AWN22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 870

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).

1. By his originating application lodged with the Court on 2 February 2022 (application), the applicant seeks, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 2 September 2021.
2. The Tribunal determined that it did not have jurisdiction to review the decision of a delegate of the then Minister for Home Affairs (now Minister for Immigration and Citizenship) (Minister), made on 9 June 2021, to refuse the applicant a protection visa, because the application for review had been made on 4 August 2021, outside the time limit prescribed for making such application.
3. The applicant confronted a further time limit in bringing this proceeding. It was commenced five months after the Tribunal decision, when a 35-day time limit applies to such application. Because of that delay, in his originating application the applicant also applied for an order that the time for the making of the application be extended under s 477 of the Act (application for an extension of time).
4. Section 477 of the Act (as at the date of the application) provided as follows:

Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit 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.

(3) In this section:

date of the migration decision means:

(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

(ca) in the case of a migration decision made by the Immigration Assessment Authority - the date of the written statement under subsection 473EA(1); or

(d) in any other case - the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

1. In the application form, where prompted to specify the reasons the applicant considers it necessary in the interests of the administration of justice to extend time, the applicant stated the following alone:

1. There exist procedural errors and unfairness.

1. The matter was prepared for hearing in the usual way, with the first respondent filing, in accordance with the orders of the Court, a court book containing relevant documents from Departmental records on 25 February 2022 (court book).
2. At the hearing before this Court on 12 February 2025, the court book was received into evidence without any objection from the applicant. The Court also received into evidence an affidavit of the applicant on 2 February 2022 in support of the application.
3. Directions were also made prior to hearing (on 20 January 2025) for the parties to file written submissions. The applicant did not file such a submission, nor seek to rely on any such written submission at the hearing. The first respondent filed a written outline of submissions.
4. At the hearing, the applicant was given an opportunity to make submissions orally in support of the application. The Court directed the applicant to the grounds in the application in support of the application for an extension of time, and those in support of the application proper.
5. The applicant submitted that he was worried that if he returned to his country, his life would be in danger and said that he thought "they" (presumably the Tribunal) should have considered more about his safety. The applicant also submitted that he had been living in Australia for some time, the security is good, and it was good for his personal safety.

PROPER APPROACH TO DETERMINING AN APPLICATION TO EXTEND TIME PURSUANT TO S 477(2) OF THE ACT

1. The power to extend time in s 477A(2) (which is relevantly identical to s 477(2)) was considered by the High Court of Australia in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu'uta Katoa). At [12], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) observed (footnotes not included):

On its face, the power conferred by s 477A(2) 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 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.

1. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP), Mortimer J (as her Honour then was), said (at [58]) that the language of s 477(2) (and, by extension, s 477A(2)) of the Act "does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s 11 of the AD(JR) Act". The latter was a reference to the frequently quoted passage in the decision of Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176. Her Honour went on to say that in applications to extend time to review decisions made under the Act, it is appropriate to have regard to:

(a) The nature of the visa decision sought to be reviewed;

(b) The fact that a refusal to extend time will have the consequence that the applicant will not have an appeal from that decision as of right; and

(c) Case management considerations in the busy Federal Circuit and Family Court of Australia migration list.

1. In Tu'uta Katoa, the majority said (at [17]) that, in determining what is necessary in the interests of the administration of justice, an assessment of the merits of the underlying or substantive application at a "reasonably impressionistic level" will ordinarily be appropriate as the interests of justice are likely to be advanced by granting an extension of time where the application has some underlying merit. The majority went on (at [18]) to observe that more rigorous examination may be undertaken where a delay is lengthy and unexplained (and the Court therefore considers it appropriate that the applicant demonstrate prospects warranting such an exercise of the discretion), or where the proposed ground of review may be hopeless, which conclusion may only be reached upon a more detailed examination of a matter.
2. A number of relevant matters are addressed in turn below.

