BHT23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 465

1. Before this Court is an application filed on 15 May 2023 seeking an extension of time in which to lodge an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 24 April 2014. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (delegate), dated 30 July 2013, to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. A hearing of this matter took place at the Sydney Registry of the Court on 4 December 2025.
4. The application for judicial review of the decision of the Tribunal was filed on 15 May 2023. This was 3273 days (or 9 years) after the expiry of the requisite 35-day filing period prescribed by s 477(1) of the Act. I am not satisfied that it is needed in the interests of the administration of justice to grant the extension of time for the reasons that follow.

1. The applicant is a citizen of Fiji (Court Book (CB) 31-32). She arrived in Australia on 16 August 2012 as the holder of a visitor visa. After the expiry of this visa, the applicant was granted a second visitor visa which remained valid until 16 February 2013 (CB 61-62).
2. On 15 February 2013, the applicant applied to the Department of Immigration and Citizenship (Department) for the protection visa (CB 1-26). The application was accompanied by a statement from the applicant (CB 27-28), a letter of support (CB 29-30), a copy of a social media opinion post (CB 37-38) and various media articles from Fiji (CB 39-40).
3. The applicant claimed to fear harm in the form of torture and imprisonment by authorities in Fiji on account of her sexuality and political opinion (CB 19-20).
4. On 26 March 2013, the applicant submitted further documents to the Department including a copy of the death certificate of her mother and father, and a letter from the 'Fiji Democracy Movement in Australia' (CB 48-52).
5. On 5 July 2013, the Department invited the applicant to attend an interview to further discuss her claims and evidence (CB 53-55). The applicant failed to attend the interview (CB 63).
6. On 30 July 2013, the delegate refused to grant the applicant the protection visa (CB 57-60) finding that she did not meet any of the relevant criteria for protection under s 36(2) of the Act (CB 67-68).
7. On 16 August 2013, the applicant applied to the Tribunal for review of the Department's decision (CB 74-75). The applicant appointed a legal representative to assist her in the proceedings before the Tribunal (CB 73-74).
8. On 20 August 2013, the Tribunal acknowledged the application and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 71).
9. On 22 January 2014, the Tribunal invited the applicant to appear before it to give evidence and present arguments on 9 April 2014 (CB 76-77).
10. The applicant's legal representative responded on 29 January 2014, to confirm the applicant's attendance at the hearing (CB 78-80).
11. On 6 March 2014, the Tribunal notified the applicant that the hearing had been rescheduled to 23 April 2014 (CB 81-83).
12. On 13 March 2014, the applicant's legal practitioner responded confirming that the applicant would be in attendance at the rescheduled hearing (CB 84-87).
13. On 2 April 2014, the applicant's legal practitioner provided further written submissions to the Tribunal in support of the application for review (CB 88-99). Attached to the submissions were a number of supporting documents including various reports and news articles commenting on the political landscape in Fiji between 2008 and 2014 (CB 100-105).
14. On 7 April 2014, the applicant was invited to a hearing of the Tribunal on 23 April 2014 (CB 151-152).
15. A Tribunal hearing was held on 23 April 2014. The applicant attended the hearing to give evidence and present arguments assisted by the migration agent (CB 158).
16. On 24 April 2014 the Tribunal affirmed the Department's decision not to grant the applicant a visa (CB 157) and notified the applicant by way of her legal practitioner on 28 April 2014 (CB 153).
17. The applicant's legal practitioner applied for Ministerial Intervention in a letter dated 27 May 2014 (CB 174-183).
18. On 10 June 2014, the Department acknowledged the request (CB 192-193).
19. On 23 July 2014, the Department notified the applicant that the request for Ministerial Intervention had been refused (CB 194-196).

