EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 402
•24 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402
File number(s): MLG 2392 of 2018 Judgment of: JUDGE CORBETT Date of judgment: 24 March 2025 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa – application for an extension of time to seek judicial review – no reasonable explanation for delay – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 477(2), 477(1), 477(2)(b), 426A(1A)(a), 36, 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)-(6), 5K-LA, s 499, 36(2)(a), 36(2)(aa), 36(2), 426(1A)(b)
Migration Regulations 1994 (Cth) Sch 2
Cases cited: BCL21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 984
DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173
Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZUWX v Minister for Border Protection (2016) 238 FCR 458
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) 276 CLR 579; [2022] HCA 28
WQRJ v Minister for Immigration, Citizenship, Migrant Serviced and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 27 February 2025 Date of hearing: 27 February 2025 Place: Melbourne Solicitor for the Applicant The applicant appeared self-represented Solicitor for the Respondents Mr M Plitsch, Australian Government Solicitor ORDERS
MLG 2392 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
24 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The application for an extension of time to seek judicial review filed 10 August 2018 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $4,189.38.
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 CORBETT
The applicant seeks an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) within which to seek judicial review of a decision of the second respondent (Tribunal) made 27 September 2016. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
The application for judicial review was filed 21 months after the time limit prescribed by s 477(1) of the Act.
To obtain an order extending the time within which to file an application, the Court must be satisfied that it is necessary in the interests of the administration of justice to make an order for an extension of time (s 477(2)(b) of the Act).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicant is a Malay citizen. He arrived in Australia on 13 November 2015 as the holder of a tourist/visitor visa (CB 29, 47).
On 31 December 2015, the applicant applied for the visa (CB 9-45).
In the application for the visa, the applicant made claims that he had a relationship in Malaysia with a married woman. The applicant alleged that the married woman’s husband discovered the relationship and would find and kill him if he was to return to Malaysia (CB 40-2).
On 22 March 2016, the delegate of the Minister refused to grant the applicant the visa (CB 75-83). The delegate found that the applicant could access effective state protection from the harm he claimed to fear (CB 75-83).
On 7 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 84-90).
On 25 August 2016, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments scheduled for 26 September 2016 (CB 94-6). The invitation attached a ‘Response to hearing invitation’ form and invited the applicant to provide further information to support his application for protection.
The applicant did not respond to the invitation and did not attend the hearing on 26 September 2015 (CB 97).
On 27 September 2016, the Tribunal dismissed the application for review pursuant to s 426A(1A)(a) of the Act and affirmed the delegate’s decision to refuse to grant the visa (Decision) (CB 103-11).
TRIBUNAL DECISION
In the Decision, the Tribunal referred to the invitation to attend and the applicant’s failure to respond or engage with the Tribunal. In the circumstances, the Tribunal elected to make a decision on the review without taking any further action to enable the applicant to appear (CB 105 [3]).
The Tribunal then identified the primary criteria for the grant of a Protection visa as set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). It acknowledged that an applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class (CB 105 [4]).
The Tribunal considered the meaning of a ‘refugee’ under ss 5H(1)(a) and 5H(1)(b) of the Act and considered the meaning of a well-founded fear of persecution under ss 5J(1), 5J(2)-(6) and 5K-LA of the Act (CB 105 [5]-[7]).
The Tribunal correctly identified that in accordance with Ministerial Direction No. 56 made under s 499 of the Act, the Tribunal must consider the policy guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (CB 106 [109]).
The Tribunal considered the evidence and claims as set out in the applicant’s visa application. It acknowledged the applicant’s claim in the application form that he left Malaysia because someone wants to kill him for having a romantic relationship with their wife. It considered the applicant’s claims that the wife is the applicant’s best friend and that “he made the mistake of sleeping with her”. The Tribunal took into account the applicant’s claims that the husband “caught them” at the applicant’s house, that the husband’s family will search for and kill the applicant, and that they lived in the same village. The Tribunal considered the applicant’s evidence that the husband hit the applicant with his car whilst the applicant was riding his motorbike to work (CB 106 [11]).
