CFY21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1794

The Court may vary or set aside a judgment or order to remedy minor typographic, clerical 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 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. These reasons were delivered orally at the conclusion of the hearing on 23 October 2025. The written version has been prepared with reference to the Court recording.
2. Mr CFY21 applied for a Protection (Class XA) (Subclass 866) visa but his application was rejected by a delegate of the minister (the first respondent in these proceedings). The minister's decision was originally dated 26 April 2017 but it was reissued on 29 November 2019 and sent to the applicant's address on file by regular mail. The applicant filed his application for review with the Administrative Appeals Tribunal on 8 February 2021. The Tribunal concluded it did not have jurisdiction to entertain the review. The Tribunal found the application for review was filed outside the statutory time limit, and it noted it did not have the power to extend time.
3. The Tribunal's decision was made on 25 May 2021. The applicant's nominated representative, his lawyer, was informed of that decision by email on 26 May 2021. The applicant says he did not find out about the decision from his lawyer until some time later. He subsequently lodged an application for judicial review with this Court on 13 July 2021. Section 477(1) of the Migration Act 1958 (Cth) says the appeal should have been lodged within 35 days of the date of the migration decision. The application appears to have been filed 13 days outside of that time limit. The applicant cannot proceed unless the Court extends time under s 477(2) of the Act. The power to extend time in s 477(2) is a discretionary one that is available where "the Court is satisfied it is necessary in the interests of the administration of justice" to make such an order.
4. Section 477(2) does not expressly identify the factors which might be relevant to the exercise of the discretion. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28, the High Court suggested (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ) the following matters might be relevant to the question of whether an extension of time should be granted. I discussed these at the hearing with the applicant. These include:
   • The extent of the delay and the explanation for that delay;
   • Any prejudice to the respondent or anyone else if the extension of time is granted;
   • The impact on the applicant if the time is not extended;
   • The interests of the public; and
   • The merits of the substantive application, which is often the decisive consideration.
5. I am satisfied those matters may be relevant to the exercise of the discretion in this case. I will deal with each of them below.
6. The minister concedes the delay in filing the application for judicial review is short: only 13 days. The applicant's affidavit sworn on 13 July 2021 says he only became aware of the Tribunal's decision on 24 June 2021 when he attended the offices of his legal representative. The decision had been received by his previous lawyers some time before, but I understand him to say they had not passed it on. The applicant's explanation is hard to square with the email correspondence from the law firm which is annexed to the affidavit. There is an email from the firm apparently enclosing the Tribunal's decision. The email was sent to the applicant on 26 May 2021. The email talks about the decision in brief. It also points out the firm no longer acted for the applicant, and it encouraged him "to give urgent attention to this matter". The applicant says he was trying to raise the money to fund representation but he was unable to quickly do so.
7. The applicant does not have a good explanation for the delay, and the explanation offered in his affidavit is misleading. I accept the applicant may not have understood what was said in that affidavit - it was prepared by someone else - but it is still clear he was made aware of the decision and could have done something about it in a timely way. This consideration counts against the exercise of the discretion even though the delay is short.
8. The minister does not contend he - or anyone else for that matter - will be prejudiced if the extension of time is granted. I accept that is so. This consideration does not weigh for or against the exercise of the discretion.
9. Having said that, I accept the applicant will be prejudiced if an extension of time is not granted in the sense that he will be unable to progress his claim. But the extent of that prejudice - and the weight which it should be given - depends on whether he has a meritorious claim. I will deal with that issue below.
10. The public has an interest in ensuring extensive and expensive review processes are operating in a fair and efficient manner. These review processes are made available to those affected by government decisions to ensure individual justice, but also to promote good government. Time limits are included for good reasons: they are a legitimate feature of sound public administration where expedition and finality are important values. The relatively short delay in commencing the proceedings is not important of itself, but the applicant's case has added to the Court's backlog. At a minimum, the Court is required to expend resources and take time deciding whether to exercise the discretion - time and resources that could have gone into deciding substantive matters. The delay is not in the public interest, but I do not think it weighs heavily against the exercise of the discretion in the circumstances of this case.
11. The last individual consideration is the merits of the underlying application for review. This consideration is often decisive: if the underlying case is weak, there is no point in allowing it to proceed. On the other hand, a Court will be more reluctant to deny an applicant the opportunity to press a case that has obvious merit.
12. When assessing whether a case has any reasonable prospects of success, one engages in an impressionistic analysis of what is contended - starting with the grounds of review, but having regard to the Tribunal's decision which is reproduced in exhibit one, the court book, at pp 139ff. As I go about this task, I must remember the case is at an early stage and that gaps in a case might be filled with the benefit of time or advice. It would not ordinarily be appropriate to conduct a mini-trial at this juncture when making the assessment. That is certainly unnecessary in this case.
13. The applicant has identified two grounds of review. The first alleges a failure of the minister's department to deliver a valid notice under s 66 of the Act. Section 66 deals with the process for notifying an applicant of the decision - the date of a valid notification being the starting point of the appeal period. The requirements as to the content of a valid notice are set out in s 66(2)(d). The particulars to the first ground allege a contravention of s 66(2)(d)(ii). The second ground of review contends the Tribunal failed to exercise its jurisdiction under Part 5 of the Migration Act.
14. I can deal with the second ground at once. The reference to Part 5 of the Migration Act is misconceived. As the minister pointed out in written submissions, the decision not to grant a protection visa was a reviewable decision under Part 7 of the Act, not Part 5. When asked at the hearing about what was meant - and whether there were any specific allegations about a failure to comply with the requirements in Part 7 - the applicant was unable to assist me. This ground must fail.
15. That brings me back to the first ground, which requires me to focus on whether and when there was a valid notification which triggered the commencement of the period within which the applicant had to lodge his application with the Tribunal. I note the minister had already experienced a false start when his department sent out a notification letter on 27 April 2017 containing what was effectively an earlier version of the delegate's decision. The minister's first attempt at notification was found to be insufficient because it failed to meet the standards set out in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64. That (admittedly defective) letter is reproduced in the court book at pp 89ff. A fresh notification letter containing the decision was sent out by post to the applicant's last nominated residential address on 29 November 2019. The letter was sent to that address after the department had earlier emailed the applicant asking him to confirm his address details - but he did not respond.
16. The applicant's ground of review contends the 29 November 2019 letter was defective because it did not comply with the content requirements in s 66(2)(d)(ii) of the Act. Section 66(2)(d) says the letter from the minister must state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made...

