BLN23 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1507
•12 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLN23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1507
File number(s): SYG 902 of 2023 Judgment of: JUDGE SKAROS Date of judgment: 12 September 2025 Catchwords: MIGRATION – protection visa –application for extension of time to seek judicial review of Administrative Appeals Tribunal (Tribunal) decision – significant delay and insufficient explanation for the delay - limited prejudice to the Minister – limited arguable case of jurisdictional error - application for extension of time refused Legislation: Migration Act 1958 (Cth) ss 36(2), 65, 66(2), 411, 412, 476(2)(a), 476(4)(aa), 477, 494B, 494C,
Migration Regulations1994 (Cth) r 2.16(3), 4.31,
Cases cited: Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; [2019] FCAFC 189
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 8 September 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the Respondents: Mr J. Fyfe, Minter Ellison Solicitor for the Respondents: Submitting appearance, save as to costs ORDERS
SYG 902 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLN23
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
12 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister of Immigration and Citizenship.’
2.The application for an extension of time filed on 1 June 2023 is dismissed.
3.The Applicant pays the First Respondent’s costs in the fixed amount of $4,553.02.
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 SKAROS
By application filed on 1 June 2023, the applicant seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 9 August 2022. The Tribunal, in its decision, found it did not have jurisdiction to review the decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of Malaysia. He arrived in Australia on 6 September 2017, as the holder of an Electronic Travel Authority visa which ceased on 6 December 2017.
On 10 May 2019, the applicant applied for the visa, subject of the review, claiming to fear economic hardship in Malaysia.
In his application, the applicant provided details of email (Email A). The application does not indicate any appointment of a representative or authorised recipient.
On 11 June 2019, the delegate refused to grant the applicant a protection visa and the applicant was notified of the decision via his nominated email address (Email A).
On 17 May 2022, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision. In this application, the applicant nominated email address (Email B).
On 6 June 2022, the Tribunal sent a letter to the applicant’s nominated email address (Email B), inviting him to comment on the validity of the application for review and informed him of their preliminary view that his application had been lodged out of time.
On 21 June 2022, the applicant replied by email, stating that he was late in lodging his application because he did not know how to seek review.
On 9 August 2022, the Tribunal found that it did not have jurisdiction to review the application and notified the applicant of its decision on 11 August 2022.
THE TRIBUNAL’S DECISION
The Tribunal found that it had no jurisdiction to review the decision.
The Tribunal noted that, as the applicant was not in immigration detention on the day he was notified of the decision, the application for review of the decision had to be made within 28 days, commencing on that day: reg 4.31 (2) of the Migration Regulations1994 (Cth) (the Regulations).
The Tribunal noted that, on the material before it, the applicant was notified of the decision by letter dated 11 June 2019 and dispatched by email. The Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal found that the applicant was properly notified of the decision on 11 June 2019: s 494C of the Act. Accordingly, it concluded that the prescribed period to apply for review ended on 8 July 2019.
As the application for review had not been received by the Tribunal until 17 May 2022, the application for review was found not to have been made in accordance with the relevant legislation and the Tribunal concluded it had no jurisdiction in the matter.
APPLICATION TO THIS COURT
The originating application filed with the Court advanced one ground for the extension of time. It also proposed eight grounds in respect of the substantive application. The applicant also filed an affidavit which annexed various documents, which were included in the Court Book. There being no objection by the Minister, the affidavit was read into evidence.
Notwithstanding orders made by a Registrar of this Court on 3 January 2024 and 14 May 2025 providing for the applicant to file and serve any amended application, written submissions and affidavit evidence, the applicant has not filed anything further since his application.
On 25 August 2025, the Minister filed written submissions.
The parties appeared before the Court at the extension of time hearing on 8 September 2025. The applicant appeared by Webex video and was assisted by an interpreter in the Malay and English languages. Mr Fyfe of Minter Ellison Lawyers appeared on behalf of the Minister.
The Court Book was tendered into evidence at the hearing and marked Exhibit CB.
Being mindful that the applicant was unrepresented, I explained to him how the hearing would proceed and the matters that would normally be considered by the Court when determining whether time should be extended to enable him to pursue his substantive application for judicial review.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:
(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.
The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following ground (without alteration) in support of his application for extension of time:
In relation of the application can not be review by AAT because is not a valid application as it was not lodged within the relevant time limit. The applicant did send a written letter regard of missed the the validation given of application for review but was refuse by member.
Therefore the applicant would like to appeal for review his case and second chance on this matter.