The Tribunal also considered the applicant’s evidence that he did not seek help from the Malaysian authorities because he “is shy” because his acts were wrong and forbidden in Islam, noting that Malaysia is an Islamic country. The applicant claims that the wife told the applicant not to return to Malaysia because the “husband will know he has returned” as Malaysia is small and it will be easy for the husband to locate him (CB 106 [11]).
The Tribunal assessed the applicant’s evidence and found it to be brief and contained a very basic level of detail of the events the applicant claims led him to seek protection. The Tribunal made the following assessment at paragraph [13] of the Decision (CB 106 [13]:
[13]…while the applicant claims he had a relationship with a married woman, he has not provided any further details such as when and how this relationship started or when the woman’s husband allegedly found out. The applicant was on notice that the tribunal was unable to make a favourable decision upon the evidence before it in relation to his application. However, he has not provided any further information nor has he given the tribunal an opportunity to explore or test his claims due to his non-attendance at the scheduled hearing. This has left many questions regarding the applicant’s previous and future circumstances unanswered.
The Tribunal made the following findings at paragraphs [15] and [16] of the Decision (CB 107 [15]-[16]):
[15] However, given the lack of further detail in the applicant’s claims, the tribunal does not accept that the applicant slept with or had an affair with a married woman, who is his best friend and lives in the same village. Given this finding and the limited evidence before it, the tribunal does not accept that the woman’s husband caught them when his wife went to the applicant’s house. Given these findings and the lack of any further details about the alleged incidents of harm including when they occurred, the tribunal does not accept that the woman’s husband hit the applicant with his car or that the applicant’s lover is or was in critical condition in hospital after being punished by her husband. As the tribunal does not accept that these events occurred, it also does not accept that the applicant did not seek help from police because he was either shy or knew what he did was wrong.
[16] Given its above findings, the tribunal does not accept that the applicant’s lover told him not to return to Malaysia because her husband will find out. It does not accept that the applicant left Malaysia because his lover’s husband wants to kill him for having a relationship with his wife and does not accept that the husband’s family will search and kill him, in light of other findings made above.
The Tribunal accepted that the evidence indicates that sharia law is applicable to Muslims in Malaysia and prohibits adultery, but it did not accept on the evidence before it that the applicant in fact had a relationship with a married woman. The Tribunal found that the applicant does not face a real chance or risk of being arrested, charged or punished with any such offences under sharia or other Malaysian laws, and does not face harm from the husband or anyone else for any of the reasons set out in s 5J(1)(a) of the Act (CB 107 [17]-[18]).
The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations and does not meet the refugee criterion in s 36(2)(a), or the alternative criterion in s 36(2)(aa) (CB 107 [20]-[21]). The Tribunal found that the applicant did not satisfy the criterion in s 36(2) of the Act (CB 108 [22]). The decision of the delegate was affirmed.
On 10 August 2018, the applicant sought an extension of time to seek judicial review in this Court. The application for judicial review was filed with this Court 21 months after the 35-day time prescribed by s 477(1) of the Act.
PROCEEDINGS IN THIS COURT
The applicant’s grounds for an extension of time to seek judicial review are as follows (verbatim) (CB 3-4):
1.I was assisted by unlicensed migrant agency to make my Protection visa application. He took money from me to do that. He took $250.00 from me.
2.I have not received full advise and process of Protection visa application due to unsilenced migrant agency ran away.
3.I have not received an AAT decision record, therefore on 26 June 2018 I have lodged FOI to request all my documents from AAT after consultation with Migrant Agency.
The application for judicial review in this Court which set out the following grounds for review (verbatim) (CB 4):
1.The Administrative Appeals Tribunal (the Tribunal) failed to take into account the threat that I will be physically harm by husband of married woman in Malaysia.
2.The Tribunal failed to consider to reschedule the hearing date when I requested. Because I need to prepare to present my claims.
3.I have not had a chance to explain my real threat if I come back my country base on my relationship with married woman.
4.I am not satisfy that Member said I will not punish with any offences under Muslim law or Malaysian law.
The application for an extension of time and the application for judicial review was supported by an affidavit of the applicant affirmed 10 August 2018, which simply annexed the Tribunal’s Decision Record (CB 7). The affidavit did not explain the delay in filing the application or any reason for that delay.