TRIBUNAL DECISION DATED 24 APRIL 2014 [TD] (CB 157-169)

1. The Tribunal summarised the procedural history of the matter (TD [1-4]).
2. The Tribunal set out the relevant law in an attachment entitled 'Attachment A' to the Tribunal Decision (TD [5]).
3. The Tribunal summarised the evidence before the Department (TD [6-18] and [20-38]) and at the hearing before it on 23 April 2014 (TD [39-59])).
4. The Tribunal noted the applicant's claim that she feared harm on return to Fiji by reason of her sexual identity as a lesbian (TD [63]). The Tribunal recorded that the applicant had also made claims in relation to her race, religion and political opinion/activity (TD [63]).
5. The Tribunal found that the applicant was a truthful witness and accepted as credible her evidence about her own direct experiences, however noted that this did not mean that the applicant's honest beliefs or speculation about matters beyond those personal experiences were necessarily reliable (TD [62]).
6. The Tribunal recorded that it had preferred oral evidence provided directly to it by the applicant where it modified or was inconsistent with earlier written claims (TD [62]).
7. The Tribunal considered the publicly available country information and the applicant's evidence and was satisfied that there was no substance to her initial claims in relation to her race and religion (TD [64-65]).
8. The Tribunal was satisfied that the applicant held no political profile in Fiji and that she had not engaged any political activities either in Fiji or in Australia, nor was there evidence to suggest that she would be perceived to be politically opposed to the Fijian regime because of her sexual identity. Accordingly, the Tribunal was not satisfied that she would face a real chance of serious harm by reason of her political opinion (TD [69]).
9. The Tribunal recorded that the available country information did not suggest that homosexuals generally (including lesbians) were persecuted in Fiji within the meaning of the Convention (TD [71]).
10. The Tribunal considered whether the applicant's particular individual circumstances may have amounted to persecution on the basis of her sexuality (TD [74]). The Tribunal was satisfied that there was a lack of acceptance from her family but this did not amount persecution (TD [75]).
11. The Tribunal considered the applicant's claims in relation to the risk of harm posed by her cousin. The Tribunal was not satisfied that there was a real chance of serious or significant harm from her cousin in the reasonably foreseeable future (TD [77]).
12. The Tribunal found that neither the country information nor the applicant's circumstances suggested that on return to Fiji she would be denied access to employment or government services or the means to secure a livelihood (TD [78]).
13. The Tribunal was satisfied that the prospect of the applicant being disowned or excluded by her extended family was not of such a character as to amount to persecution or serious or significant harm (TD [79]).
14. The Tribunal found that the applicant did not meet any of the relevant criteria under the Act for the grant of a protection visa (TD [83-85]).
15. On 24 April 2014, the Tribunal affirmed the delegate's decision (TD [86]).

1. The applicant applied to this Court for judicial review in an application filed on 15 May 2023.
2. The applicant also filed an affidavit deposed on 12 May 2023 attaching a copy of the Tribunal Decision and containing a number of statements.
3. By orders of the Court on 12 November 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 18 November 2025. No further documents were filed.
4. The applicant's grounds for judicial review are set out in the application filed on 15 May 2023. The applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
5. On 4 December 2025, the applicant appeared before this Court as a litigant in person. Ms Maker of Sparke Helmore Lawyers appeared for the respondent. An interpreter assisted the Court. The applicant confirmed that she could understand the interpreter.
6. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 15 May 2023, a Court Book (numbering 197 pages and marked as Exhibit 1R) filed 9 August 2023, and written submissions of the Minister filed on 1 December 2025. The affidavit included a number of statements, which have been treated as submissions by this Court, with no objection from the Minister.

CONSIDERATION OF THE EXTENSION OF TIME APPLICATION

1. Section 477 of the Act provides the time limit which applies to applications for judicial review of Tribunal decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal Decision, the provision relevantly provided:

S 477 Time limits on applications to the Federal Circuit Court

(1) An application to the Federal Circuit Court 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 Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit 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 Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

...

