Dinayadura v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1409
•1 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dinayadura v Minister for Immigration and Citizenship [2025] FedCFamC2G 1409
File number: MLG 4013 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 1 September 2025 Catchwords: MIGRATION – Distinguished talent (Residence) (class BX) (subclass 858) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – application for extension of time – merit of proposed application – where Tribunal determined it had no jurisdiction to hear review application pursuant to s 348 of the Migration Act 1958 (Cth) – whether application ‘properly made’ – application form contained credit card details to facilitate payment of application fee – where Tribunal’s attempts to process application fee failed – where payment successful after prescribed period elapsed – whether application ‘accompanied by’ prescribed fee – meaning of ‘accompanied by’ – whether fee was ‘paid’ – whether Tribunal erred in finding application not properly made – application for extension of time refused Legislation: Migration Act 1958 (Cth) ss 347(1), 347(1)(a), 347(1)(b), 347(1)(c), 348(1), 476, 477(1), 477(2), 477(2)(b), 477A(2) 477A(2)(b).
Migration Regulations 1994 (Cth) regs 4.10, 4.13, 4.13(4), sch 2, cls 858.212, 858.212(2), 858.212(2)(b), 858.212(4), 858.321
Cases cited: Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130, 305 FCR 152
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 63
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579
Vumentala v Minister for Immigration & Multicultural Affairs [2004] FCA 744
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 4 June 2025 Date of hearing: 18 June 2025 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitors for the Applicant: De Mel Lawyers Counsel for the First Respondent: Ms K Chan Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 4013 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GIHAN NALAKA DE SILVA DINAYADURA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
1 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) to extend the 35-day period within which an application for judicial review may be made is refused.
2.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
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 Gostencnik
INTRODUCTION
Before the Court is an application for an order extending the time within which an application for judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal) pursuant to s 476 of the Migration Act 1958 (Cth) (Act) [1] may be made. In October 2019, the Tribunal determined that it did not have jurisdiction to determine the applicant’s application for review of an earlier decision of a delegate of the first respondent refusing the applicant a Distinguished Talent (Residence) (Class BX) (Subclass 858) visa. The Tribunal determined it lacked jurisdiction because the application had not been accompanied by the prescribed application fee, and consequently, the applicant had failed to make a valid application for review within the time prescribed by the Migration Regulations 1994 (Cth) (Regulations)[2].
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
The applicant now applies for judicial review of the Tribunal’s decision, in circumstances where s 477(1) of the Act requires an application for judicial review of a decision under the Act be brought within 35 days of the decision. The Tribunal’s decision was made on 14 October 2019, and the applicant was notified of that decision on the same day. The 35-day period within which an application must be brought expired on 15 November 2019. The applicant made the judicial review application on 18 November 2019, being three (3) days after the 35-day period had expired. The applicant now seeks an order under s 477(2) of the Act extending the time within which an application may be made. And if time is extended the applicant seeks orders quashing the Tribunal’s decision and remittal of the review application to the second respondent for it to determine the application according to law.
For the reasons explained below, the applicant’s application for an extension of time to make the judicial review application will be refused.
BACKGROUND
The applicant is a citizen of Sri Lanka, having arrived in Australia on 4 October 2017. The applicant was granted a Temporary Activity (Subclass 408) visa on 18 September 2017 and subsequently applied for a Distinguished Talent (Residence) (Class BX) (Subclass 858) visa on 26 April 2018 based on achievements and endeavours as a sportsman and cricketer. The applicant provided the Department of Home Affairs with various forms of evidence in support of his visa application including: a nomination letter of support from an Australian citizen; letters of support from relevant cricketing organisations; various copies of published articles relevant to the applicant’s reputation and standing as a cricketer dated between 2002 to 2018; and various documents and certificates relevant to his performance as a cricketer and his participation in international tournaments. The applicant included a short statement setting out his reasons for applying for the Distinguished Talent visa which explained that he was a professional cricketer and had been a key member of the Sri Lankan National indoor cricket team.