1. It is relevant that the decision in respect of which the applicant seeks review is one concerning an application for a protection visa. That is, the applicant claims that Australia has protection obligations to him because he is a refugee (as defined in the Act), or because if removed from Australia he would be at a real risk of suffering significant harm. That is a matter that militates in favour of granting the extension of time if there is some merit in the underlying application.

1. The Tribunal's decision was made on 2 September 2021. The latest date upon which the applicant could have made his application to this Court, consistent with the time specified in s 477(1) of the Act, was 7 October 2021. Instead, the applicant lodged the application with the Court on 2 February 2022, nearly four months outside that time. That delay is substantial, however, it would not be insurmountable if, having regard to other matters, it was in the interests of the administration of justice to make an order extending time.

1. In the applicant's affidavit affirmed 2 February 2022, the applicant averred:

I got no any [sic] legal assistance. So I delayed my court appeal.

1. The applicant participated in the hearing before the Court with the assistance of an interpreter but without legal assistance. I am satisfied that the applicant has limited English skills and would likely have found the process of seeking a review of the Tribunal decision a difficult one without legal assistance. Whilst I accept the first respondent's submission that inability to obtain legal assistance would not ordinarily afford an explanation that justifies extending time, in the circumstances, given the nature of the matter, the relatively limited period of the delay, and the disadvantage the applicant encountered in articulating his application due to his lack of English skills and lack of legal assistance, the absence of a persuasive, or detailed explanation for the delay should not militate against an order extending time.

1. The first respondent has properly conceded that the Minister would not suffer substantial prejudice if time were to be extended. That concession probably understates the position. The first respondent did not identify any prejudice that he would confront in responding to the application, nor is there any reason to think there would be such prejudice. However, the first respondent points to the public interest in the finality of litigation. There is unquestionably a public interest in the finality of litigation, and any application to extend time must have regard to the public policy that is served by the establishment of time limits. However, given the relatively limited delay, that factor is not one that of itself requires denying the application for an order extending time.

1. Given all of the above considerations, if there was some arguable case, even a barely arguable case, that the Tribunal decision involved jurisdictional error, I would have been persuaded that it was necessary in the interests of the administration of justice to grant the relatively short extension of time sought by the applicant in order that his case could be fully considered and finally determined.
2. However, there is not even a barely arguable case that there is error in the Tribunal's decision.
3. The Tribunal's decision was not arrived at following a review of the applicant's claims for the protection visa. Rather, the decision was one that the Tribunal did not have jurisdiction to review the primary decision because the application for review had not been made within the time prescribed by r 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). That decision involved the Tribunal identifying when the decision had been notified to the applicant, and calculating the period of 28 days commencing on the day of notification of the decision.
4. The applicant advanced the following grounds in the application (without alteration):

There exist procedural errors and unfairness.

