BHB23 v Minister for Immigration, Citizenship, Multicultural Affairs [2025] FedCFamC2G 583

1. On 9 July 2018, the Department of Home Affairs (Department), as it then was, emailed Playfair requesting that the applicant attend an interview on 12 July 2018 to discuss the Visa application. On 12 July 2018, the applicant attended the interview with the assistance of Playfair (Visa Interview).
2. On 25 July 2018, following the Visa Interview, Playfair emailed the Department providing further written submissions.
3. On 17 October 2018, the applicant was imprisoned at Hopkins Correctional Centre in Ararat, Victoria. The applicant was sentenced to four years imprisonment with a non-parole period of two years and three months.
4. On 13 December 2018, the Delegate refused to grant the applicant the Visa. On that same day, a notification letter was sent to the applicant via email to Playfair stating that the Delegate's decision had been referred to the Authority and attached a copy of the decision record and reasons.
5. On 18 December 2018, the Department referred the Delegate's decision to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Act).
6. On 19 December 2018, the Authority sent the applicant a letter acknowledging the referral and enclosed the Authority Practice Direction (Referral Letter). The Referral Letter was sent to the applicant via post to 132 Warrak Road, Ararat, Victoria 3337 (Hopkins Correctional Centre). The Referral Letter was not sent to Playfair.
7. On 8 January 2019, the Authority received a 'Return to Sender' notification (RTS Notification) with regard to the Referral Letter that was sent to Hopkins Correctional Centre. On that same day, the Authority made enquiries with the Department and Corrections Victoria (CV) as to the applicant's current location as a result of the RTS Notification. CV were unable to confirm the applicant's current location over the phone and advised the Authority to update the applicant's address to c/o Corrections Victoria, GPO Box 123, Melbourne, VIC 3001. A copy of the Referral Letter was sent to that address on that same date.
8. On 31 January 2019, the applicant, with the assistance of a representative of Refugee Legal and a Farsi interpreter, contacted the Authority via telephone to confirm the status of the applicant's case and whether it had been referred to the Authority.
9. On 4 February 2019, a representative of Refugee Legal emailed the Authority requesting further time to make submissions to the Authority and also requesting that no decision be made prior to 5 March 2019 in order to afford the applicant procedural fairness (4 February Letter). In the 4 February Letter, Refugee Legal asserted that providing the extension of time for the provision of submissions was reasonable when considering the following circumstances:

(1) the applicant was imprisoned and had limited opportunities to effectively communicate with a legal representative;

(2) the applicant had only just made contact with Refugee Legal and could not afford private representation;

(3) the applicant did not receive the Referral Letter from the Authority and was unaware of the limited timeframe; and

(4) Refugee Legal had limited resources and were at capacity.

1. On 5 February 2019, the Authority emailed Refugee Legal and declined to extend the time in which the applicant had to provide submissions (5 February Email). The Authority stated that the Practice Direction provides that submissions should be given to the Authority within 21 days of the matter being referred. As the case was referred on 18 December 2018, the Authority stated that the 21 day period ended on 8 January 2019 and it was not satisfied that the circumstances warranted extending the time. The 5 February Email also enclosed a number of relevant documents that were requested by Refugee Legal in their 4 February Letter.
2. On 20 February 2019, the Authority affirmed the Delegate's decision to refuse the applicant the Visa.
3. On 25 February 2019, Refugee Legal sent an email to the Authority which enclosed a further statement, submissions and material.
4. In February 2022, the applicant was transferred to immigration detention.

1. The Authority issued its statement of decision and reasons on 20 February 2019 (Authority Decision).

1. At paragraph [3] of the Authority Decision, the Authority stated that it had regard to the material referred to it by the Secretary under s 473CB of the Act.
2. At paragraph [4] of the Authority Decision, the Authority noted that no further information was obtained or received.

