BXO22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 575

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [18], a plurality of the High Court said that where there is significant and unexplained delay in filing an application in relation to a migration decision, the applicant may be required to:

... show that their case is strong or even "exceptional".

1. This is such a case. The decision of the then Administrative Appeals Tribunal (Tribunal) made on 21 May 2020 was that it lacked jurisdiction because the application to it was out of time. The application to this Court for an extension of time was made 704 days outside the 35-day time limit imposed by s 477(1) of the Migration Act 1958 (Cth) (Act), on 31 May 2022.
2. I conclude that this is neither a strong nor an exceptional case. Indeed, no arguable jurisdictional error by the Tribunal has been identified. In the circumstances, the application to extend time will be dismissed with costs.

1. The applicants are husband and wife, and citizens of Malaysia. They applied for Protection (Class XA) (Subclass 866) visas which were refused by the Minister's delegate on 26 February 2020 and, on that day, they were notified using an email address they had provided. The applicants applied to the Tribunal for review on 1 April 2020, including in that application the email address to which the Minister's delegate's decision had been sent. The Tribunal concluded that the applicants had been properly notified by the delegate and that the prescribed period to apply for review had ended on 24 March 2020, so their application was made outside the 28 days prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth). That being so, there was no discretion in the Tribunal to extend the period for review, and the Tribunal decided it had no jurisdiction in the matter.
2. Pausing there, as that decision was clearly correct (as I discuss below), there is no jurisdictional error in the decision of the Tribunal, which itself is fatal to the applicants' application for an extension of time.
3. The matter came on before me on 27 March 2026, having been called over before me on 20 January 2026. A few days before the hearing before me, the applicants applied to transfer the matter from the Sydney to the Melbourne registry due to health issues with the female applicant. However, they had indicated at the callover that they were ready to have their matter heard and there was, in the end, no objection to the matter proceeding on 27 March 2026. At the hearing, I therefore dismissed the interlocutory application to transfer the matter to the Melbourne registry, as that would have served no purpose. Also at the hearing, in an affidavit read originally for the purpose of supporting the transfer application, the applicants sought to rely on evidence of the wife's eyesight difficulties and medical appointments in that regard. I received the evidence provisionally, but none of the evidence contained in the affidavit could rationally have borne on either the extension of time explanation, or any alleged jurisdictional error, not least because it postdated, by some margin, the decision of the Tribunal. That evidence was therefore of no relevance in reaching the decision to which I now turn and I reject it.

1. There are three grounds set out for the delay in filing the application. I note I have earlier considered the principles to be applied in an extension of time application in GDD25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1832 (GDD25), where I said the following:

[9] Section 477(1) of the Act provides that 35-day time limit for judicial review of "a migration decision" in respect of which this Court has original jurisdiction. On application, the Court may extend that period as it considers appropriate, if but only if "satisfied that it is necessary in the interests of the administration of justice to make the order" (section 477(2)(a)).

[10] The leading case on the exercise of the discretion is Katoa. That case concerned the power of the Federal Court, which is relevantly identical to the power of this Court under section 477, to extend time under section 477A of the Act. There, the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) said (citations omitted):

[11] At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35-day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

[12] On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, 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.

[17] ...it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors...

[18] However ... there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, 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 in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

[19] It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.

[11] Further, in Re Commonwealth; Ex parte Marks [2000] HCA 67 at [13] McHugh J (in terms recently applied by the High Court in Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40 at [33]) said:

[13] In Gallo v Dawson, I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.

[12] In his written submissions, the Minister has relied, correctly, upon the following statements of principle as to the consequences of delay. First, the Minister relies on what McHugh J said in Ex parte Marks (cited above) at [15]:

[15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

[13] The reference to 'constitutional writs' is directly applicable here, given section 476(1) of the Act provides that this Court has:

...the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

[14] Next, the Minister relies on FCFY v Minister for Home Affairs [2019] FCA 1222 at [8] where Thawley J said:

It is to be recognised that the legislature has prescribed a time limit and that there is a public interest in the finality of litigation.

[15] Third and finally, the Minister relies on WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 where Derrington J said:

[42] ...the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].

[43] In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister's legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. 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.

[44] 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 an extension of time.

1. The three grounds put forward in the application are that:

(a) the applicants did not have a migration lawyer or agent at the relevant time;

(b) financial hardship prevented them from retaining legal services to assist; and

(c) (apparently a related point) they were entitled to seek legal aid assistance, though such entitlement was not ultimately taken up.

