CJR23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1976

Amended pursuant to r. 24.04(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) on 5 December 2025

1. On 14 December 2020, the Tribunal found it did not have jurisdiction to conduct a review of a decision made by a delegate of the Minister because the Applicant did not lodge his merits review application within the 28-day period prescribed under s. 412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg. 4.31(2) of the Migration Regulations 1994 (Cth). The Applicant had been notified of the delegate's decision on 9 June 2020. The deadline for any merits review application was 28 days later, on 6 July 2020. The Applicant made his review application - after the 28-day prescribed period - on 25 August 2020.
2. By an application filed on 1 November 2023, the Applicant seeks an extension of time under s. 477(2) of the Act to bring a judicial review application, in which he alleges jurisdictional error as to the Tribunal's decision.

1. I will dismiss the application for an extension of time. My reasons follow.

1. The Applicant is a citizen of Sri Lanka.
2. On 8 March 2011, he arrived in Australia as an unauthorised maritime arrival.
3. On 29 October 2015, the Applicant was advised that the Minister had exercised his power under s. 46A(2) of the Act to allow the Applicant to apply for a Safe Haven Enterprise Visa (SHEV).
4. On 14 April 2016, the Applicant lodged an application for a SHEV.
5. On 21 August 2017, a delegate refused to grant the Applicant the visa. On that day, the delegate purported to send the Applicant a notification that he had been refused a visa under s. 66 of the Act. The first notification was invalid because it did not "state" in a clear and complete way that the Applicant had a right to have the decision reviewed and therefore did not meet the requirements of s. 66 of the Act (see i.e. BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189, [18]-[20]). As the notification did not comply with the requirements of s. 66, the 28-day period prescribed in which the Applicant might seek merits review of the delegate's decision did not start.
6. On 9 June 2020, the Department sent a further notification under s. 66 of the Act. It is that notification which the Tribunal found gave the Applicant a period of 28 days in which to make his merits review application to the Tribunal.
7. On 25 August 2020, the Applicant applied to the Tribunal for merits review of the delegate's decision.

1. The Applicant's merits review application (made on 25 August 2020) was made 77 days after the Department notified him that the delegate had refused to grant him the visa (9 June 2020).
2. On 3 September 2020, the Tribunal wrote to the Applicant that "it appears that your application is not a valid application as it was not lodged within the relevant time limit".
3. On 15 September 2020, the Applicant responded to the Tribunal. He wrote (among other matters):

I was not aware of the Department's decision due to a lack of access to internet and technology. The email containing my decision was sent to the lawyers who were representing me at the time. The lawyers forwarded the email to a friend who accompanied me to their meetings. However, my friend could not contact me as I was having medical issues at the time. I have been suffering chronic pain in my lower back and abdominal area, to cope with the pain. I was medicated and unable to leave the house to gain access to a computer. This pain also played a key role in my failure to apply by the due date.

1. On 14 December 2020, the Tribunal found that it did not have jurisdiction to review the application. The Tribunal's reasons included the following:
   1. ... The Tribunal outlined that as the primary decision was emailed to his authorised recipient on 9 June 2020, the last day for lodging his application for review was 6 July 2020.

...

1. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 June 2020: s. 494C of the Act. Therefore, the prescribed period to apply for review ended on 6 July 2020.
2. As the application for review was not received by the Tribunal until 25 August 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

1. Under s. 477(1) of the Act an application must be made to the court within 35 days of the date of the migration decision. Under s. 477(2) I may extend that 35 day period if I consider that it is in the interests of the administration of justice.
2. As the plurality in the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [12] noted: "there are no mandatory considerations" as to when an extension of time is needed in the interests of justice. In Tu'uta Katoa, the plurality held (at [12]):

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 that an extension of time is desirable but that it is needed in the interests of the administration of justice.

