BSZ22 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1494

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BSZ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1494

File number(s):

SYG 2039 of 2023

Judgment of:

JUDGE CLEARY

Date of judgment:

15 September 2025

Catchwords:

MIGRATION – application for extension of time for judicial review of decision of the Administrative Appeals Tribunal – where applicant failed to disclose previous judicial review proceedings – failure to comply with s 486D – whether application incompetent – extension of time refused – application dismissed.

Legislation:

Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth)

Migration Act 1958 (Cth) ss 477, 486D

Cases cited:

AIO21 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114

AYT16 v Minister for Immigration and Border Protection [2016] FCCA 2733

AYT16 v Minister for Immigration and Border Protection [2017] FCA 252

BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943

BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Singh v Minister for Immigration and Border Protection [2017] FCCA 223

SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

TCWY v Minister for Immigration and Border Protection (2018) 74 AAR 485; [2018] FCA 804

Tran v Minister for Immigration and Border Protection [2014] FCA 533

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:

66

Date of hearing:

1 September 2025

Place:

Parramatta

Applicant:

In person

Solicitor for the Respondents:

Mr T Qian of Mills Oakley

ORDERS

SYG 2039 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BSZ22

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CLEARY
DATE OF ORDER:	15 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application is dismissed as incompetent.

2.The applicant pay the first respondent’s costs fixed in the amount of $6,100.

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

REASONS FOR JUDGMENT

JUDGE CLEARY

INTRODUCTION

1. Before the Court is an application for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s 477(1) of the Act for making an application to this Court for a remedy under s 476 of the Act. The remedy the applicant seeks relates to a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 January 2022 affirming the decision of a delegate of the first respondent not to grant the applicant a Protection visa. The order is required to be made under s 477(2) because the application was filed on 14 December 2023, almost ten months after the date on which the applicant was required to file the application.

2. As the following chronology will reveal, the Court has no jurisdiction in this matter because the applicant has failed to disclose to the Court, as required by s 486D(1) of the Act, another judicial review proceeding which the applicant had brought in the Court in relation to the same Tribunal decision on 8 March 2022.

3. For the reasons that follow, the application will be dismissed as incompetent, with costs.

   BACKGROUND

4. On 28 November 2013, the applicant, a citizen of Thailand, arrived in Australia as the holder of a student visa.

5. On 11 May 2018, the applicant lodged an application for a protection visa.

6. On 17 June 2019, a delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) or (aa) of the Act.

7. On 8 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

8. On 27 October 2021, the Tribunal invited the applicant to attend a hearing before it on 15 November 2021.

9. On 15 November 2021, the Tribunal recorded that the applicant failed to attend the scheduled hearing.

10. On the same date, the Tribunal notified the applicant of the decision to dismiss the application under s 426A(1A)(b) of the Act.

    TRIBUNAL DECISIONS

11. On 15 November 2021, the Tribunal dismissed the application for non-appearance under s 426A(1A)(b) of the Act (first non-appearance decision) and notified the applicant by email to the applicant’s nominated email address.

12. On 1 December 2021, the Tribunal revoked the first non-appearance decision and reopened the matter because the Microsoft Teams link in its hearing invitation sent on 29 October 2021 was not operational due to an administrative error.

13. The Tribunal found it had failed to comply with its obligations under s 425(1) of the Act and, accordingly, the power under s 426A(1A)(b) of the Act did not arise and the Tribunal had no power to dismiss the application. A copy of the Tribunal’s decision to reopen the review was emailed to the applicant on the same day.

14. On 23 December 2021, the Tribunal sent an email to the applicant and invited the applicant to attend a hearing scheduled for 24 January 2022 by Microsoft Teams. The applicant did not respond to the hearing invitation.

15. On 24 January 2022, the applicant again did not attend the hearing, and the Tribunal dismissed the application for non-appearance under s 426A(1A)(b) of the Act (second non-appearance decision). The Tribunal’s letter attached to the email informed the applicant that he could apply for reinstatement by 7 February 2022.  The applicant did not apply for reinstatement of his application.

16. On 8 February 2022, the Tribunal confirmed the second non-appearance decision pursuant to s 426A(1E) of the Act (confirmation decision). On the same date, the Tribunal notified the applicant of the decision to dismiss the application by email.

    PROCEEDINGS IN THIS COURT

    The first application for review

17. On 20 March 2022, the applicant applied to the Court, in the Melbourne Registry, for review of the confirmation decision dated 8 February 2022 (first application for review) (MLG 1094/2022).

