BHRR v Minister for Immigration and Citizenship

1. The following background draws on my reasons for granting the interlocutory injunction.
2. The applicant is a citizen of Afghanistan who arrived in Australia in 2001 and is the subject of a protection finding in relation to Afghanistan. On 25 August 2005, the applicant was granted a Protection (subclass XA-866) visa. That visa was the subject of a term prescribed by clause 866.511 of Schedule 2 of the Migration Regulations 1994 (Cth) that the visa permitted the applicant to travel to and enter Australia for a period of five years from the date of grant. That period expired more than fifteen years ago.
3. The applicant has been convicted of several offences in Australia, including rape and false imprisonment. In relation to those offences, he received prison sentences in 2009 in relation to offences committed against one victim, and again in 2012 in relation to separate offences committed against a different victim. The sentences imposed in 2012 were reduced on appeal in 2013 to a total effective sentence of 12 years and six months with a minimum term of eight years and six months.
4. In May 2016, a delegate of the Minister cancelled the applicant's protection visa under s 501(3A) of the Migration Act on the grounds that the applicant had a substantial criminal record and was serving a full-time sentence of imprisonment of 12 months or more. Upon satisfaction of those matters, the cancellation of the applicant's visa was mandatory.
5. The applicant then made representations to the Minister to have the cancellation of his visa revoked pursuant to s 501CA(4) of the Act. In August 2019 a delegate of the Minister declined to revoke the cancellation of the applicant's visa, not being satisfied that there was another reason why the original decision should be revoked.
6. Notice of the delegate's decision not to revoke the cancellation of the applicant's visa was sent to the applicant by letter dated 20 August 2019 addressed to the applicant at Barwon Prison care of a locked bag. The applicant received the notice because on 23 August 2019, he signed a form, which was witnessed by another person, by which he acknowledged receipt of the notice. On the same day Refugee Legal received an email from Port Phillip Prison on behalf of the applicant attaching the decision not to revoke the cancellation of his visa. Refugee Legal was not engaged in the matter on behalf of the applicant at that time, although the evidence is that on 14 August 2019 it had agreed to assist the applicant in relation to his response for the purposes of an ITOA assessment, and that it did provide that response on behalf of the applicant on 4 September 2019.
7. Under the heading "Review Rights" the notification letter stated that the applicant was entitled to have the decision reviewed by the Administrative Appeals Tribunal. The letter then stated -

If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.

As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was sent to you by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to which the letter was posted.

(Emphasis in original.)

1. The requirement that the delegate give notice of the decision not to revoke the cancellation of the applicant's visa arose under s 501G(1) of the Migration Act, which was relevantly in the following terms, noting the requirement in sub-paragraph (f)(ii) -

501G Refusal or cancellation of visa - notification of decision

(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

...

(ba) not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

...

(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i) states that the decision can be reviewed by the Tribunal; and

(ii) states the time in which the application for review may be made; and

(iii) states who can apply to have the decision reviewed; and

(iv) states where the application for review can be made; and

(v) in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi) sets out such additional information (if any) as is prescribed.

(Emphasis added.)

1. The period of nine days referred to in the notification letter reflected the period provided for by s 500(6B) of the Act within which an application to the Tribunal must be lodged -

(6B) If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(Emphasis added.)

1. The period of seven working days reflected the period prescribed by reg 2.55(7)(a) of the Migration Regulations as the period after which a person is taken to have received a document that was dispatched by prepaid post from a place in Australia to an address in Australia -

(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or

(b) in any other case - 21 days after the date of the document.