Lodgement of application for judicial review of the Tribunal Decision

1. As the Tribunal Decision was made on 24 April 2014, the time to apply for judicial review expired on 29 May 2014 (35 days from the Tribunal Decision: s 477(1) of the Act).
2. The application for review of the Tribunal Decision was not lodged by the applicant until 15 May 2023, which was nine years after the prescribed time as set out in s 477(1) of the Act.
3. The applicant has applied for extension of time pursuant to s 477(2) of the Act. The Court must consider the two limbs of s 477(2) of the Act.

1. The first limb in s 477(2)(a) of the Act is whether an application has been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time.
2. The applicant contended the following ground for her request for an extension of time in her application for judicial review filed 15 May 2023 (reproduced without alteration):
   1. That it is in the interests of the administration of justice to extend the time, considering that the second respondent has made a jurisdictional error by not considering relevant facts pertaining to the applicant's claim for protection.
3. The applicant has made an application for extension of time in writing pursuant to s 477(2) (a) of the Act.

Necessary in the interests of the administration of justice

1. The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application 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 prescribe the criteria which must be satisfied to establish that it is necessary in the interests of the administration of justice to grant an extension of time.
3. The High Court observed in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) at [11], that the text of equivalent provisions (relevant to the Federal Court), reveals a legislative intention to restrict exercise of the jurisdiction by placing a 35 day limit on applications and ameliorating injustice that might result by allowing that time to be extended only where a judge has reached a state of satisfaction that it is in the interest of administration of justice to extend.
4. The Court usually takes into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (SZRIQ) at [46]-[48].
5. In Katoa the majority of the High Court held at [12] that:

(a) the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and

(b) 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.

The extent of the delay and explanation for it

1. The applicant lodged the application for review on, 15 May 2023, a period of 3273 days after the prescribed time.
2. Asked at the hearing before me for submissions on the lengthy delay and the reasons for it, the applicant said that she 'gave a submission' to the lawyer at the time, and he was 'meant to submit it' (Tp 6.1-25). She said that she submitted all her documents to her lawyers (Tp 6. 16-20). She changed lawyers three times (Tp 6.47). She said that the previous lawyers did not clarify what was needed and did not explain things to her clearly (Tp 6.43-44). There was also a difficulty passing documents on from one lawyer to another. She said that she was 'lost about it all' and was not given enough time (Tp 6.46). She said that as the lawyers did not communicate with her, she 'sort of shut down' and then started to look for another lawyer (Tp 7.30).
3. Nine years, by any account, is an exceptionally long delay in lodging the application for judicial review. It is, as observed by the Minister, about 93 times the prescribed timeframe. There have been many cases where courts have found a delay of over a year to be significant: see for example Vella v Minister for Immigration and Border Protection [2015] HCA 42 where the delay was 16 months. In Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 the delay was 17 months. McHugh J observed at [16]:

Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.

1. In the matter before me, the Minister has contended that it would be open to the Court to have regard to delay alone, particularly given the absence of adequate reasons for the dleay delay.
2. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) at [38], Wigney J referred to a delay of almost 18 months, calling the delay 'extreme' and observing that, without some other very persuasive factor, the length weighed in favour of the application for extension of time being refused.
3. As expressed by Wigney J in Tran, the longer the delay the more persuasive the explanation for that delay needs to be: see also Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195. The authorities suggest that the matter would need to be extraordinary or exceptional for the extension of time to be granted: Katoa at [18]; Vella at [3] per Gageler J.
4. In the matter before me, I am not persuaded by the explanations provided by the applicant for such a long delay. Even if the applicant's lawyers at the time did not communicate well with her, or there was a delay caused by the transfer of her documents between them, this does not justify a delay of nine years. Further, she mentioned that she sought out a third lawyer. In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 McHugh J found that an applicant's inability to obtain favourable legal advice is not a ground for extending time for seeking relief at [17]. In my view, while an active seeking of legal advice may explain a short delay, (CUS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293 (CUS) at [22]), it does not explain a delay of nine years.
5. I acknowledge the applicant's evidence that she had some kind of inertia -that she felt 'lost'. However, again, while this may explain a short delay, it is not a reasonable explanation for a delay of this length. I note authority for the proposition that ignorance of time limits, without further justification, is not generally regarded as a satisfactory explanation for delay: see SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 and the authorities cited in CUS at [19] per Judge Lucev.
6. The extraordinary length of the delay and the lack of adequate explanation weighs heavily against the granting of an extension of time.