18. On 17 February 2023, orders were made listing proceedings number MLG1094/2022 for final hearing on 26 June 2023 before Judge Goodchild.

19. On 26 June 2023, the applicant did not attend the final hearing before Judge Goodchild, and the application in proceedings number MLG1094/2022 was dismissed for non-appearance under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) (Rules).

    The second application for review

20. On 14 December 2023, the applicant filed another application for judicial review in the Court, this time in the Sydney registry, namely these proceedings. It sought for review of the second non-appearance decision dated 24 January 2022 (second application for review). It was filed out of time: see s 477(1) of the Act.

21. On 18 July 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an amended application, written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent filed their written submissions as required by the Order.

22. On 24 July 2025, the proceedings were docketed to me and set down before me for final hearing on 1 September 2025.

    HEARING ON 1 SEPTEMBER 2025

23. At the hearing of this matter on 1 September 2025, the applicant appeared unrepresented and was assisted by a Thai interpreter. Mr T Qian of Mills Oakley appeared for the first respondent.

24. I consider, in cases such as the present where the applicant is unrepresented, the appropriate procedure is to give the applicant an opportunity to make submissions on the issues relevant to the Court’s decision: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing) and BSQ17 v Minister for Immigration and Citizenship [2025] FCA 943 per Hill J.

25. I outlined my concern to the applicant about the s 486D(1) of the Act and asked him to make submissions on that issue. He said he could recall appearing by telephone at a call-over in the Melbourne proceedings, but he had very little recollection of those proceedings.

26. I also explained to the applicant that as his application for judicial review in this Court had been filed 1 year and 10 months out of time, he would need an extension of time if I found the Court did have jurisdiction and the matter were to proceed.  I asked the applicant if he wanted to make submissions on his application for an extension of time if I decided that the Court did have jurisdiction.  He said he did not want to say anything about the two written reasons he provided in the application for the delay in filing his application.

27. I also took the applicant through the four grounds of judicial review contained in his application.  He told the Court there were some matters which were correct and others that were not, but did not elaborate.  He said ground 1 had nothing to do with his case.  He did not want to say anything on the other grounds other than they were true, in most respects.

28. Mr Qian made brief oral submissions on both the issue of jurisdiction and the extension of time application. 

29. The applicant did not want to say anything in reply to what Mr Qian had submitted to the Court orally.

    SECTION 486D(1) OF THE ACT

30. Section 486D(1) of the Act provides:

    A person must not commence a proceeding in the Federal Circuit and Family Court of Australia (Division 2) in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

31. Section s 486D(1) imposes a precondition to the exercise of jurisdiction on this Court in judicial review proceedings.

32. If the requirements of this section are not met the Court has no jurisdiction in the matter: TCWY v Minister for Immigration and Border Protection (2018) 74 AAR 485; [2018] FCA 804 (TCWY) at [26] and [28] per Perry J, citing with approval Singh v Minister for Immigration and Border Protection [2017] FCCA 223 at [27]–[33] per Judge Dowdy; MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296 (MZXPI) at [16]–[17] per Driver FM; SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241 (SZKUT) at [12]–[15] per Smith FM and BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471.

33. If there has not been compliance with s 486D, an application filed in the Court may be deemed incompetent: see MZXPI and SZKUT and see also Avaiya v Minister for Immigration and Border Protection [2014] FCCA 268.

34. There is no reason why I should not follow these decisions, and I propose to do so in the circumstances of this case.

    CONSIDERATION

35. As outlined above, the first issue before the Court is whether it has jurisdiction to hear and determine the second application for review. 

36. For the reasons that follow, I have determined that the Court does not have jurisdiction. 

    Reasons why the Court has no jurisdiction in this matter

37. Under s 486D(2) a person must not commence proceedings in this Court “unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision”.

38. The issue under this provision as it applies to the present case is whether the first application for judicial review in proceedings number MLG1094/2022 filed by the applicant, which challenged the confirmation decision, constituted a judicial review proceeding in relation to the second non-appearance decision which is sought to be reviewed in these proceedings. If it did then the Court has no jurisdiction.

39. There is no issue the applicant failed to disclose the existence of proceedings number MLG1094/2022 in these proceedings, as the applicant made no reference to it in his application or supporting affidavit filed in these proceedings on 14 December 2023.