1. The term "working day", appearing in reg 2.55(7)(a), was defined in s 5 of the Migration Act -

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

1. The applicant did not lodge an application for review with the Tribunal within nine days after the period of seven working days from the date of the letter. Instead, the applicant lodged an application with the Tribunal more than three years later, on 8 November 2022. By that time, the applicant had completed his term of imprisonment in September 2021 and was in immigration detention.
2. An issue arose before the Tribunal as to whether it had jurisdiction to hear the applicant's application for review. That issue arose because the Tribunal had no power to extend the time fixed by s 500(6B) of the Migration Act for lodging the application for review: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15.
3. The applicant was represented before the Tribunal by Victoria Legal Aid which lodged the application for review on his behalf. The applicant argued on two grounds that the notice of the delegate's decision that was given to him was not given in the prescribed manner. The first ground was that the delegate was required to give the notice to the applicant's authorised recipient but failed to do so. The second ground was that sending the notice to the locked bag for Barwon Prison did not amount to sending the notice to a residential address, business address, or post box address as provided for by reg 2.55(3)(c). The Tribunal rejected both grounds and held that because the application for review was out of time, it did not have jurisdiction to review the delegate's decision and dismissed the application: BHRR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3199 (10 October 2023). The applicant did not at that stage make any application for judicial review of the Tribunal's decision.
4. Subsequently, in November 2023 and following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 the applicant was released into the community on a bridging visa known as a "BVR". This is a type of visa that is subject to special conditions and ceases upon the Minister giving notice that he or she is satisfied that removal of the visa holder from Australia is reasonably practicable, or upon the Minister giving notice that s 76AAA of the Act applies, which is engaged where the holder of a BVR is granted permission by a foreign country that is a party to a third country reception arrangement within the meaning of s 198AHB of the Act to enter and remain in that country.
5. On 1 October 2025, the Director of Immigration (Nauru) granted the applicant a Long Term Stay Visa in accordance with the Immigration (Long Term Stay Visa) Regulations 2025 (Nr).
6. On 6 October 2025, the Minister gave notice of cessation of the applicant's BVR, and on 7 October 2025 the applicant was taken back into detention.
7. On 14 October 2025, the applicant was given a notice of intention to remove him from Australia following which on 21 October 2025, the applicant filed with the Court his application for an extension of time within which to lodge an application for review of the Tribunal's 10 October 2023 decision.
8. On 10 November 2025, I made the orders enjoining the applicant's removal from Australia which are referred to at [2] above.

1. The Court has power under s 477A(2) of the Migration Act to extend the 35-day period within which an applicant may apply to the Court for a remedy in relation to a migration decision as it considers appropriate if -

(a) an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. Sub-rule 31.23(2) of the Federal Court Rules 2011 (Cth) requires that an application for an extension of time under s 477A(2) of the Act must be accompanied by -

(a) an affidavit stating:

(i) briefly but specifically, the facts on which the application relies; and

(ii) why the application was not filed within time; and

(b) a draft originating application that complies with rule 31.22.

The grounds on which the applicant seeks an extension of time

1. The applicant's application was accompanied by a proposed originating application and is supported by an affidavit of his solicitor from Refugee Legal, Cassandra Benjamin, affirmed 21 October 2025, and affidavits affirmed by the applicant dated 10 and 27 November 2025. Both affidavits of the applicant were prepared over the telephone with the applicant's lawyer and the assistance of a Hazaragi interpreter.
2. The applicant's proposed originating application addressed the grounds on which the applicant sought an extension of time under s 477A(2) of the Act, stating in the particulars to [1] -

(A) There are adequate explanations for the delay:

1. The Decision was made on 10 October 2023 and the Applicant was notified of it on around that date.
2. The Applicant is not legally trained and has limited financial resources.

Ill. The Applicant attempted to challenge the decision to not revoke the cancellation of his visa in the Administrative Appeals Tribunal, with legal assistance.

1. At all times, the Applicant has had no financial capacity to engage a lawyer to assist him on a private basis.
2. The Applicant was unable to obtain free legal assistance for an appeal of the Decision and had no understanding or ability to appeal the decision himself.

(B) The Applicant will face prejudice if his application is not granted, in that he will lose the opportunity to seek to invoke this Court's supervisory jurisdiction to review the lawfulness of the Tribunal's decision (in turn affecting his ability to seek to have his visa restored). Relatedly, he will also face deportation to the Republic of Nauru in the foreseeable future in the event his application is dismissed and he is unable to challenge the decision.

