CHY16 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1924

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. On 13 October 2021, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it then was) dated 7 September 2021 (judicial review application). The Tribunal found that it did not have jurisdiction in the matter and therefore could not review the decision of a delegate of the Minister dated 21 May 2021 refusing to grant the applicant a Bridging E (Class WE) visa (bridging visa).
2. Pursuant to s 477(1) of the Migration Act 1958 (Cth) (Act), an application for judicial review is required to be filed within 35 days of the date of the migration decision, which in this case refers to the Tribunal's decision. The 35-day period ended on 12 October 2021. The applicant's judicial review application in this Court was filed on 13 October 2021 and therefore was one day late. The applicant requests the Court to exercise the power under s 477(2) of the Act to extend the 35-day period to enable him to pursue the judicial review application in this Court.

1. The background to the application, including aspects of the relevant procedural background to this matter, are set out at [4] to [11] of the Minister's written submissions dated 22 October 2025, which I adopt and revise as appropriate:
   1. The applicant was born in, and is a male citizen of, Bangladesh. He arrived in Australia by boat without a visa on 28 March 2013 (CB 30 and Affidavit of Alvin Sharma affirmed on 22 October 2025 (Sharma Affidavit)). On arrival, the applicant was detained in immigration detention until he was released on 22 May 2013 (Sharma Affidavit). The applicant has not been detained in immigration detention since 22 May 2013 other than for 1 day on 22 July 2013 (Sharma Affidavit). That is, the applicant has been in the community since 22 July 2013.

5. The applicant has held two visas since arriving in Australia.

(a) Firstly, the applicant was granted a Bridging Visa E (Class WE) (Subclass 050) on 22 May 2013. This visa ceased on 17 July 2013 (CB 30 and Sharma Affidavit).

(b) Secondly, the applicant was granted a further Bridging Visa E (Class WE)(Subclass 050) on 22 July 2013. This visa ceased on 29 August 2016 (CB 30 and Sharma Affidavit).

1. The applicant had not held a visa since 29 August 2016 (CB 30 and Sharma Affidavit).
2. On 20 April 2021, the applicant applied for a further Bridging Visa E (Third Bridging Visa) (CB 1). At this time, the applicant was an unlawful non-citizen in Australia.
3. On 21 May 2021, a delegate of the first respondent refused to grant the applicant the Third Bridging Visa (CB 18 - 19). The delegate found that the applicant failed to satisfy the requirements in subclause 050.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because the applicant was an eligible non-citizen of the kind set out in subregulation 2.20(17) of the Regulations, and had also failed to satisfy subclause 051.211 of the Regulations (CB 18 - 19) because the applicant was not an eligible non-citizen of the kind set out in subregulation 2.20(7) - (11) of the Regulations.
4. At the time the delegate's decision was issued, the applicant had been refused immigration clearance and had not been subsequently immigration cleared (CB 16).
5. On 1 June 2021, the applicant applied to the Tribunal seeking review of the delegate's decision (CB 20).
6. On 23 August 2021, the Tribunal wrote to the applicant and invited him to comment on the validity of his application (CB 43 - 44). In particular, that letter informed the applicant that the Tribunal was of the view that the application was not a valid application as the decision under review was not a reviewable decision under Part 5 of the Migration Act 1958 (Cth) (Act). The applicant was invited to provide a response by 6 September 2021, however did not do so.

1. I note the applicant previously sought judicial review in the Federal Circuit Court of Australia (FCCA) in relation to the delegate's refusal to grant the applicant a protection visa in CHY16 v Minister for Immigration & Anor [2017] FCCA 1023 (FCCA decision).
2. The Court identified at [2] of the FCCA decision that the applicant lodged an application for protection visa on 19 June 2013 (protection visa application), which was deemed valid on 21 June 2013. The applicant claimed to fear harm because he was involved in the Jamaat-e-Islami since he left school and there was a particular man who was the Secretary of the local branch of the Awami League who had forcibly taken his family's land. The applicant also made other protection visa claims. The delegate made adverse credibility findings in relation to the applicant and rejected the applicant's claims in their entirety.
3. On 5 January 2015, the applicant filed an application for review of the delegate's decision of the protection visa application with the Tribunal. The Tribunal made adverse credibility findings against the applicant and affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant sought judicial review of the Tribunal's decision in the FCCA. On 8 June 2017, the FCCA found that there was no jurisdictional error made out in the application for judicial review of the protection visa application.
4. The applicant appealed the FCCA decision to the Federal Court of Australia in CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390 (FCA decision). On 17 May 2017, Bromwich J dismissed the appeal and ordered costs to be paid by the applicant. The applicant then sought special leave to the High Court of Australia to appeal the FCA's decision. On 21 March 2018, Bell and Gageler JJ (as his Honour Gageler CJ then was) refused the application for special leave in CHY16 v Minister for Immigration and Border Protection & Anor [2018] HCASL 64.