1. At paragraph [5] of the Authority Decision, the Authority summarised the applicant's claims for protection.
2. At paragraph [7] of the Authority Decision, the Authority noted that it had real concerns about the credibility of the applicant, having found that the applicant provided inconsistent evidence on a number of his claims for protection.
3. At paragraphs [8] - [9] of the Authority Decision, the Authority did not accept that the applicant's uncle was a member of the Mojahedin-e Khalq Organisation (MeK) or that he was arrested, imprisoned or executed for being a member. The Authority noted that the applicant did not raise this in his arrival interview, Visa application or in the Statement of Claim. The Authority further noted that the applicant expressly stated in his arrival interview that neither he, nor any family member, was involved with a political group. The Authority found it illogical that the applicant would have raised such information about his mother's family in his Statement of Claim, six years later, but failed to raise it as an issue on other previous occasions.
4. At paragraphs [10] - [13] of the Authority Decision, the Authority considered the applicant's claims in relation to his religious and violent upbringing as a Shia Muslim and accepted that he renounced his faith but noted that the applicant did not claim to experience any harassment from Iranian authorities as a result of this. The Authority did not accept that the applicant became detached from his mother and noted that the applicant did not claim an ongoing fear of harm from his mother's family, in particular the maternal uncle, if he returned to Iran having renounced his Muslim faith.
5. At paragraphs [14] - [15] of the Authority Decision, the Authority noted that the applicant provided consistent information about his employment history. The Authority accepted that the applicant was subject to low-level harassment as a result of his work in the film industry and noted DFAT reports which support the applicant's claims regarding the strict censorship of the film industry in Iran.
6. At paragraphs [16] - [35] of the Authority Decision, the Authority considered the applicant's claim's regarding his conversion to Christianity, his engagement with house churches prior to leaving Iran and his evidence pertaining to leaving Iran and fleeing to Turkey. The Authority noted that the applicant has provided four conflicting versions about the passport he used to leave Turkey and enter Australia. The Authority did not accept many of the applicant's claims due to his inconsistencies, including that the applicant entered Turkey illegally, that the applicant attended a house church, that the applicant's home was raided in relation to his involvement with the house church or that he converted to Christianity in Iran.
7. At paragraphs [35] - [38] of the Authority Decision, the Authority considered the applicant's claims regarding his practice of Christianity after arriving in Australia. The Authority had regard to the letter of support from Reverend Andrew Vines of St Andrew's Presbyterian Church (Reverend) and accepted that the Reverend was of the belief that the applicant was a genuine Christian. The Authority placed some weight on the Reverend's statement as to the applicant's involvement and commitment to the church community and activities. However, the Authority expressed some concern about the credibility of the applicant's conversion and noted that although it accepted that the applicant had been baptised and had attended services and bible studies, the Authority found that the applicant's engagement with Christian faith had been as an effort to strengthen his claims to be granted a protection visa.
8. At paragraph [39] of the Authority Decision, the Authority accepted that the applicant no longer has a valid Iranian passport and that should he return to Iran, he would be required to use temporary travel documents which would indicate to authorities that he was a returning asylum seeker.
9. At paragraphs [40] - [53] of the Authority Decision, the Authority considered whether it could be satisfied that the applicant had a well-founded fear of persecution and subsequently whether the applicant met the requirements of s 5H(1) of the Act. The Authority noted the applicant's claims regarding his faith and the purported fear of persecution in relation to this. The Authority accepted that he renounced his Muslim faith and that he practiced Christianity while in Australia, but did not accept that he was involved in any Christian activities in Iran, nor did it accept that he would be likely to practice Christianity in Iran should he be required to return. Accordingly, the Authority found that the applicant did not face a real chance of harm for reasons of religion. The Authority also made a number of findings, with reference to a June 2018 DFAT report, including that the applicant was not of interest to Iranian authorities prior to his departure from Iran, but accepted that he would be identified as a returning asylum seeker. Cumulatively, the Authority was not satisfied that the applicant had a well-founded fear of persecution. The Authority found that the applicant did not meet the requirements of s 5H(1) and thus did not meet s 36(2)(a) of the Act.
10. At paragraphs [54] - [59] of the Authority Decision, the Authority considered whether it could be satisfied that Australia has protection obligations in respect of the applicant because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk of the applicant suffering significant harm. The Authority found that the applicant did not face a real risk of harm including significant harm on the bases of his purported Christian faith and activities in Australia and thus did not meet s 36(2)(aa) of the Act.
11. Accordingly, the Authority was not satisfied that the applicant met the criteria in ss 36(2)(a) or (aa) of the Act and thereby affirmed the Delegate's decision.

