BPA20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1032
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPA20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1032
File number(s): MLG 1204 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 4 July 2025 Catchwords: MIGRATION – application for extension of time – judicial review – protection visa refusal – Tribunal dismissal for non-appearance – s 426A(1A) Migration Act 1958 (Cth) – failure to engage with discretion to decide on papers or adjourn – lengthy delay – inadequate explanation – whether arguable case of jurisdictional error – extension refused Legislation: Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss 5J, 36(2)(a), (36)(aa), s 426A(1A), 427(1)(b), 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29
DIS24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 775
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SZSZQ v Minister for Immigration [2018] FCA 403
Temple v Minister for Immigration [2024] FedCFamC2G 214
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 2 July 2025 Place: Melbourne Counsel for the Applicant: Oliver Jones Solicitor for the Applicant: Infinity Law Group Solicitor for the First Respondent: Adam Cunynghame, Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG1204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPA20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The application for judicial review filed on 15 April 2020 is dismissed.
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 JOHNS
INTRODUCTION
Before this Court is an application filed under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the then Administrative Appeals Tribunal (Tribunal).
By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Border Protection (as the Minister was then called) (Delegate) to refuse to grant the Applicant a Protection (Subclass 866) visa (Protection Visa).
This proceeding was brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act). Unfortunately, the application was filed 2 years, 3 months and 19 days (i.e., 839 days) outside the 35-day period prescribed under that section of the Act. Consequently, the Applicant must satisfy the Court that it is necessary in the interests of the administration of justice to make an order extending time for the filing of their application.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant the Applicant an extension of time, the application is dismissed for the reasons that follow.
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
Issues in Dispute
The primary issue is whether there are grounds for granting an extension of time; importantly whether there is a reasonably arguable case of jurisdictional error on the part of the Tribunal.
The application for a Protection Visa
The Applicant is a citizen of Malaysia, who arrived in Australia on 7 March 2016 on a visitor visa.[1]
[1] Court Book (CB) 20.
On 2 August 2016, the Applicant lodged an application for the grant of a Protection Visa.[2] In support of his application, the Applicant claimed that:
(a)he took out a loan from an unlicenced money lender – referred to as “Ah Long” – to fund his car wash business venture,
(b)after the business venture failed, he could not repay the loan and the lenders threatened to kill him as a result,
(c)although he had not been physically harmed in Malaysia, he feared being harmed or killed if he ever returned because the lenders had many people across the country who could find or kill him, and
(d)the Malaysian authorities could not protect him as the authorities could not watch him 24 hours a day and that the lenders could hire someone to kill him or make an accident happen.[3]
[2] CB 1 – 37.
[3] CB 31 – 33.
Delegate’s decision
On 6 October 2016, the Delegate refused to grant the Applicant a Protection Visa.[4] The reasons for doing so were that:
(a)the Applicant had not expressed a fear of harm for any of the five reasons set out in s 5J(1)(a) of the Act, namely race, religion, nationality, membership of a particular social group, or political opinion,
(b)the Applicant’s claims related to threats from illegal money lenders over an unpaid debt, which was considered a personal and criminal matter rather than persecution for a Convention reason,
(c)the Applicant had not previously experienced harm in Malaysia and his claims of future harm were vague, lacking dates, names, or specific details,
(d)country information indicated that the Malaysian authorities were reasonably effective in combating illegal money lending, and there was no evidence that state protection would be denied to the Applicant in his particular circumstances, and
(e)the Delegate was satisfied that effective state protection was available to the Applicant, and that he had not attempted to seek such protection prior to leaving Malaysia.[5]
[4] CB 42.
[5] CB 60 – 63.
The Delegate was therefore not satisfied that the Applicant met the definition of a refugee under s 36(2)(a), nor that there was a real risk of significant harm for the purposes of complementary protection under s 36(2)(aa). The application for a visa was accordingly refused.
Application to the Tribunal
On 21 October 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision.[6]
[6] CB 63 – 65.