1. The Minister correctly summarised the Tribunal's decision at [12] to [13] of the Minister's written submissions, which I set out and revise as appropriate:

1. On 7 September 2021, the Tribunal found that it did not have jurisdiction because the application was not properly made under s 347 of the Act since the decision was not a Part 5 reviewable decision per s 338(2)(c)(ii) of the Act (CB - 47 - 48). 2. In reaching its decision, the Tribunal:

(a) Observed that s 347(2) of the Act (as in force at the time) provided who had the right to apply for review of a decision that is reviewable under Part 5 of the Act - being a Part 5 reviewable decision (at [3]). > > (b) By reference to s 338 of the Act, which specifies what types of decisions were Part 5 reviewable decisions (at [3]): > > > (i) Observed that s 338(2)(c)(ii) of the Act excluded decisions which would otherwise be Part 5-reviewable decisions under s 338(2), if the decision was made when the applicant had been refused immigration clearance and had not subsequently been immigration cleared (at [3]). > > > > (ii) Observed that s 338(4) of the Act applied to decisions refusing the grant of a Bridging Visa where the non-citizen was in immigration detention because of that refusal (at [3]). > > (c) Identified that the applicant was refused immigration clearance and had not been subsequently immigration cleared (at [4]). This relevantly meant that the delegate's decision was excluded by operation of s 338(2)(c)(ii) of the Act. > > (d) Identified that there was no evidence that the applicant was in immigration detention (at [4]). This relevantly meant that the delegate's decision was not caught by operation of s 338(4) of the Act.

1. On 3 November 2021, the applicant's judicial review application was accepted for filing in this Court. The application contained the following ground for judicial review (as per original):

Ground:

The tribunal made an error in assessing my application without taking consideration that I will be unlawful in Australia as a consequence of their decision.

Particulars

The AAT failed to engage in a manner that will provide me with an opportunity to provide further particulars in relation to my bridging visa E application.

1. The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the Bengali and English languages. The Minister was represented by Mr Alvin Sharma (Mr Sharma) of HWLE Lawyers. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, judicial review application, supporting affidavit of the applicant affirmed on 13 October 2021 (applicant's affidavit) and the Minister's written submissions dated 22 October 2025.
2. On 18 November 2025, the applicant served written submissions on the Minister by hand-delivering the submissions to the Minister's representative. I was given a copy of the written submissions at today's hearing, and I marked those submissions "Exhibit A1".
3. The Minister's evidence comprised of the Court Book, which was marked as "Exhibit R1" and the affidavit of Mr Sharma affirmed on 22 October 2025 (Sharma Affidavit).

1. It is helpful to set out the relevant legal principles that apply to this Court's consideration as to whether or not to exercise the power to extend the time within which to allow an applicant to make a judicial review application.
2. Sections 477(1) and 477(2) of the Act provide:

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) 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 meaning of the date of the migration decision is set out at s 477(3) of the Act.
2. The applicant has made an application for an extension of time. The question is whether this Court is satisfied it is necessary in the interests of the administration of justice to make the order extending time.
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12], the High Court observed that the Court's power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time, but the Court may 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.
4. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation 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". Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time, although it is noted that this list is not exhaustive:

(a) the length and explanation of delay;

(b) any prejudice to the parties if an extension was granted;

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

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

(e) the merits of the substantive application.

1. Pursuant to s 477 of the Act, an application to this Court for review of the Tribunal's decision is required to be made within 35 days of the date of the migration decision. In this case, there has been a one-day delay in filing the application to this Court. The applicant's explanation for the delay was that he did not understand there was a time limit. The applicant stated he was assisted by Mr Abu Siddque (Mr Siddque) in preparing the application for judicial review, but Mr Siddque did not advise him of any time limit that applied.
2. I find that the length of the delay is minor, and the explanation for the delay weigh in favour of the applicant.