1. None of these are sufficient explanations for a delay of the extent applicable here. The Minister was right to say that the inability to obtain legal advice or representation is not of itself a sufficient explanation for delay. As Derrington J said in WQRJ, cited above, at [37]:

In addition, it is well established that the inability to obtain legal advice or representation does not, of itself, provide a sufficient explanation for delay: Tran v Minister for Immigration and Border Protection [2014] FCA 533 [35]; AZS21 v Minister for Home Affairs [2021] FCA 392 [16]. Even so, the applicant did not establish that impecuniosity prevented him from seeking review of the Tribunal's decision sooner than he did. Importantly, no evidence was given as to the costs of doing so such that it might be demonstrated that commencing proceedings was beyond his means. It is appropriate, as the Minister submitted, to take account of the fact that impecunious litigants often commence applications in this Court for review of decisions of the Tribunal within the period limited by statute.

1. Here, the applicants were able, in the end, to complete and file an extension of time application without the assistance of a lawyer. For these reasons, I reject this explanation.
2. Secondly, and as also mentioned by Derrington J, lack of funds or financial hardship is also not a sufficient explanation for delay. In any event, no evidence of such hardship - in particular, bank statements - were provided, nor was there any evidence or submissions put forward that a fee waiver had been sought and refused. I reject this as a ground.
3. Thirdly, having been told by a friend of an entitlement to seek legal aid assistance does not assist the applicants to explain why the application was not filed within time or certainly closer to the time limit than was the case. A delay of 704 days was correctly described by the Minister as "extreme", and the factors I outlined in GDD25 are apt in those circumstances such that the applicants now would need to show their case was strong or even exceptional. They are not able to do so.
4. Of the three substantive grounds in the application, two refer to the primary decision of the Minister's delegate, which are not matters in relation to which this Court has jurisdiction. The third is a general appeal to the Court to consider the review - an impermissible merits review contention - while noting there were no supporting documents then available, as they were still seeking legal aid. None of these are grounds for challenging the decision of the Tribunal.
5. The applicants filed short written submissions where they now contend that the Tribunal erred in law, but they do not relevantly explain why. This is not a case where the applicants submit that the notification of the decision of the delegate was in some way defective. That could not seriously have been contended, as the Minister as a model litigant submitted, because the notification letter did comply with all relevant legislative requirements, and, in particular, it was permissible for the delegate to notify the applicants of the decision at the last email address provided by the applicants for the purpose of receiving documents, which was the email address the applicants subsequently relied upon when they filed the application over two years later.
6. There is no suggestion that there is a defect of the type referred to by the Full Court of the Federal Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [28], nor _BMY18 v Minister for Home Affair_s [2019] FCAFC 189. Under s 494C(5) of the Act, the applicants were deemed to have received the notification letter at the end of the day on which it was sent by email; that is, on 26 February 2020. The deeming effect of the notification letter is not a matter or fact which may be rebutted: see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]- [14] where their Honours said as follows:

[13] On 1 October 2004, an officer of the Tribunal wrote to the solicitor, indicating that the application for review appeared to be out of time and inviting the appellant to provide any documents and submissions concerning that issue. On 9 December 2004 the Tribunal decided that the application was out of time. The appellant was advised of this decision under cover of a letter dated 10 December 2004. The appellant sought judicial review of the Tribunal's decision, alleging jurisdictional error. The primary allegation raised in the application seems to have been that the relevant time limit for his application to the Tribunal was 28 days rather than 21. There was also a suggestion that any time limit should have been calculated from 1 September 2004. A perusal of the Magistrate's reasons suggests that the appeal was conducted on those grounds. His Honour disposed of it for reasons which reflected the above analysis of the relevant provisions. The notice of appeal against the Magistrate's decision raises similar grounds but also makes the erroneous assertion that he fell into jurisdictional error. In written submissions on appeal, counsel for the appellant submitted only that given the appellant's claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be 'taken to have received the document ...'. Nothing in the section suggests that this is merely a rebuttable presumption. In Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the Migration Act, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification 'even if it was not received'. At [17], O'Connor and Mansfield JJ observed:

'... the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.'

[14] The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 at [69], observed;

'The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved".

We agree. The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.

1. The Tribunal, therefore, was entirely correct to find that the 28-day period prescribed by law ran from the next day, and that the applicants were eight days out of time, such that the Tribunal lacked discretion to extend time. So much is clear from the decision of Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 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.

[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. There is nothing in the written submissions which takes issue with the decision of the Tribunal. Rather, there were irrelevant attempts to refer to the merits or to the second applicant's medical records, which, even if accepted as explaining the lengthy delay - which they could not, as most post-dated the dealings before the delegate and indeed before the Tribunal - would not explain why the other applicant could not have filed an application on behalf of both of them within time, a filing as indeed eventually occurred.
2. In all the circumstances, including the lack of any adequate explanation for the long delay or any strong or exceptional substantive case, it is not in the interests of justice to extend time for the application. Scale costs are appropriate given the amount of work involved in the matter.

1. The orders of the Court therefore are that:
   1. The application for an extension of time be dismissed.
   2. The applicants pay the first respondent's costs fixed in the sum of $4,553.02.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.