1. That information is incorporated in the body of the letter which is reproduced at pp 104ff of the court book. Most of the relevant information is contained under the heading 'Review Rights'. The letter plainly conforms to the requirements of the Act. Given it was sent to the nominated address by mail, the applicant is taken to have been notified of the decision at the expiration of 7 working days by reason of s 494C(4)(a) of the Act. The 28-day appeal period (prescribed in reg 4.31(2) of the Migration Regulations 1994 (Cth)) commenced at that point. That appeal period expired on 6 January 2020 (although there is an argument that the period concluded on 7 January 2020). In any event, the applicant did not apply until after that date. The Tribunal did not have the power to extend time.
2. Given that analysis, it is clear the Tribunal's decision was correct and inevitable. There is no substance to this ground of review as drafted. I asked the applicant whether there was anything else he wanted to say. He mentioned he was willing to comply with any requirements and he genuinely wished to have the opportunity to progress his application for review because he was worried about returning. I explained to him that the Court had limited ability to take into account those arguments because I must focus on the question which arises under s 477(2) of the Act.

1. When I consider the factors I have discussed, the absence of merit in the underlying application weighs decisively against the exercise of the discretion. There is no point in allowing the applicant to continue with these proceedings because they are doomed to failure. There is no reasonable prospect of succeeding at a final hearing and so it would not be in the interests of the administration of justice to allow the matter to proceed.

1. That leaves only the question of costs. The minister has undoubtedly incurred costs in defending the proceedings. There is no reason why a costs order should not be made in his favour in the circumstances: if it is not made, the costs of the proceedings will be met entirely out of public monies.
2. The minister has asked for costs in the amount of $6,500. Ms Copping, who appeared for the minister, said that amount was calculated with reference to the work done in anticipation of the Court deciding both the extension of time application and potentially the outcome of the substantive application. While I accept the minister's lawyers may have come prepared for the eventuality that they would address the substance of the case - and they had to do so to some extent by arguing over the merits - it seems to me the matter was conducted on the basis it would be an interlocutory hearing and the applicant was not prepared to respond to the entire case. I am satisfied the amount indicated in the 2025 scale in respect of proceedings that conclude following an interlocutory hearing is a reasonable guide. I award the minister costs in the fixed amount of $4,553.02.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe delivered on 23 October 2025.