On 19 September 2017, the Tribunal wrote to the Applicant at his nominated email address, advising that it was unable to make a favourable decision on the information before it.[7] The Tribunal invited the Applicant to attend a hearing scheduled for 30 October 2017 to give evidence and present arguments in support of his claims.[8]
[7] CB 70.
[8] Ibid.
The invitation stated that if the Applicant did not attend the scheduled hearing, the Tribunal may dismiss the application without any further consideration of the application or the information before it:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.[9]
[9] CB 71.
The Applicant was invited to respond to the invitation by filing out a form titled “Response to hearing invitation – MR Division”.[10] No response was received.
[10] n 6.
On 30 October 2017, the Applicant did not appear before the Tribunal at the scheduled time and place.[11] Because the Applicant did not appear at the scheduled hearing, the Tribunal issued a decision on the same day, in which it dismissed the application for review pursuant to s 426A(1A)(b) of the Act (Non-Appearance Decision).[12] The Tribunal was satisfied that the Applicant had been properly invited to the hearing, had received SMS reminders, and had not provided a satisfactory reason for his non-appearance.[13]
[11] CB 77 – 79.
[12] CB 84.
[13] Ibid at [2].
In the accompanying notification letter, the Applicant was advised that he could apply for reinstatement of his application within 14 days of the Non-Appearance Decision.[14]
[14] CB 81.
On 23 November 2017, the Tribunal issued a decision affirming the Non-Appearance Decision after the Applicant did not seek reinstatement within the prescribed period (Confirmation Decision).[15]
[15] CB 89.
TRIBUNAL DECISION
The Tribunal made two separate decisions:
(a)the Non-Appearance Decision, which is one page long and spans three paragraphs, and
(b)the Confirmation Decision, which is one page long and spans five paragraphs.
At paragraphs 7 to 8 of the Minister’s outline of submissions filed 26 June 2025, solicitors for the Minister summarised the Tribunal’s reasons for both the Non-Appearance Decision and the Confirmation Decision. The Court has carefully read the Tribunal’s reasons and accepts the Minister’s summary as comprehensive, fair and properly referenced. The Court adopts it for the purposes of this judgment (citations omitted):
Dismissal decision
7The Tribunal found that the applicant was invited to appear before it under s 425 of the Act but did not appear at the scheduled time and place. It noted that the invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or the information before it, and that it had sent the applicant SMS reminders before the scheduled hearing. The Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and found that no satisfactory reason for the non-appearance had been given. The Tribunal dismissed the application without further consideration of that application or the information before the Tribunal.
Confirmation decision
8 The Tribunal noted that on 30 October 2017, the application had been dismissed under s 426A(1A)(b) of the Act; the applicant had been notified of that dismissal decision; and he was given a copy of the written statement in accordance with s 426B(5) of the Act, which advised the timeframe for applying for reinstatement and the consequences 3 of failing to apply for reinstatement. The Tribunal found that as the applicant did not apply for reinstatement within the 14-day period, it must confirm the dismissal decision.
Accordingly, the Tribunal affirmed the Delegate’s decision to refuse the Applicant the Protection Visa.
PROCEEDINGS IN THIS COURT
On 15 April 2020 (i.e. 2 years, 5 months and 16 days after the Non-Appearance Decision), the Applicant filed an application for judicial review of the Non-Appearance Decision made on 30 October 2017 (Originating Application). The application is brought pursuant to s 476 of the Act.
