KGO24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1523
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
KGO24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1523
File number(s): SYG 3093 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 10 September 2025 Catchwords: MIGRATION – Review of Registrar’s summary dismissal decision – where originating application made out of time – Minister initially opposed extension of time and did not seek expedition of proceedings but later consented to extension and then sought summary dismissal which had effect of expedition – whether position of Minister contradictory – Registrar orders set aside Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) ss 56, 425, 426, 441A, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.03
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) rr 1.15, 3.06, 10.29
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
BTI15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 49
DXH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 382 ALR 246
Lamb v Sherman (2023) 298 FCR 79
Loga v Minister for Immigration and Citizenship [2025] FedCFamC2G 1518
Division: General Federal Law Number of paragraphs: 66 Date of hearing: 10 September 2025 Place: Sydney The Applicants: In person Solicitor for the Respondents: Mr Knuckey, HWLE Lawyers ORDERS
SYG 3093 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KGO24
First Applicant
KGP24
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.Any reference to the name of the second respondent must not be reproduced in the transcript of hearing of 10 September 2025.
2.The time for the making of the application seeking review of the orders of the Registrar made on 4 August 2025 is extended up to, and including, 5:00pm on 25 August 2025 (review application).
3.The orders made by the Registrar on 4 August 2025 are set aside.
4.Costs of, an incidental to, the review application made on 25 August 2025 are reserved.
5.The proceedings are listed for hearing before Judge Given at 10.15am on 8 December 2025.
6.The applicants must file and serve the following documents by 4:00pm on 29 October 2025:
(a)an amended application;
(b)any Affidavit evidence to be relied upon;
(c)a written outline of submissions (not exceeding 10 pages in length and not using footnotes), and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing; and
(d)a list of authorities
7.The first respondent must file and serve the following documents by 4:00pm on 26 November 2025:
(a)any Affidavit evidence to be relied upon;
(b)a written outline of submissions (not exceeding 10 pages in length and not using footnotes), and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing; and
(c)a list of authorities
8.If the applicant, are not represented by a lawyer, then at least 2 days before the hearing referred to in order 5 above, the first respondent must:
(a)provide to the Chambers of Judge Given a joint bundle of authorities; and
(b)file and serve an Affidavit pursuant to r 10.29 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) which evidences:
(i)service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and
(ii)any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
THE COURT NOTES THAT:
A. The hearing referred to at order 1 is to occur in person in court 13.1, level 13, 80
William Street, Woolloomooloo, 2011.
B. For the purposes of order 8(b) the annexures need not reproduce the sealed Court
documents in full.Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before the Court is an application for review of a decision of a Registrar who, on 4 August 2025, made an order summarily dismissing the applicants’ application for judicial review application (summary dismissal order).
At the time that the Registrar made the summary dismissal order, he had power to do so pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), read together with r 21.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (former Rules). In particular, Item 58 of Table 21.1, that delegates to the Registrar the power under r 13.13 of the former Rules to order that a proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceedings. The combined effect of the aforementioned provisions was that the Registrar had delegated power to summarily dismiss the proceedings at the time at which he did so.
Section 256 of the Court Act has the effect that a party to a proceeding in which the Registrar has exercised delegated powers under s 254 of the Court Act, may apply to the Court for review of the exercise of that delegated power, within a prescribed time.
On 1 September 2025, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) commenced. While r 21.02 of the former Rules provided that an application for review pursuant to s 256(1) of the Court Act must be made to the Court within seven days, r 3.06(1) of the Rules now provides:
Time for application for review
(1) The application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power is exercised.
By reference to the date of the summary dismissal order, any application to this Court for review thereof was required to have been made by 4:30pm on 11 August 2025. Accordingly, the application for review, which was made at 4:58pm on 25 August 2025, was 15 days out of time. That is because, having been filed after 4:30pm on 25 August 2025, it is taken to have been made on 26 August 2025: Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ. Had the current Rules applied at the time, which they did not, the review application would have been deemed as being one day out of time.
Background
The background for this matter has been derived from the first respondents written submissions that does not appear to be in dispute.
The applicants are citizens of India (Court Book (CB) 66). The first applicant (applicant) is the mother of the second applicant. The applicants last arrived in Australia on Subclass 600 (Visitor) visas (CB 67).
