Shah v Minister for Immigration and Citizenship
[2025] FedCFamC2G 967
•23 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shah v Minister for Immigration and Citizenship [2025] FedCFamC2G 967
File number(s): SYG 685 of 2021 Judgment of: JUDGE SKAROS Date of judgment: 23 June 2025 Catchwords: MIGRATION – Extension of Time Application – where the application for review was 612 days out of time – where the applicant did not provide an adequate explanation for the delay – where prejudice to the public interest caused by excessive delay weighs against grant of the extension of time – where the proposed ground of judicial review has no reasonable prospect of success – application dismissed Legislation: Migration Act 1958 (Cth) ss 48, 65, 359, 477(1), 477(2), 477(3)(a)
Migration Regulations 1994 (Cth) rr 2.03AA(2)(a), 2.03AA(3)
Cases cited: Bechara v Bates [2018] FCA 460
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29
Jamal v Secretary, Department of Social Services [2017] FCA 916
Jess v Scott (1986) 12 FCR 187; [1986] FCA 473
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
Re Commonwealth of Australia;Ex-Parte Marks [2000] HCA 67; 177 ALR 491
SZSDAvMinister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17
SZVBN v Minister for Immigration and Border Protection [2016] FCA 898
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
WQRJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 6 May 2025 Place: Parramatta Counsel for the Applicant: Oliver Jones Solicitor for the Applicant: Attia Lawyers and Consultants Solicitor for the Respondents: Julian Pinder ORDERS
SYG 685 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHD SHAFIQ ASHRAF BIN KAMAL SHAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
23 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Citizenship’.
2.The application for an extension of time filed on 22 April 2021 pursuant to s 477(2) of the Act is dismissed.
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 SKAROS
INTRODUCTION
By application filed on 22 April 2021, the applicant seeks an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 25 July 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Temporary Business Entry (Class UC) (the visa) under s 65 of the Act.
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings.
BACKGROUND
The applicant is a citizen of Malaysia. He applied for the visa on 28 February 2018.
On 14 September 2018, the Department requested the applicant provide supporting documents which relevantly included police certificates from each country where he had lived for a total of 12 months or more in the last 10 years, as evidence that he had satisfied the character requirements. In responding to this request, the applicant provided evidence of an application made on 6 October 2018 to the Ministry of Foreign Affairs Malaysia for a certificate of good conduct.
On 22 January 2018, the delegate made a decision to refuse the visa on the basis that the requirement in r 2.03AA(2)(a) of the Migration Regulations 1994 (Cth) (the Regulations) was not met as the applicant had not provided the requested statements about whether or not he had a criminal history.
On 10 February 2019, the applicant lodged an application for review of the delegate’s decision.
On 8 April 2019, the Tribunal wrote to the applicant requesting him to provide a copy of the outcome of his application for a Malaysian certificate of good conduct. No response was received by the Tribunal to that correspondence.
On 23 April 2019, the Tribunal wrote to the applicant pursuant to s 359 of the Act, inviting him to provide a copy of the certificate of good conduct issued by the Malaysian Government. The Tribunal requested the provision of this information by 7 May 2019.
On 2 May 2019, the applicant advised the Tribunal that he was unable to provide the requested information by the due date and required additional time. On 13 May 2019, the Tribunal wrote to the applicant advising that it had considered his email and granted him an extension until 2 July 2019 for the provision of the information.
On 30 June 2019, the applicant advised the Tribunal that he had contacted the Malaysian Government regarding his application for a Certificate of Good Conduct. The applicant provided an email dated 14 June 2019 from SKB Unit (Letter of Good Conduct) Ministry of Foreign Affairs, Malaysia, advising inter alia that processing would take approximately one to two months to complete. The applicant requested the Tribunal provide a further extension of one month.
On 2 July 2019, the Tribunal invited the applicant to attend a hearing scheduled on 22 July 2019. The applicant appeared before the Tribunal to give evidence and present arguments. On the same day, the applicant had sent an email to the Tribunal attaching various documents, which included correspondence between the applicant and his former migration advisor and a document (CB 108) indicating, in respect of the application for the certificate of good conduct, that the documents were not valid.