On 18 October 2022, the Applicant filed an amended application (Amended Application). The Applicant seeks orders that the Non-Appearance Decision of the Tribunal (and consequently the Confirmation Decision) be quashed and that the matter be remitted back to the Tribunal to be determined according to the law. The Amended Application lists one ground of alleged error, and that is as follows (reproduced with minor alteration for clarity):
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider exercising and / or misconstruing the discretion in s 426A(1A) of the Migration Act 1958 (Cth) ("Act") and s 427(1)(b) of the Act.
a. The Tribunal referred at paragraph 2 of its reasons for decision to the Applicant's non-appearance before it on 30 October 2017,
b. The Tribunal stated that it had "dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing",
c. The Tribunal did not consider whether or not to "make a decision on the review without taking any further action to allow or enable the applicant to appear before it" under s 426A(1A)(a) of the Act,
d. The Tribunal did not consider whether or not to adjourn the review under s 427(1)(b) of the Act,
e. The Tribunal thereby overlooked its discretion under s 426A(1A) and s 427(1)(b) of the Act to proceed otherwise than dismissing the application "without any further consideration of the application or information before" it under s 426A(1A)(b) of the Act and misconstrued its powers, and
f. The Tribunal's failure was material as it could have made a decision in favour of the Applicant under s 426A(1A)(a) of the Act in light of the material before the Delegate or could have gained further information from the Applicant, including his demeanour, by an adjournment under s 427(1)(b) of the Act.
The Originating Application was filed outside the 35-day time limit specified in s 477(2) of the Act. Accordingly, the Applicant requires an extension of time within which to pursue the substantive matter in court.
Case management
On 28 April 2020, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted, among other things, that this Court has no jurisdiction to review the Tribunal’s decision on the basis that it was not filed within the 35-day of the date of the Tribunal’s decision.
On 27 April 2023, the Applicant filed an Affidavit in which he sought to explain the reasons for his delay in filing the Originating Application.
On 18 March 2025, a Registrar of this Court issued an order (Registrar’s Order) programming the matter for an extension of time hearing. The Registrar’s Order directed that:
(a)the Minister file and serve a bundle of relevant documents (Court Book) by 1 April 2025,
(b)the Applicant file any amended application, written submissions and further evidence in support of the application at least 28 days before the scheduled hearing, and
(c)the Minister file and serve any written submissions and additional evidence that the Minister seeks to rely upon at least 14 days before the scheduled hearing.
On 1 April 2025, the Minister filed a Court Book in accordance with the Registrar’s Order.
On 20 May 2025, the matter was allocated to my Chambers. On the same day, the matter was listed for an extension of time hearing on 2 July 2025 in the Melbourne Registry of this Court.
On 16 June 2025, the Applicant filed written submissions outside of the time prescribed by the Registrar’s Order.
On 19 June 2025, this Court made orders, by consent, accepting the Applicant’s written submissions for filing. The orders also directed the Minister to file any amended response and written submissions by 25 June 2025.
On 25 June 2025, the Minister filed its written submissions in accordance with the Court’s orders.
Therefore, the materials before the Court are:
(a)the Originating Application for judicial review filed on 15 April 2020,
(b)an accompanying Affidavit affirmed by the Applicant which annexed the Tribunal’s Confirmation Decision,
(c)a response filed by the Minister on 28 April 2020,
(d)the Amended Application filed on 18 October 2022,
(e)an Affidavit affirmed by the Applicant on 19 April 2023, marked Exhibit A1,
(f)a Court Book numbering 90 pages filed on 1 April 2025, marked Exhibit R1,
(g)an outline of written submissions filed by the Applicant on 16 June 2025, and
The extension of time hearing
At the hearing, the Applicant the represented by Oliver Jones of Counsel and the Minister was represented by Adam Cunynghame, solicitor, of Sparke Helmore Lawyers.
The Court confirmed with the Applicant that they had received a copy of the Court Book and the Minister’s written submissions.
RELEVANT LEGISLATION
s 477 of the Act provides time limits which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which the Court has jurisdiction and the basis upon which it may be extended. At the date of the Tribunal’s decision, it read as follows:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court 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 Court may, by order, extend that 35-day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order
CONSIDERATION
Because the Tribunal’s decision was dated 23 November 2017, the Applicant had until 27 December 2017 to seek his judicial review. Because the application was not filed until 15 April 2020, it was made 839 days out of time.
Consequently, the Court must consider the two limbs of s 477(2) of the Act to determine whether it is appropriate to grant the Applicant an extension of time.
s 477(2)(a) – Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing giving reasons as to why the extension of time should be granted.
