BYB22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 556

1. On 30 May 2022, the Applicant applied to this Court for judicial review of a decision of the Administrative Appeals Tribunal ('the Tribunal'), as it then was.
2. The Tribunal had determined it did not have jurisdiction to consider the Applicant's application for review of a decision of a delegate of the Minister for Immigration ('the Delegate') to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) ('the Act').

1. On 16 January 2018, the Applicant arrived in Australia from China on a Visitor visa.
2. On 22 May 2018, the Applicant applied for a Protection (subclass 866) visa. The Applicant appointed an authorised recipient to receive correspondence in connection with the visa application.
3. On 25 May 2019, the Applicant sent by email to the First Respondent's Department ('the Department') a completed change of contact/passport details form.
4. On 27 May 2019, the Department acknowledged receipt and informed the Applicant that if he no longer wished to have his authorised recipient receive communications on his behalf, he would need to complete the relevant form withdrawing the authorisation. The Applicant did not provide a response.
5. On 24 August 2020, the Department wrote to the Applicant advising him that the Delegate was considering exercising its discretion under s 494D(5) of the Act not to communicate with the Applicant's authorised recipient, as the authorised recipient was not a registered migration agent and the Department reasonably suspected that the authorised recipient was giving migration assistance. The letter stated that the Department would send any further documents directly to the Applicant. The Applicant did not provide a response.
6. On 12 October 2020, the Department wrote to the Applicant requesting further information regarding the claims made in his visa application and requesting such information be provided within 28 days. The Applicant did not provide a response.
7. On 12 February 2021, the application for a Protection (subclass 866) visa was refused. The Applicant was notified of the decision by email on that date.
8. On 21 July 2021, the Applicant filed an application in the Tribunal for review of the Minister's decision to refuse his Protection visa application ('the review application').
9. On 28 July 2021, the Tribunal invited the Applicant to comment in writing by 11 August 2021 on the validity of the review application. In the invitation, the Tribunal noted that it appeared the application was not valid as it was not lodged within the prescribed time limit of 28 days, commencing on the day the Applicant is notified of the decision, as prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) ('the Regulations').
10. The Applicant did not respond to the invitation to comment.
11. On 2 September 2021, the Tribunal decided it did not have jurisdiction to determine the review application and notified the Applicant on that date of its decision.

1. On 30 May 2022, the Applicant applied to this Court pursuant to s 476 of the Act for judicial review of the decision of the Tribunal ('the judicial review application'). The Applicant also filed an affidavit annexing the Tribunal's decision.
2. As the judicial review application was filed outside the 35-day period specified in s 477 of the Act, the Applicant also applied for an order that the time for making the application be extended under s 477(2) of the Act.
3. It is the application for an extension of time for filing the judicial review application that I am required to determine.

1. The issue to be determined is whether an extension of time for the filing of the judicial review application filed on 30 May 2022 should be granted.
2. The Applicant appeared at the hearing on 14 April 2025 and was assisted by a Mandarin interpreter who was present in Court.

(a) The Court Book which was tendered and marked as Exhibit C-1;

(b) The application for judicial review filed on 30 May 2022; and

(c) The affidavit filed on 30 May 2022;

1. The First Respondent relied upon the following:

(a) The Court Book which was tendered and marked as Exhibit C-1;

(b) The response filed on 19 July 2022;

(c) The outline of submissions filed on 25 March 2025; and

(d) The affidavit of John O'Connell filed on 2 April 2025.

SHOULD AN EXTENSION OF TIME BE GRANTED FOR THE FILING OF THE APPLICATION?

1. The time limit for filing an application under s 476 of the Act in the Federal Circuit and Family Court of Australia (Division 2) is "within 35 days of the date of the migration decision": see s 477 of the Act.
2. Under s 477(2) of the Act:

(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.

1. Section 477(3) of the Act provides that the time for filing commences from the date of the migration decision. Therefore, the judicial review application should have been filed by 7 October 2021.
2. The judicial review application was filed on 30 May 2022 and was therefore 235 days out of time.
3. The principles regarding applications for extensions of time have been considered in a number of cases: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 ('BTI15') and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 ('Katoa').
4. In BTI15, as per Jagot and Halley JJ, it was stated at [40] that the Court is required to:

... evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice.

1. See also Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
2. The following matters are relevant when considering whether to grant an extension of time:

(a) the extent of the delay and the explanation for it;

(b) any prejudice;

(c) the impact on the applicant if the time is not extended;

(d) the interests of the public at large; and

(e) the merits of the substantive application: see BTI15 at [25]-[26] per Logan J, and Katoa at [40] per Gordon, Edelman, and Steward JJ.