On 25 July 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
TRIBUNAL’S DECISION
The issue before the Tribunal was whether the applicant provided a statement from an appropriate authority about whether or not he had a criminal history in all countries of residence: r 2.03AA(2)(a). The Tribunal also considered whether it was not reasonable for the applicant to provide the requested statement for the purposes of waiving the requirement in r 2.03AA(2)(a), as provided for by r 2.03AA(3).
In considering the claims and evidence, the Tribunal provided a background to the matter, relevantly detailing the initial request by the Department for information on 14 September 2018 and the subsequent correspondence and actions taken by the applicant to meet the request.
At the hearing, the applicant was invited to respond to the Tribunal's observation that nine months had lapsed, and he had still not provided a statement from a relevant authority in Malaysia about whether or not he has a criminal history. The Tribunal recorded the applicant’s oral evidence that his application of 6 October 2018 was no longer valid as he had submitted incorrect information in the form of photographs and that he was required to submit a new application, which would take approximately one to two months as advised in the Ministry of Foreign Affairs Malaysia email of 14 June 2019. The applicant informed the Tribunal that he did not follow up on this application because he had a lawyer processing his visa application who should have advised him that there was a problem. The applicant also told the Tribunal that he had not submitted a new application.
The Tribunal recorded that on 22 July 2019, following the hearing, the applicant provided an email dated 4 February 2019 to his former migration agent and the agent’s response. The Tribunal noted that in this correspondence, there was no reference to the requirement to provide a certificate of good conduct from the Malaysian government or enquiry into the status of the 6 October 2018 application.
In consideration of the evidence before it, the Tribunal found that the applicant had not provided a statement from an appropriate authority and therefore did not meet r 2.03AA(2)(a).
The Tribunal accordingly considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it, should be waived under r 2.03AA(3).
The Tribunal accepted that the applicant relied on his former migration agent to advise him of the necessary requirements and information required by the Department for the processing of his visa application. The Tribunal further accepted that the applicant initially made an application to the relevant Malaysian authority on 6 October 2018. The Tribunal noted that the applicant did not disclose to the Tribunal, until the hearing of 22 July 2019, that his application of 6 October 2018 was invalid and that he had not made a subsequent application. The Tribunal also noted that the applicant was granted extensions of time to procure the certificate before the hearing.
Having considered this information, the Tribunal found that the applicant had not made a genuine attempt to provide a Malaysian certificate of good conduct, nor was it satisfied that he had an immediate or short-term intention of providing it. The Tribunal considered that it was reasonable for the applicant to provide the relevant statement from the relevant authority.
The Tribunal concluded that the waiver in r 2.03AA(3) did not apply and as such the applicant did not meet r 2.03AA(2)(a).
APPLICATION TO THIS COURT
The originating application set out the grounds for the extension of time and the proposed grounds of judicial review. The application was accompanied by an Affidavit of the applicant, sworn on 22 April 2021, (the Applicant’s Affidavit) as to the reasons for the delay in lodging the judicial review application.
The applicant filed written submissions on 9 April 2025 and the Minister filed written submissions on 22 April 2025.
The hearing before the Court commenced on 6 May 2025 and resumed on 31 May 2025. At the resumed hearing, Mr O Jones of Counsel appeared for the applicant and Mr J Pinder of Mills Oakley Lawyers appeared on behalf of the Minister.
The Court Book filed on 31 May 2021 was tendered into evidence at the hearing and marked Exhibit CB. The Applicant’s Affidavit was taken as read and is in evidence.
Oral submissions were made by the parties which developed their written submissions.
For the reasons that follow, the Court is not satisfied that it is necessary in the interests of the administration of justice for time to be extended.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:
(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.
The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He has also provided reasons (in the Applicant’s Affidavit) as why time should be extended.
Relevant principles
The principles applicable to an extension of time application are relatively well established.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579 (Katoa), the High Court; per Kiefel CJ, Gageler, Keane and Gleeson JJ, observed at [12] that the power to extend time is not focused on the interests of the applicant, but on the broader interests of the administration of justice.
As stated in Katoa, there are no mandatory relevant considerations, whether express or to be implied from the ‘subject-matter, scope and purpose’ of the Act. In considering whether to grant an extension of time, however, 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 level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice: per Kiefel CJ, Gageler, Keane and Gleeson JJ at [12].