On 10 April 2019, a delegate of the (then) Minister for Immigration, Citizenship and Multicultural Affairs refused the applicant’s visa application, and a notification and copy of the delegate’s decision record were dispatched to the applicant’s migration agent by email. The delegate noted that the criteria for grant of a Distinguished Talent visa were set out at cl 858.212 of Sch 2 to the Regulations, and that to be granted a visa, the applicant must satisfy sub-cls (2) or (4) of cl 858.212. The criteria at sub-cl (2) required the applicant demonstrate, inter alia, that he maintained prominence in his area of achievement. The delegate had regard to the ‘Procedures Advice Manual – Schedule 2 Visa 858’ policy document prepared by the Department which outlined the policy considerations relevant to assessing whether the applicant satisfied the criteria for grant of a distinguished talent visa, and considered that on the information before the delegate, the applicant did not satisfy the requirement in cl 858.212(2)(b)—that the applicant “[was] still prominent in the area”—and thereby failed to satisfy cl 858.212(2). The delegate noted that the applicant similarly did not satisfy the alternate criteria in sub-cl (4), nor did he meet any of the secondary criteria in cl 858.321. On that basis, the visa application was refused.
The Department’s letter to the applicant relevantly informed the applicant that “[a]n application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.”
APPLICATION TO THE TRIBUNAL
The applicant applied to the Tribunal for review of the delegate’s decision under cover of a letter dated 26 April 2019. The Tribunal received the application on 29 April 2019. On page nine (9) of the application form, under the heading ‘Part I – Payment details’, the applicant indicated that he would pay the application fee in respect of his application to the Tribunal by credit card, in the amount of $1,764.00 and provided the Tribunal with credit card details, including a card number and expiry date. The applicant’s signature appears in the relevant part of the application form. Immediately below the signature is a note stating: “Payment is not considered to have been made if the cheque is dishonoured or the credit card payment is not approved”.
On 29 April 2019, the Tribunal made two attempts to take payment of the application fee by EFTPOS using the payment details provided by the applicant in the application form. Both the attempts to take payment of the application fee on 29 April 2019 were unsuccessful, and a record of each was made on the Tribunal’s file by way of a case note and accompanying receipt evidencing the failed attempts at payment, and bearing an error code “Contact Issuer (116) Declined”.
On 30 April 2019, a Tribunal staff member attempted to contact the applicant by telephone at around 10:15 am, but was unable to reach the applicant by phone and left a voice message requesting the applicant contact the Tribunal. On 1 May 2019, a Tribunal staff member sent an email to the applicant’s authorised recipient advising the applicant that the attempts to take payment had failed, which email relevantly stated:
Please be advised that two separate attempts were made on 29 April 2019 to process the application fee of $1,764 using the credit card details provided on your application for review form, however each transaction declined. For your reference, I have attached the EFTPOS receipts to this email. I attempted to contact you by telephone 30 April 2019 to discuss this matter with you, however I was unsuccessful.
Please note payment must be made before the prescribed review period for making a valid application for review has ended. Payment can be made by cheque, money order, credit card (MasterCard or Visa) or EFTPOS at any registry of the AAT. Payments made by cheque, money order and credit card can be paid in person. Payments by credit card can also be faxed or emailed to us.
There are strict time limits for making a valid application for review. We do not have any power to extend the time limits. The Department's decision letter should state the time limit for your particular case. If a valid application for review is not received within the time limit, we will not be able to review the decision.
…
(emphasis in original)
On 1 May 2019, the applicant sent an email to the Tribunal which relevantly stated:
I ll (sic) resolve the payment issue tomorrow I understand sufficient funds are in the account. Please deduct the payment in the evening as Ill (sic) speak to my bank tomorrow morning.
Following receipt of the applicant’s email, on 2 May 2019 the Tribunal made two further attempts to take payment using the payment details provided by the applicant, but on both occasions the payment was unsuccessful. The material before the Court includes a case note prepared by the Tribunal on 2 May 2019 which records that the third and fourth attempts at taking payment were unsuccessful, and includes a notation: “application fee was not paid before the prescribed review period for making a valid application for review had ended”. A record of the failed payment method accompanies the case note, again showing the error code “Contact Issuer (116) Declined”.