At the hearing, I explained to the applicant that the circumstances, which I noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the substantive grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and confirmed in Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [13].
In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a ‘reasonably impressionistic level’: MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110. As explained to the applicant at the hearing, the Court need only be satisfied that the grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
The applicant was invited to make oral submissions in relation to each of the circumstances, and the Court has considered his submissions.
Length and explanation of the delay
The applicant seeks review of the Tribunal's decision made on 9 August 2022, and therefore, the 35-day period to lodge an application for judicial review ended on 13 September 2022.
The application for judicial review was lodged on 1 June 2023, this is 261 days out of time. I accept the Minister’s submission that this constitutes a significant delay: Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42 at [3] per Gageler J.
The length of the delay weighs against granting the extension of time.
The ground advanced in respect of the extension of time does not explain why the applicant filed the application in this Court over eight months out of time. In oral submissions, the applicant said he was not sure when the application was filed, but he sought the assistance of someone to lodge the application in 2022. He submitted that after one month, when he could not contact the person and they did not respond to his emails, he decided to get assistance from another person who then submitted the documents in 2023.
As submitted by the Minister, the applicant has not provided any affidavit evidence in support of his explanation for the delay. Further, even if his explanation from the bar table was to be accepted, he has not explained why he could not lodge the application himself or contact another person sooner to assist him with filing the application.
I agree with the Minister’s submission and do not consider that the applicant has provided a satisfactory explanation for the significant delay. This factor weighs against granting the extension of time.
Prejudice to the Minister
The applicant made no submissions of substance in respect of this consideration.
The Minister indicated they would not suffer substantial prejudice if time were extended. It was submitted, however, that the delay itself would naturally cause ‘some prejudice’: Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 at [128] per Katzmann J.
While the Minister has not identified a specific prejudice, this does not, of itself, justify granting the extension of time. This factor is neutral.
Merits of the substantive application
I have considered, at a reasonably impressionistic level, whether any of the proposed grounds in the application for judicial review have any reasonable prospect of success.
The applicant’s proposed grounds of review are (without alteration):
1. The Tribunals is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
2. The Tribunals concluded the applicant does not meet the refugee criterion in s.36(2)(a), The Tribunal has considered the alternative criterion in s.36(2)(a) The Tribunals is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
3. The Tribunal no suggestion that the applicant satisfies s.36(2)(a) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
4. The Tribunal erred in The Tribunal erred in not finding that the Applicant was delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act. The delegate also considered that there is no real risk of the applicant facing significant harm, as defined by s.36(2A) of the Act, if he returned to Malaysia in the foreseeable future.
5. The Tribunal accepts that if the applicant returned to Malaysia, he will be safe base and no real risk of the applicant facing significant harm, as defined in s36(2A), for these reasons if they returned to Malaysia in the foreseeable future
6. The Tribunal made assumption about the Applicant without evidence or proof.
7. The Tribunal acted unreasonably, unfairly, and irrationally in dismissing the review.
8. Based on the Applicant financial and hardship situation, the Applicant appeal for the court process fees since she currently unable to provide any financial support due unstable working condition.
After explaining to the applicant the decision that was in fact made by the Tribunal: that it did not have jurisdiction to conduct a review, I invited the applicant to explain what error he believed the Tribunal made in his case. The applicant said he provided his mobile number, and the Tribunal should have called him. He said the Tribunal could have also sent a letter to his latest address. I observed that the Tribunal had correspondence with the applicant by email. I asked the applicant if he had updated his contact details with the Tribunal. The applicant responded that he had forwarded the email regarding his application to the person assisting him, but he received no response from them. The applicant said the Tribunal should have sent him a letter by post.
In their written submissions, the Minister grouped the proposed grounds of review as follows: grounds one to six, ground seven and ground eight. For ease of consideration, I have also adopted the same categorisation. In oral submissions, the Minister addressed the additional matters advanced by the applicant at the hearing.
Grounds one to six
By grounds one to six, the applicant contends that the Tribunal failed to conclude that the applicant satisfied the criteria for protection in s 36(2)(a) or s 36(2)(aa) and that it made assumptions about the applicant without evidence.
As submitted by the Minister, these grounds are entirely misconceived as the Tribunal found it had no jurisdiction to consider the applicant's claims for protection.
To the extent this complaint is directed at the delegate’s decision, given it was the only decision that considered the applicant’s claims, this Court has no jurisdiction to review the delegate’s decision, because it is a primary decision: see ss 476(2)(a) and (4)(a) of the Act.
In considering whether the Tribunal was correct in finding that it had no jurisdiction, the Court must first be satisfied that the applicant was correctly notified of the delegate's decision.