Whilst it will often be appropriate to assess the merits of proposed grounds of review at a ‘reasonably impressionistic level’ there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is ‘lengthy and unexplained’, the applicant may be required to show that their case is strong or even ‘exceptional’: Katoa [17]–[18].
The applicant, in relying upon MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 (MZZGC) at [13], [17] per Mortimer J and SZVBN v Minister for Immigration and Border Protection [2016] FCA 898 (SZVBN) at [44] per Griffiths J, submitted it was possible for the absence of an acceptable explanation for delay to be outweighed by the presence of an arguable case, especially where the decision under review is a migration one with serious consequences for the applicant. While I acknowledge that the decision under review in this case is a migration one, I note that it relates to a temporary work visa, whereas the decisions under review in MZZGC and SZVBN related to protection visa refusals. It was in this context (and the consequences for a protection visa applicant claiming fear of persecution) that the Court in MZZGC said ‘careful consideration’ should be given to the question of an extension of time. This approach was followed in SZVBN. In MZZGC, Mortimer J at [14], nevertheless acknowledged that the length of the delay and any explanation for it was also a significant factor, for which weight would vary considerably depending on the circumstances of each case.
In this case, the parties made submissions in respect of the length of the delay, explanation for the delay, prejudice to the Minister, impact on the applicant and the merits of the proposed ground of judicial review. I have considered each of these matters as follows:
Length of the delay
The Tribunal made its written decision on 25 July 2019. The 35-day time frame prescribed by s 477(1) of the Act is from the date of the Tribunal’s decision: s 477(3)(a). Accordingly, the applicant was required to file his application for judicial review by 29 August 2019. The application was not filed until 22 April 2021, being 612 days (or 20 months) out of time.
The Minister submitted that the length of the delay was ‘very significant’, and the applicant accepted that the delay was ‘considerable’.
In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) a delay of 18 months was said to be ‘excessive’: at [38] per Wigney J. The same can be said of the lengthy delay in this case.
In the present case, the excessive delay of 20 months, is a factor that weighs heavily against granting the extension of time.
Explanation for the delay
It has been said that, in general, the longer the delay the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195 cited in Tran at [38].
The explanation for the delay, as set out in the Applicant’s Affidavit, is that the applicant was not represented in the review before the Tribunal and that he suffered financial hardship due to his employer withholding his salary. He worked for another company and, with the assistance of his second employer, applied for another Subclass 457 visa but was not aware that he would be affected by the restriction in s 48 of the Act. He could not afford to get migration advice. He was referred to legal/migration advice, but he does not believe those persons were qualified and has been told that the advice was incorrect. He could not pay for a proper lawyer to assist him and was advised to save money and pay for a barrister. He managed to produce the money in late 2020 and, in 2021, was informed by his solicitor that his case had prospects of success.
In the application, it was further stated that the applicant was not aware of the time to apply to the court as he was unrepresented before the Tribunal. It was also stated that the applicant was exploited by other employers due to him not having a visa and that he considered leaving Australia, but this was frustrated by the pandemic.
In summary, the explanations for the delay are: the applicant’s lack of knowledge about the timeframe within which to apply for judicial review, his financial circumstances and difficulties in obtaining legal advice and/or representation.
None of the explanations provided, individually or in combination, are particularly persuasive.
First, when notifying the application of its decision, the Tribunal also provided the applicant an information sheet: ‘Information about decisions – MR Division’ (CB 116–118). In that attachment, under the heading ‘Review of decisions’ (CB 117), it states:
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply you must do so within 35 days of the date of our decision. If you require an extension of time, you may ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The notification and accompanying attachments were sent by email to the email address provided by the applicant in connection with the review: CB 117. There is no evidence, and the applicant has not claimed, that he had not received the notification. Had the applicant read the correspondence from the Tribunal he would have been aware that he had 35 days from the date of the Tribunal’s decision to apply for judicial review. It should also be noted, as relied upon by the Minister, a lack of knowledge of review rights is not generally regarded as a satisfactory explanation for the delay: SZSDAvMinister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 at [38] per Foster J.