On 21 May 2018, the applicants lodged applications for a Protection (subclass 866) visa (visa) (CB 1 to 27). The applicants' claims primarily related to the arrest and imprisonment of the applicant's son in India (CB 20 to 22 and 29). The applicants appointed their migration agent as their authorised recipient (CB 9 to 10).
On 7 February 2019, the applicants withdrew their authorisation the migration agent to act as authorised recipient (CB 52).
On 2 August 2019, a delegate of the Minister (delegate) invited the applicants, pursuant to s 56 of the Migration Act 1958 (Cth) (Act), to provide information in support of the protection claims (CB 54 to 60). The applicants did not respond.
On 17 September 2019, the delegate refused to grant the protection visas (CB 62 to 70).
On 1 October 2019, the applicants applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision (CB 75 to 77). The applicants again appointed the migration agent referred to at [8] and [9] above as their representative (CB 76 to 77).
On 26 June 2020, the applicants provided a Change of Contact Details - MR Division form, withdrawing authorisation for the migration agent to act as their authorised recipient, and provided a gmail address (nominated email address) and mobile phone number (nominated telephone number) as their addresses for correspondence in connection with the review (CB 88 to 89).
On 18 March 2022 and 16 October 2022, the applicant sent emails from the nominated email address to the Tribunal to request Medicare letters (Supplementary Court Book (SCB) 1 to 6). On 18 December 2023, the applicant wrote (from the nominated email address) to the Tribunal to update her passport details (CB 94 to 98).
On 31 July 2024, the Tribunal invited the applicants to aa hearing scheduled for 19 September 2024 (CB 100 to 107). The applicants provided the Response to Hearing Invitation form, dated 8 September 2024, which (CB 108 to 110):
(a)indicated that the applicants would attend the hearing;
(b)requested the assistance of an interpreter in the Punjabi language;
(c)requested the Tribunal take evidence from the applicant's husband; and
(d)foreshadowed the provision of further evidence.
On each of 12 September 2024 and 18 September 2024, the Tribunal sent SMS hearing reminders to the nominated telephone number (CB 126).
The Tribunal’s case notes and Hearing Record indicate that the Tribunal unsuccessfully attempted to call the applicant using the nominated telephone number at 1:30pm and 1:50pm, and thereafter cancelled the scheduled hearing on the basis of the non-appearance (CB 111 and 126).
On 20 September 2024, the Tribunal dismissed the application, pursuant to s 426A(1A)(b) of the Act (CB 118 to 119). On the same day, the Tribunal sent an email to the applicants’ nominated email address, notifying them of the dismissal decision, and, inter alia informed them that they could seek reinstatement by 4 October 2024 (CB 115 to 121). No response or reinstatement application was received in time, or at all.
On 8 October 2024, the Tribunal confirmed the dismissal decision, pursuant to s 426A(1E) (CB 124 to 125). On 9 October 2024, the Tribunal sent an email to the nominated email address, notifying the applicants of that confirmation decision (CB 122 to 125).
Tribunal decisions
Dismissal Decision
The Tribunal observed that the applicants had been invited to a hearing pursuant to s 425, and that the invitation to attend a hearing explicitly informed the applicants that if they failed to attend the hearing, the Tribunal may exercise its discretion to dismiss the application without further consideration of the application or any information currently before it (CB 118 at [1]).
The Tribunal was satisfied the invitation to the hearing was sent to the nominated email address in accordance with s 441A(5)(b). There was also no indication the invitation had been returned as undeliverable (CB 118 to 119 at [2]).
In finding that there was sufficient evidence to conclude that the applicants were aware of the scheduled hearing, the Tribunal relied on:
(a)the hearing invitation, which was sent to the nominated email address;
(b)the Response to Hearing Invitation form, which indicated the applicants' intention to attend the hearing, and their request for the Tribunal to receive evidence from a witness; and
(c)the two SMS reminders sent to the nominated telephone number (CB 118 to 119 at [2]).
The Tribunal noted that, upon the applicants' failure to attend the hearing, it had unsuccessfully attempted to reach them via the nominated telephone number on two separate occasions (CB 119 at [3]).