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the migration decision.
2. The Authority Decision was made on 20 February 2019. An application for judicial review of that decision in this Court was therefore required to be filed by 27 March 2019. The Application for judicial review was not lodged until 13 May 2024 and was not accepted for filing until 20 May 2024.
3. Accordingly, the Application was lodged 1,874 days after the expiry of the statutory timeframe and filed 1,881 days after the expiry of the statutory timeframe.

Should the Court be satisfied to make an order extending time?

1. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The Act does not specify any criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to grant an extension.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation "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". Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(1) the extent of the delay and the explanation for it;

(2) any prejudice to the respondent if an extension were granted;

(3) the impact on the applicant if the time was not extended;

(4) the interests of the public at large; and

(5) the merits of the substantive application.

1. In the Application filed 20 May 2024, the applicant specified the following grounds as to why it is necessary in the interests of the administration of justice to extend time, in the following terms (without alteration):
   1. There is a reasonable explanation for the delay which is set out in the accompanying affidavit.
   2. There is no prejudice to the Respondents.
   3. The impact on the applicant weighs in favour of granting an extension.
   4. It is in the interests of justice to grant the extension.
2. In the applicant's unsworn affidavit filed 20 May 2024, the applicant stated the following (without amendment):

...

Extension of Time

1. I have been assisted to draft this affidavit with the assistance of an ASRC lawyer.

5. I did not receive my IAA decision on 20 February 2019.

1. At the time I was in prison at Hopkins Correctional Centre, having been sentenced on 17 October 2018. I was sentenced to four years imprisonment with a non-parole period of two years and three months. 254 days were declared as pre-sentence detention as I was in remand.
2. Whilst in prison, I did not have a mobile phone and did not have any access to the internet. It was extremely difficult for me to access legal assistance for this reason.
3. In 2019, Refugee Legal called me to assist me to complete submissions to the IAA. I do not know how they found out about my case but they called me and got me to sign an authority.
4. The ASRC has told me that Refugee Legal requested an extension with the IAA but this was refused.
5. The ASRC has told me that Refugee Legal completed submissions on my behalf on 25 February 2019. Neither myself nor the lawyers at Refugee Legal were aware that the IAA had already made a decision in my case on 20 February 2019.
6. In around February 2022 I was transferred to Melbourne Immigration Transit Accommodation.
7. In December 2023, with the assistance of my friend Koroush, I contacted my old lawyer Walid Babarkhail who was now working at Victoria Legal Aid. Koroush wrote the email on behalf because I did not write English. At this time I did not have a copy of my IAA decision.
8. It was only when Koroush and I started contacting different lawyers that we came to know that the IAA had decided my case in February 2019.
9. Victoria Legal Aid referred my case to ASRC in early 2024 to assist me with lodging this application in court.
10. It has been difficult for me to take calls from the lawyer as I am regularly unwell. I also have capacity issues.
11. I was previously challenging a Tribunal decision to affirm a s 116 cancellation in Court (BHB23 v Minister for Immigration, Citizenship and Multicultural Affairs MLG854/2023) and I was confused as to which decision was which.
12. I have been assisted by ASRC to complete this form. They have told me that they have identified legal error and that there is merit in this application.
13. I have been very confused about my legal matters and I do not fully understand what has been going on. The process of drafting this affidavit has been very difficult for me.
14. I have not been able to have this affidavit witnessed because I am in immigration detention.

1. The Minister raises no issue with the affidavit not having been sworn in circumstances where the applicant is in immigration detention.