Second, whilst the applicant said he was referred to legal and migration advice, and that he had received advice from people who were unqualified (so he believed), which was incorrect, he has not indicated when this occurred or what efforts, if any, he had made since that referral to contact other legal agencies or organisations that may have been able to provide him with immigration assistance or refer him to reputable (qualified) services. There was also no explanation provided as to why the applicant did not lodge the judicial review application himself. A significant proportion of applicants in this court, most of whom are from non-English speaking backgrounds, manage to file applications for review of migration decisions without legal assistance.
Third, the applicant has also failed to explain the extent of his financial hardship. He said he was exploited by employers because he did not have a visa, however, he has not explained why he failed to regularise his immigration status and instead chose to remain in Australia without a visa. If it was the applicant’s intention to depart Australia, as he has stated, but he could not do so because of COVID-19 restrictions, the applicant could have still sought a visa to remain in Australia lawfully until the restrictions had been lifted. Further, the COVID-19 restrictions did not come into effect until March 2020, which was some eight months after the Tribunal had made its decision. The applicant has also failed to explain how he was able to support himself in Australia and how his financial circumstances prevented him from filing an application with the Court for some 20 months.
Given the limited evidence before me, I am not persuaded that the applicant’s financial circumstances or the difficulties he had with obtaining legal advice, whether because of financial hardship or otherwise, adequately explains the delay.
For these reasons, I am not satisfied that the applicant has provided an adequate, let alone reasonable or persuasive, explanation for the excessive delay of 20 months. This factor weighs against granting the extension of time.
Prejudice and impact on the applicant
The Minister submitted that the delay did not pose any specific prejudice that could not be remedied by a costs order. It is well established, however that the absence of such prejudice is not, of itself, sufficient to warrant granting the extension of time.
Further, as submitted by the Minister, a significant delay, as in this case, prejudices the public interest in the finality of administrative decision making: Re Commonwealth of Australia;Ex-Parte Marks [2000] HCA 67; 177 ALR 491 at [17].
The applicant submitted that he was not a privileged member of the community and that this, and the impact on him if he returns to Malaysia at the current time, makes it fair that time be extended. I accept that if time is not extended, the applicant would not be able to pursue his judicial review application and may have to return to Malaysia. I note, however, that the decision the applicant is seeking to review relates to the refusal of a temporary work visa and not a protection or even a permanent visa, and no explanation or detail has been provided as to the nature or extent of any impact (on the applicant) if he returns to Malaysia.
The prejudice to the public interest caused by the excessive delay weighs against granting the extension of time, and the impact on the applicant is of limited weight for granting the extension of time.
Merits of the proposed grounds of review
The originating application advanced three proposed grounds of review, however, only one is pressed. The ground and its particulars are set out as follows (without alteration):
1. The Tribunal made a jurisdictional error by failing to adjourn the proceeding so that the Applicant could receive the certificate of good conduct from the overseas authorities.
a. The Tribunal found at paragraph 14 of its decision that the Applicant had applied for the certificate on 6 October 2018;
b. The Tribunal indicated at paragraph 15 of its decision that the Tribunal wrote to the Applicant on 23 April 2019 requesting that the Applicant provide the certificate by 7 May 2019;
c. The Tribunal indicated at paragraph 16 of its decision that the Applicant sought additional time on 2 May 2019 and indicated that he had been informed by the overseas authorities that the request for the certificate was still pending;
d. The Tribunal indicated at paragraph 17 of its decision that it had on 13 May 2019 granted the Applicant an extension until 2 July 2019 for the provision of the information;
e. The Tribunal indicated at paragraph 18 of its decision that on 1 July 2019 the Applicant provided an email from the overseas authorities dated 14 June 2019 indicating that it would take 1-2 months to process the application for the certificate;
f. The Tribunal described at paragraph 22 of its decision how the Applicant had stated at the hearing that "his application of 6 October 2018 was no longer valid as he had submitted incorrect information in the form of photographs and that he was required to submit a new application. A new application would take approximately 1 to 2 months as advised in the Ministry of Foreign Affairs, Malaysia email of 14 June 2019. The applicant told the Tribunal that he has not submitted a new application";
g. It was apparent that the Applicant had been informed by the overseas authorities that his application was invalid between 2 May and 14 June 2019;
h. The Tribunal was required to adjourn the proceeding where it was legally unreasonable, in the sense that there was no evident and intelligible justification, to refrain from doing so: Minister for Immigration and Citizenship v Li [2013] HCA 18; and
i. There was no such justification in the present case, as the applicant had only recently been informed that his previous application for the certificate was invalid and there had been an indication from the overseas authorities that upon submission of a valid application the certificate would in a matter of months be provided.