On 3 May 2019, the applicant sent an email to the Tribunal as follows:
Payment issue was resolved please take steps to deduct the relevant fee from my master card.
On 6 May 2019, the Tribunal made a further attempt to take payment of the application fee using the details provided by the applicant, the transaction was successfully processed, and the Tribunal accordingly took payment of the application fee in full. There is no record on the material before the Court of any further correspondence between the Tribunal and the applicant until 5 August 2019, on which date the applicant contacted the Tribunal by phone to enquire about the status of his case. During that call, the applicant stated inter alia that he had not received any confirmation that the application fee had been received by the Tribunal. Following the telephone call, the Tribunal sent an email to the applicant attaching a copy of the receipt in relation to the payment of the application fee which had been generated on 6 May 2019, and noted in its email that the applicant’s “review application [was] still being processed for its validity”. Shortly thereafter, on 7 August 2019, the Tribunal recorded a note on its file to the effect that the case should proceed as ‘no jurisdiction’.
On 30 August 2019, the Tribunal wrote to the applicant to inform him that the Tribunal considered his application was not valid because the application fee had not been paid before the expiry of the time limit for the lodgement of an application, and invited him to comment on the validity of his application by 13 September 2019. On 9 September 2019, the applicant responded to the Tribunal, noting that the application had been received on 29 April 2019, and that payment of the application fee had been made in full on 6 May 2019. The applicant submitted that: as the application had been made on 29 April 2019, within the period prescribed for making of an application for review, and that payment had been made and acknowledged, the application ought be considered as valid. In his letter, the applicant said that the delay in relation to his payment was “due to an unavoidable circumstances (sic) which is purely beyond [his] control”.
TRIBUNAL’S DECISION
On 11 October 2019 the Tribunal decided it did not have jurisdiction to consider the applicant’s review application. The applicant was notified of that decision by letter dated 14 October 2019, which letter enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision), and instructions for the applicant to obtain a refund of the application fee. The Decision acknowledged that the review application was lodged on 29 April 2019: Decision at [2], but because of the requirements of s 347(1) of the Act, and criteria in the Regulations – the Tribunal did not have jurisdiction to entertain the application. The Tribunal so concluded because: to engage the Tribunal’s jurisdiction to review under s 348(1), an application must be properly made. Section 347(1) and reg 4.13 relevantly required that an application be made within a prescribed period, and s 347(1)(b) and reg 4.13(4) specified that an application must be accompanied by the prescribed fee. The Tribunal received the application on 29 April 2019, but did not receive payment of the prescribed fee until 6 May 2019. The prescribed period within which an application could be made ended on 1 May 2019. The Tribunal found that: the application fee had not been paid within the prescribed time for an application to be made, the application was therefore not accompanied by the prescribed fee within the prescribed period, and the applicant had failed to make a valid application within the prescribed time. Therefore, the Tribunal’s jurisdiction under s 348 was not enlivened and the Tribunal was unable to consider the application.
CONSIDERATION
The applicant applied to this Court for judicial review of the Tribunal’s decision on 18 November 2019. As mentioned earlier, s 477(1) of the Act imposes a limitation period of 35-days within which an application may be brought. In the present case, that 35-day period expired on 15 November 2019. The applicant has applied three days late. Section 477(2) allows the Court, by order, to extend the 35-day period as the Court considers appropriate, if satisfied that it is necessary in the interests of the administration of justice to do so.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court’s discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “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”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because 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”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344 at 348–349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made, were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566, [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. And 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. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is “reasonably arguable” or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]–[18].
Extent and reason for the delay
In his judicial review application, the applicant sets out two brief grounds purporting to support his application for an extension of time. Both appear to address the reason for the delay. First, the applicant says he received the Tribunal’s email notifying him of the decision, but did not notice that email until after the 35-day period had expired. Second, the applicant says he was “physically sick and depressed for a period of 2 weeks” and he did not check emails during that time. Counsel for the applicant made no mention of these grounds at the hearing, nor were the reasons for delay in applying to this Court otherwise addressed.
