BZH22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 606

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 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 is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act), having been made some seven months beyond the time limit imposed by s 477(1) of the Act.
2. Where an application could not succeed, even if time was extended under s 477(2) of the Act, it will not be in the interests of justice to do so. This is such a case, because the application to the Tribunal below was, itself, a year out of the prescribed time period, and the Tribunal had no capacity to extend time. The application must be dismissed with costs.

1. The applicant is a Malaysian citizen who applied for a protection visa in 2017, which a delegate of the Minister promptly refused. Because the notification of that refusal suffered from the error identified in DFQ17 v Minister for Immigration [2019] FCAFC 64; (2019) 270 FCR 492, a letter was sent in May 2020 by the Department to re-notify the applicant of the delegate's decision. However, the applicant did not seek review of the delegate's decision in the then Administrative Appeals Tribunal (Tribunal) until a year later. Significantly, the Tribunal wrote to the applicant pointing out the delay and inviting a response. The applicant responded by email. The Tribunal then ruled it lacked jurisdiction in the matter because the application to the Tribunal from the re-notified decision of the ministerial delegate was approximately 12 months out of time. The Tribunal notified the applicant of the decision using the same email which it had previously used, which, as just noted, the applicant had used. In other words, there can be no doubt that this was an effective email for notification of the applicant at that time.
2. The application to this Court was seven months late, outside the 35-day limit prescribed by the Act. I summarised the relevant principles to be applied in an extension of time application in EMO20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2030 at [2]- [3] thus:

[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.

1. The short answer to the application is that because the Tribunal itself lacked jurisdiction as the application to it was well out of time, there can be no jurisdictional error in the decision itself. That is to say, the decision is unassailable for jurisdictional error as to the result, and no relevant procedural error amounting to a jurisdictional error has been identified in the application or the submissions filed by the applicant before me. Indeed, the grounds of the application contain a concession that the applicant did not "lodge [his] application for review with [t]he Tribunal within the relevant time limit". That being so, the application to this Court cannot succeed.
2. There were no - or no satisfactory - reasons, in any event, for the application to this Court being approximately seven months late. I asked the applicant at the hearing on more than one occasion when he said he received the decision of the Tribunal; he said it was too long ago and that he could not recall it. I am satisfied, for the reasons set out above, that the Tribunal decision was sent to the correct address. Even if I was satisfied there were an arguable error, and I am not, there is nothing in the applicant's submissions which would justify an extension for time based on there being a proper explanation for the delay.
3. For all of these reasons, the application for an extension of time should be refused as, being futile, it cannot be in the interests of justice to grant it, and costs should follow the event.
4. As to costs, the Minister seeks more than the scale amount of $4,553.02 for an interlocutory hearing, namely, $8,250. This amount is less than the scale amount of $9,097.93 had the proceeding concluded at a final hearing. The Minister submits that, in effect, the application required the Minister to prepare as for a final hearing. I am not prepared to make the order for costs that the Minister seeks, as the matter is straightforward of its type. The scale amount for the interlocutory hearing, that it always was, is appropriate.

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

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.