On 19 February 2020, a Registrar of this Court made orders directing the applicant to file written submissions, any amended application and evidence 28 days before the hearing before this Court. The applicant did not, however, avail himself to that opportunity.
The application for an extension of time listed for hearing before this Court at Melbourne on 27 February 2025. The applicant appeared self-represented and was assisted by an interpreter fluent in the Malay and English languages.
Mr Plitsch, solicitor, appeared on behalf of the Minister.
The Court confirmed at the hearing that the applicant received a copy of the Court Book and the Minister’s outline of written submissions dated 5 February 2025.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to elaborate on his application for an extension of time.
The Court asked the applicant why his application for judicial review was late by 647 days. In response, the applicant told the Court, “because at the time my English was not that fluent and I misunderstood. I was relying on information given to me by a friend”.
The Court queried why it took the applicant some two years to seek assistance about his application to the Tribunal. In response, the applicant said, “during that period I had a friend who helped me make an application and I paid this person for me to get my visa, but I was cheated some thousands of dollars”.
The Court asked who this person was, and the applicant informed the Court that the person was “known as Azri”. The applicant then submitted that he “waited a long time, nothing happened, he had already taken my money, I heard from a lot of people in the same boat as me that he took the money and absconded”.
The Court inquired why the applicant did not appear at the hearing before the Tribunal, to which the applicant replied, “as I said earlier, I misunderstood the hearing date and did not understand the process, consequently, I missed my hearing at the Tribunal”.
The Court informed the applicant that the delegate of the Minister dismissed the application for the visa because there was insufficient evidence before it to find that the applicant required protection. The Court then inquired what other evidence the applicant could have provided had he appeared before the Tribunal, to which the applicant said, “I did not give anything to the Tribunal but now I have a bit of evidence, a letter that I would like to present to your Honour”. The applicant sought to produce the letter to the Court, however, Mr Plitsch objected to the tender of the document on the grounds of relevance because it did not relate to the delay in filing the application, was too late and did not identifying jurisdictional error by the Tribunal. The Court did not receive the letter as evidence.
The applicant submitted that he “cannot say anything because it was my mistake not attending and failing to submit my evidence to the Tribunal”.
MINISTER’S SUBMISSIONS
The solicitor for the Minister relied on the Minister’s outline of submissions filed 5 February 2025 and tendered an affidavit of Michelle Elizabeth Stone, solicitor, affirmed 6 January 2025, which was marked exhibit “R2”. The affidavit deposed to the content of the Tribunal file that disclosed that there was no response to the letter of invitation and no engagement by the applicant with the Tribunal until a freedom of information request was made on behalf of the applicant in June 2018.
On behalf of the Minister, Mr Plitsch submitted that when determining whether to extend time, the Court will ordinarily take into consideration whether there has been a reasonable and adequate explanation for the delay, whether there is any prejudice to the Minister and whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48]). It was emphasised that it must be necessary in the administration of justice to grant the applicant an extension of time to seek judicial review.
Mr Plitsch also referred the Court to the High Court’s decision in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu’uta Katoa) and the principles identified by the Court at [15], [18], [19] and [20] of that decision.
Mr Piltsch then took the Court to BCL21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 984, in which Judge Gerard recently said at paragraph [20]:
[20] Turning first to the delay of 395 days, it is clear that is, by any measure, a delay of some significance. Absent any satisfactory explanation, a delay of this length would itself be a sufficient basis to refuse the application for an extension of time (Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]).
It was submitted that the delay of 21 months was significant and was not adequately explained by the applicant. The applicant’s explanation from the bar table for the delay in filing, namely that a “friend” or agent absconded and did not properly advise him of the Tribunal hearing date, could not be reconciled with the fact that the applicant used the same email address for his application for the visa (CB 15), the review application with the Tribunal (CB 84) and his judicial review application in this Court (CB 2). The solicitor for the Minister submitted that the Courts have made clear that the onus rests on the applicant to ascertain their review rights and to comply with them accordingly.
Mr Plitsch then referred to the affidavit of Ms Stone to establish that the applicant had been properly notified of the Decision and informed of his rights, including available interpretation services.
