ATI22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 124

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for judicial review filed on 15 March 2022, seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal), dated 11 November 2021, affirming a decision of a delegate of the Minister for Home Affairs (the delegate) to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa).
2. The Applicant requires an Extension of Time to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act).
3. The Court had regard to both Applications on the date of hearing.
4. For the reasons set out below, the Application for an Extension of Time is refused. Accordingly, the judicial review Application is dismissed.

1. The applicant is a citizen of Thailand.
2. On 13 July 2017, the applicant lodged an application for the visa. As part of the application, the applicant agreed to the Department communicating with him by email and provided his email address (the nominated email address).
3. On 21 June 2021, the delegate refused to grant the applicant the visa. That same date, the applicant was notified of the delegate's decision by email to the nominated email address.
4. On 27 June 2021, the applicant applied to the Tribunal for review of the delegate's decision. As part of that application, the applicant again provided the nominated email address. The applicant did not provide a telephone number.
5. On 8 October 2021, by way of a letter sent to the nominated email address, the Tribunal invited the applicant to attend a telephone hearing scheduled for 26 October 2021. The applicant did not respond.
6. On 26 October 2021, the applicant failed to attend the scheduled hearing. Accordingly, pursuant to section 426(1A)(b) of the Act, the Tribunal dismissed the review application without further consideration (the dismissal decision).
7. That same date, by email to the nominated email address, the applicant was notified of his non-appearance and informed he could apply for reinstatement within 14 days of the dismissal decision.
8. The applicant did not apply for reinstatement within the time stipulated, and on 11 November 2021, the Tribunal, pursuant to s 426A(1E) of the Act, confirmed the dismissal of the application for review (the confirmation decision).
9. On 15 March 2022, the applicant filed an application in the Federal Circuit Court and Family Court seeking judicial review of the confirmation decision.
10. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and that the respondent's written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the hearing, should he wish to.
11. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.

1. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an Extension of Time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an Order extending time for filing of the Application.
2. The decision to grant an Extension of Time is a discretionary one: (DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]):

The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]- [27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]- [25] (per Cowdroy J)).

1. To the above, the Court would add that the greater the delay, the more persuasive the explanation for the delay has to be. In considering whether to grant an Extension of Time, there are no mandatory relevant considerations; (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (_Tu'uta Kato_a) at [12]):
2. On its face, the power conferred by s 477A(2) of the Act is unfettered except by the requirements of a written application in conformity with s 477A(2)(a), and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to consider a myriad of facts and circumstances, including the length of the applicant's delay, the reasons for the delay, prejudice to the respondent and 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 merely that an Extension of Time is desirable, but that it is necessary in the interests of the proper administration of justice.

