DJA21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 91
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJA21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 91
File number(s): SYG 1809 of 2021 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 5 February 2025 Catchwords: MIGRATION – Extension of time – whether reasonable explanation for delay – whether prejudice – whether reasonable prospects of success – extension of time not granted – order for costs against lawyer – application dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.03(2) and 22.06(2)(b)
Migration Act 1958 (Cth) ss 66(2), 477(2), 494B(5) and 494C(5)
Migration Regulations 1994 (Cth) subreg 2.16(3)
Cases cited: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228
BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; [2019] FCAFC 189
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64
DLE16 v Minister for Home Affairs [2019] FCA 136
DZAFH v Minister for Immigration [2017] FCCA 387
Jess v Scott (1986) 12 FCR 187
Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
Rana v Minister for Immigration and Border Protection [2014] FCA 1233
SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
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) 96 ALJR 919
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 29 January 2025 Place: Sydney Applicant In Person Solicitor for the Respondents Ms T Jackson of Minter Ellison ORDERS
SYG 1809 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJA21
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 27 September 2021 be dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings fixed in the amount of $4,189.38.
4.Pursuant to r 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), leave is granted to the solicitor for the applicant, Mr Abu Siddque, to withdraw from the proceedings effective from the commencement of the hearing on 29 January 2025.
5.Pursuant to r 22.06(2)(b) of the GFL Rules, due to his failure to file and serve a notice of intention to withdraw as required by r 9.03 of the GFL Rules, Mr Abu Siddque pay the first respondent’s costs thrown away in the sum of $400.
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 PAPADOPOULOS
INTRODUCTION
Before the 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 Administrative Appeals Tribunal (Tribunal) made on 16 June 2021.
The Tribunal found it did not have the jurisdiction to review a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 27 September 2021 (originating application), 67 days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND AND RELEVANT FACTS
The background of the case was outlined in the Minster’s submissions, which I largely adopt. The applicant is a citizen of Malaysia who last arrived in Australia on 18 April 2018 as the holder of a Subclass 601 Electronic Travel Authority (Class UD) visitor visa.[1]
[1] Court Book (CB) 104.
On 19 June 2018, the applicant applied for a protection visa.
On 14 January 2019, the delegate made a decision to refuse to grant a protection visa to the applicant. The notification of refusal of that decision, along with the decision, were sent to the applicant by email on 14 January 2019.[2]
[2] CB 79-83.
On 25 February 2020, the Minister’s department (Department) emailed the applicant at his last known email address requesting confirmation of his contact details as the Department wished to send him new correspondence about his refused protection visa application.[3] The applicant responded by way of email from his Gmail account address on 26 February 2020 stating ‘Yes, please proceed’.[4]
[3] CB 84.
[4] CB 97.
On 6 June 2020, the applicant was re-notified of the delegate’s decision by email,[5] after it was determined that the initial notification letter failed to comply with s 66(2)(d)(ii) of the Act because it contained the same error as was apparent in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 (DFQ17).
[5] CB 99-114.
On 13 April 2021, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[6]
[6] CB 115-131.
On 19 May 2021, the Tribunal invited the applicant to comment on the validity of the application.[7] The Tribunal noted that:
(a)pursuant to subreg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations), the period in which the application for review of a Part 7 reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified; and
(b)in accordance with DZAFH v Minister for Immigration [2017] FCCA 387 (DZAFH), this prescribed period ‘commences on, and includes, the day the applicant is taken to have been notified of the decision’.[8]
[7] CB 142-144.
[8] CB 143.
On 1 June 2021, the applicant provided a written response to the Tribunal’s invitation in which he raised the following (reproduced without alteration):
… Firstly, I apologize for not submitting the application within the time limit as per mentioned earlier in the letter. I was not aware of the exact procedure for this application. Recently, I was briefed by my pals that I can make an appeal to the Administrative Appeals Tribunal.
I wish this will explains of what really happen. I will co-operate with AAT whenever its deemed necessary in the future. [9]
[9] CB 146.
On 16 June 2021, the Tribunal determined that it did not have jurisdiction in this matter. The applicant was notified of the Tribunal’s decision on 17 June 2021.[10]
[10] CB 147-153.
TRIBUNAL’S DECISION
The Tribunal noted that whilst the applicant was initially provided with the delegate’s decision on 14 January 2019, the applicant was properly notified of that decision on 6 June 2020.[11] In accordance with the decision in DZAFH, the Tribunal determined that the last day for lodging the review application was 3 July 2020.[12] The Tribunal concluded that as the review application was not received until 13 April 2021, it was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.[13]
[11] CB 153 at [6].
[12] CB 153 at [5] and [7].
[13] CB 153.
