CGI24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2123

1. Mr CGI24 is the applicant in these proceedings. He wants the Court to review a decision of the Administrative Appeals Tribunal that was made on 2 August 2022. The Tribunal had decided it did not have the jurisdiction or power to entertain Mr CGI24's application for merits review of a decision made by the minister's delegate to refuse Mr CGI24 a protection visa. The Tribunal's 'no jurisdiction' decision was made because Mr CGI24 failed to approach the Tribunal within the time allowed for an appeal following receipt of a valid notification of the delegate's decision.
2. Unfortunately for Mr CGI24, he did not apply to this Court until 1 May 2024 - over 20 months after the date of the Tribunal's decision.[1] That means his appeal is outside the appeal period set out under s 477(1) of the Migration Act 1958 (Cth) for proceedings of this kind. That 35-day appeal period commences on the date the applicant was notified of the Tribunal's decision.
3. Whereas the Tribunal has no discretion to extend the appeal period which commences upon receipt of a valid decision notification from the delegate, this Court has the discretionary power under s 477(2) of the Act to extend the time for an applicant to appeal to this Court. The discretion is available where the Court is satisfied it is necessary in the interests of the administration of justice to make such an order.
4. The Act does not expressly identify any factors that must be considered when deciding what is in the interests of the administration of justice, but cases like Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 suggest one might look to:
   • the length and explanation for the delay. While any delay should be explained, a lengthier delay might require a better explanation;
   • any prejudice to the respondent or anyone else if the extension of time were ordered; and
   • the merits of the underlying application.
5. I propose analysing Mr CGI24's application with reference to these considerations before reaching a final conclusion.
6. A registrar of the Court made orders on 19 June 2025 requiring that the applicant file and serve any submissions or material that he wanted to rely upon at least 28 days before the hearing. Fresh orders were made on 30 September 2025 requiring the applicant to file that material by 28 October 2025. Nothing was received. I have proceeded on the basis of the material on the file, including the application for review and the applicant's affidavit affirmed on 12 February 2024, and the applicant's oral submissions.

1. The length of delay at 20 months is significant. I asked Mr CGI24 about his explanation for that extensive delay at the hearing. He explained he was experiencing financial distress at the time the Tribunal's decision was made. He said he was depressed and he was not checking his email and could not engage with the news that awaited him. That is unfortunate, especially as the delay went on for so long.
2. I accept the applicant was experiencing distress and that he was in difficult financial circumstances. Financial difficulties are not ordinarily a good reason for failing to approach the Court, but I accept untreated mental health challenges may create an obstacle. It was unfortunate he was not receiving treatment for his depression: that means it is difficult to know what to make of this claim. The length of the delay counts against the exercise of the discretion to extend time, although I am not inclined to weigh it heavily in the circumstances.

1. I have considered whether the respondent or anyone else would experience prejudice if an order were made. The minister conceded there was no prejudice, although the minister properly pointed out that unnecessary delays in finalising administrative proceedings are not in the public interest. I agree with the minister, but I am satisfied this consideration does not weigh for or against making an order.
2. The most important consideration in the circumstances of this case is the merit or prospects of the underlying application for review of the Tribunal's 'no jurisdiction' decision.

1. When assessing the merits of the underlying application, it is not ordinarily necessary to conduct a mini-trial. One needs to examine the case that would be advanced - starting with the grounds of review - to determine whether the applicant has some prospects of success which suggest it would be appropriate to allow the claim to go forward.
2. Mr CGI24 has identified grounds that do not grapple with the Tribunal's decision. The 'no jurisdiction' decision was made after the Tribunal satisfied itself the application for review had been filed out of time following what it took to be a valid notification of decision from the delegate. The Tribunal's short decision to that effect is reproduced at pp 73-74 of the court book.
3. I note the Tribunal invited Mr CGI24 to comment on whether the application to the Tribunal was valid before it made its decision. The invitation to comment is dated 13 May 2022. It is reproduced in the court book at pp 69-70. In seeking that comment, the Tribunal was fulfilling its procedural fairness obligations.

1. The correctness of the Tribunal's decision turns on whether there was a valid notification of the delegate's decision. The letter notifying the applicant of the delegate's decision is dated 10 March 2022. It is reproduced at pp 48ff of the court book. The letter suggests it was sent by email to the applicant at the email address provided in his application for a visa. Communication by email is permitted under s 494B(5) of the Act. The affidavit of Ms Mengqi Ren affirmed 25 November 2025 annexes a screenshot from the department's records confirming the email was sent on 10 March 2022. Section 494C(5) says a letter sent by email is taken to have been received at the end of the day on which it was sent - i.e., on 10 March 2022. Provided the notification letter meets the requirements as to form and content set out in s 66 of the Act, the appeal period runs for 28 days commencing on the date the notification was given: see reg 4.31(2) of the Migration Regulations 1994 (Cth).
2. There is nothing to suggest the notification of the delegate's decision was defective in form or content. It appears to satisfy all the requirements of a valid notice, including those in s 66(2)(d) of the Act.
3. That means the 28-day appeal period commenced on 10 March 2022 and concluded on 6 April 2022. Mr CGI24 filed his application in the Tribunal on 11 May 2022, which means he was over a month out of time. The Tribunal had no power to extend time or accept the application for review. Once it was satisfied it had no jurisdiction, the Tribunal's role in the review was at an end. It had no choice about doing what it did.
4. The applicant has no prospect of succeeding if the application for judicial review were to proceed. I cannot see any basis for setting aside the Tribunal's decision. It did what it had to do in the unfortunate circumstances of the case. This consideration counts strongly against making an order extending time.

1. On balance, there is no utility in making an order under s 477(2) of the Act. The applicant cannot successfully challenge the Tribunal's decision. While I have sympathy for the hardship he has experienced, there is nothing that can be done. It is not in the interests of the administration of justice that I order the extension of time. The application for an extension of time must therefore be refused.
2. I will hear from the parties as to costs.

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

[1] The application was lodged on 1 May 2024 although it was not formally accepted for filing until 9 May 2024.