1. The Minister accepted that there is no relevant prejudice in this matter should an extension of time be granted. However, the Minister submitted that this is not in itself sufficient to award an extension of time, which is correct.

1. There is no public interest concerned in this matter.
2. With regard to the impact upon the applicant, if an extension of time is refused then the Tribunal's decision will stand, with all the consequences that follow for his bridging visa application.

1. The sole proposed ground of the applicant's judicial review application was that the Tribunal failed to take into consideration that its decision would render the applicant unlawful in Australia. The applicant also asserted that the Tribunal failed to provide him with an opportunity to provide further particulars in support of his application.
2. I accept the Minister's submissions that the applicant was already an unlawful non-citizen prior to the Tribunal's decision (Court Book (CB) 30 and Sharma Affidavit p 4).
3. I asked the applicant if he wished to say anything further about why he thought the Tribunal's decision was wrong. The applicant said he thought the decision was unfair because many of his friends who had arrived with him by boat had obtained bridging visas and he was no different from them and why should he not get a visa. I explained to the applicant that I did not know what position his other friends were in and this Court had no power to grant him a visa. I explained to the applicant that this Court's power was to consider if the Tribunal's decision was wrong in the sense that it disclosed a jurisdictional error.
4. The real issue before this Court is whether the Tribunal was correct in its decision that it had no jurisdiction to review the delegate's decision dated 21 May 2021 to refuse to grant the bridging visa.
5. The applicant's written submissions, which the applicant asserted were prepared by Mr Siddque, are to the following effect (as per original):

1. Introduction

1. These submissions are made in support of the Applicant's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) affirming the refusal of my application for bridging visa E.

2. The Applicant contends that the Tribunal's decision is affected by jurisdictional error, as it is legally unreasonable in the sense articulated by the High Court in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li). Specifically, the Tribunal made a decision so unreasonable that no reasonable decision-maker, acting within jurisdiction and guided by proper legal principles, could have made it.

2. Ground of Review - Legal Unreasonableness

1. A decision will be legally unreasonable where it is one that lacks an evident and intelligible justification, or is so unreasonable that no reasonable decision-maker could have made it (Li at [76]-[76], per Hayne, Kiefel and Bell JJ).

2. In the present case, the Tribunal's decision lacked such justification because it failed to recognise and address the critical fact that, at the time of its determination, the Applicant's visa application remained "on foot".

3. Particulars of Unreasonableness

The Tribunal's decision was unreasonable for the following reasons:

(a) Protection visa not "finally determined"

5. At the time of the Tribunal's hearing and determination, the Applicant remained entitled to seek Ministerial Intervention under s 417 of the Migration Act 1958 (Cth) or pursue "other regularisation options". These avenues, while discretionary, form part of the statutory framework that must be taken into account when assessing whether a protection visa application is truly at an "end".

1. By failing to acknowledge that the visa application was not "finally determined" in light of these options, the Tribunal acted upon an incorrect legal assumption that materially affected its reasoning process.

(b) Application remained "on foot" - VHAY authority

7. In VHAY v Minister for Immigration and Border Protection [2014] FCAFC 83, the Full Federal Court confirmed that protection visa applications may be considered "on foot" where recourse to statutory or Ministerial processes remains available.

1. Applying this authority, the Applicant's visa application remained legally alive at the time of the Tribunal's determination. The Tribunal's failure to grapple with VHAY renders its conclusion inconsistent with binding authority and therefore legally unreasonable.

(c) Failure to engage with relevant considerations

9. The Tribunal disregarded relevant considerations, namely the Applicant's ongoing legal ability to seek regularisation and the impact of removal in breach of Australia's non-refoulement obligations.

1. Those obligations, deriving from Article 33(1) of the Refugee Convention, Article 7 of the ICCPR, and Article 3 of the CAT, form a central plank of the statutory protection visa scheme. By failing to meaningfully engage with these considerations, the Tribunal's decision was arbitrary and irrational.

(d) Lack of intelligible justification

11. The Tribunal did not provide an intelligible explanation as to why it disregarded the fact that the Applicant's protection visa application remained capable of progression through Ministerial or other lawful avenues.