The Tribunal concluded that “all reasonable attempts were made to contact the review applicants upon their non-attendance at the hearing.” Considering the applicants had completed the Response to Hearing Invitation form, the Tribunal took the view that is was appropriate to exercise its discretion under s 426A(1A)(b), rather than resolving the matter based solely on the existing documentary evidence, as permitted under s 426A(1A)(a). This approach was adopted to afford the applicants an additional opportunity to apply for reinstatement (CB 119 at [4]).
Confirmation decision
The Tribunal noted that upon the applicants' failure to appear before it to give evidence and present arguments at the specified time and date of the scheduled hearing it had exercised its discretion to dismiss the application pursuant to s 426A(1A)(b) (CB 118 to 119 at [2]).
The Tribunal recorded having notified the applicants of the dismissal decision, and in accordance with s 426B(5), provided them with a written statement outlining the decision. Additionally, the applicants had been advised of their right to seek reinstatement within a period of 14 days. The notification had also made clear that a failure to apply for reinstatement within the specified timeframe would have resulted in the confirmation of the dismissal decision (CB 119 at [3]).
The Tribunal observed that the applicants had not sought reinstatement and, consequently, it was obligated to confirm the dismissal decision (CB 119 at [4] to [5]).
APPLICATION BEFORE THE COURT
The applicants commenced the instant proceedings on 18 November 2024 by an application for extension of time in which to seek judicial review.
On 3 January 2024, the respondent filed a Response, which states:
(a)under the heading “Further orders sought by First Respondent”, it was stated:
1. The application be dismissed by summary dismissal under rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. In the alternative, the application be dismissed for failure to establish jurisdictional error on the part of the Second Respondent.
3. The First Applicant and Second Applicant to pay the First Respondent's costs
(b)under the heading “Further Matters Raised by First Respondent” it was stated:
…
2. The first respondent does not believe the matter requires expedition.
(c)under the heading “Grounds of opposition or further orders” it was stated:
…
3. Pursuant to section 477 of the Act, an application for judicial review was required to be filed within 35 days of the date of the migration decision. This 35 day period ended on 12 November 2024. Accordingly, the application filed on 18 November 2024 is 6 days out of time and requires an extension of time. The First Respondent says that it is not necessary in the interests of the administration of justice for time to be extended and that the application for extension of time should be summarily dismissed.
On 19 May 2025, the parties appeared before a Registrar by telephone for callover. The applicants were assisted by an interpreter in the Punjabi language. The proceedings were adjourned until 3 June 2025, on which occasion the proceedings were again called over by telephone. The order made on that day, which records the appearances of the parties, shows there being no appearance by, or for, the applicants. The Minister was represented by a solicitor (being a solicitor other than he who appears before me this afternoon).
On 3 June 2025, the Registrar made orders by consent (Registrar Orders), orders 1 and 2 which were as follows:
1.Pursuant to section 477(2) of the Migration Act 1958 (Cth), the time for filing an application be extended up to and including, 18 November 2024.
2.The first respondent’s application for summary dismissal be listed for hearing before Judicial Registrar Rohan on a date to be advised.
It is unclear how order 1 of the Registrar Orders was made by consent, given the absence of the applicants at the callover and, while making no criticism of the solicitor who appears for the Minister today, he also could not shed any light on that issue. There is also no record of the solicitor who appeared for the Minister on 3 June 2025 having mentioned the appearance of the applicants, nor is there any correspondence that I can see on the Court file which evidences the provision of proposed consent orders to the Court, countersigned by the applicants to indicate their consent.
There is no record in (or surrounding) the Registrar Orders, including in the written submissions (filed in support of the summary dismissal application nor those filed for the first respondent in respect of the review application), to evidence the basis upon which the first respondent was prepared to consent to the extension of time. I will return to this shortly.
As at 3 June 2025, pursuant to r 21.01 and Item 90 of Table 21.1 of the former Rules, the Registrar had delegated power to extend time pursuant to s 477(2) of the Act by consent. In the interests of completeness, it is sensible to record that said delegation has since been repealed upon commencement of the current Rules. However, that repeal does not affect the order of the Registrar at the time that it was made.