At the hearing, the applicant submitted that particular (g) was no longer pressed. It was instead contended that the timeframe within which the applicant became aware that his application for the certificate was invalid was not so clear and could have been any time up to the date of the hearing.
The applicant relied on Bechara v Bates [2018] FCA 460 at [17]–[18] in which Perry J relevantly cited MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110 (MZABP), wherein the Full Court endorsed the approach of Mortimer J (below) that, when considering the merits, the grounds should only be considered on their face and examined at a ‘reasonably impressionistic level’. Her Honour explained that the Court should not descend into a fuller consideration of the arguments for and against each ground: citing Jamal v Secretary, Department of Social Services [2017] FCA 916 at [12].
However, as explained by the High Court in Katoa, in some circumstances, it may be appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even exceptional: per Kiefel CJ, Gageler, Keane and Gleeson JJ at [18]; see also WQRJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 736 per Derrington J at [31].
In this case, the parties made submissions in respect of the proposed ground of judicial review, and I am satisfied that this case warrants undertaking a more detailed examination of the merits.
The applicant contends that it was legally unreasonable for the Tribunal to refuse the extension of time sought by the applicant (on 30 June 2019) and to proceed, following the hearing of 22 July 2019, to make its decision on 25 July 2019.
The applicant submitted that whilst the request made on 30 June 2019 was not explicitly considered by the Tribunal, the failure to refer to it in the reasons is not to be equated with a failure to consider it: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [39]–[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. The applicant’s submissions were made on the basis that the Tribunal considered (and refused) to grant further time, including after the hearing, to enable the applicant to provide the Malaysian certificate of good conduct.
It was submitted that on the evidence before the Tribunal, the applicant was under the impression that his application for the certificate of good conduct from the Malaysian authorities was pending and, around the time of the hearing, the applicant became aware that the application was no longer pending and had been deemed invalid. It was submitted that it was this change of circumstance (the application being declared invalid as opposed to pending), which the Tribunal failed to grapple with and gives rise to legal unreasonableness.
It was submitted that the applicant’s email of 30 June 2019 to the Tribunal (CB 84), in which he sought an extension of time, indicated that he had contacted the Malaysian authorities and was informed that his application was still ‘in progress’. It was also submitted that some time between 30 June 2019 and 22 July 2019 (the hearing date) the applicant became aware that his application was invalid and that he had to submit a new application for the certificate. It was contended that in circumstances where the applicant had received assurances from the Malaysian authorities that his application was pending, and where he has engaged with the Tribunal, it was legally unreasonable for the Tribunal to proceed to a decision.
Was it legally unreasonable for the Tribunal not to adjourn the review?
At the time of its decision, the Tribunal had the power under s 363(1)(b) to adjourn the review. It is well established that a statutory discretion or power must be exercised reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ and at [88] per Gageler J.
A decision would be unreasonable if ‘no sensible authority acting with due appreciation of its responsibilities’ would have so decided: Li at [71]. If a decision lacks an ‘evident and intelligible justification’ it may be found to be legally unreasonable: Li at [76].
A decision refusing to adjourn the review to enable the applicant to satisfy a visa criterion may, depending on the circumstances, be so unreasonable as to constitute a failure to properly conduct the review: Li at [100]–[102]. However, a decision will not be legally unreasonable if it ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’: Li at [105].
Legal unreasonableness is ‘invariably fact dependent’. Accordingly, when determining whether the exercise of a discretionary power was legally unreasonable, a court must carefully evaluate the evidence before it, including any inferences which may be drawn from that evidence: Minister for Immigration & Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42].
