfied that the application for review had been, unarguably, out of time.
In all of the circumstances, I am satisfied that the applicant’s originating application is so lacking in prospects that it cannot be said that it is necessary in the interests of the administration of justice to make an order extending time. Based on the material before me, there would be no utility in doing so. Accordingly, the application to extend time should be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 11 June 2025
0
9
3