40. I consider there are three reasons why the first application for judicial review in proceedings number MLG1094/2022, which challenged the confirmation decision, constituted a judicial review proceeding in relation to the second non-appearance decision. They are as follows:

41. First, the earlier challenge to the confirmation decision was in essence a challenge to the second non-appearance decision (it confirmed that decision).  The confirmation decision was in substance part of the same Tribunal decision made to dismiss the applicant’s application to the Tribunal for non-appearance.  As Perram J held in AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 (AYT16), under s 426A(1E), if an applicant does not apply within 14 days of receiving the non-appearance decision, the Tribunal was legally bound to make the confirmation decision, confirming the (earlier) non-appearance decision made under s 426A(1A)(b). In the present case, the applicant did not seek re-instatement of his application within 14 days of receiving the second non-appearance decision, therefore the confirmation decision was a decision the Tribunal was legally required to make as a consequence of its non-appearance decision.

42. Second, and allied to the first reason, the Federal Court has held that merely seeking judicial review of a confirmation decision cannot succeed without putting in issue the initial non-appearance decision: see AYT16 at [12] per Perram J, affirming AYT16 v Minister for Immigration and Border Protection [2016] FCCA 2733 at [12] per Judge Driver.

43. Third, the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) which inserted s 486D into the Act provides:

    The provision is designed to assist the courts to identify applications which have already been the subject of proceedings for judicial review of tribunal decisions and discourage applicants from attempting to re‑litigate these matters, including as a means to delay their removal from Australia.

    The second application for review in this Court was merely an attempt by the applicant to re-litigate the Tribunal’s decisions which had already been challenged in proceedings number MLG1094/2022. I consider s 468D was inserted to prevent this from happening.

44. For these reasons I am satisfied that s 486D(1) of the Act applies to the circumstances of this case, and, because the applicant did not disclose the previous proceeding in this Court, I do not have jurisdiction to consider the second review application. The application filed in these proceedings is therefore incompetent.

45. For completeness, the first respondent submitted there was a further reason why the first application for judicial review in proceedings number MLG1094/2022 constituted a judicial review proceeding in relation to the second non-appearance decision within the meaning of s 486D(1) of the Act. That argument relied upon the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603–604 (Anshun) per Gibbs CJ, Mason and Aiken JJ. The first respondent submitted that Anshun estoppel prevents the applicant from bringing the current proceeding to challenge the second non-appearance decision which was so closely connected with the subject matter of proceeding MLG1094/2022 and therefore could and should have been raised in those earlier proceedings. 

46. The first respondent also pointed out, as part of this argument, that the first respondent’s Response dated 12 July 2022 filed in proceedings number MLG1094/2022 already raised the issue, which made proceeding MLG1094/2022 a proceeding in relation to the second non-appearance decision.

47. In AIO21 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 (AIO21) the Full Court held it is well settled that the res judicata doctrine (of which the principle of Anshun estoppel is an extension) applies to judicial review proceedings.  However, the Court also observed that its application can give rise to difficulties, in particular in the identification of the “cause of action”.  Is it the claim for relief for jurisdictional error which constitutes the cause of action, or are the different grounds of jurisdictional error  seen as separate causes of action arising out of the one decision?  The Court in AIO21 consider the later view to be the better view (at [66]).

48. Their Honours concluded at [71]:

    At a practical level, where an applicant brings a second application for judicial review, seeking relief in relation to a decision that has already been the subject of an application for judicial review, the real issue will often be whether, even if the ground of review is substantially different: (a) the ground could and should (Clayton at [31]) have been raised in the first proceeding such that Anshun principles apply; or (b) the second proceeding is otherwise an abuse of process.

49. In relation to the first respondent’s Anshun estoppel argument, I do not consider it assists me in determining the meaning of the expression in relation to in s 486D(1), in this particular case. The potential application of the principle of Anshun estoppel in this case is complicated.  Apart from anything else, there has not been any final judgment or outcome on the applicant’s first application for judicial review (or the applicant’s cause of action) by this Court in proceedings number MLG1094/2022 (in other words, the “first proceedings” to use the terminology from AIO22).  That is because the Court in the first proceedings exercised the discretion to dismiss the application for being absent from the final hearing under r 13.06(1)(c) of the Rules. The applicant is free to seek to re-instate proceedings number MLG1094/2022 under r 17.05 at any time. Therefore it is unclear what the final judgment or outcome of proceedings number MLG1094/2022 will be (or if there will be one at all).