(C) There is no prejudice to the Respondents.

(D) The Applicant's proposed ground has sufficient merit.

1. The affidavit of the applicant's solicitor, although containing hearsay, was admissible because the application to extend time is an interlocutory application. The solicitor's affidavit set out the objective background to the application which is the subject of the background summary set out above. Some of the facts deposed to in the affidavit were particularly relevant to the question of the balance of convenience in relation to the applicant's application for an injunction. Amongst other things, the affidavit deposed to the following -

(a) in its reasons on the applicant's sentencing appeal the Victorian Court of Appeal recorded that the applicant had been diagnosed with major depressive disorder and post-traumatic stress disorder in 2007;

(b) the solicitor was informed by the applicant that he continues to experience symptoms that he associates with the above diagnoses and that he engaged in counselling sessions with the Victorian Foundation for the Survivors of Torture Inc while he was in immigration detention prior to his release into the community; and

(c) the applicant continued to receive treatment in the form of counselling and his counsellor, who was an accredited mental health social worker, informed the solicitor that she was treating the applicant for post-traumatic stress disorder and major depressive disorder, and that she considered that the applicant suffers from serious mental health issues.

1. At [32] of the affidavit under the heading "Reasons for delay in bringing this application" the applicant's solicitor stated -

In addition to the matters set out by me above, I am informed by the Applicant and believe that English is his second language, that he is illiterate, that he is not legally trained, and that he does not have sufficient assets or funds to afford private legal fees. I am further informed by the Applicant and believe he did not bring an application to challenge the Administrative Appeal Tribunal's [decision] of 10 October 2023 because he was unable obtain free legal assistance for an appeal and could not afford to pay for legal assistance

1. In his affidavit of 10 November 2025, the applicant deposed to the following circumstances -

(a) he can speak Dari and Hazari and conversational English, but he cannot read any of those languages;

(b) he requires a Hazaragi interpreter to communicate, especially in relation to legal matters;

(c) he has not been to school, and began work as a child when he was eight years of age;

(d) he has worked mostly as a mechanic; and

(e) he has limited ability to use technology, he no longer has an email address, and he cannot use email.

1. The applicant deposed to his fears and apprehensions if he was removed to Nauru, including -

(a) a feared inability to obtain treatment for his mental health conditions and physical conditions including back pain;

(b) difficulties in practising his Shia Muslim faith because of the absence of mosques on Nauru;

(c) a generalised fear of harm on Nauru; and

(d) a fear that he will be unable to contact family members in Afghanistan from Nauru.

1. In his affidavit of 27 November 2025, the applicant stated that he was not legally qualified and could not afford private lawyers. He stated that he has suffered from post-traumatic stress disorder and major depressive disorder for many years, including from 2023 to the present. He stated that English was his second language and that he was unable to read in English. In relation to the Tribunal's decision dated 10 October 2023, the applicant stated that he was notified of the decision, and that he wanted to challenge it, but he did not know how. He said that he was unable to do it himself, was not able to afford a private lawyer, and was not able to obtain free legal assistance in order to challenge it. He stated that to his best recollection the solicitor from Victoria Legal Aid told him soon after the Tribunal's decision was made that Legal Aid would be unable to assist him in challenging the decision. He stated that he was not able to get legal assistance to challenge the decision until Refugee Legal agreed to assist him in around October 2025.
2. The applicant was not required for cross-examination.

1. The Minister read an affidavit of Madisen Anne Scott, an AGS lawyer, affirmed 5 November 2025. That affidavit set out much of the background to this application and is not controversial. The affidavit also deposed to the establishment of an undersea data cable to Nauru and the fact that paracetamol and Celebrex are readily available on Nauru.