1. The delay is extremely lengthy, being in excess of five years and amounting to 1,881 days. The Court has, in other cases, described a delay of 74 days as "substantial" and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
2. Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 (Tran) at [38]. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38]. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa) the majority observed that "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional": Katoa at [18].
3. At paragraph [12] - [13] of the affidavit the applicant provides that he was unaware of the Authority's decision until December 2023.
4. In the 4 February Letter, Refugee Legal advised the Authority that it was unable to provide ongoing assistance to the applicant and that all correspondence should be sent to the applicant directly. It then set out the correct postal address for the applicant, being Karreenga Correctional Facility, Corio, Victoria 3214. The Minister concedes that the Authority's decision was not sent to the applicant at the postal address provided, nor to Refugee Legal.
5. The Minister submits that the applicant's explanation for the delay does not explain why he took no steps between February 2019 and December 2023, a period of over four years, to make any inquiries as to the outcome of the review. The applicant submits that there was no need for the applicant to make inquiries as the Authority had been advised of the applicant's postal address and there was nothing further to indicate that the matter was not ongoing.
6. I accept that the applicant's ability to access a mobile phone and internet was limited during his period of imprisonment and his English language ability is also limited and that these matters may go some way to explaining the delay. However, neither of these things precluded the applicant having contact with Refugee Legal in January 2019, nor from filing an application to seek judicial review of the cancellation of his bridging visa on 2 May 2023. Further, the applicant was released from prison in February 2022. Accordingly, even if these matters could explain the delay, they only explain the delay until February 2022.
7. I reject the applicant's submission that the applicant's failure to make inquiries until December 2023, most particularly after February 2020, is explained by the provision of his postal address to the Authority in February 2019 and the absence of any indication that his matter was not ongoing. Upon release from prison the applicant was transferred to immigration detention. Accordingly, I consider that the applicant would have been aware as at February 2020 that he did not have a visa, although I accept that his transfer to immigration detention did not, of itself, indicate that the Authority had made a decision. However, in those circumstances, by at least February 2022, the status of the Authority's decision is of considerable pressing significance to the applicant, noting that the applicant claimed to be related to a member of MeK who had been arrested and executed, and that he fled Iran because he was wanted by authorities due to involvement in a house church and his conversion to Christianity. Further, the postal details previously provided to the Authority for the applicant are redundant after February 2022. Notwithstanding these matters, the applicant did not make inquiries for almost two years and has failed to provide an acceptable explanation for not doing so. Further, despite the applicant's evidence that he only became aware in December 2023 that the Authority had made its decision on 20 February 2019 and his matter being referred to the Asylum Seekers Resource Centre in early 2024, the application to this Court was not made for a further five months until 20 May 2024. There is no explanation for this further delay.
8. As to the remaining matters relied upon by the applicant to explain the delay, it is well established that an inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for the delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (WQRJ) at [37]. Further, confusion as to, or ignorance of, the law cannot provide an adequate explanation for a failure to comply with statutory time limits. Finally, as to the applicant's assertion that he is regularly unwell and has capacity issues, there is no objective probative evidence of this before the Court.
9. The delay is extremely lengthy, being a period of in excess of five years. For the reasons set out above, I do not consider that the applicant has provided a satisfactory explanation for the delay. The applicant has sat on his rights in circumstances where a matter of most pressing significance was at issue without satisfactory explanation.
10. I consider this weighs heavily against the grant of an extension of time.

1. The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
2. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
3. I assess this as a neutral consideration.

1. There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this. However, it has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15] - [17].
2. As to the impact upon the applicant, if the extension of time is refused then the Authority's decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act, the refusal of an explanation for an extension of time forecloses any right of appeal: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [65].
3. I accept the impact on the applicant is significant in that he would be returned to his country of nationality which is a circumstance he says he fears and that this is a matter weighing in favour of the grant of an extension of time.

1. The substantive application provides one ground of review as follows (without amendment):
   1. The IAA's decision to refuse the Applicant's request for additional time to provide submissions and new information, and to proceed to a decision, was legally unreasonable.

Particulars

1. The Applicant made a request for additional time to provide submissions and new information because he was unable to meaningfully present his case in the time afforded.

b. The IAA was on notice of the following circumstances:

1. The acknowledgement of referral to the IAA dated 19 December 2018 had not been delivered to the Applicant as it had been returned to the IAA;
2. The Applicant was detained in a correctional facility with limited access to phone and/or internet services and very limited ability to access legal assistance;
3. The Applicant was obtaining assistance from a community legal centre with limited resourcing;
4. The request for additional time was brief, particularly in the context of not having received the acknowledgement of referral;
5. The consequences for the Applicant should the application before the IAA fail were severe and involved the risk of refoulement, detention and further insecurity;

vi. There was no prejudice to the IAA in allowing this request.