1. The Tribunal did not check whether the delegate sent me refusal notification in the right way.

2. The Tribunal did not check the delegate's records.

3. The Tribunal did not put the delegate's records to me.

4. The Tribunal did not research case laws which are in favour of my case.

1. On a review of the Tribunal's decision, it is apparent that those grounds are not even sufficiently meritorious as to be characterised as barely arguable.
2. The primary decision of which the applicant sought review, being a decision to refuse to grant the applicant a protection visa, was a "Part 7 Reviewable Decision" within the meaning of s 411(1)(c) of the Act. The decision record in respect of the decision is dated 9 June 2021, as is a letter headed "Notification of refusal of application for a Protection (subclass 866) visa" (refusal letter). The court book also contains a single page covering letter directing the applicant to the attached information (covering letter). Both the refusal letter and covering letter record that their transmission method was to be by email to the address provided by the applicant on the application for the protection visa. The court book also contains a record of the Department of Home Affairs, described as "enterprise correspondence", recording the dispatch of three files to the applicant at about 9:28 a.m. on 9 June 2021, which files contained the following descriptions in their titles: "Covering letter", "IMMI Refusal Notification" and "Protection visa decision record". The enterprise record contains, below the transmission details, the top of the covering letter. I am satisfied that the record shows dispatch of the primary decision to the applicant's email address at about 9:28 a.m. on 9 June 2021.
3. The applicant did not seek to challenge that evidence. Nor did he seek to adduce any evidence that might have negatived an inference that the email was transmitted on the date of the letter and the date the enterprise correspondence indicated it had been sent. Nor did the applicant make any submission concerning the date of transmission or receipt of the letter.
4. Pursuant to s 412 of the Act, the applicant was required to give his application for review to the Tribunal within a prescribed period. The longest period prescribed for the purposes of r 4.31(2) of the Regulations (at the time of the Tribunal decision) is the period applicable to persons not in immigration detention, being 28 days commencing on the day the applicant was notified of the decision. There was no indication in the court book documents, nor any suggestion made, that the applicant was in immigration detention.
5. The applicant was taken, by operation of s 494C(5) of the Act, to have received the primary decision at the end of the day on which it was transmitted, namely, at the end of 9 June 2021. The latest day on which the applicant could have lodged his application for review with the Tribunal (that is the 28th day of the period commencing on the date of notification of the decision) was therefore 6 July 2021. In the event, the applicant did not lodge the application for review until 4 August 2021.
6. Having not contested the approach to the calculation of time adopted by the Tribunal, or any of the documents contained in the court book, the only way in which there may be some basis to think that there may be some merit in the application is if the notification letter itself is deficient, such that it might be said that the letter does not constitute a notification as contemplated in s 66 of the Act at all. In that event, the argument goes, the time for making an application could not commence to run, because it could only run from the time of a notice which is effective within the meaning of the Act.
7. I am satisfied that the letter which gave the applicant notice of the primary decision notified the applicant in the prescribed way, with the result that the time for bringing the application to the Tribunal commenced to run. The notification of the decision was effective because it contained the elements required by s 66(2), namely, it:

(a) specified, as required by s 66(2)(a), the criterion for the visa which the applicant was found not to satisfy, being the criterion in s 36(2) of the Act that the applicant be a non-citizen in Australia to whom Australia has protection obligations or a member of the same family unit of such person;

(b) contained, as required by s 66(2)(c), the written reasons why that criterion was not satisfied, namely, it attached the Protection Visa Decision Record;

(c) stated, as required by s 66(2)(d)(i) and (iii) that the applicant was entitled to apply to the Tribunal for merits review of the decision;

(d) stated, as required by s 66(2)(d)(ii), that such application for review was required to be made within 28 days, commencing on the day the applicant was taken to have received the letter, which it specified was the end of the day on which the email was transmitted. That advice appeared over two short paragraphs under the heading "Review Rights" and was not bifurcated in a manner that could cause confusion and render the notice ineffective, as was the case in BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189; and

(e) stated, as required by s 66(2)(d)(iv), where such application for review could be made, specifying the street addresses, email addresses and fax numbers for filing such an application. In particular, the letter contained the details for online lodgement, which was the method used by the applicant, and the street address and fax number for the registry in the applicant's city. There is no basis to distinguish the present circumstances from those that obtained in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; [2010] FCAFC 79.

1. Unlike the position in this Court, the Tribunal had no discretion to extend the time for the making of the application that was before it. The power to extend time which was found in the Administrative Appeals Tribunal Act 1975 (Cth) (which remained in force as at the date of the Tribunal decision) is not available in respect of an application for review of either a Part 5 reviewable decision or a Part 7 reviewable decision (like the primary decision): Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228. Accordingly, there is no available argument that the Tribunal erred by declining to consider extending time for the filing of the application.
2. In the above circumstances I am satisfied that there is no arguable basis, to contend that the Tribunal's decision declining jurisdiction involved jurisdictional error.

1. In all of the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the time for the bringing of the present application. Based on the material before me, there would be no utility in making such an order, and accordingly the interests of justice do not demand it.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.