On the merits of the application for judicial review, the Court invited Mr Plitsch to address the decision of Justice Horan in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17), noting that this was referred to in the Minister’s outline of submissions and had some factual similarities to the Decision.
In DNK17, Horan J held that it was unreasonable for the Tribunal to exercise its discretion to make a decision on the review pursuant to s 426A(1A)(a) of the Act, as opposed to exercising its discretion to simply dismiss the application under s 426(1A)(b), in circumstances where the Tribunal did not provide reasons for why it chose to exercise the power to decide the application under s 426A(1A)(a) of the Act.
The Court also noted that the invitation letter dated 24 August 2016 (CB 95) in which the Tribunal informed the applicant that it had considered all the material before it but was unable to make a favourable decision on the information alone, was in the same terms as the invitation letter sent in DNK17 (CB 105).
The Minister’s primary submission was that DNK17 does not demand a conclusion that the Tribunal acted in a legally unreasonable manner in proceeding to determine the review under s 426A(1A)(a) of the Act. Each case is fact dependant. The facts in this case were different to DNK17 and the Tribunal acted reasonably in making the election to decide rather than dismiss.
Mr Plitsch submitted that the facts in this case were different to the facts in DNK17. In this case, the applicant did not respond to the Tribunal’s hearing invitation and did not engage with the Tribunal at all after lodging his review application. Mr Plitsch referred to the general principles in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at paragraph [84] in which Nettle and Gordon JJ said:
[84] Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
Mr Plitsch submitted that the outcome in DNK17 does not create the principle that it is unreasonable for a decision-maker to proceed under s 426A(1A)(a) of the Act where a review applicant fails to appear at a scheduled hearing. This conclusion was also reached by Judge Symons in Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 (Singh) at paragraphs [50]-[52]. Her Honour also concluded that it remains within the domain of the Tribunal’s decisional freedom to consider which of the available options is appropriate to the particular circumstances of each case. Judge Symons also found that in assessing the quality of a decision, the focus remains squarely on the reasons in fact given (see Singh at [51]).
Mr Plitsch also referred to two recent decision of Judge Gostencnik in EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 (EEV18) and DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38 (DDF18). In DDF18, his Honour said at [48]
[48] As earlier noted, at [14] of the Decision the Tribunal set out its reasons for proceeding to determine the review application in the applicant’s absence. In substance, the Tribunal reasoned that the applicant had not engaged with the Tribunal’s process. He was told the information before the Tribunal was insufficient, he was asked to provide further information, but he did not. He was invited to attend the hearing and reminded of the hearing on two subsequent occasions but failed to attend. He did not contact the Tribunal to explain his non-attendance and he was told that if he did not attend, the review application may be determined based on the material before the Tribunal. While there is no express reasons for choosing to exercise s 426A(1A)(a) power rather than (b) of the Act, it may reasonably be inferred that the Tribunal considered the applicant has not, and was not, going to engage with the process. This against the backdrop of also knowing he did not engage with the delegate. I therefore consider that the reasons given for exercising the power also provide sufficient reasons for electing to exercise that power rather than dismissal under s 426A(1A)(b). These reasons have an evident and intelligible basis for exercising the power under s 426A(1A)(a) rather than (b). Therefore, I do not consider a contention that jurisdictional error by reason of the unreasonable exercise of s 426A(1A)(a) power has any sufficient prospects of success.
It was submitted that in this case, the Tribunal did not expressly refer in the Decision to the discretion to proceed under either paragraphs (a) or (b) of s 426A(1A) of the Act or give reasons as to why it elected to decide rather than dismiss. However, the Tribunal was entitled to consider the review applicant’s level of engagement and the likelihood of the applicant seeking reinstatement (see SZVFW at paragraph [97]).