1. The Applicant's reason given for the delay in filing the judicial review application is that he misunderstood the time for appeal to the Court: see the affidavit of the Applicant filed on 30 May 2022 at [8]. He submitted orally at the hearing that he did not understand English and his lawyer did not explain the time to him.
2. To the extent that the Applicant may have been unaware of the time limit attached to filing a judicial review application, an unrepresented litigant's ignorance of the time limit is not, without more, a satisfactory explanation for delay: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] to [9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402 at [59].
3. It was submitted on behalf of the First Respondent that the Applicant's delay was significant and that it was not adequately explained by the assertion that he misunderstood the "time to appeal to Court".
4. I agree that a delay of more than seven months from the date of the decision is significant. Ordinarily, a delay of this length would be a sufficient basis to refuse the application for an extension of time: see Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38].
5. Although the Applicant is an unrepresented party, it can be inferred by reason of the outcome of his application to the Tribunal that he had some understanding of the importance of timeframes.
6. I conclude that the Applicant has not given an arguable explanation for the delay in filing the judicial review application.

1. It was submitted by the First Respondent that it would not face prejudice if an extension of time was granted other than the significant public interest in the finality of judicial decisions, but that the mere absence of prejudice cannot justify the exercise of the discretion sought by the Applicant. The Minister submitted the prejudice should be given neutral weight in circumstances where the merits of the substantive application weigh heavily against an extension of time.

1. The impact on the Applicant if time is not extended is that the decision of the Tribunal stands, and he would no longer be eligible to remain in Australia.
2. The Applicant himself has to bear some responsibility for this outcome noting his delays in filing his review application in the Tribunal and this judicial review application which was filed more than seven months after the date of the Tribunal's decision.

1. There is a significant public interest in the timely and effective disposal of litigation, particularly in the area of migration law where delays in dealing with visa applications should be avoided if possible.
2. The Applicant has caused significant delay in the finalisation of his visa status through his late filing of his applications to the Tribunal and this Court.

Merits of substantive application for judicial review

1. I must also consider the merits of the underlying judicial review application in deciding whether to grant an extension of time.
2. The Applicant's grounds for judicial review are set out at page 3 of the application filed on 30 May 2022 and are as follows:

There exist jurisdictional errors in my case.

1. Tribunal did not consider if the delegate gave me clear notice for the time to lodge review application.
2. Tribunal did not disclose to me materials which it relied on to make findings against me.
3. Tribunal did not consider court cases which benefited my claims.

Tribunal did not consider if the delegate gave me clear notice for the time to lodge review application

1. This ground appears to be an allegation that the Tribunal did not consider whether the Delegate clearly notified the Applicant of the time within which an application for review of the Delegate's decision had to be lodged.
2. The letter dated 12 February 2021 from the Department clearly stated the Applicant's right to seek a merits review of the Delegate's decision and, at CB71-72, that:

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.

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. At [3] of its decision (CB97), the Tribunal had regard to the letter sent to the Applicant by the Department and was satisfied the Applicant was notified of the Delegate's decision "by letter dated 12 February 2021 and dispatched by email", and that this notification was in accordance with the statutory requirements.
2. It was submitted on behalf of the First Respondent that this indicates the Tribunal did consider whether the notification complied with the relevant statutory requirements including the requirement in subparagraph 66(2)(d)(ii) of the Act to "clearly convey" the "time in which the application for review can be made", as per DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [59].
3. I conclude that the Applicant was notified of his rights to seek a merits review and the time limit for lodging such an application, and accordingly, this ground does not establish any error.

Tribunal did not disclose to me materials which it relied on to make findings against me

1. This appears to be an allegation that the Tribunal did not afford the Applicant procedural fairness by not informing him of information it may rely on in making findings against him.
2. As the Tribunal did not have jurisdiction due to the late filing of the review application, the requirements of Division 4 Part 7 of the Act did not apply to its decision. However, in reaching a decision, the common law principles of natural justice still applied to the Tribunal.
3. Once it had identified the review application was not valid, the Tribunal wrote to the Applicant on 28 July 2021 (CB91-93). In its letter the Tribunal:

(a) Clearly identified that it appeared the application was not valid;

(b) Specified the 28-day time limit for lodging an application;

(c) Advised the Applicant how the prescribed time period is calculated; and

(d) Advised the Applicant of the last day by which the application should have been lodged.

1. The letter stated that the application appeared to be out of time but that this was a matter for a Tribunal member to determine. The Applicant was invited to comment in writing by 11 August 2021 "on whether a valid application has been made".
2. It was submitted on behalf of the First Respondent that the Tribunal will have discharged its obligation to afford the Applicant natural justice by inviting an applicant to comment on the "central issue" before the Tribunal being the "question of its jurisdiction": see Alam v Minister for Home Affairs [2019] FCA 389 at [31] per Markovic J.
3. The Tribunal clearly took this step by inviting the Applicant to comment in writing.
4. I conclude that the Tribunal clearly conveyed to the Applicant the material it intended to rely on in reaching its decision and accordingly, this ground does not establish any error.

Tribunal did not consider court cases which benefited my claims.