The grounds of the proposed originating application

1. The grounds of the proposed originating application do not challenge the Tribunal's reasons of 10 October 2023 for holding that it lacked jurisdiction. Instead, the proposed application raises another ground which was not raised before the Tribunal. The applicant seeks to claim that the notification letter conveying the delegate's decision did not comply with s 501G(1)(f)(ii) of the Migration Act because it stated that the applicant must lodge his application within nine days after the day on which he was taken to have been notified of the decision in circumstances where -

(a) the ninth day fell on Saturday, 7 September 2019; and

(b) by operation of s 36(2) of the Acts Interpretation Act 1901 (Cth), because the last day for lodging the application was a Saturday, the application could be lodged on Monday, 9 September 2019.

1. The applicant claims that because he was not notified of the delegate's decision in accordance with s 501G(1) of the Act, the time for applying to the Tribunal has not commenced to run, and that his application to the Tribunal that was lodged on 8 November 2022 was within time.

1. The applicant relied on s 36(2) of the Acts Interpretation Act in support of a submission that in the applicant's case the period in which the application had to be lodged with the Tribunal was 11 days. That was because the ninth day after the applicant was taken to have received the notification letter fell on Saturday 7 September 2019, and the next day that was not a Saturday, Sunday, or public holiday was Monday 9 September 2019.
2. The applicant cited DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492 (DFQ17) at [57]-[59] (Perram J, Rares J and Farrell J agreeing) to support a submission that the statement in the notification must be clear and complete and submitted that the failure of the notification letter to refer to the effect of s 36(2) of the Acts Interpretation Act rendered the statement in the letter less than complete and less than clear.
3. The applicant submitted that it was not necessary to show that any defect in the notification of the delegate's decision was material to the applicant's failure to engage the Tribunal's review jurisdiction earlier than he did, citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46; 284 FCR 62 (Parata) at [58]-[81] and [97] (Charlesworth and Jackson JJ).
4. The applicant submitted that because the notification letter was ineffective to commence the period for which s 500(6B) of the Act provided, the Tribunal was seized of the review and had a duty to proceed with it.
5. In relation to the applicant's failure to bring an application for a remedy in relation to the Tribunal's decision within the 35-day period fixed by s 476A of the Act, the applicant submitted that -

(a) the merits of the proposed application were a significant factor in this application, and the claim for final relief was strong;

(b) while the length of the delay was significant, it was explained by the whole combination of circumstances to which the applicant had deposed in his affidavits;

(c) a refusal of an extension of time would cause real prejudice to the applicant by depriving him of the opportunity to engage the Tribunal's review jurisdiction in circumstances where he had never had an independent tribunal review the non-revocation decision;

(d) as a further element of prejudice, the applicant submitted that if an extension of time were not granted, he would be exposed to removal to Nauru in the reasonably foreseeable future as a result of which he would suffer the detriment to which he deposed in his affidavits, submitting that, "[A] life sentence of exile from what has become home... is a savage penalty", citing words in the dissenting opinion of Justice Jackson in Jordan v DeGeorge, [1951] USSC 76; 341 US 223, 243 (1951); and

(e) conversely, there was no real prejudice to the Minister.

1. The Minister submitted that having regard to the length of time by which an extension was sought, the Court would be satisfied that it was necessary in the interests of the administration of justice to extend time only if the applicant's case was "exceptional", citing Vella v Minister for Immigration and Border Protection [2015] HCA 41; 326 ALR 391 at [3] (Gageler J) and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The Minister submitted that the applicant's case was not exceptional. The Minister submitted that -

(a) in circumstances where the applicant was legally represented before the Tribunal and there was no evidence that he was not told he could seek judicial review of the Tribunal's decision, any English language difficulties could not justify the delay;

(b) an inability to obtain legal representation is not, itself, an adequate explanation;

(c) delay caused by attempts to gain representation can be relevant where there is evidence of such attempts and the delay is not inordinate, but here, there was no evidence of any attempts and the delay was inordinate;

(d) financial impecuniosity, if shown, is of itself not an acceptable explanation; and

(e) to the extent that the applicant's health might be raised, there was no evidence that the delay in filing could be attributed to his post-traumatic stress disorder and, indeed, the applicant does not himself suggest a causal relationship.