Time having been extended, the parties appeared by video link before the Registrar on 4 August 2025 for hearing of the first respondent's summary dismissal application. The first and second applicants were again assisted by an interpreter in the Punjabi language. On that occasion, the summary dismissal order was made in the following terms (error in original):
THE COURT ORDERS THAT:
1.Pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the application for judicial review filed on 28 November 2024 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
THE COURT NOTES THAT:
A. Oral reasons were given in relation to these orders, a written version of which may be provided upon request.
To the extent that the Registrar gave reasons, they do not appear to have been reduced to writing. in any event, I would not have had regard to them on the basis discussed in AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [24] (see (37] below]) (AHH22).
On 25 August 2025, the review application was filed together with a purported Affidavit in support. On 26 August 2025, the review application was docketed to me, and I made orders listing that hearing for 2:15pm today before me, in accordance with r 3.06(3) of the Rules, which requires that an application be heard within 28 days of its filing. Despite being slightly outside of the 14 days ideally prescribed by r 21.03 of the former Rules, it was the first, practicably available date in my diary.
The applicants filed the following documents on 3 September 2025:
(a)an application in a proceeding, which apparently seeks a stay of the summary dismissal Orders, presumably in order to counter r 1.15 of the current Rules;
(b)a further purported Affidavit; and
(c)a lengthy document, which is titled as a Statement of Claim.
In AHH22, I considered the principles relevant to whether to extend time in Registrar reviews by reference to a number of authorities, at [6] and [21]:
Extension of time
6. By his written submissions, the Minister says that the application for review of a Registrar’s decision filed out of time is incompetent because no extension of time has been sought. The Minister says that this procedural irregularity is, of itself, a sufficient basis for the application to be dismissed, citing the following decisions of his Honour Judge Vasta:
(a) Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616 at [15] ;
(b) Khurana v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 1068 at [11] to [12];
(c) Winn v Registrar Morgan [2022] FedCFamC2G 252 at [14] ; and
(d) Brar v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 846 at [17] .
…
21. Each case must be considered on its own facts and circumstances ... in the full context in which the review arises…
By their review application, and the documents filed in support, the applicants have at no time formally applied for the time in which the review application was to be made to be extended. However, they have appeared before me this afternoon and, with the benefit of an interpreter in the Punjabi language, have confirmed from the Bar table that they do seek such an extension, even if that were not already implicit: see AHH22 (supra) at [9].
As to the explanation for delay, the applicants made various submissions to the effect that they have been assisted throughout these proceedings by a solicitor. Said solicitor is apparently located in India. There is no record on any of the documents prepared or filed for the applicants of the involvement of any person other than them, and I note that footer of each of the documents the forms says that they were prepared by the applicant "Himself".
Having read their documents and garnered an impression that the applicants may have been prepared using generative artificial intelligence, I asked them as to whether or not that was the case. The applicants were adamant, and I accept, that these documents have been prepared by a solicitor in India. That does not preclude the use of such artificial intelligence perhaps by him, but I accept the applicants did not prepare the documents. They also indicated to me that said solicitor has been filing all of the documents for them in these proceedings. Arguably, that is not assisting them. In any event, that is a matter for them.
The applicants' explanation for their delay in failing to make the review application in time was that when they received an email saying that their application was dismissed, they told their lawyer in India and, because the applicant is not educated, relied on what he told them. The applicants say that the lawyer informed them that, after adding some more documents, they should be able to ask the Court to extend the time for the review application.
The delay in seeking review is not particularly lengthy, albeit it is double the period of the time in which to apply for review under the former Rules. That said, it is also barely outside of the time now allowed by the current Rules, and I note there is no particular prejudice claimed by the Minister.
Even though no formal explanation has been proffered (other than from the Bar table) and because of the matters that I am about to address, I am of the view that this review application was made, and heard, in a reasonably unique period of time. Namely the review application spans the application of former Rules and the commencement of the new Rules, in circumstances where there was a significant change to the former Rules in relation to the time periods which attend review applications. Accordingly, I am of the view that in the circumstances of this case it is necessary in the interest of the administration of justice that time should be extended for the review application. In the exercise of my discretion, I will so order.