1. The Authority's decision was made under Part 7AA of the Act. It is useful to first set out that statutory context as it was at the relevant time.
2. Part 7AA of the Act provided a fast track review process in relation to certain protection visa decisions. Part 7AA established: "a scheme of review which is intended by the Commonwealth legislature to be undertaken with some degree of expedition." CRW16 v Minister for immigration and Border Protection [2018] FCA 710 (CRW16) at [21].
3. In its written submissions the Minister helpfully summarises the sections of Part 7AA, which I largely adopt and set out below.
4. Section 473DA provided as follows:

(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give a referred application any material that was before the Minister when the Minister made the decision under section 65.

1. Division 3 of Part 7AA (together with ss 473GA and 473GB) were therefore taken to be an exhaustive statement of the requirements of the natural justice rule in relation to a review conducted by the Authority pursuant to s 473DA(1). Section 473DA(1) left no room for the operation of common law rules of procedural fairness: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [31], [33].
2. Section 473CA required the Minister to refer the decision to the Authority for review as soon as reasonably practicable. Section 473CB required the Secretary to assemble and provide review material to the Authority. Section 473CB(2) provided that the review material must be given to the Authority at the same time as the referral or as soon as "reasonably practicable".
3. Section 473DB was headed "Immigration Assessment Authority to review decisions on the papers". Section 473DB(1) provided that the Authority must review a decision by considering the "review material" without accepting or requesting new information or interviewing the applicant, subject to the exceptions in Part 7AA. Section 473DB(2) provided that the Authority "may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority". Section 473DD provided that the Authority must not consider new information unless one of the conditions in s 473DD was satisfied. The Authority also had the power to obtain new information pursuant to s 473DC.
4. Section 473FA provided that the Authority in carrying out its function must "pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3".
5. Section 473FB(1)(b) provided that the President of the Tribunal may issue practice directions for the conduct of reviews by the Authority. Section 473FB(2) provided that the Authority must "_as far as practicabl_e" comply with such directions. The Practice Direction at the time provided that:

(1) Reviews are generally conducted on the papers provided by the Department and are expected to be completed within six weeks of referred, but the Authority may consider written submissions and new information in exceptional circumstances.

(2) Written submissions should be provided to the Authority within 21 days of it being referred to the Authority.

1. The applicant submits that in light of the Practice Direction it was the intent of the scheme that the Authority would have submissions before it. I disagree. The statute provides that the review will, other than in exceptional circumstances, be conducted on the papers before the Minister and the Authority may make a decision at any time after a matter is referred to it. The opportunity to provide submissions in relation to why the applicant disagrees with the Minister and any claim or matters that was said to be presented to the Minister, but overlooked, arises from the Practice Direction. However, and in any event, the applicant was provided with all of the documentation and information requested from the Authority and was not precluded or prohibited from providing submissions. Indeed, he did so (although it must be accepted that an extension of time was refused). It is also to be noted that the Authority did not make its decision until 20 February 2019, being 15 days after the applicant was notified that the Authority declined his request to defer its decision until 5 March 2019.

1. The applicant contends that the Authority's decision to refuse to extend the time for him to provide submissions was legally unreasonable on four bases:

(a) the applicant was only made aware of the referral to the Authority on 31 January 2019 (44 days after it was referred). As such, the applicant was unaware that he could make submissions and the time limit that applied to those submissions (Basis (a));

(b) the Authority knew that the applicant had not received information regarding the referral until 44 days after the referral (Basis (b));

(c) it was unfair (Basis (c)); and

(d) the Authority knew that the applicant was represented by a community legal service, that advised the Authority that they had limited capacity and could only assist the applicant by a specified date (Basis (d)).

1. As correctly submitted by the Minister, at issue before the Court is whether the decision of the Authority not to defer making its decision to allow the applicant to provide submissions was legally unreasonable. It is the exercise of that discretion that is to be considered.