1. This absence of justification mirrors the error identified in Li, where the decision lacked a rational foundation and was therefore unreasonable in the legal sense.

4. Consequences of the Tribunal's Error

1. The Tribunal's error is not a mere factual oversight but a jurisdictional error. It deprived the Applicant of a lawful determination of his protection visa application, including consideration of avenues necessary to avoid refoulement contrary to Australia's international obligations.

2. The error also created practical injustice, as the Applicant was wrongly treated as being without legal recourse at a time when the law recognised otherwise.

5. Relief Sought

15. The Applicant respectfully seeks the following relief:

(a) An order quashing the decision of the Administrative Appeals Tribunal;

(b) An order remitting the matter to the Tribunal, differently constituted, for reconsideration according to law;

(c) A declaration that the Tribunal's decision was affected by jurisdictional error on the ground of legal unreasonableness; and

(d) Such further or other orders as the Court deems appropriate.

1. As the Minister correctly pointed out, the submissions prepared by Mr Siddque are irrelevant to any question that is raised by the ground set out in the judicial review application and are irrelevant to the question of whether the Tribunal was correct that it did not have jurisdiction in this matter. I find that no matters that were set out in Mr Siddque's written submission could possibly give rise to any jurisdictional error in this matter.
2. Of particular concern is that those written submissions referred to a protection visa application in circumstances where this case did not involve any protection visa. The submissions also referred to a failure to engage with relevant considerations, being the impact of removal and breach of Australia's non-refoulement obligations. Those considerations do not arise in this matter and are completely irrelevant.
3. However, given that the applicant is a litigant in person, I have reviewed the question of whether the Tribunal was correct that it did not have jurisdiction in this matter.

Whether the Tribunal had jurisdiction in this matter

1. I agree with the Tribunal's decision that s 338(2)(c)(ii) of the Act excluded decisions which would otherwise be Part 5-reviewable decisions under s 338(2) of the Act, if the decision was made when the applicant had been refused immigration clearance and had not subsequently been immigration cleared. The applicant agreed at the hearing before me that at the time he arrived in Darwin by boat, he did not have any identification documents or visas. This is also made clear by the Department of Home Affairs' (Department) record of the applicant's movement details (Department record), which identified that the applicant had no travel documents and visas when he arrived in Australia on 28 March 2013 (CB 30 and Sharma Affidavit pp 15 and 16). The applicant was only first granted a bridging visa on 22 May 2013 (Sharma Affidavit p 15). In relation to s 338(2)(c)(i) of the Act, the applicant was not in immigration clearance as he was refused immigration clearance pursuant to s 172(2)(b) of the Act by failing to present identification documents or visas on arrival in Australia in accordance with ss 172(3)(b)(ii) and 166(1)(a)(ii) of the Act and he had not been subsequently immigration cleared.
2. The question that also arises as to whether the Tribunal had jurisdiction pursuant to s 338(4) of the Act, which at the time of the Tribunal's decision was as follows:

(4) The following decisions are Part 5‑reviewable decisions:

(a) a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;

(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.

1. I find that the decision that the delegate made on 21 May 2021 does not fall within s 338(4)(a) of the Act because the applicant was not in immigration detention at the time of the delegate's decision refusing the grant of a bridging visa. This is clear from the dates shown on the Department record as to when the applicant was in detention, which noted that he was in detention from 28 March 2013 to 22 May 2013, and for a single day on 22 July 2013 (Sharma Affidavit p 16).
2. Having regard to these matters, I find that the Tribunal was correct that it had no jurisdiction in this matter. Given that the Tribunal was correct, I find there is no merit in the applicant's extension of time application, and for this reason I refuse to grant the extension of time in this case.

1. A number of submissions were made by the applicant in the absence of Mr Siddque, who the applicant claims is his solicitor who has been advising him in this matter but is not on the record. This Court has a concern that this case may well be an instance involving shadow representation. Further, if Mr Siddque had in fact prepared the written submissions that were handed to this Court and which I marked "Exhibit A1", a real question arises as to whether a personal costs order ought to be made against Mr Siddque for this matter, and indeed, whether the Court should refer him to the relevant legal services regulators in New South Wales. These are matters which I intend to deal with separately, but I foreshadow their existence in this judgment.

1. The extension of time application is refused and the judicial review application is dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.