The first respondent accepted, sensibly, that a delay of three days is short, but contends that to the extent the applicant offered any explanation for the delay, that explanation was unsatisfactory. I agree. The applicant has not led any evidence, medical or otherwise, supporting his assertions of physical and psychological illness during the period he identifies in the application. Much less is there any evidence of how his asserted conditions affected his capacity to function such as to explain the delay.
Although the delay is short, the applicant has not provided an acceptable explanation for the delay. The short period of the delay weighs neutrally in the circumstances, but the absence of an acceptable explanation must weigh against the applicant.
Prejudice
The first respondent accepted that no prejudice would be occasioned which could not be remedied through an appropriate order for costs, but noted, appropriately, that the absence of prejudice, in and of itself, is an insufficient basis to warrant the grant of an extension of time.
I accept there is no relevant prejudice and this weighs in the applicant’s favour.
Merits
The applicant abandoned the six grounds set out in the judicial review application in favour of the single ground articulated in his written submissions. The applicant therefore moves on one proposed substantive ground of review in support of his judicial review application. He contends that the Tribunal wrongly concluded the review application was not accompanied by the prescribed fee, and so fell into error when it determined that the application was invalid.
The applicant contends the Tribunal wrongly concluded that:
·the applicant’s review application was not “accompanied by the prescribed fee” as required by s 347(1)(b) of the Act and reg 4.10 of the Regulations; and
·a valid application was not made within the time prescribed by s 347(1) and reg 4.13.
As noted above, the prescribed period for making a review application expired on 1 May 2019. According to the applicant, he made a valid application which was received by the Tribunal on 29 April 2019. The application itself, made within the prescribed time, included a facility for payment of the prescribed application fee, and the applicant included his credit card details which he says were “valid and operational for the fee required”. Accordingly, the applicant says his application satisfied the requirements of the Act and the Regulations. The applicant says that within the time prescribed, he had given the Tribunal all that was required for the Tribunal to take payment of the prescribed fee, and his application was therefore “accompanied by” the prescribed fee as required by s 347(1)(b) and reg 4.10. The applicant contends the fact that payment was not successfully processed until after 1 May 2019 is “immaterial” to whether the application was “accompanied by” the prescribed fee as required.
The applicant contends that the legislative scheme does not require the application fee be received by the Tribunal in order for an application to be properly made—all that is required is for the prescribed fee to accompany the application, and if the method of payment proffered by the applicant—details of which are provided in the application form—successfully furnish the Tribunal with the prescribed fee, it should be said that the prescribed fee accompanied the application. The applicant argues that he thereby made a proper application to the Tribunal within the prescribed period.
The applicant contends he does not know why the fee was not taken until 6 May 2019, but that in the circumstances, the actual time the fee was processed by the Tribunal is not material to the question of whether the application was “accompanied by” the fee.
The first respondent submits that the Tribunal made no such error in determining that it lacked jurisdiction to determine the application under s 348 of the Act, as the Tribunal correctly found the requirement of s 347(1)(c) was not satisfied, because the Tribunal was not put in a position by the applicant to deduct the fee from the applicant’s credit provider within the prescribed period.
For the reasons explained below, the applicant’s contention cannot be accepted.
Section 347 of the Act set out the requirements for making an application to the Tribunal, at the time the Tribunal decided it did not have jurisdiction, relevantly as follows:
347 Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision;
…
and
(c) be accompanied by the prescribed fee (if any).
(emphasis added)
Regulation 4.10 of the Regulations prescribed a period of 21-days from the date on which notice of the Tribunal’s decision was received within which a review application the Tribunal under s 347(1)(b) must be made:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
(a) if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;
…
(emphasis added)
The Tribunal’s duty to review applications was set out in s 348 of the Act, which relevantly provided:
(1) Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.
…
The prescribed fee payable to which reference is made in s 347(1)(c) was set by reg 4.13, which provided:
(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.
…
The proper construction of s 347(1) of the Act and its equivalent predecessor provisions have been the subject of judicial consideration, and is relevantly uncontroversial. An application will be properly made, if all the requirements of s 347(1) are satisfied: BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20, 296 FCR 63 at [34]. And only an application which satisfied all the requirements in s 347(1), and thus was ‘properly made’, would engage the Tribunal’s jurisdiction to review in s 348(1): BXS20. The Tribunal’s jurisdiction to review is engaged only where the duty to review in s 348(1) is engaged, and that duty arises only upon receipt of an application which is properly made: Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130, 305 FCR 152 at [64].