In his Originating Application, the Applicant sought leave of the Court to grant him an extension of time. The Applicant stated (reproduced with minor alteration for clarity):
1.I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
2.I was only able to file my case when a friend advised me on how to file my case to the Federal Circuit Court.
Here, by the Originating Application, the Applicant requested an extension of time in writing and provided “grounds” explaining why he believed the extension should be granted. Therefore, the requirements of s 477(2)(a) of the Act are satisfied.
s 477(2)(b) – Necessary in the interests of justice
In relation to the second limb in s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
The factors which the court may consider under this limb are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of the delay,
(b)the explanation for the delay,
(c)whether the respondent (or any third parties) would suffer any prejudice due to the delay,
(d)the impact on the applicant, and
(e)whether the proposed substantive application for judicial review has “merit”.
It is now necessary to consider each of these factors to decide whether it is, in all the circumstances, appropriate to grant the Applicant an extension of time.
Length of delay
As stated above, the Applicant’s delay in filing his application amounts to 2 years, 3 months and 19 days out of time.
The delay in this case is substantial. Such an inordinate delay should not be entertained lightly. The rules/time limits must prima facie be obeyed.
The Minister submitted that the “delay [in this matter] is such that, in the absence of a satisfactory explanation, the application ought to be dismissed on this basis alone.” The Court rejects that submission. True it is that “public interest requires that there be an end to litigation about the efficacy of … decisions” of public bodies, but an extension of time cannot be decided upon just one or two of the Tu’uta Katoa indicia. The Court must consider and then balance all of the matters set out in Tu’uta Katoa..[16]
[16] Re Commonwealth; Ex Parte Marks [2000] HCA 67 at [15]-[17].
However, in this matter the very significant delay means that this factor weighs against granting the extension of time.
Explanation for the delay
In addition to the grounds contained within the Originating Application, the Applicant also filed an Affidavit with this Court, affirmed on 19 April 2023, which sought to explain the reasons for his delay in bringing the judicial review application. The Applicant stated that:
(a)he did not have any legal assistance,
(b)he was not aware of the applicable processes or timeframes in lodging a judicial review application,
(c)he has extremely poor English language skills,
(d)he lacked a support network and financial resources to seek legal representation, and
(e)he was only able to file the application when a friend assisted him in or about 2020.
The Court accepts that the Applicant may have faced genuine barriers due to his personal circumstances, including language limitations and lack of resources. However, those circumstances must be assessed against the clear notification he received from the Tribunal on 30 October 2017. The accompanying information letter titled “Information about dismissal of applications – MR Division” informed him that if the Tribunal confirmed the dismissal decision, the Department’s refusal would remain in force. The letter further explained that if he thought the Tribunal’s decision was wrong in law, he could seek judicial review in the Federal Circuit Court of Australia within 35 days of the date of the decision:
If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia. If you wish to apply for review, you must do so within 35 days of the date of our decision.[17]
[17] CB 84.
Despite having been advised in writing of his review rights and the strict statutory timeframe, it would appear that the Applicant did not take any steps to seek legal or other advice. He did not lodge an application for over two years. While he states he lacked legal assistance and resources, his explanation remains general and unsupported by detailed evidence demonstrating why no action could have been taken within the prescribed period or shortly thereafter. Additionally, while he asserts extremely poor English skills, the Court notes that he was able to lodge both his original visa application and merits review application apparently without assistance.
While the Court recognises the Applicant’s personal challenges and that some latitude should usually be afforded to a litigant in person (as the Applicant was when he filed the Originating Application), the Court is not satisfied that he has provided an adequate, acceptable or satisfactory explanation for a delay of 2 years, 3 months and 19 days.
This factor weighs against granting the extension of time.
Prejudice
The Minister concedes he would not suffer substantial prejudice if the extension were to be granted.
This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time.
