BIH21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 864
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIH21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 864
File number(s): SYG 914 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 6 June 2025 Catchwords: MIGRATION – Review of a Registrar’s decision to summarily dismiss the application – Application for review filed out of time – Oral application for extension of time - Where applicant applied to Tribunal out of time – Where Tribunal determined that it had no jurisdiction to review the matter – application for extension of time to file review dismissed – Costs to follow the event Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 412, 424A, 422B, 477, 494B
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, 21.02
Migration Regulations 1994 (Cth) reg 2.16
Cases cited: Alam v Minister for Home Affairs [2019] FCA 389
Bechara v Bates [2021] FCAFC 34
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
DFQ17 v Minister for Immigration & Border Protection (2019) 270 FCR 492; [2019] FCAFC 64
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
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: 49 Date of hearing: 4 June 2025 Place: Parramatta Counsel for the First Applicant: In person Solicitor for the First Respondent: Ms C Juarez, Mills Oakley Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 914 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIH21
First Applicant
BII21
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
6 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Citizenship.
2.The extension of time in which to make the application for review of the Registrar’s decision is refused and the application filed on 1 May 2025 is otherwise dismissed.
3.The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $1,000.
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 SKAROS:
By application made on 1 May 2025 the applicants sought review of the Registrar’s decision made on 27 February 2025 to summarily dismiss their application for judicial review filed on 20 May 2021 pursuant to r 13.13(a) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (the Rules).
Pursuant to r 21.02(1) of the Rules an application for review of a Registrar’s decision must be made within seven days. As the Registrar’s decision was made on 27 February 2025, the applicants were required to file the review application by 6 March 2025. They did not do so until 1 May 2025.
Rule 21.02(2) provides for the Court to extend the prescribed period of seven days on any terms it thinks fit or with the consent of the parties. The applicants had not sought an extension of time in which to make the application for review of the Registrar’s decision, however, at the hearing before me on 4 June 2025 the applicants were granted leave to make an oral application for an extension of time.
The Minister opposed time being extended on the basis that the delay (of 56 days) was eight times the prescribed period of seven days and that the grounds of the judicial review application lacked merit.
For the following reasons, I have concluded that the time in which to make the application for review of the Registrar’s decision should not be extended.
BACKGROUND
The applicants are husband and wife respectively. They first arrived in Australia in October 2019 as the holders of tourist visas valid to January 2020. In December 2019 the applicants applied for protection visas. The second applicant applied for the visa on the basis of being a member of the same family unit of the first applicant and did not make any separate claims for protection. A reference to the ‘applicant’ in these Reasons is a reference to the first applicant.
On 8 December 2020 a delegate of the First Respondent (the Minister) refused to grant the applicants the visas after considering the applicant’s claims for protection.
On 18 March 2021, some three months after the delegate’s decision, the applicants applied to the Tribunal for review.
On 13 April 2021 the Tribunal wrote to the applicants stating that it appeared the application for review was not valid because it was out of time and invited them to comment. The applicant responded to the Tribunal and gave reasons as to why his application was out of time. The applicants submitted that they did not have a computer or internet at their home and only had access to the facilities at a library which was closed at the time due to COVID-19. They only discovered that their visa had been refused when their employer informed them that their visa status was ‘not shown’.
On 4 May 2021 the Tribunal determined that it did not have jurisdiction in the matter.
THE TRIBUNAL’S DECISION
The Tribunal identified that the delegate refused to grant the applicants the visas on 8 December 2020, that the applicants had until 4 January 2020 to lodge an application for review with the Tribunal but did not do so until 18 March 2021.
The Tribunal was satisfied that the applicants were properly notified of the delegate’s decision on 8 December 2020.
The Tribunal, noting the applicants’ submissions as to why they filed the application for review late, noted that the responsibility was wholly and always on the applicants to secure ongoing and proper channels of communication.
Having found that the application was filed late and outside the prescribed timeframes, the Tribunal determined that it had no jurisdiction to conduct a review of the matter.
JUDICIAL REVIEW APPLICATION
On 20 May 2021 the applicants applied to the Court for judicial review of the Tribunal’s decision. The grounds of review were (without alteration):
1. That the tribunal's decision was in breach of section 424A(l) of the Migration Act 1958 (Cth).
Particulars:
(a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b) The Tribunal did not disclose the information in accordance withs 424A(l).
