BQM21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2032

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. This is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to file an application under s 476 of the Act, in each case, to review the decision of the second respondent (Tribunal). The Tribunal determined that it did not have jurisdiction to conduct a review of an adverse decision made by a delegate of the first respondent, the Minister for Immigration and Citizenship (Minister), because the applicants had applied for review outside the statutory time frame. It being accepted that the applicants had indeed applied for review outside the statutory time frame, the Tribunal had no power to extend time. Even if I considered it was in the interests of justice to extend time for over a year in which to bring the application to this Court (which I do not), because the asserted jurisdictional error by the Tribunal cannot be made out, I decline to extend time. Costs must follow the event.
2. At the hearing before me, which was conducted with an interpreter, the first applicant, whom the Court had appointed as a litigation guardian for his son (the third applicant), appeared in person. The second applicant was also present and she appeared in person. I was satisfied that, with the assistance of the interpreter, each understood the nature of the proceedings and what was happening in Court.

1. As I recently said in EMO20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2030 (EMO20):

[2] I have indicated in my recently published judgment of GDD25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1832 the relevant tests which I must apply and the key authorities (which I will not list again here).

[3] In summary, the general principles are as follows:

(a) Accepting that declining to do so will always adversely affect an applicant for review, an extension of time beyond the prescribed 35-day limit can only be made if the Court is "satisfied that it is necessary in the interests of the administration of justice to make the order": section 477(2)(b) of the Act.

(b) Leaving aside case-specific prejudice (and here the Minister does not assert any), such delay always prejudices the orderly and proper administration of the Act because it:

(i) defeats Parliament's expressed intention that applications be made within 35 days;

(ii) detracts from the Minister's legitimate interests in the timely disposition of visa decisions under the Act;

(iii) is contrary to the public interest that litigation, including public law litigation, comes to a timely end; and

(iv) often has a real resources impact for both the executive and judicial branches of government.

(c) In every case, explanation for the delay is required. The longer the delay, the more important the cogency of that explanation. If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even exceptional.

(d) The court may also engage in at least a reasonably impressionistic assessment of the merits of the jurisdictional errors of the Tribunal below as asserted by the applicant's grounds of review, but it may go further and as the plurality of the High Court said in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28:

[18] ... the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power ... does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

[19] As the merits of a proposed application are a permissible consideration, it is within the ... Court's jurisdiction ... to have regard to that factor [the proposed grounds of review] in such manner as it considers appropriate in the circumstances.

(e) Where there are no prospects of the applicant's grounds of review succeeding, an extension is to be refused.

THE HARD TIME LIMIT FOR APPLYING TO THE TRIBUNAL

1. Each of the applicants sought to review an adverse decision of a delegate of the Minister to refuse each of them protection visas under s 65 of the Act. They then applied to the Tribunal on 13 December 2019. It was common ground that the applicants had been notified of the adverse decision of the Minister's delegate by email attaching the relevant letter, dated 14 November 2019. It was also common ground that they failed to lodge their response within the 28-day time limit imposed by s 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) which provide as follows for a time limit without any power to extend time:

412 Application for review of Part 7‑reviewable decisions

(1) An application for review of a Part 7‑reviewable decision must:

(a) be made in the approved form; and

(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

...

4.31 Time for lodgement of application with Tribunal

...

(2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

1. There is no other available power to extend time to bring proceedings in the Tribunal, including in the then Administrative Appeals Tribunal Act 1975 (Cth). The Minister correctly relies on what the Full Court of the Federal Court said in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15, at [82]-[83]:

[82] The Act works on the principle, as reflected in this section, that Part 5 and Part 7 reviewable decisions are subject to prescribed periods within which a review can be instituted. If s 29(7) of the AAT Act allowed for an extension of time within the Tribunal's discretion, this would cause uncertainty as to when decisions that have not been the subject of review applications are "finally determined". That uncertainty would undermine the working of several provisions in the Act, including ss 50, 74, 198(2) and 198(6) (concerning the power to remove persons) and s 336F(5), as well as many provisions in the Regulations. It is highly improbable that Parliament intended to allow important removal powers to be able to be defeated by removing fixed periods within which persons can seek merits review.