In BXS20, the Court confirmed that any flexibility or “elasticity” read into the words “accompanied by” in s 347(1) referred to leeway in relation to the manner of making an application and providing the associated fee to the Tribunal, noting that while an application and the accompanying fee are not required to “arrive at the Tribunal’s offices in the same envelope…or otherwise at the same moment” the Tribunal must nonetheless be in receipt of the application and the application fee simultaneously, or have been provided with the means of obtaining the funds from a credit provider (citing Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744 at [15]), and be made aware of the connection between the two. In those circumstances, the application and the application fee can properly be said to “accompany” each other. All this must be satisfied before the prescribed period expires: BXS20 at [49]–[50].
BXS20 makes clear that the requirements at paras (a), (b), and (c) of s 347(1) are to be treated equally, in that each matter set out therein is required to be satisfied by any application, for that application to be properly made. That the requirement to pay a fee by an inflexible deadline may deprive applicants of merits review “as a result of mistakes or accidents such as relying on outdated information, a credit card being too close to its limit or a sudden loss of internet access” does not override the otherwise clear legislative requirement: BXS20 at [41].
It may be accepted that if the Tribunal received the applicant’s application and the means to facilitate the payment of the prescribed fee before the time prescribed for making a review application passed, the Tribunal’s review jurisdiction would properly have been invoked. Whether this happened is a question of fact: Vumentala at [16].
The applicant would have satisfied the requirements of s 347(1) if, at some time before the end of 1 May 2019, he placed the Tribunal in a position where it was able to take payment of the application fee, with nothing more required. To succeed, the applicant needs to show that the Tribunal was in a position to deduct the fee from the applicant’s credit provider before the expiry of the prescribed period. This he has not done by merely asserting, as he does, that the credit payment method was operational at the material times. The material in the Court Book filed by the first respondent earlier discussed suggests otherwise.
As earlier noted, the application was received by the Tribunal on 29 April 2019, and it included the details of a payment method which might facilitate payment of the application fee. The applicant asserts the card was, at all material times, valid and operational, but the Tribunal attempted to take payment of the fee using those details within the prescribed period, and those attempts were not successful. The objective evidence is that the payment method provided by the applicant to the Tribunal did not place the Tribunal in a position to receive the prescribed fee before the time for making an application had expired.
Shortly after the first two attempts (made on 29 April 2019) to process payment of the application fee had failed, the Tribunal contacted the applicant by telephone (on 30 April 2019) and by email (on 1 May 2019), notifying him the payment attempts had failed, and informing him the application fee was required to be paid before the prescribed period expired. The first two attempts were met with an error code “Contact Issuer (116) Declined”. The applicant responded to the Tribunal by email on 1 May 2019—the last day of the prescribed period—informing the Tribunal, inter alia:
(a)that he would resolve the payment issue tomorrow;
(b)that he understood sufficient funds were in the account; and
(c)to take payment in the evening as he would speak to his bank tomorrow morning.
The exchange between the Tribunal and the applicant here is significant. First, it shows that because the first two attempts at processing payment failed, the Tribunal was aware of issues with the payment method and was not in a position to receive payment of the application fee. Second the applicant acknowledges that there was a “payment issue” which, inter alia, impacted the Tribunal’s ability to take payment, and required some action by the applicant to resolve. Third, the applicant tells the Tribunal that the issue would not be resolved until “tomorrow”, being 2 May 2019, and further that the Tribunal should take payment “in the evening”, because the applicant would speak to his bank “tomorrow morning”. The applicant was telling the Tribunal on 1 May 2019, that the payment issue would not be resolved until the following day, and that he would speak to his bank in the morning of 2 May 2019, and that the Tribunal should take payment of the fee in the evening of 2 May 2019.
Therefore, insofar as the applicant now contends the Tribunal was in a position to take payment of the application fee within the prescribed period, that contention is not borne out by the evidence.