1. This appears to be an allegation that the Tribunal did not consider relevant legal authorities which may have been in the Applicant's favour. The Applicant has not identified which cases the Tribunal failed to consider. The Applicant was given the opportunity at the hearing to identify cases he said the Tribunal failed to take into account, but he did not refer the Court to any cases.
2. In its letter to the Applicant dated 28 July 2021 (CB91-93), the Tribunal identified that it appeared the review application was not lodged within the relevant time limit and may therefore not be valid.
3. As referred to in [49] above, the Tribunal explained to the Applicant the time limit and how it is calculated. It also referred to the decision in DZAFH v Minister for Immigration [2017] FCCA 387 with reference to when the prescribed period commences.
4. It was submitted on behalf of the First Respondent that where an applicant has been properly notified and seeks review in the Tribunal outside the relevant statutory timeframe, the Tribunal has no discretion to extend time and is obliged to find it has no jurisdiction.
5. As was stated in Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 ('Beni') at [48], a merits review of a Delegate's decision is only available subject to the time limits in the legislation. The Court agreed with the reasoning of Charlesworth J in Calimoso v Minister for Immigration and Border Protection (2016) 162 ALD 361, in which he stated at [29]:

The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. However, that harsh consequence is one brought about not so much by s 494C(5) of the Act, but rather by s 347(1)(b)(iii) and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame.

1. I conclude that the Tribunal considered the matters it was required to and accordingly, no error is established in this ground.

Was the Tribunal wrong in finding it lacked jurisdiction?

1. In assessing the overall merits of the substantive judicial review application, I need to consider whether the Tribunal's decision, that it did not have jurisdiction to hear and determine the review application, was affected by a factual error, which would mean the decision should be set aside.
2. Section 412(1)(b) of the Act, in force at the time, of the Tribunal's decision provided that:

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

...

(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;

...

1. Regulation 4.31(2) of the Regulations provides that the prescribed period for lodging a merits review in the Tribunal commences on the day the applicant is notified of the decision. The day of notification is included in the calculation of the 28-day period. See DZAFH v Minister for Immigration [2017] FCCA 387, at [44]-[46], upheld on appeal in DZAFH v Minister for Immigration [2017] FCA 984. See also s 36(1), Item 2 of the Acts Interpretation Act 1901 (Cth) which provides that, where the period "is expressed to begin at, on or with a specified day", the period is taken to include that specified day.
2. Pursuant to s 494C(5) of the Act, if the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by email to the last email address provided to the Minister by the recipient for the purposes of receiving documents), the person is taken to have received the document at the end of the day on which the document is transmitted.
3. The last email address provided to the Department was the address nominated by the Applicant on 25 May 2019 on the completed change of contact/passport details form.
4. It was submitted on behalf of the First Respondent that the objective question posed by s 494B(5) is, "was the email address provided for the purpose of receipt of documents, that is, for the purpose of communication": see DCD18 v Minister for Home Affairs [2018] FCA 2090 at [34] per Allsop J.
5. The Applicant specifically requested that all correspondence be sent to the new email address (CB42). This meant that by this notice he withdrew the previous authorisation for correspondence to be sent to his former authorised recipient, see s 494D(3). Thus, the Department was permitted to send documents to the Applicant's new email address.
6. The Department's subsequent actions in communicating with the Applicant via his nominated email address including sending the decision notification, were not rendered incorrect by the Applicant's failure to complete a particular form withdrawing the authorisation for his former authorised recipient, or by his failure to respond to the correspondence from the Department in which it expressed its intention to exercise its discretion not to correspond with the former authorised recipient.
7. Further, the notification letter (CB71-73) complied with s 66(2)(d)(ii) of the Act by clearly stating the time in which the application for review may be made. It also specified the correct prescribed time limit of 28 days, explained when the Applicant was deemed to have received the notification, and was sent the same day as the decision to the last email address provided by the Applicant.
8. The Applicant received the decision the same day, 12 February 2021 and the 28-day prescribed period therefore ended on 11 March 2021. The review application was not lodged until 21 July 2021 and was therefore out of time.
9. As was stated in Beni, once it is found that an applicant was properly notified and failed to lodge an application for review with the prescribed time, the Tribunal has no power to extend time.
10. Thus, I conclude that the Tribunal's decision that it lacked jurisdiction to determine the review application was correct.

1. In terms of the question of whether the substantive judicial review application has any merit, such that an extension of time should be granted, having considered all the factors above, I find that the Application for judicial review lacks reasonably arguable prospects of success.
2. Accordingly, I conclude that it is not necessary in the interests of the administration of justice to grant an extension of time for the filing of the judicial review application filed on 30 May 2022.
3. The application for an extension of time is therefore refused and the application for judicial review filed on 30 May 2022 is dismissed.

1. At the conclusion of the hearing, I invited submissions from the parties on costs.
2. The legal representative for the First Respondent sought costs in accordance with the costs scale in Schedule 2 Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for an interlocutory application in the amount of $4,189.38.
3. The Applicant sought clarification as to why a costs order would be made and it was explained to him such an order would be made if his application was unsuccessful. He otherwise made no other submission.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Leishman.