1. Suffice to note, under s. 477(2), the level of satisfaction is "not low", and I may extend time if it is "needed" - not just desirable - in the interests of justice.
2. I turn now to the factors the High Court plurality referred to in Tu'uta Katoa which are relevant in the exercise of the discretion as to whether to extend time: including the length of the delay, the reasons for the delay, prejudice to the Minister and the merits of the underlying application.

1. Under s. 477(1) any judicial review application was to be filed by 19 January 2021 (35 days after the Tribunal's decision). The Applicant filed his application on 1 November 2023. As the Minister noted, it was 1016 days out of time (over 2 years 9 months, or more than 29 times the period prescribed by Parliament). In Tu'uta Katoa the plurality said at [19]: "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional"". The Minister also referred me to the more recent decision in Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs (2025) 99 ALJR 1495; [2025] HCA 40 in which Gageler CJ, Gordon and Beech-Jones JJ re-emphasised that an extension of the 35-day period "by a period of many months has been described by this Court as "exceptional"" (at [31]).
2. The Applicant's delay is long.

1. The Applicant made an affidavit on 1 November 2023 in support of his application for an extension of time (Ex A1). The main focus of the Applicant's affidavit was to explain his delay in seeking merits review of the delegate's decision on the basis that "I was suffering from chronic pain in my lower back and abdominal area which resulted in my failure to lodge an application within the time limit" (Ex A1, [4(c)]). To the extent that the Applicant's affidavit sought to explain his delay in his merits review application to the Tribunal, it was misdirected. The Applicant made no explanation at all as to his delay exceeding 1000 days in making his court application.
2. At the most general level, the Applicant deposed that he was "unaware of my legal options and did not have access to proper advice" (Ex A1, [4(d)]). In AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379, Derrington J said at [11] _"_it is now generally well accepted that a lack of legal advice is not itself considered to be an acceptable explanation for the delay in instituting an appeal". Her Honour's remarks apply with equal force to instituting a judicial review application.

1. The Minister notes that there is a "legitimate interest in public law matters being resolved in a timely and efficient manner" (Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24, [14]).
2. The Minister otherwise points to no prejudice to him which would be occasioned by an extension of time. The absence of prejudice is not of itself sufficient to warrant an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6]).

1. Even though the court made orders that he do so, the Applicant has not filed any written submissions. I must assess the merits of his application for the purposes of assessing whether it is necessary in the interests of justice to extend time by reference to his application.
2. The sole ground of review is that the Tribunal "did have jurisdiction as the notice to refuse the applicant's protection visa was invalid". The particulars of the grounds refer to the fact that the first notification on 21 August 2017 included an incorrect address for the Applicant. The Applicant also said the following:

Given the length of time that had elapsed, the First Respondent had an obligation to confirm the Applicant's current address for service and/or if the Applicant's agent was still engaged. The First Respondent failed to do so and therefore the notice was not valid and the Second Respondent did have jurisdiction to consider the matter.

1. I accept that there was a long lapse of time between the (invalid) notification on 21 August 2017 of the Minister's refusal to grant the Applicant the visa and the notification on 9 June 2020. Nonetheless, rather than the Minister having an obligation to confirm the Applicant's current address for service, it was the Applicant's responsibility to ensure the currency of his contact details with the Department (Khan v Minister for Immigration and Border Protection [2015] FCA 125, [21]; Somjich v Minister for Home Affairs (2019) 168 ALD 219; [2019] FCA 1921, [57]; Yeow v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1331, [63]). As Rangiah J said in Somjich, "plainly, it would be unworkable for the Tribunal to be required to track down an applicant's whereabouts in order to comply with its obligation to provide the applicant with documents".
2. As to the contention that the Minister had an obligation to confirm that the Applicant's 2017 agent was still engaged in 2020, the appointment of an authorised recipient for communications does not lapse after a period of time. In this case, the Applicant had nominated an authorised recipient for communications, and the notification was sent to the Applicant's "authorised recipient." Section 494D(1) expressly provided that "the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person" (emphasis added).
3. In DNU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 20 a similar submission was put that there was an obligation on the Minister to check the currency of the appointment of an agent. At [34], Riley J held (and I agree) that:

.... there is no statutory basis for that submissions. It is not correct. .... It would not be fair to applicants in general for their previous appointments of authorised recipients to be deemed stale (without any statutory authority) after an unspecified period of time.