As submitted by the Minister, the delegate's decision, at the relevant time, was a Part 7-reviewable decision as defined in s 411(1)(c) of the Act. Section 412(1)(b) of the Act stated that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Time starts to run when the applicant is validly notified of the delegate’s decision, as required by s 66(2) of the Act.
The Minister submitted that the notification letter dated 11 June 2019, complied with s 66(2) because it:
(a)specified the criterion of the visa for which the grant of the visa was refused (s 66(2)(a));
(b)gave written reasons why the criterion was not satisfied (s 66(2)(c)); and
(c)stated that the decision could be reviewed, the time in which the application for review may be made, who could apply for the review, and where the application for review could be made under the appropriate subheading of 'Review Rights' (s 66(2)(d)): BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; [2019] FCAFC 189 at [18]–[20] per Reeves, Perram and Charlesworth JJ.
The Minister also submitted that the decision was notified in the prescribed way, as required by s 66(1) of the Act. Under reg 2.16(3) of the Regulations, the applicant must be notified by one of the methods specified in s 494B of the Act. Among those methods was transmission of the document by email: s 494B(5)(b).
The evidence before the Court, being the screenshot from the Department's internal correspondence system (at CB 95) shows that notification of the delegate’s decision was sent to the applicant’s nominated email address (Email A) at 15.12pm on 11 June 2019. The Minister submitted that this was the last email address provided in the protection visa application for the purpose of receiving documents. The applicant has not provided any evidence to the contrary. In the circumstances, I accept the Minister’s submission that the Tribunal was correct to find that the applicant had been validly notified of the delegate's decision.
The delegate made their decision on 11 June 2019, which was sent to the applicant by email on the same day. Pursuant to s 494C(5) of the Act, the applicant was taken to have received the delegate's decision at the end of that day. The applicant was therefore required to lodge his application for review within 28 days of notification of the decision: r 4.31.
At [4], the Tribunal correctly calculated the prescribed period of 28 days as having ended on 8 July 2019. The application for review was not received by the Tribunal until 17 May 2022, a period of almost three years after the prescribed period had ended. In the circumstances, the Tribunal was correct in finding at [5]–[6] that it had no jurisdiction.
Grounds one to six do not enjoy any prospect of success.
Ground seven
By ground seven, the applicant contends that the Tribunal's decision was unreasonable or unfair.
I accept the Minister’s submission that the Tribunal had no power to extend the time period for the lodging of a valid application for review to it. There was no provision in the Act that allowed the Tribunal to extend the time limit prescribed by s 412(1)(b) of the Act and r 4.31 of the Regulations: Beni v Minister for Immigration & Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [83] per McKerracher, Reeves and Thawley JJ.
Ground seven does not enjoy any prospect of success.
Ground eight
Ground eight merely expresses a request to consider the applicant’s financial circumstances due to his unstable working condition. I accept that this is not a proper ground of review. There is no merit to this ground.
Matters raised at the hearing
In respect of the applicant’s complaint that the Tribunal did not call him, but had instead emailed him, I accept the Minister’s submission that the applicant had provided an email address (Email B) to the Tribunal in the application for review form and that was how the Tribunal chose to correspond with him. I accept that there was no obligation on the Tribunal to telephone the applicant or to send him correspondence by post.
There is no evidence before the Court, and the applicant has not claimed, that he updated his email address with the Tribunal. In the circumstances, the Tribunal was not in error to correspond with the applicant by email at the email address provided in connection with his review application. As set out in the summary above, the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review. The correspondence was sent to the email address nominated in the review application and the applicant responded to that correspondence using the same email address. As submitted by the Minister, any suggestion that the applicant did not have the opportunity to respond to the Tribunal’s concern regarding the issue before it has no basis.
For these reasons, the additional matters raised by the applicant have no merit.
None of the proposed grounds of review have any prospect of success. This factor weighs heavily against granting the extension of time.
CONCLUSION
Having considered and weighed the relevant factors, I am not satisfied that it is necessary in the interest of the administration of justice to grant the applicant an extension of time to seek judicial review of the Tribunal’s decision.
For these reasons, the application for an extension of time must be dismissed.
COSTS
The Minister sought an order that the applicant pay their costs fixed in the sum of $4,553.02. The applicant has made submissions about his inability to pay this amount; however, as explained, financial hardship is generally not a basis for the Court not making a costs order. I am satisfied that, in this case, costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I am satisfied that the costs sought in this matter are reasonable and will so order.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 12 September 2025
0
7
2