CONSIDERATION OF THE APPLICATION FOR AN EXTENSION OF TIME

1. The Application for judicial review and an Extension of Time was filed on 15 March 2022, 89 days outside of the 35-day time frame prescribed by s 477(1) of the Act. This is a moderate period of time, which, in and of itself, mitigates against granting an extension. As such, the reasons for the delay will need to be persuasive.
2. The applicant provided the following explanation for the delay in the 'Grounds of application for Extension of Time', which states (reproduced as written):
   1. Application in regards to reasons I wish to "Requesting an extension of time".
   2. I have been authorized recipient, by allowed the recipient used my email address and my password because I poor in English skills, I have not received a Notification of decision to dismiss my application and DECISION RECORD was on 11 Nov 2021, as result, I have apply to Federal Circuit and Family Court of Australia (FCFCOA) out of time.
3. At the hearing, the applicant confirmed that his application was lodged late. The applicant claimed that the letter inviting him to the Tribunal hearing was sent to his nominated email address. The applicant claimed that at the time, his mobile phone was broken, and he was unable to access his email. When asked how long his telephone was broken, the applicant replied 6 months. Accordingly, the applicant could not access the letter advising him of the Tribunal hearing date. The applicant stated that he was unable to access the letter informing him of the dismissal of his application and the time limit for filing an application to this Court until he obtained a new telephone and was able to access his emails.
4. The first respondent's position is that the Application ought to be dismissed due to the length of the delay, the inadequate and incomplete explanation for that delay, the public‑interest considerations weighing against an Extension of Time, and the absence of any demonstrated jurisdictional error.
5. It is submitted that the delay in this case is significant and that the applicant's explanation for the delay in filing his judicial review application suffers from three key deficiencies. First, the applicant did not appoint a representative or authorised recipient before the delegate or the Tribunal and has not identified who his purported authorised recipient was. Second, the applicant does not contend that his email address was incorrect or that the notification of the confirmation decision was invalid. Third, the applicant has not explained when or how he ultimately received a copy of the confirmation decision, given that a copy was annexed to the accompanying affidavit filed with his judicial review Application.
6. It was further submitted that as the confirmation decision was sent to the email address provided by the applicant in connection with the review, the applicant was "taken" to have received it at the end of the day on which it was transmitted, irrespective of whether or not it was in fact received: s 441C(5) of the Act. Accordingly, the applicant's initial assertion that an unidentified third party had access to his nominated email address and did not make him aware of the decision is not a satisfactory explanation for the lengthy delay in commencing his judicial review proceeding.
7. The applicant's explanation that his mobile telephone was broken is not satisfactory. The applicant was aware that he had nominated an email address for the receipt of correspondence from the Tribunal. The fact that his telephone was broken did not mean the applicant could not have accessed his emails via other means, such as using a friend's iPad or telephone. This strongly mitigates against leave being granted.
8. In relation to the issue of prejudice, it was submitted that whilst there is no specific prejudice to the Minister, the Minister has a legitimate interest in the timely disposal of applications for visas: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [42]- [44]. There is also a public interest in the prompt disposition of administrative law matters, and in particular of allegations that officers of the Commonwealth have acted beyond their jurisdiction: WQRJ at [41]. Allowing migration matters to be commenced out of time causes prejudice to that legitimate interest and, in any event, the absence of prejudice to the Minister is not, of itself, a sufficient reason to grant leave: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
9. I accept there is no real prejudice to the Minister other than the need for these types of matters to be finalised. I consider this factor to be neutral.
10. The final consideration for the grant of an Extension of Time is the merits of the proposed application. This is considered below.

1. The Tribunal's decision in this matter comprises of one page and five paragraphs.
2. At [1], the Tribunal set out the application for review.
3. The Tribunal noted on 27 October 2021, it dismissed the application under s 426A(1A)(b) of the Act because the applicant did not appear before the Tribunal to give evidence and present arguments [2].
4. At [3], the Tribunal noted that it notified the applicant of the dismissal decision and provided a copy of the reasons for the dismissal, in accordance with s 426B(5). The Tribunal advised the applicant that a reinstatement of the application could be sought within 14 days of receiving the dismissal statement, and that failure to apply for reinstatement within that period would result in confirmation of the dismissal.
5. The Tribunal noted that the applicant failed to apply for a reinstatement of the application within the 14-day period therefore, the Tribunal was required to confirm the decision to dismiss the application [4].
6. Accordingly, at [5], the Tribunal confirmed the decision to dismiss the application for review.

1. The applicant advances four grounds of judicial review contained in an Originating Application filed with the Court on 15 March 2021. They are as follows (reproduced as written):
   1. Not all facts or evidence was taken to provide.
   2. I claims that I got a loan from illegal money lenders/loan sharks, I could not repay the debt. They was asked to help them with drug trafficking, I refused. I and my family were harassed and threatened by them. I was beaten several times. I fears that my life will be at risk if I returns to my home country.
   3. I applied for protection visa and The Tribunal confirms the decision to dismiss the application.
   4. I apply to The Federal Circuit Court of Australia to give me mercy for more the period of time to stay safe in Australia.

1. The applicant provided the Court with a document titled 'Statement of Harm Experienced'. This document outlined the harm the applicant said he would experience if returned to Thailand.
2. The Minister objected to the document being either tendered or considered by the Court, even as submissions, on the basis that the document only raised issues that related to the merits of the application and did not deal with any matter of jurisdictional error.
3. The Court reviewed the document and, as it disclosed no jurisdictional error, rejected it as evidence and did not treat it as a submission.