1. For the above propositions the Minister cited Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35] (Wigney J); WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37] (Derrington J); AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [44] (Collier, Farrell and Abraham JJ); SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 (SZMNO) at [24]-[25] (Barker J); and QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 (QAAH) at [7] (Tamberlin, Kiefel and Weinberg JJ). The Minister's written submissions gave the appearance that these authorities stood for principles of universal application, but in oral submissions senior counsel for the Minister clarified that he did not rely on the authorities as establishing principles of law and accepted that each case was fact dependent. It was submitted that the cases nonetheless provided guidance and that it was desirable that similar cases should be decided in a consistent way. I accept that submission: see Katoa at [13] (Kiefel CJ, Gageler, Keane and Gleeson JJ), citing Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349 (Wilcox J).
2. Two of the authorities relied on by the Minister, SZMNO and QAAH, did not concern the power under s 477A(2) of the Migration Act or cognate provisions to extend time to seek a remedy in relation to a migration decision, but concerned the power under O52, r 15(2) of the Federal Court Rules 1979 (Cth) to allow a notice of appeal to be filed at any time for "special reasons", and where impecuniosity was held not to be a special reason. Applications for extensions of time within which to bring an appeal, or to seek judicial review of a decision of an industrial tribunal in relation to an employment dispute, may attract distinct considerations, such as the need for finality in litigation: see Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 481 (McHugh J), citing Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 263 (McInerney J); Re Commonwealth; Ex parte Marks [2000] HCA 67; 177 ALR 491 at [15] (McHugh J). However, the existence of time limits for bringing applications for remedies in relation to migration decisions evinces a legislative intention that there be some degree of certainty and finality in relation to administrative processes relating to migration decisions, but subject to a power to ameliorate injustice by extending time where the judge has reached the state of satisfaction in s 477A(2)(b): Katoa at [11] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
3. The Minister submitted that instead of pursuing his rights at the time of the Tribunal's decision the applicant lived in the community as the holder of a BVR. It was submitted that the applicant had sat on his hands and had filed his application only after he was notified of the proposal to remove him in October 2025.
4. The Minister submitted that there was prejudice that would result from allowing the applicant to commence a proceeding more than two years after the Tribunal's decision that it lacked jurisdiction to review the delegate's decision. The claimed prejudice was that the Minister had taken steps, such as the issue of a BVR and the making of arrangements for the applicant to be removed to Nauru on the basis of an understanding that until the filing of this application the applicant, who was legally represented before the Tribunal, had accepted the Tribunal's decision.
5. The Minister submitted that the applicant's explanation for the delay was inadequate, and that in those circumstances the applicant had to show that the merits of the case were "strong or even 'exceptional'", citing Katoa at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The Minister submitted that the substantive claim of jurisdictional error by the Tribunal had insufficient merit to justify an extension of time to bring the proceeding.
6. The Minister submitted that s 501G(1)(f)(ii) of the Migration Act does not require the notice to identify the particular date on or by which an application for review by the Tribunal may be made but requires that the time in which the application may be made be identified. The Minister submitted that s 501G(1)(f)(ii) required that the notice identify the period provided for by the Migration Act for a person to apply for review. It was submitted that the period was provided for by s 500(6B), being the period of nine days after the day on which the person was notified of the decision. The Minister submitted that the notification letter of 20 August 2019 correctly stated the terms of s 500(6B) and therefore complied with s 501G(1)(f)(ii).
7. The Minister accepted that the notification letter made no reference to s 36(2) of the Acts Interpretation Act or its effect and accepted that it was engaged in the applicant's circumstances. However, the Minister submitted that s 36(2) of the Acts Interpretation Act provided for an interpretative rule which did not "otherwise alter or affect rights or obligations under the [Migration] Act", citing Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 (Kumar) at [23] and [25] (Bell, Keane and Gordon JJ). It is convenient to state here that I consider that the quotation from Kumar relied on by the Minister has been taken out of context.
8. The Minister submitted that s 36(2) of the Acts Interpretation Act provided a separate, beneficial provision allowing the filing of an application on the following working day, in effect because filing the application might not have been possible on a weekend or public holiday, with physical registries, for example, being closed. It was submitted that s 36(2) does not directly alter the nine-day time limit in s 500(6B) and does not otherwise affect rights or obligations under the Migration Act. In making this submission the Minister acknowledged the passing reference by Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ in Miller v Minister for Immigration v Citizenship and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [3] to the nine-day period in s 500(6B) of the Migration Act being calculated in accordance with s 36 of the Acts Interpretation Act.
9. The Minister submitted that nothing in s 501G(1)(f) required the notification letter to identify the additional provision made by s 36(2) of the Acts Interpretation Act or its effect in the factual circumstances of this case: what was required was for the notice to state the time in which an application for review may be made under the Migration Act: in other words, the period supplied by s 500(6B).
10. Referring to Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 (EFX17) at [41] (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) the Minister submitted that notification under s 501G(1) of the Act must include "sufficient information" to permit the recipient to determine the period correctly. I pause to note that EFX17 concerned the requirement under s 501CA(3) to invite a person to make representations to the Minister about revocation of a cancellation decision "within the period and in the manner ascertained in accordance with the regulations". The Court held at [41] that s 501CA(3) did not require that a date be specified but required "that there be sufficient information on the face of the invitation to permit the person to determine the period correctly". The Court further stated at [41]-[42] -

