BYZ23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 491

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. This decision concerns the second application for judicial review of an administrative decision to refuse a protection visa, which second application was filed outside the prescribed timeframe.
2. Not being satisfied that it is in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is refused. The reasons for this decision follow.

1. The relevant context to this matter is set out in the reasons of BGG18 v Minister for Multicultural Affairs & Anor [2026] FedCFamC2G 490 (matter of MLG647/2018 BBG18) and not repeated here.

1. On 31 July 2023, the Applicant filed this application for judicial review. It is the second application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was) (Tribunal) made on 19 February 2018 to refuse the Applicant a protection visa (Tribunal decision). The application form filed in these proceedings acknowledged that the Applicant was "submitting for judicial review again" because she had "missed" a Court proceeding in the other application and acknowledged that an extension of time was required. This application was accompanied by an affidavit of the Applicant sworn 31 July 2023.
2. On 11 October 2023, the First Respondent filed a response which sought that the application for an extension of time be dismissed on the basis that the application for judicial review was an abuse of process because the Applicant sought judicial review of the same Tribunal decision that was subject of the matter of MLG647/2018 BGG18.
3. On 28 May 2024, the First Respondent filed a Court Book.
4. On 1 August 2024, the First Respondent filed an outline of written submissions in respect to the application for an extension of time.
5. On 11 November 2024, the First Respondent filed an affidavit of service of the First Respondent's solicitor, followed by a list of authorities filed on 15 November 2024.
6. On 18 November 2024, the matter proceeded to hearing before another Judge of this Court where it was established that the Applicant was in fact seeking reinstatement of another application for judicial review, in the matter of MLG647/2018 BGG18, which had been dismissed by a Registrar of this Court on 6 July 2023 for non-appearance. Orders were made as follows:

THE COURT ORDERS THAT:

1. Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), the application filed 31 July 2023 is taken to be amended so as to also seek an order pursuant to r 17.05(2) of the Rules setting aside the order made by Registrar Cummings on 6 July 2023 dismissing the applicant's application in matter MLG647/2018.

2. Pursuant to rr 1.07, 2.04 and 7.02 of the Rules, the court dispenses with the need for an amended application to be physically made, filed or served.

3. The applicant file and serve any written submissions and further affidavit material in support of her application for reinstatement pursuant to r 17.05(2) of the Rules by 16 December 2024.

4. The first respondent file and serve any written submissions and further affidavit material in relation to the reinstatement application on or before 6 January 2025.

5. The matter be adjourned and listed for hearing of the application for extension of time and the reinstatement application in this court on 22 January 2025 at 2:15PM (Melbourne time). Parties have leave to appear by videoconference.

6. The matter of MLG647/2018, BGG18 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor be listed on that date for hearing of the reinstatement application made pursuant to r 17.05 (2) of the Rules.

AND THE COURT NOTES:

A**.** The applicant did not attend a callover of matter MLG647/2018 on 6 July 2023. Registrar Cummings dismissed the matter pursuant to r 13.06(1)(c) of the Rules. The applicant subsequently filed a further application for review providing an explanation for failing to attend the callover. Consistently with the overarching purpose of the rules and in the interests of facilitating the just resolution of the issues raised by the applicant, the Court has determined it is appropriate to treat the application filed on 30 July 2023 as one that also seeks reinstatement of MLG647/2018 pursuant to r 17.05(2) of the Rules.

1. In respect of the 18 November 2024 orders, the Applicant filed: an outline of written submissions on 17 December 2024. The First Respondent filed: an outline of written submissions in respect of the reinstatement application on 2 January 2025; an affidavit of the First Respondents solicitor on 2 January 2025; and a list of authorities filed 21 January 2025.
2. On 22 January 2025, the matter proceeded to hearing before the Court as presently constituted. The matter was heard concurrent with the matter of MLG647/2018 BGG18. The Applicant appeared with the assistance of a Malay interpreter, and the First Respondent was represented by a solicitor advocate.

Should the Court be satisfied to make an order extending time?

1. Section 477(2) of the Migration Act 1958 (Cth) (Act) allows the Court to grant an extension of the 35 day period within which an application must be made as the Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. The statute does not specify particular criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to grant an extension.
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:

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.

See also: Katoa at [35], [39] and [62]; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (Foster J) [46]-[48].

1. Although it is often appropriate to assess merits at a "reasonably impressionistic level" or at a "threshold level" in terms of whether the proposed ground(s) "enjoy[s] reasonable prospects of success", the High Court in Katoa held that it is within the Court's jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:

... 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

1. An application for a remedy under s.476 of the Act in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1).
2. It is not controversial that the present application was filed late.
3. Under s.477(1) of the Act, any application to this Court is to be filed within 35 days of the date of the Tribunal's decision. The Tribunal's decision under review was published on 19 February 2018. An application for judicial review in this Court was due to be filed by 26 March 2018. The application was not lodged until 31 July 2023, meaning the application was made 1,953 days (or some 5 years and 4 months) after the expiry of the statutory timeframe.
4. I turn now to consider whether to grant an extension of the time for filing having regard to the established principles.

1. In the present case, the delay was significant.
2. Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Wigney J) at [38] (Tran). However, absence of a satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran at [38].
3. The Applicant's explanation for the delay was limited to a contention to the effect that she wished to pursue an earlier application for judicial review which was dismissed on account of her non-appearance at a Court proceeding on 6 July 2023.
4. I have considered that the Applicant appears to have been confused about the correct procedure and observe that the ignorance of an unrepresented litigant as to Court procedures does not reasonably explain such a significant delay. I make this observation in the knowledge that the Applicant was afforded allowance of an amendment to her application as to pursue reinstatement of the original application for judicial review which was dismissed for her non-appearance.
5. The absence of a reasonable or acceptable explanation for the delay weighs against the grant of an extension of the time for filing.

1. The First Respondent properly did not purport to suffer any particular prejudice were an extension of time to be allowed.
2. The absence of prejudice is a factor that weighs neither for nor against the grant of an extension of the time for filing.

1. As outlined above, the Applicant was permitted to amend the application in this matter as to seek reinstatement of the earlier application for judicial review of the Tribunal decision. Accordingly, the earlier application in BBG18 has administratively been treated as re-enlivened as for the reinstatement application to be heard and determined.
2. While that is the appropriate course, it follows that the application in these proceedings, which seeks judicial review of the same Tribunal decision as before the Court in BBG18, is strictly an abuse of process and can not succeed.
3. In any event, for the reasons given in BBG18, the substance of the grounds of judicial review of the Tribunal decision are entirely without merit.
4. That the application is devoid of merit weighs strongly against the grant of an extension of time.

1. Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the time within which to make this second application for judicial review of the Tribunal's decision of 19 February 2018.
2. Accordingly, the application filed 31 July 2023 is refused. It is appropriate and I will order that the Applicant pay the First Respondent's costs fixed in the amount of $4,189.38 as sought.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.