Further, following receipt of that email, the Tribunal attempted to process payment of the application fee a third and fourth time on 2 May 2019. Those attempts were made outside the prescribed period but in any event, they were also unsuccessful and met with an error code “Contact Issuer (116) Declined”. The third and fourth failed attempts reinforce the fact that the Tribunal was not in a position to take payment of the application fee at any time within the prescribed period.
As earlier set out, on 3 May 2019, the applicant sent an email to the Tribunal instructing that the payment issue was resolved and asking the Tribunal to take steps to deduct the relevant fee from his master card. The applicant here acknowledges that there was a payment issue, which was now resolved, and so the fee could now be processed. This also reinforces that the Tribunal was not placed in a position before time expired to receive the fee, because there was a “payment issue”. The applicant still had to take steps, which he did, but after the prescribed time had passed.
On 6 May 2019, the Tribunal made a further attempt to take payment of the application fee. This time the attempt succeeded.
The applicant adduced no evidence explaining why the attempts to secure payment of the application fee through his credit card failed, nor what steps were taken to resolve the “payment issue”. The applicant’s evidence in his affidavit sworn on 3 April 2025, that the credit card was working at all material times, takes the matter no further, and is contrary to the objective evidence. His evidence that the same credit card was “in fact charged by the Tribunal on 9 May 2019 (sic), successfully”, whilst correct (save that the actual date was 6 May 2019), ignores his email to the Tribunal of 3 May 2019 in which he told the Tribunal the payment issue was resolved. The applicant’s 3 May 2019 email speaks against his evidence that the “credit card was working at all material times”. As already noted, the objective record, which includes EFTPOS receipts recording the attempts to secure payment had been declined twice during the prescribed period, shows that although the applicant provided the Tribunal with his credit card details, the Tribunal was not in a position, using those details, to secure payment within the prescribed period—further action by the applicant was required.
Accordingly, the applicant’s contention that the Tribunal could require payment of or cause the application fee to be paid—without more from the applicant and within the prescribed period—is not correct and is rejected.
As the application fee did not accompany the application within the prescribed time limit, the Tribunal’s decision that the application was not “accompanied by” the prescribed fee as required, is correct, as was its ultimate conclusion that “the application for review [was] not a valid application and the Tribunal has no jurisdiction in [the] matter”: Decision at [5]. The Tribunal’s decision is not attended by error.
For completeness, during the hearing the applicant suggested that it would be a curious result if the Tribunal, in receipt of all that it required in order to take payment of the application fee, by its own omission failed to cause the application fee to be paid to it within the prescribed period, thereby depriving an applicant of the opportunity to make an application satisfying the requirements of s 347(1). That is, of course not what happened here, but in any event, if an applicant had provided the Tribunal with the means by which to secure payment of the application fee within the prescribed time, without more being required other than the Tribunal processing the payment, that the Tribunal did not take steps to secure the payment until after the prescribed time would not deprive the application of its validity. This is because the applicant had done everything required to pay the fee, and the Tribunal is aware of that state of affairs. In such a case, the application is accompanied by the application fee. Here it was not.
In the circumstances I do not consider the applicant’s judicial review application is reasonably arguable.
DISPOSITION
In the circumstances, the absence of prejudice notwithstanding, as there is no acceptable explanation for the delay and the judicial review ground advanced is not reasonably arguable, I do not consider that it is necessary in the interests of the administration of justice to extend time for the applicant to make a judicial review application. The application for an extension of time is therefore refused.
But even if I were minded to make an order extending time, for the reasons discussed earlier, I would dismiss the judicial review application.
Costs
The first respondent sought an award of costs in the amount of $8,371.30 in the event the application failed, being the amount currently fixed by item 3 of Div 1, Pt 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. Although the application has been dismissed at an interlocutory stage by the refusal to grant an extension of time, the matter proceeded on the basis that both the question of an extension of time and the substantive judicial review application would be argued and if necessary, determined. In the circumstances I consider the amount sought by the first respondent appropriate and reflective of the reasonable costs incurred by the first respondent in connection with this application.
The applicant will be ordered to pay the first respondent’s costs fixed in the sum of $8,371.30.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 1 September 2025
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