The Minister contends that the Tribunal’s decision did not lack an evident or intelligible basis, nor was the decision arbitrary, capricious or so unreasonable that it could not have been reached by a reasonable authority. In support of this contention, the Minister submitted that the decision (not to further adjourn the review) must be viewed in the context of the history of the proceedings, which were set out at [20]–[24] of the Tribunal’s reasons, and the applicant informing the Tribunal at the hearing that ‘he has not submitted a new application’. The Minister’s submissions draw particular attention to the following events:
a. The Applicant was on notice, arguably from at least 6 October 2018, but at the absolute latest by 23 April 2019, that he needed to provide a certificate of good conduct issued by the Malaysian Government (CB 78; CB 113: [15]).
b. On 2 May 2019, the Applicant requested an extension of time to provide the certificate, advising the Tribunal that his application was “still in progress” (CB 80).
c. On 13 May 2019, the Tribunal granted the request for an extension of time, providing the Applicant a further two months from the original due date to provide the information requested (CB 83).
d. On 30 June 2019, the Applicant requested a further extension of time, advising the Tribunal (in part): “I did called (sic) them and they said the application is still in progress. Can you give me one more month so I can complete the requirement” (CB 84).
e. The Tribunal invited the Applicant to attend a hearing, and at the hearing asked him questions about his application for the certificate of good conduct. The Applicant told the Tribunal he had not submitted a new application, despite being aware that his 6 October 2018 application was invalid (CB 114: [22]).
The evidence before the Tribunal indicated that the applicant had applied for a certificate of good conduct from the Malaysian authorities on 6 October 2018. The Tribunal sought information about the outcome of that application by email on 8 April 2019. Given the applicant’s failure to respond to that request, the Tribunal wrote to the applicant on 23 April 2019, pursuant to s 359(2) of the Act, and invited him to provide the information. What followed was a series of requests by the applicant for extensions of time to provide the certificate. These requests were made on the basis that the application for the certificate of good conduct from the Malaysian authorities was still ‘in progress’. The last of these written requests was made by the applicant on 30 June 2019. Rather than grant the extension of time as requested, the Tribunal decided to set the matter down for hearing and invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case: CB 88.
What occurred at the hearing before the Tribunal is of some importance, and the only evidence before the Court in that regard is the Tribunal’s decision record. At [22], the Tribunal records that the applicant informed it that his application of 6 October 2018 was not valid as he had submitted incorrect information on the form. The applicant also informed the Tribunal that he was required to submit a new application, but that he had not submitted one.
There is no evidence before the Court about when the applicant became aware that his application of 6 October 2018 was deemed invalid, though it has been submitted that this must have occurred some time between 30 June 2019 and the date of the hearing (22 July 2019), given the email sent by the applicant to the Tribunal on 30 June 2019, in which he indicated that the application was still ‘in progress’.
First, I do not accept the applicant’s submission that the Tribunal failed to grapple with the change in circumstance regarding the application for the certificate, which went from being ‘in progress’ to being deemed ‘invalid’ in the weeks leading up to the hearing. The decision record discloses at [21] that the Tribunal was initially concerned that the applicant had not been able to provide the certificate of good conduct from the relevant authority in Malaysia, for which an application had been made some nine months earlier. The Tribunal’s concern then shifted, after it had been informed by the applicant at [22] that the application was ‘no longer valid’ and that he had not submitted a new application. It is evident from the Tribunal’s reasons, when read in their entirety, that the Tribunal was concerned with the fact that the applicant had not informed it (until the hearing) that the application was invalid and that he had not submitted a subsequent application: see [22] and [32].
Neither the decision record nor the material before the Court discloses any explanation as to why the applicant had not submitted another application for the certificate of good conduct or whether any steps had been taken in preparation of lodging another application. The Tribunal in this case did not proceed to a decision immediately after the hearing and the evidence before the Court (CB 100) indicates that at the completion of the hearing, which occurred at 11:45 am, the Tribunal granted the applicant further time, until ‘COB 22/7/19’ (being the day of the hearing), to ‘provide information/comments/response in writing’. The applicant did avail himself of that opportunity and provided documents, which I will come to further below.
In relation to the request made on 30 June 2019 for an extension of time (of one month), this request was made on the basis that the applicant needed further time to ‘complete the requirements’ for the application that was ‘still in progress’. It can be inferred from its reasons, which did not expressly mention the 30 June 2019 request, that the Tribunal, having been informed at the hearing that the application was invalid, did not need to turn its mind to considering whether to grant that extension of time because the basis on which that particular request was made (being to complete the requirements for the pending application, and presumably to await its outcome) no longer existed. In other words, it was not necessary for the Tribunal to consider whether or not to grant the requested extension of time (of one month) to await the outcome of the 6 October 2018 because the process for that application had come to an end and was no longer ‘in progress’.