Impact on the Applicant
If the extension of time is not granted, the Tribunal’s decisions will stand, along with all the consequences that will flow from the rejection of the Protection Visa (including the possible prospect of being removed from Australia). No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act. However, an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
Before the Court the Minister’s representative acknowledged the significant consequences for the Applicant if the extension of time is not granted.
This factor weighs in favour of granting the Applicant an extension of time.
Merits of the substantive application
Arguably, the most critical factor for consideration when determining whether to grant an extension of time for an application is whether the proposed application for judicial review has any “arguable prospect of success”.
When determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”.[18] Importantly, an Applicant need therefore only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[19]
[18] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
[19] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”)
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion.
At the hearing before the Court, the Applicant’s representative was invited to make submissions about:
(a)Why the Applicant contends that the Tribunal made a jurisdictional error, and
(b)the sole ground of review in the Amended Application.
The Minister submitted that the decision of the Tribunal was not affected by jurisdictional error. Incorporated (without repetition) are paragraphs 12 to 30 of the Minister’s outline of submissions.
The ground of review advanced by the Applicant in his Amended Application will now be addressed.
Ground 1
1.The Second Respondent (Tribunal) made a jurisdictional error by failing to consider exercising and / or misconstruing the discretion in s 426A(1A) of the Migration Act 1958 (Cth) ("Act") and s 427(1)(b) of the Act.
a. The Tribunal referred at paragraph 2 of its reasons for decision to the Applicant's non-appearance before it on 30 October 2017,
b. The Tribunal stated that it had "dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing",
c. The Tribunal did not consider whether or not to "make a decision on the review without taking any further action to allow or enable the applicant to appear before it" under s 426A(1A)(a) of the Act,
d. The Tribunal did not consider whether or not to adjourn the review under s 427(1)(b) of the Act,
e. The Tribunal thereby overlooked its discretion under s 426A(1A) and s 427(1)(b) of the Act to proceed otherwise than dismissing the application "without any further consideration of the application or information before" it under s 426A(1A)(b) of the Act and misconstrued its powers, and
f. The Tribunal's failure was material as it could have made a decision in favour of the Applicant under s 426A(1A)(a) of the Act in light of the material before the Delegate or could have gained further information from the Applicant, including his demeanour, by an adjournment under s 427(1)(b) of the Act.
Out the outset it is important to confirm that the Applicant does not complain about the failure to provide reasons about certain discretions open to it. Nor does the Applicant make any claim that the principles of legal unreasonableness arise.
By the sole ground of review in the Amended Application, the Applicant contends that:
Background
a) faced with the non-attendance by the Applicant at the Tribunal hearing on 30 October 2017 the Tribunal had three options; namely
(1) make a substantive determination on the papers pursuant to s.426A(1A)(a) of the Act,
(2) summarily dismiss the application without any consideration of the materials pursuant to s.426A(1A(b) of the Act (giving rise to the prospect of reinstatement), or
(3) adjourn the hearing pursuant to s.427(1)(b) of the Act,
b) the discretion invested in the Tribunal to decide between the 3 options had to be exercised reasonably,
c) the Tribunal decided to summarily dismiss the application (Option 2),
d) the reasons given by the Tribunal for deciding upon Option 2 could equally have applied to all 3 options,
The jurisdictional error
e) therefore the decision evidences that the Tribunal did not give proper consideration to all three options, in the sense that there was not active engagement with each option,
f) the failure to engage with the discretion at all is jurisdictional error,
g) thereby, the Tribunal committed a jurisdictional error by failing to consider exercising its discretion under the Act.