1. It is uncontested that the Authority had the discretion to defer its decision: CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 at [38]. It is also uncontested that that power must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [76] (Hayne, Kiefel and Bell JJ).
2. In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 (Lieu) Mortimer CJ said at [82]:

Legal unreasonableness involves a "necessarily stringent" test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that "that 'no sensible [Tribunal] acting with due appreciation of its responsibilities' could have taken" the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting _Secretary of State for Education and Science v Tameside Metropolitan Borough Counci_l [1976] UKHL 6; [1977] AC 1014 at 1064.

1. Where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li per Gageler J at [105]. The intelligible justification must lie within the reasons given by the decision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh) at [47].
2. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Minister for Immigration and Citizenship v Li [2013] HCA 18 at [105] (quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44] - [45]).

1. The Minister concedes that the applicant only became aware of the referral on 31 January 2019 and did not receive the Referral Letter. I accept therefore that the applicant was unaware of the opportunity to provide submissions until after the expiry of the 21 day period. However, as set out above, in the 5 February Email the applicant was provided with information requested in the 4 February Letter and whilst an extension of time for the provision of submissions was refused, he was not precluded or prohibited from making submissions. Indeed, he did so. Further, the Authority did not make its decision until 20 February 2019. Accordingly, the applicant had a period of two weeks within which he could have made submissions after receipt of the materials from the Authority and did not.

1. The evidence before the Court establishes that the Referral Letter was returned to the Authority on 8 January 2019 and that the Authority was subsequently advised over the telephone by CV to update the applicant's address to a post office box in Melbourne, c/- of CV. However, CV advised the Authority that they were 'unable to provide the Authority with the applicant's current location over the phone.' The Authority resent the Referral Letter to the address advised by CV.
2. I reject the submission that this evidences that the Authority knew, or at least should have known, that CV was unaware of the applicant's location. In my view, all it is evidence of is that CV could not provide the applicant's location to the Authority over the telephone.

1. As to this basis, the applicant submits that the refusal by the Authority to defer the decision to 5 March 2019 was unfair because the Authority refused the request wholly or in part because the applicant did not provide submissions by 8 January 2019 (being the expiry of the 21 day period), in circumstances where the applicant was unaware of the time limitation and the Authority knew the applicant had not received the Referral Letter in the 21 day period.
2. In the 5 February Email the Authority relevantly said:

Dear Refugee Legal,

ATTENTION Lachlan Buckley

I refer to your correspondence of 4 February 2019 requesting additional time to make a submission.

Your request has been considered but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department. As the case was referred on 18 December 2018 this 21 day period ended on 8 January 2019 and the IAA is not satisfied that the circumstances warrant extending the time in this case.

...

1. On a fair reading of the 5 February Email, I do not consider that the Authority refused the request wholly or in part because the applicant did not provide submissions by 8 January 2019 as asserted by the applicant. Rather, I consider the Authority was identifying that the 21 day period for the provision of submissions expired on 8 January 2019 and the request was therefore made some not insignificant time after the expiry of that period.
2. However, in circumstances where the Authority:

(1) knew the applicant was incarcerated;

(2) knew that the Referral Letter had been returned to the Authority on 8 January 2019 (being the date on which the submission period expired);

(3) was, as conceded by the Minister, broadly aware of the applicant's limited English language ability; and

(4) knew, or reasonably ought to have known, that the applicant was unaware of the referral to the Authority, his ability to provide submissions or the timeframe which applied to the provision of those submissions until 31 January 2019,

I consider it is reasonably arguable that the Authority's decision not to defer making its decision was unreasonable. Further, the 5 February Email does not address in its reasons for refusing the deferral request any of the matters raised in the 4 February Letter. Accordingly, for all of these reasons I consider it is reasonably arguable that the decision of the Authority to refuse the deferral request does not disclose an evident and intelligible justification and, arguably, was legally unreasonable.