... It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.

For these reasons, an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as "28 days from the day that you are handed this document". The invitation in the letter from the delegate of the Minister did not do so. ...

(Footnote omitted.)

1. After citing the words "sufficient information" from EFX17 at [41], the Minister submitted that the notification letter did include sufficient information. It was submitted that the time in which the application for review must be made was stated, and the date on which it must be filed could be determined, having regard to: (a) the date of the notice; (b) the statement that the notice was sent by registered post; (c) the statement that the applicant is taken to have received the notice seven working days after the date of the notice; and (d) the instruction that an application for review must be made within nine days after the date of deemed receipt. The Minister submitted that s 501G(1)(f) did not require the notice to explain all of the relevant principles of statutory interpretation or the existence of interpretive provisions under other Acts which might have extended time depending on the factual circumstances of the case. The Minister submitted that the applicant could review the letter and, in light of the objective facts and relevant principles of statutory interpretation, determine the relevant date.
2. The Minister submitted that s 501G(1)(f) of the Act does not require that every aspect of the relevant statutory provision be referred to, citing Pomare v Minister for Immigration and Citizenship [2008] FCA 458; 167 FCR 494 (Pomare) at [36] where Lindgren J held that -

There is no substance, in my view, in any of the attacks made on the notice insofar as it purported to state the effect of s 500(6B) and (6C). While there may be argument over the extent of the requirement that a document state the "effect" of a statutory provision, I think it is clear that the requirement is not one that every aspect of the statutory provision be referred to, otherwise the legislature would have simply required that a copy of the statutory provisions be supplied with the notice. The notice handed to Mr Pomare did state the effect of s 500(6B) and (6C).

1. However, I pause to note that the issue in Pomare that Lindgren J addressed at [36] was whether there had been compliance with s 501G(1)(f)(v) of the Act, which is not directly in issue in this case, and which required that the notice -

(v) in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); ...

1. Pomare at [36] was directed to the requirement to "state the effect of s 500(6B) and (6C)", and not the requirement in s 501G(1)(f)(ii) to state "the time in which the application for review may be made".
2. Finally, the Minister submitted that any complexity which existed from determining the date was "not the fault of the author of the letter but a result of the terms of the statute itself" and its interaction with the Acts Interpretation Act in the circumstances of the case, citing the quoted words from BMY18 v Minister for Home Affairs [2019] FCAFC 189; 271 FCR 517 (BMY18) at [19] (Reeves, Perram and Charlesworth JJ). I note that their Honours went on to state at [19] -

Whilst it might well be more useful for such letters actually to state the date by which the review application must be made this is not what s 66(2)(d)(ii) requires which is instead that the notification should state "the time in which the application for review may be made". This is a reference to a period and not a date.