1. By Ground One, the applicant contends that "not all facts or evidence was taken to provide" (sic). This ground misconceives the basis of the Tribunal's non-appearance and confirmation decisions.
2. The Tribunal did not purport to, nor was it required to, consider the applicant's claims. After the applicant was validly invited to attend his scheduled hearing but failed to do so, the Tribunal had a discretion to proceed to make a decision under paragraph 426A(1A)(b) of the Act and dismiss the application without any further consideration of the application or the information before it. The Tribunal was not required to make an assessment on whether the applicant met paragraphs 36(2)(a) or 36(2)(aa) of the Act or to consider his claims for protection: FGB17 v Minister for Home Affairs [2019] FCA 725 at [12]. The Tribunal was statutorily empowered to proceed as it did, and no error in its approach or decision is identified or apparent.
3. To the extent that Ground One may be read as taking issue with the Tribunal's non-appearance and confirmation decisions, the Minister submits that the decisions are free from jurisdictional error.
4. The Tribunal's power to dismiss the application under paragraph 426A(1A)(b) of the Act was predicated on the validity of the Tribunal's hearing invitation. The Tribunal's hearing invitation complied with all legislative requirements as it:

(a) Contained an invitation to the applicant to appear before the Tribunal: ss 425(1) and 426(1)(a);

(b) Notified the applicant that he could give the Tribunal written notice to obtain oral evidence from a person or persons: s 426(1)(b);

(c) Notified the applicant of the specified date, time, and place of the hearing: s 425A(1);

(d) Was given to the applicant by one of the means specified in section 441A of the Act (namely, by email): s 425A(2)(a);

(e) Was taken to have been received by the applicant at the end of the day on which the document was transmitted: s 441C(5);

(f) Provided the applicant with a period of time that was at least the prescribed period of 14 days, as specified by regulation 4.35D of the Migration Regulations 1994 (Cth): subsection 425A(3); and

(g) Contained a statement of the effect of section 426A: subsection 425A(4).

1. With respect to the reasonableness of the Tribunal's exercise of its discretion to dismiss the application under paragraph 426A(1A)(b) of the Act, this question is fact specific: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [84]. The Tribunal identified cogent reasons in its dismissal decision for proceeding under paragraph 426A(1A)(b), including:

(a) The applicant did not provide a telephone number in their review application [1];

(b) The applicant was invited to a hearing under section 425 of the Act, and the invitation notified him that if he did not attend the hearing, the Tribunal may dismiss the application without any further consideration [2]-[3];

(c) The Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with subsection 441A(5) of the Act [4]; and

(d) The applicant did not appear at the Tribunal hearing, and no satisfactory reason for their non-appearance was given [4].

1. Although the Tribunal was not prohibited from rescheduling the hearing or delaying its decision to enable the applicant to appear before it, it was not required to do so: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592 at [20]- [21].
2. Having complied with its obligation in subsection 425(1) of the Act to invite the applicant to a hearing, the Tribunal was simply not required to take additional steps or make further enquiries to enable the applicant to appear: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439 at [39].
3. Further, as the applicant did not apply for reinstatement, the Tribunal had no lawful ability otherwise than to confirm the nonappearance decision: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10].
4. By Ground Two, the applicant repeats his claims for protection and invites the Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31].
5. In Grounds Three and Four, the applicant repeats the background to the current proceedings and requests the Court to give the applicant "mercy" and provide him with "more the period of time to stay safe in Australia" (sic). Neither ground is a proper ground of judicial review.

1. For an Extension of Time Application, consideration of the proposed grounds is undertaken on an impressionistic basis.
2. Ground One is misconceived. The Tribunal was not required to consider all the facts and evidence, as the applicant did not appear at the Tribunal hearing. I am satisfied that the Tribunal complied with all legislative requirements to notify the applicant of the time, date, and place of the hearing. When the applicant did not appear, it was open to the Tribunal to dismiss the application. The applicant was advised that his matter had been dismissed by email to his nominated address for correspondence. When the applicant did not seek reinstatement after 14 days, the Tribunal confirmed the dismissal. The Tribunal were not required to consider the merits of the application. Ground one has no merit.
3. Ground Two is not a proper ground of judicial review. It simply invites the Court to undertake impermissible merits review. It has no merit.
4. The same may be said for Grounds Three and Four. They do not point to any jurisdictional error and only reiterate that the Tribunal dismissed the application and ask the Court to grant mercy. These grounds have no merit.

1. As the applicant is unrepresented, the Court has perused the Court Book tendered and other relevant material. The Court is unable to detect any unarticulated jurisdictional error.
2. Noting the length of the delay in lodging the Application for judicial review, approximately 89 days, the lack of a reasonable explanation for the delay, but most importantly, the lack of any merit in the proposed grounds of judicial review, the Application for an Extension of Time is refused.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.