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of the originating application filed on 27 September 2021. That application was accompanied by an affidavit, attached to which were copies of the Tribunal’s decision dated 16 June 2021, and the delegate’s decision dated 14 January 2020. As the Tribunal’s decision was dated 16 June 2021, the applicant had until 21 July 2021 to bring this proceeding. Because the application was not filed until 27 September 2021, it was brought 67 days out of time.
The applicant was afforded the opportunity to file an amended application, any further affidavit evidence and written submissions. However, he did not avail himself of that opportunity.
CONSIDERATION
Returning to the application, the consequence of it having been filed late is that the Court must consider the two limbs of s 477(2) of the Act.
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 detailing why the extension should be granted.
In his originating application, the applicant sought leave of the Court to grant him an extension of time, relying on his affidavit in support of his claim. In his accompanying affidavit, the applicant stated that he was unable to obtain legal assistance between 16 June 2021 and 25 September 2021 due to his ‘limited English and restrictions related to COVID-19’.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may 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 principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15). In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’: see BTI15 at [40]. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
The extent of the delay and explanation for it
As stated above, the applicant’s delay in filing his judicial review application amounts to 67 days out of time.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay (see Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) per Wigney J at [38]; Jess v Scott (1986) 12 FCR 187 at [195]).
By way of his affidavit accompanying the application, the applicant contends that an extension should be granted because he was unable to obtain legal assistance between 16 June 2021 and 25 September 2021 due to his ‘limited English and restrictions related to COVID-19’. At hearing, the applicant chose not to expand upon these reasons for delay. Instead, the applicant offered an explanation that he thought a lady he knew had lodged his judicial review application in time, but she had not done so.
The Minister submits that the extent of the delay is moderate. Nevertheless, the Minister maintains that the applicant has not identified how pandemic-related restrictions, and his limited English language proficiency impeded his ability to file his judicial review application within time, noting the availability of electronic forms of lodgement. Further, the Minister observes that the applicant has not provided any documentary evidence in support of his explanation that he was unable to obtain assistance due to language barriers and COVID-19 restrictions: see DLE16 v Minister for Home Affairs [2019] FCA 136 at [23] per Derrington J. In any case, the Minister submits that a lack of legal advice is not, in and of itself, a sufficient reason for failure to make a judicial review within time: see Tran at [35] and SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J.
Having considered the parties’ submissions and the available evidence, I agree with the Minister and find that the applicant has not offered a satisfactory explanation for the delay in making this application. In particular, I note the distinct lack of documentary evidence before the Court as to the applicant’s claimed impediments towards lodging the present application within time insofar as they arose out of pandemic-related restrictions, the applicant’s limited English language proficiency and the applicant’s relationship with a lady whom he entrusted to file the application.
In the circumstances, both the extent of the moderate delay and the absence of an acceptable explanation for such delay are matters that weigh against a conclusion that it is necessary in the interests of the administration of justice to extend the 35-day period within which a judicial review application may be made.
Prejudice
The Minister concedes that they would not suffer substantial prejudice if the extension were to be granted. However, the Minister submits that the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
I consider this factor neutral regarding the grant of an extension.
Impact on the applicant
With regard to the impact upon the applicant, the applicant submits that if an extension of time is refused then he will be required to depart Australia, and this will result in him living apart from his wife and daughter who are Australian citizens. The Minister contends that this in itself is not a valid reason to extend time. While there is an absence of evidence before the Court in relation to the nature of the applicant’s Australian family composition, I am prepared to accept that he has relationships with such Australians and that such separation will have an adverse impact upon him.
Further, if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his protection visa application. 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). In my view, the impact upon the applicant is significant in that they would be returned to their country of nationality which is a circumstance they claim to fear.
Accordingly, I consider the adverse impact upon the applicant to be a matter weighing in favour of the grant of an extension.
Interests of the public at large
The Minister submits, and I agree, that any delay caused by the extension of time would undermine the public interest in the finality of decision making, which causes ‘some prejudice’ to the public at large: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J.
I consider this factor weighs somewhat against the grant of an extension.
Merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110. Importantly, an applicant need 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 that may warrant an extension being granted: see MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158.
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.
The applicant raises one ground of review in his application (reproduced below without alteration):
SOLE GROUND
The second respondent’s decision is affected by a jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]-[65].
Particulars:
That is, because the refusal notification letter did not clearly state the time by which the application to the second respondent was to be made as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth), the second respondent erred in concluding that the review application was out of time and was therefore wrong in determining that it had no jurisdiction to entertain the review application: see DFQ17 at [62].
The Minister acknowledges that the initial notification letter sent on 14 January 2019 was affected by error. However, the Minister notes that the applicant was properly re-notified of the decision not to grant him a protection visa on 6 June 2020, and that the Tribunal properly assessed the validity of this re-notification letter when it determined that it had no jurisdiction to review the matter.