1. The Minister also relied on the concluding sentences in BMY18 at [19], submitting that -

The fact that there may be, in some cases and depending upon the given circumstances, some complexity in working out the precise last day on which an application could be filed does not meant that the notification is invalid; it is simply a consequence of the statutory scheme at hand applied to the facts at hand.

1. The principles relating to the exercise of the power under s 477A(2) to extend time were stated by Kiefel CJ, Gageler, Keane and Gleeson JJ in Katoa at [11]-[13]. There are no mandatory relevant considerations other than the "interests of the administration of justice". The Court may look at a myriad of facts and circumstances, including the length of the applicant's delay, the reasons for the delay, any prejudice to the respondent, any 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: Katoa at [12].
2. The merits of the proposed application for remedies in relation to the Tribunal's decision are usually important, and in this application, they are especially important. While it may often be appropriate to assess the merits of an underlying claim on an application for an extension of time at an "impressionistic level", the length of the applicant's delay and the Minister's attack on the adequacy of the applicant's explanations for the delay direct attention to the merits. In the circumstances of this application, it is appropriate to examine the merits in some detail: Katoa at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). And in this application, I have taken the "prudential approach" of listing and hearing both the application for extension of time and the underlying application together: Katoa at [64] (Gordon, Edelman and Steward JJ).
3. I have concluded that the notification letter of 20 August 2019 did not clearly, or completely, or accurately, state the time in which an application for review of the delegate's decision may be made. It was not in dispute that if the notification letter was not given in accordance with s 501G(1)(f)(ii), then it was ineffective to commence the running of time and that the Tribunal had jurisdiction and a duty to conduct a review of the delegate's decision. In this regard, in Parata, Charlesworth and Jackson JJ stated at [78] that, "[h]ad Parliament intended the question of jurisdiction to turn on considerations of fairness assessed in each individual case, it may reasonably have been expected to make express provision for it". Express provision of this type is now made by s 494E of the Migration Act which was inserted by the Migration Amendment (Giving Documents and Other Measures) Act 2023 (Cth). Section 494E does not apply to the notification letter to the applicant because the provision applies in relation to a notice, notification or document given on or after 1 November 2023.
4. The applicable principles in relation to the question of compliance with s 501G(1)(f)(ii) are those stated by Perram J (Rares J and Farrell J agreeing) in DFQ17 at [52]-[58] in relation to the cognate provision in s 66(2) of the Migration Act. The key requirement of the provision is that in the context of a strict review system the notice must "state" the time. The notice must convey the time period in a way that is not only complete but is also clear. I would add that the requirement to "state" the time period also carries with it a requirement to state the period accurately: Chan Ta Srey v Minister for Immigration [2003] FCA 1292; 134 FCR 308 at [39] (Gray J).
5. On the date the notification letter bore, being 20 August 2019, it was an objectively ascertainable fact that the ninth day for the purposes of s 500(6B) of the Act fell on Saturday, 7 September 2019. This is because by operation of reg 2.55(7)(a) of the Migration Regulations, the date on which the applicant was notified of the decision was seven working days in the place of the applicant's address after the date of the document. The nine-day period provided for by s 500(6B) was calculated from that day.
6. In stating to the applicant that he must lodge his application for review within nine days after the day on which the applicant was taken to have been notified of the decision, the letter reasonably conveyed that the period was nine calendar days. There was nothing in the notification letter that alerted the reader otherwise. This may be contrasted with the explanation in the notification letter of the meaning of "working day", which was a term used in the Regulations, and which was defined in s 5 of the Act.
7. The Minister's submissions treated the operation of s 36(2) of the Acts Interpretation Act on the calculation of time as a separate, beneficial provision that did not directly alter the nine-day time limit in s 500(6B) and did not otherwise affect rights or obligations under the Migration Act. These submissions must be rejected.
8. The substance of s 36(2) of the Acts Interpretation Act was enacted as part of the original Act in 1901. The long title to the Act is "An Act for the Interpretation of Acts of Parliament and for Shortening their Language". The Act applies to all Acts subject to a contrary intention. There was no submission that for the purposes of the application of s 36(2) of the Acts Interpretation Act, s 500(6B) of the Migration Act evinced a contrary intention. Sub-section 36(2) of the Acts Interpretation Act assists the legislature to avoid cumbersome and over-elaborate wording: Blue Metal Industries Ltd v Dilley [1970] AC 827 at 846 (PC). In Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 at [8] Gleeson CJ stated that -

Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation.

1. Sub-paragraph 501G(1)(f)(ii) of the Migration Act required notification of the time in which an application for review could be made and not, as the Minister submitted, the time specified by s 500(6B) of the Act. Because s 500(6B) of the Migration Act and s 36(2) of the Acts Interpretation Act do not compete for priority but work together, to state to the applicant that he had nine days after the day on which he was notified of the delegate's decision to lodge an application for review was at least incomplete and was certainly inaccurate if not plainly incorrect.
2. It follows that the Minister's other submissions must also be rejected. Contrary to the Minister's submissions citing Kumar, the interpretative rule in s 36(2) of the Acts Interpretation Act did relevantly alter rights or obligations under the Migration Act. The Minister cited words from Kumar at [23] out of context because the issue in Kumar, as with Associated Dominions Assurance Society Pty Ltd v Balmford [1950] HCA 30; 81 CLR 161 which it cited, was whether s 36(2) of the Acts Interpretation Act was engaged at all.
3. I therefore approach the applicant's application under s 477A(2) of the Migration Act to extend time on the premise that if time is extended the applicant will succeed in his application for a remedy in relation to the Tribunal's decision. This is a very weighty factor.
4. The Minister's submissions directed to the applicant's inactivity after he received notice of the Tribunal's decision had some level of force, and it is inescapable that the period of delay has been very significant. However, the circumstances must be evaluated against the unchallenged evidence of the applicant concerning his illiteracy in any language, his lack of formal education, and his complete reliance on legal services made available to him by Victoria Legal Aid and more recently Refugee Legal. I note the applicant's evidence about his mental condition, but in the absence of anything linking it to the applicant's failure to file judicial review proceedings earlier, I do not accord that evidence independent weight. Rather, this is a case which requires an appraisal of the entire picture. In the circumstances recounted by the evidence it is unexceptionable that the legal point that has now been argued on the applicant's behalf was advanced only after experienced counsel were engaged upon the imminent removal of the applicant to Nauru.
5. In relation to prejudice, I accept that the Minister has likely applied resources to the removal of the applicant to Nauru on the assumption that the applicant had exhausted all avenues of administrative and judicial review. However, against that I weigh the fact that the applicant lodged a valid application with the Tribunal to review the delegate's decision, and that he has not ever had the delegate's decision reviewed by an independent tribunal. I regard the applicant's prospects of successful review as something that cannot be evaluated and therefore not material to the analysis. The prejudice to the applicant is informed by the likely consequences of a refusal of the application to extend time. There is a likelihood that, subject to his challenge in his second proceeding based on the arguments advanced before the High Court in TCXM, the applicant will be removed to Nauru where he will reside for the foreseeable future with at least some of the adverse consequences to which he deposed in his evidence.

1. For the above reasons I am satisfied that it is in the interests of the administration of justice, being the broader interests of the administration of justice (Katoa at [12]), to make an order under s 477A(2) of the Migration Act extending time.
2. The applicant is also entitled to the final relief that he seeks, namely orders in the nature of certiorari and mandamus to quash the Tribunal's decision in Matter No 2022/9182 made on 10 October 2023 and to require the Administrative Review Tribunal to determine the applicant's application for review according to law.
3. The Minister accepted that costs should follow the event. The Minister will be ordered to pay the applicant's costs of the proceedings.

I certify that the preceding 74 (seventy-four) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.