The Applicant relies on DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024][20], where Horan J observed “it remains within the area of the Tribunal’s decisional freedom to consider which of the available [3] options is appropriate in the particular circumstances of the case. … However, the decision of the Tribunal must be within the bounds of legal reasonableness and must have an evident and intelligible justification”.[21] In DNK17 (a decision that is presently under appeal) Horan J further observed that s 426A confers a discretion between two possible courses of action with different consequences. In that case, the ground advanced was legal unreasonableness and Horan J held that “an unreasonable failure to consider the exercise of the dismissal power, or an unreasonable decision not to exercise that power, would be susceptible to challenge by way of judicial review”.[22] By contrast, in the present matter the Applicant does not argue that the Tribunal’s decision was unreasonable, but rather that it failed to engage with the discretion at all, thereby committing a jurisdictional error. DNK17 does not address this issue. However, Horan J did observe that “there is no statutory obligation on the Tribunal to provide reasons for a procedural decision …”[23]
[20] [2024] FCA 975.
[21] [2024] FCA 975, [99].
[22] [2024] FCA 975, [102].
[23] [2024] FCA 975, [102].
The Minister submits that the Tribunal complied with its procedural fairness obligations and validly dismissed the application pursuant to s 426A(1A)(b) after the Applicant failed to attend the scheduled hearing despite receiving a proper notification. The Minister further submits that there is not statutory obligation that requires the Tribunal to give reasons for its non-exercise of procedural powers, relying on BVD17 v Minister for Immigration and Border Protection.[24] The Minister also submits that DNK17 is distinguishable as it involved legal unreasonableness, whereas the present application alleges that the Tribunal committed a jurisdictional error by failing to consider its discretionary options.
[24] [2019] HCA 34.
The Court’s task when determining an extension of time application is not to conduct a full merits review but to assess whether the proposed application for judicial review discloses an arguable case. As the High Court observed in Tu’uta Katoa, where the delay is lengthy and unexplained, an applicant may be required to show that the case is “strong or even exceptional.”
In the present case, the Tribunal’s reasons are brief. They record the Applicant’s non-appearance, confirm that the Applicant received proper notification of the hearing, and proceed to dismiss the application pursuant to s 426A(1A)(b). The reasons do not mention the options of deciding the application on the papers under s 426(1A)(a) or adjourning under s 427(1)(b). However, in BVD17 the High Court made it clear that,
given that the [decision maker] was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the [decision maker] to mention the discretion conferred … cannot support an inference that the exercise of the discretion was not considered.[25]
[25] [2019] HCA 34, [40].
BVD17 does not appear to advance the Applicant’s argument. However, on an impressionistic assessment, the Court is prepared to accept that by the proposed ground the Applicant has at least been able to identify an arguable case (without determining the strength of it, which appears weak). The Applicant has raised an untested legal issue about whether the Tribunal’s failure to demonstrate an active engagement with all of its discretionary options amounts to a jurisdictional error. Ultimately, whether the Tribunal’s reasons were legally sufficient to withstand the attack of jurisdictional error would require a full argument at hearing.
This factor weighs in favour of granting the Applicant an extension of time.
Conclusion – interests of justice
The determination of whether the granting an extension of time is in the interests of justice is not a numerical consideration of each of the factors identified in Tu’uta Katoa. In this matter 2 factors weigh against granting the extension of time, two weigh in favour and one is a neutral consideration. However, even if a majority of the factors went one way, that would not be determinative of the matter. Consideration must be given to the relative strength of each factor and a balancing of each is required to be undertaken.
In this matter the delay is extraordinary and the Applicant’s explanation is not satisfactory having regard to the authorities. Counterbalancing these factors are the significant impact on the Applicant if an extension is not granted and the fact that while the ground of review is arguable, it is weak. Having regard to the period of delay in particular, this matter is not the type of exceptional case that warrants the granting of an extension of time. Accordingly, in all the circumstances of this matter, the Court is not satisfied that it is in the interests of the administration of justice to grant the Applicant an extension of time.
CONCLUSION
Because the Originating Application was filed with this Court 839 days outside the statutory timeframe, the Court may only grant an extension of time if it is satisfied such extension is in the interests of the administration of justice. For the reasons stated above, the Court is not so satisfied. No extension of time is granted. Consequently, the Court has no jurisdiction to review the Tribunal’s decision. The application must be dismissed.
The Court will hear the parties on costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 4 July 2025
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