1. The extent of the Department's obligations to notify the Applicant are set out in a series of express statutory provisions in the Act, most particularly in s. 494D. The Applicant's submission - that the Minister must check the continuing currency of an authorised recipient's appointment - seeks to imply a statutory obligation which is not only absent from the statutory provisions but is inconsistent with the express terms of the statute in s. 494D.
2. The terms of s. 494D operate such that the fact that the 9 June 2020 notification of a refusal of the grant of the visa was sent to the Applicant's authorised recipient for communications rather than to the Applicant does not invalidate the notification.

1. Pursuant to his model litigant obligations, the Minister pointed to the requirements of s. 66 of the Act for the notification letter to state the time in which the application for review may be made. In its relevant part, s. 66 is as follows:

66 Notification of decision

...

(2) Notification of a decision to refuse an application for a visa must:

...

(d) if the applicant has a right to have the decision reviewed under Part 5 or Part 7 or section 500 - state:

...

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

1. In DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492;

[2019] FCAFC 64 Perram J said at [57]:

... I conclude that when s 66(2) uses the word 'state' it means that the notification must set out the information in each of the subsections in a way which is not only complete ... but clear as well ...

.... whether the notification stated 'the time in which the application for review may be made' necessarily devolves to an inquiry into whether that information was clearly conveyed.

1. I accept the Minister's characterisation of my judicial task. I must "determine whether those words used in the notification letter are legally sufficient to meet the requirement of clarity that has been determined to be part of the legal meaning of the word "state"".
2. The relevant part of the letter emailed on 9 June 2020 was as follows:

Review Rights

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

1. The words used in the letter dated 9 June 2020 were clear and complete so as to "state" the time in which the application for merits review must be made and so as to meet the requirements of s. 66(2)(d)(ii) of the Act.
2. In Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 at [51] the form and content of the notification letter meant that the court concluded that the notification did not state clearly and completely the Applicant's merits review rights, because the notification letter "require[d] the recipient of the letter to piece together the facts which would allow him to know the time in which an application for review may be made". I accept the Minister's submission that Sandor does not stand for a universal proposition that is unclear to refer to "you" in a letter that is transmitted to the Applicant's authorised recipient for communications. The fact that the notification letter was addressed to the Applicant's authorised recipient but referred to the fact that "you" (i.e. the visa applicant) had 28 days in which to seek merits review does not necessitate a conclusion that the letter did not meet the requirements of s. 66 of the Act. I repeat that the information about the Applicant's merits review rights was clearly and completely conveyed in the notification letter dated 9 June 2020 as Perram J said it must be in DFQ17.
3. In Tu'uta Katoa at [19], the plurality said that I may have regard to the merits in "such manner as appropriate in the circumstances". I may, as appropriate, confine my considerations as to the merits of the underlying application to an "impressionistic" assessment or consider the merits in greater depth. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] Mortimer J (as she then was) said that an impressionistic assessment may involve in assessment of whether a ground has "reasonable prospects of success". Her Honour also said the relevant impressionistic assessment may involve whether a ground is "arguable", "reasonably arguable" or "sufficiently arguable".
4. There was a long delay and the absence of any satisfactory explanation for that delay in the Applicant's commencement of his jurisdictional review application. In my assessment, as to the merits of his application, any argument that the notification letter did not meet the requirements of s. 66(2)(d)(ii) does not have reasonable prospects of success (Cf MZABP, above).
5. I am not satisfied that it is necessary in the interests of the administration of justice to extend time under s. 477(2).

1. I will dismiss the application for an extension of time. I will order that the Applicant pay the Minister's costs fixed in the amount of $4,553 in accordance with the relevant item in the scale.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.