2. That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error
3. That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal
On 29 January 2025, at a call over before a Registrar, the Minister made an oral application for summary dismissal of the application. Orders were made for the Minister file an amended response setting out the basis for the summary dismissal applications and for written submissions to be filed by the Minister and the applicants with regard to the summary dismissal application. Orders were also made listing the summary dismissal application for hearing on 27 February 2025.
On 29 January 2025 the Minister filed an amended response seeking a summary dismissal and on 11 February 2025 the Minister filed written submissions in support of that application. The applicants did not file any further material.
On 27 February 2025 the summary dismissal application was heard by Registrar Munro by Microsoft Teams. The applicants appeared at the hearing with the assistance of an interpreter in the Gujarati and English languages. A solicitor of Mills Oakley Lawyers appeared on behalf of the Minister. On the same day, Registrar Munro ordered that the application be summarily dismissed pursuant to r 13.13(a) of the Rules, with costs, and delivered oral reasons for that decision.
PROPOSED APPLICATION FOR REVIEW OF THE REGISTRAR’S DECISION
On 1 May 2025 the applicants filed an application with the Court in which they sought review of the Registrar’s decision to summarily dismiss their application.
On 8 May 2025 I made orders in chambers listing the matter for hearing on 4 June 2025 before me at the Parramatta Registry. I also made an order providing for the parties to file and serve any additional material relied upon, including any written submissions, by 30 May 2025.
On 30 May 2025 the Minister filed written submissions. The applicants did not file any further material.
At the hearing before me, the applicants appeared in person with the assistance of an interpreter in the Gujarati and English languages and Ms C Juarez of Mills Oakley Lawyers appeared on behalf of the Minister.
The court book filed by the Minister on 15 June 2021 was tendered into evidence and marked Exhibit CB. Also in evidence is the Affidavit of Edwin Jack Taylor affirmed on 11 November 2021 (the Taylor Affidavit) annexing screenshots from the Department’s correspondence portal as evidence that correspondence was sent by the Department to the applicant’s email address notifying him of the delegate’s decision.
Being mindful that the applicants were unrepresented, I explained to them the matters that would generally be considered, which I noted were non-exhaustive, when determining whether or not time should be extended to make the application for review of the Registrar’s decision.
CONSIDERATION
Section 254 of the Federal Circuit and Family Court of Australia Act2021 (the Court Act) provides for the judges of this Court, or majority of them, to delegate prescribed judicial powers to Registrars of the Court.
Section 256(1) of the Court Act provides that a party to proceedings, in which a delegate has exercised a delegated power, may apply to the Court for review of that exercise of power. It further provides that upon reviewing the exercise of power by a delegate, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised: s 256(2).
As noted above, the Rules stipulate that an application for review of the exercise of a power by a Registrar must be made within seven days, though this prescribed period may be extended. If the Court determines that time for the making of the review application should be extended, then the review must proceed by way of a hearing de novo. As explained by the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34 at [17] per Allsop CJ, Markovic and Colvin JJ:
To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar.
This means the review would not be concerned with identifying errors in the Registrar’s decision, and the task of the Court would be to consider the Minister’s application for summary dismissal afresh.
In the present matter, it will first be necessary to consider whether time should be extended to enable the applicants to make a competent application for review of the Registrar’s decision
Should time be extended?
The Court has a broad discretion under r 21.02(2)(a) to extend time on any terms it thinks fit. The Minister submitted that in considering an extension of time application the Court can look at ‘a myriad of facts and circumstances’, including the length of the applicant’s delay, the reason for the delay, prejudice to the respondent, prejudice to third parties, and the merit of the underlying application: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Katoa), at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ. Whilst these considerations were endorsed in Katoa in the context of an application for extension of time under s 477(2) of the Migration Act1958 (the Act), they have been adopted and applied in this Court as being relevant when considering whether time should be extended under r 21.02(2)(a). I now turn to consider each of these circumstances.
Length of the delay
The application for review of the Registrar’s decision was required to be filed by 6 March 2025, but was not filed until 1 May 2025. The delay was a period of some 56 days. In the context of a review application which had a prescribed period of seven days, I consider 56 days to be a lengthy delay. This factor weighs against time being extended.