50. I do, however, accept that the Response dated 12 July 2022 filed in proceeding number MLG1094/2022, which puts in issue in those proceedings the second non-appearance decision, demonstrates a consistent approach with what the Federal Court has said about how reviews involving non-appearance and confirmation decisions must be conducted in this Court: see AYT16. I accept that the Response dated 12 July 2022 filed in proceeding number MLG1094/2022 is evidence that consideration of the second non-appearance decision would have occurred in proceeding number MLG1094/2022, had those proceedings not been dismissed for non-appearance by the applicant. This supports my conclusion that s 486D(1) applies in this case and the application for judicial review in these proceedings is incompetent.

    Application for extension of time

51. Even though I have found the application for judicial review in these proceedings is incompetent, I will make brief findings about the application for an extension of time on the assumption that the proceedings were not incompetent (in other words, if I am wrong about the application of s 486D(1) in this case).

1. The Court has power under s 477(2) of the Act to make an order extending the 35-day period prescribed by s 477(1) to commence an application in relation to the decision of the Tribunal. Such applications must be made in writing, and they must specify why the applicant considers it is necessary in the interest of the administration of justice.

2. The Court will only make an order if it is satisfied it is necessary in the interests of the administration of justice to make such order. In considering whether to grant an extension of time, there are no mandatory relevant considerations: see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu’uta Katoa) which considered s 477A a cognate provision to s 477 for applications made in the Federal Court at [12]:

   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.

3. A consideration of the relevant factors as they apply in this matter is set out below.

   Length and explanation of delay

4. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) Wigney J held at [38]:

   The delay here was excessive.  In general, the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

5. The delay in Tran was over 18 months. The delay in the present case was over 22 months. 

6. The applicant offers two reasons for the delay. First, that the applicant’s previous agent left him and did not tell him anything about his application. Second, that his previous agent “cheated and lied” that he had applied to review his visa on time.  No other reason is given, nor did the applicant expand upon the two reasons at the hearing before me.  Further, no affidavit has been filed to support the two reasons provided.

7. I find the delay in this case is excessive.  I also find the reasons offered for the excessive delay confusing, and unexplained.  Particularly as there had been no delay in the applicant making the first application for review.  In the absence of an explanation of what the applicant meant by his two reasons for the almost 1 year and 10-month delay, I do not accept that either of them satisfactorily explains the delay. I consider this factor weighs very heavily against an extension of time being granted in this matter, for the reasons given by Wigney J in Tran.

   Prejudice

8. The first respondent submits that he suffers no prejudice, other than costs, if an extension of time is granted.  The mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [349]. I consider this factor to be neutral.

   Merits of second application for review

9. In considering the merit of the proposed appeal, I  must consider, at an impressionistic level, whether the proposed grounds are “arguable”, “reasonably arguable”, or “sufficiently arguable”, to warrant the grant of an extension of time: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]-[63], approved by the Full Court on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] and Katoa.

10. I consider the four grounds of review contained in the second application for review merely seek to argue the merits of why the applicant should be granted a protection visa. I am, therefore, satisfied that the application does not disclose any reasonable, or any arguable, case that the Tribunal made jurisdictional error when it made the second non-appearance decision. Even at an impressionistic level, none of the proposed grounds of judicial review are sufficiently arguable to warrant the grant of an extension of time. 

11. I also agree with the first respondent’s submission that there is no basis in the evidence for any argument that the Tribunal’s discretionary decision to dismiss for non-appearance under s 426(1A)(b) was legally unreasonable, applying what the High Court said about that type of ground of review in cases such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. On this issue, I agree with the first respondent there is no issue in the present case about service (by email) of the invitation to attend a hearing before the Tribunal on the applicant. This is because the email address where the invitation to attend a hearing was sent was confirmed by the applicant over the telephone on 13 May 2021, and it is the same email address the applicant nominated in his application filed in this Court and dated 14 December 2023.

12. This factor weighs heavily against an extension of time being granted.

13. Therefore, had I not found the application filed in these proceedings was incompetent, or if I was wrong on that issue, I would have refused to grant leave for an extension of time under s 477(2) in any event. That is because I would not have been satisfied it was necessary in the interests of the administration of justice to make such order.

    CONCLUSION

14. I dismiss the application filed in these proceedings (the second application for review) as incompetent.

    COSTS

15. The first respondent seeks costs fixed in the sum of $6,100. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.

Associate:

Dated:       15 September 2025