The Minister submits that the re-notification letter complies with the requirements of s 66(2) of the Act because:
(a)it specified the criterion of the visa for which the grant of the visa was refused: s 66(2)(a);
(b)it contained written reasons why the criterion was not satisfied: s 66(2)(c); and
(c)under the subheading ‘Review Rights’, it stated:
(i)that the decision could be reviewed;
(ii)the time in which the application for review may be made, being a period of 28 calendar days that commenced at the end of the day the re-notification letter was sent to the applicant by email;
(iii)who could apply for the review, and
(iv)where the application for review could be made: s 66(2)(d); see also BMY18 v Minister for Immigration and Border Protection (2019) 271 FCR 517; [2019] FCAFC 189 at [18]-[19] per Reeves, Perram and Charlesworth JJ.
The Minister further submits that s 66(1) of the Act requires notification of the decision to be made ‘in the prescribed way,’ which may include the method of notification employed in this case whereby the decision was sent by email to ‘the last … email address… provided to the Minister for the purposes of receiving documents’: see s 494B(5)(d) of the Act and subreg 2.16(3) of the Regulations.
The Minister also submits that, in accordance with s 494C(5) of the Act, the applicant was taken to have been notified at the end of the day on which the email was transmitted, being 6 June 2020. Accordingly, the Minister submits that pursuant to reg 4.31 of the Regulations, the Tribunal correctly found that the timeline for applying for a review expired on 3 July 2020, and that as the review application was not received until 13 April 2021, it had no jurisdiction to review the decision.[14]
[14] CB 153 at [6]-[7].
The Minister further submits that it is well established that the Tribunal has no power or discretion to extend the timeline for the making of a valid application for review: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [83] per McKerracher, Reeves and Thawley JJ; SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 at [3] per Heydon J; Rana v Minister for Immigration and Border Protection [2014] FCA 1233 at [3] per Wigney J.
Upon examination of the re-notification letter dated 6 June 2021, I agree with the Minister’s submissions and find that the Tribunal did not err when it found that it did not have jurisdiction in this particular case. Accordingly, the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.
CONCLUSION
As the application in this case is 67 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay and lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter. I therefore dismiss the application.
COSTS
Personal costs order against Mr Abu Siddque
At the commencement of the hearing before this Court, the applicant’s lawyer, Mr Abu Siddque, sought leave to withdraw from the record. Mr Siddque told the Court that he had terminated his provision of services to the applicant on 24 January 2025 but was unable to proffer any coherent explanation as to why he had been unable to comply with the requirements governing his withdrawal as set out in Part 9 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
The Minister did not oppose the grant of leave but submitted that Mr Siddque’s failure to file and serve a notice of intention to withdraw in accordance with rule 9.03 of the GFL Rules should result in Mr Siddque paying the Minister’s costs thrown away in the sum of $400.
Mr Siddque acknowledged and apologised to the Court for his non-compliance with the GFL Rules but did not make any submissions in relation to whether a costs order should be made against him because of undue delay, negligence, improper conduct or other misconduct or default. Instead, Mr Siddque told the Court that he did not oppose the Minister’s submission that a personal costs order in the sum of $400 be made against him.
At hearing, pursuant to r 9.03(2) of the GFL Rules, I granted leave to Mr Siddque to withdraw from the proceedings effective from the commencement of the hearing on 29 January 2025.
Having considered the parties’ submissions and the degree to which Mr Siddque’s withdrawal from the proceedings at the outset of the hearing caused that hearing to not proceed conveniently, pursuant to r 22.06(2)(b) of the GFL Rules, it is appropriate in the circumstances of this case that Mr Siddque pay the first respondent’s costs thrown away in the sum of $400 due to his failure to file and serve a notice of intention to withdraw as required by r 9.03 of the GFL Rules.
Costs of the proceeding
At hearing, the applicant indicated that he had not incurred any costs in bringing the present application but indicated that he may incur costs once the outcome of his case is known.
By contrast, the Minister seeks costs fixed in the sum of $4,189.38 in connection with the present application. It was submitted that this amount is reasonable in the circumstances, as it reflects approximately 60% of the first respondent’s costs incurred to date and aligns with the amount currently fixed for a matter which concludes at an interlocutory stage as set out in Pt 2, Div 1 of Sch 2 to the GFL Rules.
I find the amount sought by the Minister to be reasonable, taking into account:
(a)the work undertaken by the Minister in the preparation of the Court Book, pre-hearing written submissions and a bundle of authorities; and
(b)the Minister having to, at short notice, adapt their approach towards the making of oral submissions at hearing due to Mr Siddque’s withdrawal from proceedings.
I therefore order that the applicant pay the first respondent’s costs and disbursements of and incidental to these proceedings fixed in the amount of $4,189.38.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 5 February 2025
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