Explanation for the delay
At the hearing the applicant said he did not speak English. He said that he initially filed the review application with the Federal Court of Australia for review of the Registrar’s decision, which was not accepted, and he was advised to file the application with this Court. He contacted the Court and was provided with a form, but it was not properly completed. Eventually he was able to complete the form properly and filed the application on 1 May 2025.
I acknowledge that the applicants did not have the benefit of legal representation and may not have understood (given their lack of English proficiency) how to properly apply for review. Notwithstanding this, the onus remained on the applicants, given their desire to engage with the judicial review process, to ensure that they filed their application with the appropriate court within the set timeframes. If they were unsure about the process, they could have sought professional advice. I am not satisfied that the explanation for the delay is reasonable. This factor weighs against time being extended.
Prejudice
The Minister submitted that no particular prejudice would be suffered, other than costs, if an extension of time was granted. It was also submitted that the mere absence of prejudice does not of itself warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.
The applicant submitted that if time was not extended, he would not be able to take the matter further. I accept that if time was not extended, the applicant would not be able to pursue his application for review of the registrar’s decision. This factor weighs slightly in favour of time being extended.
Merits of the application
By ground one, the applicants contend that the Tribunal failed to comply with s 424A(l) of the Act and that certain information was used to affirm the decision which were not disclosed to them.
This ground does not engage with the decision actually made by the Tribunal, which was that it had no jurisdiction to conduct a review of the delegate’s decision. Ground one has no prospect of success.
By grounds two the applicants contend that the Tribunal made an error of law, did not comply with procedural fairness and committed a jurisdictional error. By ground three, the applicants contend that they were denied procedural fairness, because they were not given a further opportunity by the Tribunal. It is appropriate to deal with grounds two and three together. The applicants did not provide any particulars to these grounds. When invited to speak to these grounds at the hearing, the applicant had nothing further to say.
As submitted by the Minister, s 422B of the Act, which provides that Division 4 of Part 7 of the Act is an exhaustive statement of requirements of natural justice, was not engaged in this case. This is because the Tribunal had determined that it did not have jurisdiction to review the delegate’s decision.
Where s 422B is not engaged, the Tribunal was nevertheless required to provide common law natural justice and procedural fairness. The Minister submitted, and I accept, that the applicants were given a reasonable opportunity by the Tribunal to deal with matters adverse to their interest: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940, at [36]–[37] per Bennett J; Alam v Minister for Home Affairs [2019] FCA 389, at [30] per Markovic J.
In the present case, the Tribunal put the applicants on notice of the potential invalidity of their application for review. The applicants were given an opportunity to respond and availed themselves of that opportunity. The Tribunal considered the applicants’ response but ultimately found it did not have jurisdiction to conduct the review.
The Tribunal was correct to find that it did not have jurisdiction. Where the applicants had been properly notified of the delegate’s decision and the application for review was made out of time, there is no provision in the Act that allowed the Tribunal to override or extend the time limit set by section 412(1)(b) of the Act: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228, at [83] per McKerracher, Reeves and Thawley JJ.
I am satisfied, based on the information contained in the Taylor Affidavit and the accompanying annexures, that the letter dated 8 December 2020 notifying the applicants of the delegate’s decision to refuse their visa application (the notification letter) and the decision record were sent to the applicants at the email address provided to the Department for purposes of receiving documents: s 494B(5) of the Act and reg 2.16(3) of the Migration Regulations 1994.
Further, having reviewed the notification letter, I accept the Minister’s submission that the notification was clear about the time limit in which the review application may be made and does not suffer from the same deficiencies as those identified in DFQ17 v Minister for Immigration & Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 and BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189.
Grounds two and three have no prospect of success.
As none of the grounds in the substantive application have any reasonable prospect of success, this factor weighs heavily against time being extended.
CONCLUSION
In considering all the above factors, I have concluded that the application for an extension of time pursuant to r 21.02(2)(a) should be refused. It follows that the application filed on 1 May 2025 is incompetent and must be dismissed.
COSTS
The Minister sought an order for the award of costs fixed in the amount of $1,000. Other than query how costs can be paid, the applicants did not make any submissions.
I am satisfied that costs should follow the event and that the amount sought by the Minister is reasonable. An order for costs will be accordingly made.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 6 June 2025
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