Mr Plitsch also drew the Court’s attention to the distinguishing factors between DNK17 and this proceeding, which could be found in paragraphs [23] and [26]-[29] of DNK17. At paragraph [23], Horan J highlighted that the applicant made a request for an adjournment which was subsequently granted, and that a further adjournment was sought on the morning of the hearing (to which the Tribunal refused and ultimately exercised its discretion to proceed with the review). It was submitted that Horan J found that although there might have been “understandable scepticism on the part of the Tribunal as to the genuineness of the appellant’s claims”, the appellant informed the Tribunal of the reasons as to why he did not attend the hearing (see DNK17 at paragraphs [107] and [29]). Given the procedural history in DNK17, it is possible that the appellant might have finally provided further information explaining his inability to attend the hearing and to elaborate on his claims and address any contradictions that were fatal to his review application (see DNK17 at paragraph [112]). Contrary to DNK17 where the appellant had engaged in his review application (by contacting the Tribunal for the purposes of seeking an adjournment), the applicant here did not engage at all with the Tribunal or the review process.
Mr Plitsch submitted that the Court should be comfortable to follow Singh, EEV18 and DDF18 in finding that it was not unreasonable for the Tribunal to proceed as it did to determine the merits of the application.
REPLY
The Court provided the applicant with a summary of the submissions made on behalf of the Minister and invited the applicant to respond. The applicant did not wish to do so and could not otherwise assist the Court.
CONSIDERATION
The Court has a broad discretion to grant an extension of time pursuant to s 477(2) of the Act. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-9 (Hunter Valley)). These considerations provide guidance and consistency in the approach to such applications, however, are not exhaustive considerations that the Court must contemplate (see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43]). The discretion to extend time in appropriate circumstances is unfettered (see Tu’uta Katoa at [12]).
Other than the “interests of the administration of justice” there are no mandatory relevant considerations (see SZUWX v Minister for Border Protection (2016) 238 FCR 458 at [11]-[12]). The focus of s 477(2) of the Act is not on the interests of the applicant, but the broader interests of the administration of justice. The Court may look at a myriad of facts and circumstances but the level of satisfaction 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 justice (see Tu’uta Katoa at [12]).
Delay
In Tran v Minister for Immigration and Border Protection [2014] FCA 533, Wigney J considered an application for an extension of time to bring an application for judicial review that was 18 months out of time. His Honour said at [38]:
The delay here is 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.
In this case, the delay of more than 21 months (or 647 days) is excessive and not properly explained by the applicant. The applicant asserted that he was misled by a “friend” about his application to the Tribunal but also says he simply “missed the hearing date”. There is no proper explanation given for why the applicant did not inquire as to the outcome of his application for review or why he did not seek assistance from any other source (apart from his “friend”) during the two-year period between filing the application for review with the Tribunal and ascertaining the result. There is also no explanation of why the applicant did not receive notification of the Decision when the address for service given by the applicant to the Tribunal is the same as the address given to the delegate and also to this Court.
In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, Foster J said at [38]:
[38] In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.
Given the length of the delay, the onus was on the applicant to provide a credible and persuasive explanation of why an extension of time was necessary in the interest of the administration of justice, which the applicant has failed to do. For this reason alone, the application for an extension must be dismissed.
Prejudice
There was no prejudice that was claimed to be suffered by the Minister but that is not conclusive (see Hunter Valley at 349 per Wilcox J and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]). There is an overarching public interest in the timely resolution of disputes and the need for procedural certainty when dealing with applications, especially in administrative law matters. In WQRJ v Minister for Immigration, Citizenship, Migrant Serviced and Multicultural Affairs [2021] FCA 736, Derrington J observed at paragraphs [40]–[44] in relation to a delay of 26 months:
[40] The Minister acknowledged that he would not suffer any specific prejudice if an extension of time were to be granted in this particular case. However, it is well established that the absence of such prejudice is not, of itself, sufficient to warrant extending time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].
[41] There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):
[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
[42] More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].
[43] In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister’s legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal’s decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.
[44] The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.
When coupled with the significant delay, the general prejudice to the timely administration of justice is also a persuasive reason not to grant an extension of time in this case.