Any prejudice to the respondent if an extension were granted and public interest considerations

1. The Minister submitted that the public interest in the finality of administrative decision making is not served in a case involving an extreme and unexplained delay. The Minister contended that the delay has meant that the physical Tribunal file including the application has been destroyed, which deprives the Minister and the Court of the benefit of access to the material. The Minister argued that there is a specific prejudice to them because of this, as it deprived them of the opportunity of responding to the issues raised.
2. I accept that where there are lengthy delays in applying for review, and litigation becomes prolonged, this can detract from the effective and efficient administration of justice and can prejudice the Minister. Where matters have a long history, they often become more complex, and in some cases the Minister may need to divert resources to prepare for these matters and locate materials. In this case, the Minister has not been able to prepare properly due to the fact that files have been destroyed.
3. In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 Derrington J considered an application for what was regarded as a lengthy extension of time (being two years and two months, so substantially less than the delay in the matter before me) and observed (at [43]-[44]):

In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal's decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional. The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for extension of time.

1. The issue of prejudice to the Minister is inter-related with considerations of public interest.
2. Clearly there is a public interest in the 'prompt disposition of allegations that officers of the Commonwealth have acted in excess of or have failed to exercise their jurisdiction under statute': MZABO v Minister for Immigration and Border Protection [2016] FCA 980 at [5] per Jessup J.
3. As observed by Gyles J in Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at [62] it can be easily overlooked that there is a significant public interest in the timely and effective disposal of litigation. He continued:

This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.

1. I am satisfied that given the extreme delay in this case, there is some prejudice to the Minister and that the public interest is better served by not extending time unless the merits of the case are exceptional.

1. I accept that there would be significant impact on the applicant were the extension refused. It would mean that the Tribunal would not re-consider her matter and she may have to return to Fiji. She has lived in Australia since 2012 and no doubt it may be difficult for her to leave. I accept her submissions that she calls Australia home and she finds it a peaceful and family-oriented place. I accept that she may find it difficult to adapt to life back in Fiji.
2. These compassionate considerations weigh in favour of the extension being granted.

1. In considering whether a proposed appeal has merit, a court will usually do so at a 'reasonably impressionistic level' by way of assessing whether the proposed grounds are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [21], and approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
2. However, as considered in preceding paragraphs, where there is extreme delay, as in this case, the matter would need to be extraordinary or exceptional for the extension of time to be granted: Katoa at [18] and Tran at [38]. In ascertaining whether there is an exceptional case I have considered the ground identified by the applicant in the application and have also remained alert to the possibility of error that may warrant an extension being granted: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB).
3. In her application, the applicant relies on the following ground of review (reproduced without alteration):

1. The applicant contended in her application that the first ground of jurisdictional error was that:
   1. That the second respondent did not consider relevant information pertaining to the applicant's claims for protection and thereby incurred a jurisdictional error.
2. As the applicant did not specify in her application what relevant information was not considered, I asked the applicant if she would like to explain this at the Tribunal hearing. She said that the Tribunal did not consider that because 'things happened' to her family because she was a lesbian, they would also happen to her. She said that she did tell them, but they did not explain it well or her representative did not explain it. She later clarified that when the family found out about her status it caused conflict among family members. She also said that she had asked the Tribunal for an interpreter, but they did not give her one.
3. I am not satisfied that these particulars point to any jurisdictional error, on a fair reading of the Tribunal Decision.
4. At TD [7], the Tribunal stated that it had considered the applicant's evidence before the Department as well as country information provided by the applicant in submissions.
5. At TD [21], the Tribunal referred to her evidence that she left Fiji when family members became aware of her sexuality.
6. At TD [23], the Tribunal recorded that the applicant said that she had received telephone calls from relatives in Fiji advising of threats made by her family against her given her sexuality.
7. At TD [28], the Tribunal referred to her claims of being subjected to acts of physical abuse from her brother and her family's outrage at her sexuality and threats made to her from her brother.
8. At TD [29], the Tribunal recorded her claims that her family felt that she had brought great shame on the family.
9. At TD [32], the Tribunal recorded her evidence that relatives had informed her that she should not return to Fiji due to the shame on the family.
10. At TD [48], the Tribunal noted her claim that she was being pushed away by extended family.
11. At TD [49], the Tribunal recorded that it had asked the applicant what specific harm she feared because of sexuality, and she said that the extended family including her two brothers 'would exclude her and say that she should go away and was no part of the family'.
12. At TD [76] the Tribunal stated:

Although the applicant has stated that she fears harm from family members on return and at one point suggested that she might be punched or killed, when pressed, she again expressed her specific fears in terms of being excluded from family and driven from her aunt's home.

1. At TD [79], the Tribunal found that it was satisfied that the circumstances of her being disowned or excluded by her family was not of such a character as to amount to persecution or serious or significant harm.
2. These references indicates that the Tribunal considered her evidence about family members but on the basis that she has indicated her fears were about being excluded, as this was how the applicant expressed the fear to the Tribunal. The Tribunal then made findings based on that evidence.
3. I am satisfied that the Tribunal considered the evidence about the family members and made findings on the evidence that were open to it.
4. If the applicant is claiming in her application that other evidence was not considered by the Tribunal, it is difficult to discern how this could be the case. The Tribunal, in addition to referring to her evidence before the Department and country sources at TD [7], also referred to the applicant's claims at TD [9] - [12] as well as her accompanying statement TD [13] - [16], the April 2014 submissions TD [20] - [38] and her evidence at hearing TD [42] - [59]. The country sources provided were referred to in TD [72] - [73].
5. I am not satisfied that there is an arguable case that evidence was not considered by the Tribunal.
6. As to the claim by the applicant that she was not provided with interpreting services by the Tribunal, the Minister has referred me to a letter which the Tribunal sent to the applicant inviting her to complete a form prior to the Tribunal hearing (CB 82). In this form she was asked to advise if an interpreter was required (CB 86). The form was completed by the applicant's solicitor and signed by her. Under the subheading 'Part 2 - Interpreter and Other Issues at the Hearing', 'do you or any other person attending the hearing need an interpreter?', the box 'no' was hatched (CB 86).
7. This material indicates that the applicant stated expressly, after being offered an interpreter, that she did not want one. She was represented such that her representative could have requested an interpreter at any time. I am not satisfied that there was any lack of procedural fairness on the basis of not being granted an interpreter.
8. There is no exceptional or even arguable ground for review which may demonstrate jurisdictional error.

1. As the application for judicial review of the Tribunal Decision was made outside the statutory timeframe, I may only grant an extension of time if I am satisfied such extension is necessary in the interests of the administration of justice: s 477(2) of the Act.
2. I have sympathy for the applicant who has lived in Australia for the last decade. There is likely to be significant impact on her future if no extension is granted.
3. In weighing up the factors to be considered, I have taken guidance from the High Court in Katoa at [12], that the Court's power to extend time is not focused on the interests of the applicant but rather on the broader interests of the administration of justice. The extreme delay in lodging her application for review, the absence of a suitable explanation, and the fact that that are no arguable prospects of success, weighs heavily against granting an extension of time. Further there is a public interest in the efficient progression of matters through review, which would be undermined if extensions were granted in cases where there is significant delay, such as this one.
4. In conclusion, I am not satisfied that it is needed in the interests of the administration of justice that an extension of time for lodgement of the application for judicial review be granted.
5. The application for extension of time is dismissed.
6. The Court will hear the parties on costs.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.