Time having been extended, the Court has before it a competent application for review of the Registrar's decision taken in accordance with a delegated power: AHH22 at [23] to [26] this Court said the following about the review task:
23. As is now well-established, the exercise of the Registrar’s delegated power derives its validity from the availability of review by a judge of this Court: see Bechara v Bates (2021) 286 FCR 166 at [3] per Allsop CJ, Markovic and Colvin JJ The Registrar’s order, which was made on 10 November 2022, took effect as though it were an order of a judge of this Court, on the basis that a judge may be asked to make an order in place of the exercise of delegated authority.
24. While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Becharav Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 , were helpfully distilled by the Full Court in Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
25. While the cases referred to in [23] and [24] above were each concerned with a review of a Registrar’s decision in the bankruptcy jurisdiction of the Court, the principles discussed in those cases have relevance to a review of a Registrar’s decision in a migration proceeding. Where a Registrar of this Court has dismissed an application for judicial review in a migration decision, the Court is not reviewing the decision of the Registrar to ascertain its correctness. Rather, the Court hears the application for summary dismissal again itself, unaffected by what has gone before. The Court is also able to take whatever evidence, and have regard to any documents, that are required: see Kaur, Khurana, Winn and Brar(supra).
26. Despite being an application by the applicant for review of a Registrar’s decision, the moving party before the Court this morning is, in reality, the Minister, seeking summary dismissal even though the applicant has advanced the review application.
By their review application, the applicants seek the following:
1.The applicant seeks an order that the order made by the Registrar, dated 04.08.2025 be stayed during the pendency of the review application.
Given the applicants are unrepresented, and while making no particular criticism of the aforementioned prayer for relief, it does appear to conflate matters. As I explained to the applicants at the commencement of the hearing, on review the Court is hearing the Minister's summary dismissal application de novo. The corollary of this is likely that:
(a)the Court would either reach the same decision as the Registrar, in which case the proceeding would stand dismissed; or
(b)in the event that the Court did not so conclude, and was of the view that the proceeding should not be dismissed, it would likely be listed for a final hearing at which the Court would consider whether the decision of the Tribunal is affected by jurisdictional error.
If I was so satisfied that the decision was affected by jurisdictional error, it could only then be that writs would issue to remit the matter to the Tribunal for redetermination according to law.
In support of their Application for Review, the applicants rely on the following Affidavits, which, while not being the subject of formal objection by the first respondent, have been rejected by the Court on the basis that they are not properly executed. I say that because each of them purports to be an Affidavit of the applicants jointly: see Loga v Minister for Immigration and Citizenship [2025] FedCFamC2G 1518 at [25a]. In any event, I have treated them as written submissions, and the applicants indicated that they had no objection to that treatment.
The purported Affidavits are:
(a)filed in support of the review application on 25 August 2025; and
(b)then two further purported Affidavits of the applicants jointly filed on 3 September 2025.
For the first respondent the following Affidavits of Simon Knuckey were read:
(a)made on 9 September 2025, relating to the service of the Supplementary Court Book; and
(b)made on 9 September 2025 relating to service of other documents in the case.
The Court Book was tendered and marked as Exhibit “1R” and the Supplementary Court Book was tendered and marked as Exhibit “2R”. There were no objections to the tender of either.
At the commencement of the hearing, I sought to explore with the solicitor for the first respondent a tension which exists in respect of the Minister's position in the proceedings at large.
It will be observed from the background which I have already set out that the originating application was made out of time. The first respondent opposed time being extended but, simultaneously, by his response, sought that the application be summarily dismissed.
Later, with no particular explanation to the Court, orders were sought by consent for time to be extended, and I have already addressed the circumstances in which there are some questions as to how that consent was conveyed or the Registrar was satisfied of it. The order was made. However, as I observed in AHH22, albeit in the context of a discretion to extend time for a Registrar review, at [13]:
In respect of the parties’ consent, which is provided as an alternative in r 21.02(2)(b), even if the parties were to consent to an extension of time, the Court retains its discretion: see Balakrishnan v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 138 at [35] to [36]. The Court would take any consent by a respondent into account as being a relevant consideration to the exercise of its discretion to extend time in this context, but it is not necessarily a determinative factor.
Section 477(2) of the Act states:
The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) 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.