Merits
The grounds for judicial review identified in the application filed 10 August 2018 express disagreement with the findings of the Tribunal and seek to impermissibly review the merits of the Decision. Ground one is misconceived. The Tribunal did consider the evidence of alleged harm at paragraphs [11] and [13] of the Decision (CB 106 [11], [13]). There was only limited evidence provided by the applicant. The invitation letter made plain that the Tribunal could not make a favourable decision based on the information provided, but the applicant did not respond or seek to supplement his claims. There was no apparent request for an adjournment of the hearing date before the Tribunal and the applicant simply did not attend or engage with the Tribunal at any time after filing the application for review. Ground two is therefore untenable. The applicant also had an opportunity to explain his claims for protection to both the delegate and the Tribunal. The applicant did not file any additional evidence to support his claim and did not attend the scheduled hearing. Ground three is therefore also unarguable. Ground four also asserts general disagreement with the Tribunal’s finding about available protection but there is no evidence to suggest the Tribunal considered irrelevant material or was mistaken as to the country information considered. No error is apparent from the grounds identified and each of the identified grounds is without merit.
DNK17
The only potentially arguable ground of review is that the Decision was unreasonable for the reasons articulated by Justice Horan in DNK17. The Minister as a model litigant was correct to raise that ground as a relevant consideration for the Court. However, for the reasons articulated by the solicitor for the Minister each case must be considered on the basis of its own facts and there are distinguishing facts in this case from the facts in DNK17 the most significant of which was the lack of engagement by the applicant with the Tribunal in this case.
In DNK17, the applicant did not appear at the scheduled hearing before the Tribunal, however before the hearing, the applicant made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the hearing. There was a clear attempt by the applicant to engage with the Tribunal and a clearly expressed desire to be heard. In this proceeding, the applicant did not engage with the Tribunal at all and did not respond to the invitation to attend or complete the ‘Response to hearing invitation’ form. There was no attempt to supplement the evidence upon which the delegate made the decision to refuse the visa and no new argument or submission made to explain the claims for protection.
DNK17 does not stand for the general proposition that it will always be unreasonable for the Tribunal to elect to make a decision on the review pursuant to s 426A(1A)(a) when an applicant fails to appear at a hearing. There would be no statutory purpose for that section of the Act if, in all circumstances, it was unreasonable for the Tribunal to exercise the power conferred. There is nothing in the reasoning in DNK17 to suggest that the power to decide rather than dismiss should not be exercised in appropriate cases.
The determinative issue in DNK17 was that the reasons of the Tribunal did not provide “an intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b) rather than making a decision on the review” (see DNK17 at [105]). In the present case paragraph [3] of the Decision explained the Tribunal’s reasons in this case for electing to decide rather than dismiss. The Tribunal did not give reasons as to why it did not consider dismissal under s 426A(1A)(b) as appropriate but that was not unreasonable in this case. As Judge Symons found in Singh at [54] “the narrative that underscored the Tribunal’s approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal”.
Similarly in DDF18 at [48] and EEV18 at [36], Judge Gostencnik found that the Tribunal’s reasoning, albeit it cursory, was sufficient in those cases and provided intelligible justification for the decision to proceed to decide under s 426A(1A)(a) rather than dismiss under s 426A(1A)(b). In both cases, the facts showed that the applicants did not engage with the Tribunal before the scheduled hearing or respond to invitations to appear. The decision to dismiss was not unreasonable in both cases.
As in those cases, the decision in DNK17 can be distinguished from the facts in this proceeding and there was no jurisdictional error in the approach adopted by the Tribunal in the Decision.
There is no merit in any of the grounds of review identified and therefore it is not necessary in the interests of justice to grant an extension of time. The delay here was significant and not adequately explained, but there are also no meritorious grounds of review available to the applicant. The application to extend time is dismissed.
COSTS
At the conclusion of the Minister’s submissions, Mr Plitsch submitted that, in the event that the application for an extension of time is dismissed, the applicant be ordered to pay the Minister’s costs fixed in the sum $4,189.38. That is the scale amount prescribed by Sch 2, Pt 2, Div 1, Item 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and is an appropriate sum in the circumstances of this application.
OTHER MATTERS
The name of the first respondent should be amended to Minister for Immigration and Multicultural Affairs pursuant to r 7.01 of the Rules.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is also to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
The name of the second respondent be amended to ‘Administrative Review Tribunal’.
The application for an extension of time to seek judicial review filed 10 August 2018 be dismissed.
The applicant pay the first respondent’s costs and disbursement of and incidental to the proceeding fixed in the amount of $4,189.38.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 24 March 2025
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