The applicant’s complaint is also directed at the Tribunal’s refusal to grant (or simply not deciding to grant) further time after the hearing within which he could provide the certificate. In considering whether it was legally unreasonable for the Tribunal not to adjourn the review after the hearing to enable the applicant to submit another (new) application for the certificate and provide the certificate to the Tribunal, I have carefully evaluated the evidence before the Court.
The Tribunal’s decision does not disclose that the applicant had expressly requested an extension of time so he could make another application for the certificate, though it could be implied from the exchange recorded at [22] that the applicant, having informed the Tribunal that he needed to make a new application because the initial application was invalid, that he was seeking an extension of time for that purpose.
As noted above, the evidence before the Court is that the Tribunal did grant the applicant until the ‘COB’ on the day of the hearing to provide further information in writing. After the hearing, the applicant sent an email to the Tribunal which included, inter alia, an online status check which provided a history of transactions/filings with the Ministry of Foreign Affairs, Malaysia. The print-out from the online portal indicated the status/result of the application submitted on 6 October 2018 for the certificate of good conduct as ‘invalid document’. Another transaction recorded on the print-out was the ‘Registration of Malaysians abroad’ which was submitted on 31 May 2019. There were no other transactions recorded.
Following receipt of the documents, the Tribunal decided to proceed to a decision on the information before it. In its reasons, the Tribunal said at [32]:
The applicant has not provided persuasive evidence to support that he has made a genuine attempt to obtain the certificate, nor does he have an immediate or short-term intention of providing the requested Certificate of Good Conduct.
In the context of the applicant being on notice since September 2018 (as requested by the Department) that he had to provide a certificate from Malaysia about whether or not he had a criminal history, the numerous requests for extensions of time, the applicant informing the Tribunal at the hearing that his initial application for the certificate was invalid and that he had not lodged a subsequent application, and there being no other evidence provided after the hearing of the applicant having submitted another application for the certificate or steps taken to do so, it was not unreasonable for the Tribunal to conclude that it was not persuaded that the applicant had made a genuine attempt to obtain the certificate or that he had an immediate/short term intention of doing so. Having formed that view, which I am satisfied was open to it on the evidence before it, it was not legally unreasonable for the Tribunal not to further adjourn the review and to proceed to a decision on the information before it.
The Tribunal not granting the applicant further time after the hearing to commence the process afresh (to make another application for (and provide) the certificate of good conduct) and proceeding to a decision on 25 July 2019 did not lack an evident or intelligible justification, nor can it be said that it was so unreasonable that no reasonable authority could have so decided.
For these reasons, I am not satisfied that the proposed ground of judicial review has any reasonable prospect of success. This factor weighs strongly against granting the extension of time.
CONCLUSION
In this case, the length of the delay, together with the failure to provide an adequate explanation for that delay and the prejudice to the public interest, when considered in combination, provide a sufficient basis to conclude that it is not in the interests of the administration justice to grant the extension of time. This is particularly so given the decision (for which the applicant is seeking review) relates to a temporary work visa.
As observed in Katoa per Gordon, Edelman and Steward JJ at [34], time limits for seeking review of migration decisions, like limitation periods in other statutory contexts, “no doubt ‘represents the legislature’s judgment that the welfare of society is best served’ by judicial review applications being instituted within a particular period of time, notwithstanding that the enactment of that period may result in a good ground of review being defeated” (citation omitted). So even if the applicant’s proposed ground of review was found to be arguable, I would not have extended time in this case, as I would not have been satisfied that this factor outweighed the other factors which, in combination, weighed heavily against granting the extension of time.
As it transpired, I was also not satisfied that the proposed ground of judicial review had any reasonable prospect of success. This, of itself, would have been a sufficient to refuse the grant of an extension of time.
For these reasons, I am not satisfied that in is the interests of the administration justice to grant the extension of time. It follows that the application made under s 477(2) of the Act must be dismissed.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 23 June 2025
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