Firstly, the parties' consent to an order being pursuant to s 477 of the Act was a precondition to the Registrar's delegated power, because he was not able to otherwise make an order extending time if it was not by consent. As discussed above, there is no evidence before me to record that consent having been conveyed and, as such there is a question as to whether the delegation was properly enlivened. Even assuming that it was a proper delegation, the parties were not able to reach the requisite state of satisfaction for the Registrar, simply by the act of their consenting. Other than what I have been told from the Bar table today by the solicitor for the Minister, no reasons have been provided to explain how, or on what basis, the Registrar reached the requisite state of satisfaction that, for the purposes of s 477(2)(b) of the Act, that it was necessary, in the interests of the administration of justice, to make the order.
While s 477(2) does not prescribe factors which mandatorily fall for consideration in determining whether to exercise that discretion[1] the task for the Court is:[2]
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.
[1] see BTI15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 49 per Logan J at [24]
[2] BTI15 (supra) per Jagot and Halley JJ at [40]
In so doing the following matters generally arise for consideration:
(a)the length of delay;
(b)the explanation for such delay;
(c)a balance of the interests of the parties, namely the relative prejudice to the respondent and public interest matters as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be taken at a reasonably impressionistic level, such that they warrant time being extended in order that they can be determined on a final basis.[3]
[3] DXH17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 382 ALR 246 citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at [62] per Mortimer J (as her Honour then was) (and in turn Jackamarra v Krakouer (1998) 195 CLR 516 at [7] to [9]) and BTI15 (supra) per Logan J at [25] to [26]
Herein lies the tension. While it is not mandatory to consider the prospects of success in an extension of time application, it is more often than not the determining factor in the exercise of the Court’s discretion to extend time. It can be accepted that there will sometimes be an explanation so persuasive that it would carry the day in the exercise of the discretion. However, if the grounds were so manifestly not arguable on their face, the discretion would ordinarily not be exercised.
It is also relevant to acknowledge that it is the practice of the Court that summary dismissal applications in the migration jurisdiction are listed expeditiously in preference to other matters. That becomes significant in circumstances where, by his Response, the Minister said there was no basis upon which the proceedings needed expedition. Knowing that summary dismissal applications are ordinarily brought swiftly before a Registrar, the aforementioned contradictions increase.
When I raised this issue with the solicitor for the Minister, he was quite candid in acknowledging the contradictions within the Response document. But having sought instructions during a brief adjournment to which the applicants did not object, the matter proceeded. The solicitor for the Minister conveyed his fresh instructions that, in the circumstances of this case, the Minister wished to proceed with the review which is tantamount to prosecuting the summary dismissal application. It was contended for the Minister that the Court should infer that a combination of the first three factors referred to at [56] above all weighed so significantly in favour of extending time that the summary dismissal application should be heard de novo today. However, I do not accept that based on the material before me.
I have read the submissions of the first respondent, both in support of the summary dismissal application and the review application. Having regard to the arguments raised by the applicants and the volume of material which supports them, I am of the view that the proceedings do not, on their face, lack a reasonable prospect of success but rather warrant careful consideration before determining them on a final basis. In all the circumstances, I am of the view that the Minister tacitly accepted as much from his consent to the extension of time, particularly in the absence of any evidence being proffered as to why it was that that consent was given. I also have doubts about the ability, in the absence of further evidence of reasons to this effect, that the Registrar solely either had a delegation to extend time or that he formed the requisite state of satisfaction, in the absence of those matters, based consent of the parties alone. Again, nothing much particularly will turn on that in circumstances where the Registrar no longer has such a delegated power.
The first respondent ought, if he contended that the application was not arguable, and that the matter otherwise did not require expedition, to have continued with his initial position that the extension of time should not be granted, so that it could be listed in the ordinary course. As such, I am of the view that the summary dismissal application should not be acceded to. I will set aside the summary dismissal order and will reserve costs of and incidental to the review application.
It is, of course, also within my discretion to return the proceedings to the central migration docket for allocation to a Judge, in the ordinary course, for final hearing. The temptation to do so is significant. However, I do not intend to burden that docket any further in circumstances where I can find time to hear the matter within a reasonable time. In future, though, should similar circumstances arise, the Court may not be so inclined, and the proceedings would await a final hearing date in turn with other proceedings.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 September 2025
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