1. The Minister accepts that the proposed ground of review could be reasonably arguable, however, submits that where a delay is long the applicant may be required to show that the ground is strong. I accept that submission. As set out earlier, in Katoa the majority of the High Court observed that "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional": Katoa at [18].
2. The delay here is extremely lengthy, being in excess of five years, and no satisfactory explanation for it has been provided. The applicant has sat on his rights for an extended period of time without satisfactory explanation. Accordingly, I consider that the applicant is required to show that his case is strong or exceptional. For the following reasons I do not consider it to be so.
3. Firstly, I accept the Minister's submission that the reasons for the refusal to defer the making of the decision must be read in the statutory context, relevantly, the scheme was a fast track review process, providing a limited review (which permitted the Authority to conduct a review based on the review materials only) and which is to be conducted efficiently and quickly. I also accept that the 5 February Email may be read as placing an emphasis on this statutory context. This context must be given significant weight and the reasonableness of the Authority's refusal considered in light of it.
4. Secondly, the applicant was legally represented from 31 January 2019 and a decision was not made by the Authority until 20 February 2019. As submitted by the Minister, the applicant, despite being informed on 5 February 2019 that an extension of time for the provision of submissions was not granted, and therefore a decision was imminent, had not provided any materials to the Authority by 20 February 2019, a period of 15 days after the materials requested by the applicant were provided to him. In these circumstances, it may be considered that the applicant had adequate time to provide submissions and that the Authority's decision falls within a range of possible, acceptable outcomes and was therefore not legally unreasonable.
5. For these reasons, whilst I consider the applicant's case is reasonably arguable, I do not consider it is strong or exceptional.

1. As to this basis, the 4 February Letter provided, relevantly, as follows:

...

Please note that Refugee Legal has limited resources and are currently at our capacity. It is extremely difficult to provide assistance to Mr Kebriti due to his current location and as a result, we estimate that it could take us minimum four weeks to assist Mr Kebriti. As such, we request that no decision be made in relation to this matter until 05 March 2019 so as to afford Mr Kebriti procedural fairness. We would be very grateful for your understanding in relation to this matter.

...

1. The applicant submits that it is "plainly unjust" that the Authority would refuse to provide Refuge Legal more time to provide submissions noting that the applicant was incarcerated, receiving pro-bono legal advice and knowing that he would not be able to provide submissions until 5 March 2019.
2. It is uncontested that the Authority knew that the applicant was incarcerated and as set out above, I consider this to be a relevant consideration in finding that the applicant's case is reasonably arguable. However, I otherwise reject this submission.
3. Firstly, I do not consider that the pro-bono nature of the legal advice provided to the applicant gives rise to any unreasonableness on the Authority's behalf not to defer its decision. The applicant was legally represented. All legal advisers have the same duties and obligations, irrespective of the basis upon which they are engaged. Refugee Legal knew that the review was conducted under Part 7AA. It also knew that an extension to provide submissions had been declined and that a decision was therefore imminent. It chose to continue to act for the applicant in the knowledge of these matters.
4. Secondly, I reject that the Authority knew that Refugee Legal could only assist the applicant by 5 March 2019. This is not what is provided in the 4 February Letter. The 4 February Letter provides that Refugee Legal "estimate" that it "could" take a minimum of four weeks to assist the applicant. Further, Refugee Legal provided submissions on 25 February 2019. It therefore could, and did, assist the applicant in a shorter time frame than by 5 March 2019.
5. Thirdly, as set out already, the Authority did not make its decision until 20 February 2019, some 15 days after the applicant was provided with the materials he requested of the Authority. I consider it was open to the Authority to consider this was a reasonable period of time in which to provide submissions in circumstances where the applicant was represented, had all the necessary materials, knew an extension had not been granted and a decision was imminent and the statutory scheme provided for decisions to be made with some alacrity.

Conclusion as to merits of the substantive application

1. For the reasons set out above under Basis (c), I consider the applicant to have a reasonably arguable case that the decision of the Authority not to defer the making of its decision was legally unreasonable.

1. The application in this case is 1,881 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
2. Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make the Application. Most specifically, whilst I consider the applicant's case to be reasonably arguable, the delay is exceptionally lengthy and I do not consider a satisfactory explanation for the delay has been provided. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay. I consider it to be such a case. Further, given the length of the delay and the lack of a satisfactory explanation for it, in order to be satisfied that it in the interests of the administration of justice to grant an extension of the period to make the Application, I would need to find that the applicant's case is strong or exceptional. For the reasons set out above, I do not consider it to be so.

1. Accordingly, the Application is dismissed.
2. The Minister seeks that the applicant pay its costs in the fixed amount of $8,371.30. I note that this is in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I shall order accordingly.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.