BLX23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1041

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicants in these proceedings want to challenge a decision made by a registrar of this court that their proceedings be dismissed. The challenge is made pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). When the Court conducts such a review, it does so de novo - which means it does not address itself to the Court's decision, but it effectively answers the question again. But there is a problem in this case. It arises out of the fact s 256 says such an application for review must be filed within the time prescribed in the Court's rules.
2. The registrar's decision was made on 26 March 2025. The application for review of that decision was not lodged until 14 April 2025. The Court's rules provide the application for review must be filed within 7 days of the registrar's decision. It follows the application for review of the registrar's decision in this case was filed 12 days out of time.
3. Section 256 and r 21.02(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) contemplate the possibility of an extension of time. Neither provision explicitly refers to the matters or factors the Court must consider when deciding whether to grant an extension of time. Conventionally, the Court will have regard to the extent and reasons for delay; any prejudice that anyone will suffer if the extension is (or is not) granted; and the merits of the underlying application - ie, whether the applicants have any reasonable prospects of success if the application is allowed to go forward. The Court considers and weighs all the relevant factors having regard to the objectives of the Act.
4. In this case, the two-week delay is short - but the time limit is itself very short, and for good reason. An applicant is expected to act promptly if they disagree with the outcome before the registrar. It follows the delay is not long, but nor is it insignificant, relatively speaking.
5. The applicants were directed to provide any material in support of their application in advance of the hearing. It was anticipated they might offer an explanation for the delay. They did not comply with those directions, but at the hearing today, I was told from the bar table that the applicants did not realise they had to file the application so quickly because they were taking advice from others, did not speak English, and were unfamiliar with the law. That is not particularly satisfying: the applicants surely appreciated that deadlines were important given they had already fallen foul of one deadline in their Tribunal application.
6. It follows the delay and the absence of satisfactory explanation counts against the exercise of the discretion, albeit not heavily.
7. As to the second matter, the minister acknowledged he was not likely to experience prejudice if the extension of time were granted. The applicants, on the other hand, might be prejudiced if the extension were not granted in the sense they would be denied the opportunity to present their case. The extent (if any) of that prejudice would depend on the merits of the case.
8. I will deal with that issue now. In doing so, I must summarise the Tribunal's decision before summarising the applicants' proposed grounds of review.
9. A delegate of the minister refused to grant the applicants their protection visas on 20 January 2023. The applicants were notified of the decision at their nominated email address. (I pause to note the email address had been nominated in the application form which is reproduced in the court book at p 14; the minister had subsequently communicated several times with the applicants at that address. Importantly, he is entitled pursuant to s 494B(5) of the Migration Act 1958 (Cth) to use that address.) A copy of the communication containing the decision record is reproduced in the court book at pp 77ff. A record of the decision being despatched on 20 January 2023 is also reproduced at p 89.
10. The applicants did not apply to the Tribunal for a review of the delegate's decision until 23 February 2023. That is a problem because r 4.31(2) of the Migration Regulations 1994 (Cth) says an application for review of this kind of decision must be filed within 28 days of the date on which they were taken to be notified of the delegate's decision.
11. The Tribunal wrote to the applicants at their nominated email address on 17 April 2023 asking them to comment about the consequences of filing the application late. They did not respond within the time set by the Tribunal. On 5 May 2023, the Tribunal decided it did not have jurisdiction to entertain the application for review.
12. In its brief written reasons for decision, the Tribunal explained it was satisfied:
    • The applicants were taken to be notified of the delegate's decision on 20 January 2023 pursuant to s 494C of the Migration Act 1958 (Cth). That meant the prescribed period for seeking review ended on 16 February 2023;
    • The application was not received until 23 February 2023.
13. In the proposed grounds of review lodged in this Court, the applicants contend:
    • The Tribunal's decision is vitiated by jurisdictional error because the Tribunal was obliged to consider the appeal;
    • The Tribunal failed to correctly apply the test in s 36(2) of the Migration Act 1958 (Cth); and
    • The Tribunal acted unreasonably.
14. The attack on the Tribunal's reasons is misconceived. The applicants provided an email address which was used by the minister's delegate to contact them - and the minister used that address when the refusal decision was sent by email. The date of that email was the start date of the application period, and it provided a certain end date as the Tribunal identified. The covering letter of the delegate's decision includes an explanation of the appeal rights of the applicants. Under the heading 'Review rights' at p 74 of the court book, the letter notes:

An application for merits review of this decision must be given to the AAT within the period of 28 calendar days commencing on the day you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

1. The letter is clearly dated 20 January 2023. The letter goes on to say:

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

1. The Tribunal's short decision was correct. The application was filed out of time, which meant the Tribunal did not have any jurisdiction to deal with the applicants' claims. Its analysis of the delegate's communications reveals that all was in order. The Tribunal had no discretion to extend time. The rules are strict.
2. It follows the applicants do not have any reasonable prospects- indeed, any prospects - of success if they were allowed to proceed with their application for judicial review.
3. When I balance these considerations in light of the objectives in the Act, the outcome is clear given the merits: the application for an extension of time must be refused.
4. I have discussed with the parties the question of costs and I am satisfied the applicant should be required to pay the first respondent's costs fixed in the sum of $2,000. I note the applicant accepted that a payment would be appropriate in the circumstances. I accept having regard to the work referred to in the submissions that $2000 would be an appropriate amount.
5. I also make an order changing the name of the Minister to the Minister for Immigration and Citizenship. On that basis, the registrar's decision dismissing the application stands.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.