Conclusion - ground 2

[83] The Tribunal, as held by the Federal Circuit Court, was correct to conclude that ss 29(7), 29(8), 29(9) and 29(10) of the AAT Act did not apply to the proceeding which was before it by virtue of s 24Z of the AAT Act. No part of s 25 of the AAT Act or other sections had the effect of applying s 29 to such proceedings. It also follows from this reasoning, with great respect, that we are firmly of the view in the meaning discussed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (at [190]-[191] by Allsop J as the Chief Justice then was) that Brown No 2 was wrongly decided and should not be followed.

1. The reasoning of the Full Court is directly applicable: that is to say, the Tribunal could not extend time, and it made the only decision open to it. Thus, there can be no jurisdictional error for which this Court can grant any remedy under s 476 of the Act and it cannot be in the interests of justice to extend time. In case I am wrong, and for completeness, I now consider the explanations for delay in bringing the application before me.

1. The Minister correctly described the applicant's explanations for delay as follows:

The applicants assert that the delay in filing is because the applicants did not have legal representation, did not understand English and were struggling financially. In the grounds for an extension of time, the applicants also cite COVID-19 as a reason for the delay.

1. I accept that COVID caused many difficulties, and I am prepared to accept that it caused some practical difficulties for the applicants in this case. However, there was no evidence that COVID by itself caused a delay of over a year: the extreme delay of 388 days.
2. The other explanations have been found in many cases to be inadequate.
3. In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, it was said of the responsibility of the applicants to get advice and to file within the relevant 35-day time limit:

[38] In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.

1. Next, in MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 Moshinsky J said at [25]:

It is therefore unnecessary to consider the explanations put forward in relation to the delay. However, I note that the fact that a litigant is ignorant of the time frame for lodging an appeal is generally not a satisfactory explanation for the delay: see, eg, SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]. I also note that the making of an application to the Minister to intervene will generally not constitute an acceptable explanation for delay in filing a notice of appeal: see, eg, Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [29] per Jessup J; MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15] per Mortimer J. In the present case, there was also a significant period of delay between the rejection of the applicant's second request for Ministerial intervention (on 13 January 2016) and the lodging of the application for an extension of time (on 5 May 2016).

1. In SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 Federal Magistrate Nicholls said the following (citations omitted):

[41] First, the applicant claimed in his application to the Court that his legal adviser did not tell him of the option to apply to the Court and that he only came to know of this on 8 January 2010. The application is silent as to how this came about.

[42] Before the Court, however, the applicant clarified this. He said that his legal adviser advised told him in June 2009 that he could apply for judicial review. But that he did not have the required funds to do so. His adviser also told him of the avenue available under s 417. At that point, he took the option of applying for Ministerial intervention. When the Minister decided not to exercise his power under s 417 (21 December 2009 - CB 87), the applicant then sought additional legal advice.

[43] The difficulty for the applicant now is that he has put no evidence before the Court to support his allegation as to what the migration agent did, or did not, tell him, or the timeliness of any such advice. Ultimately, the applicant appointed an agent to assist him before the Tribunal. Even if there were any omission by the agent in relation to judicial review, the onus still remains on the applicant to make proper enquiries or take reasonable action to ascertain whether he could have taken action beyond the Tribunal and as to any applicable time limits.

1. Finally, in SZLIH v Minister for Immigration and Citienship [2009] FCA 108, Cowdroy J said:

[33] It is not acceptable that the applicants failed to make proper inquiries to determine when their appeal was required to be lodged. The Court would have found their reason for non-compliance with the Rules to be implausible.

1. These statements of authority make clear that none of the explanations given by the applicants for delay are adequate. Even had I concluded that the asserted jurisdictional error by the Tribunal was arguable I would have found it was not in the interests of justice to extend time for the following reasons:

(a) A delay of over a year, here 388 days beyond the prescribed 35-day time limit, is very lengthy.

(b) Each of the general prejudices set out in EMO20 (supra) are established.

(c) None of the explanations proffered is satisfactory for the reasons noted above.

1. For all of these reasons, I decline to extend time because it is not in the interest of justice to do so.

1. In my discretion, I consider a fixed costs order in the sum of $4,500 properly reflects the work done in this matter.
2. The orders of the Court are that:

(1) Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

(2) The applicant pay the first respondent's costs fixed in the sum of $4,500.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.