COB21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1630

1. These are the reasons for judgment delivered ex tempore on 25 September 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
2. The applicants seek an extension of time pursuant to s 477(2) of the Migration Act 1958 (the Act). They seek an extension of time so that they may obtain judicial review of the decision of the second respondent (Tribunal), made on 14 May 2021 (Decision). The Tribunal affirmed a decision of a delegate of the first respondent (Minister), to refuse to grant the applicants a Protection (Subclass 866) visa (visa).
3. The application for judicial review and an extension of time was first filed with this Court on 6 May 2025. That was almost four years after the Decision of the Tribunal which was sought to be reviewed. To be precise, the application was filed 1'418 days out of time.
4. To obtain an order extending time, the Court must be satisfied that it is necessary in the interests of the administration of justice to make an order. That requirement is contained in s 477(2)(b) of the Act.

1. From the Court Book tendered by the Minister, the following background can be established:

(a) The applicants are citizens of Thailand. They first arrived in Australia on 10 April 2009 as holders of a Student visa. Those visas expired on 15 March 2012.

(b) On 8 January 2018, almost six years later, the applicants applied for the visa.

(c) In the application, the applicants claimed that they feared persecution and serious harm because their former employer in Thailand threatened to rape and torture them because they refused to be involved in prostitution. They claimed that their former employer is involved in criminal gangs and that if they returned to Thailand, they will be kidnapped, raped, tortured and killed.

(d) The employer was not named in the application for the visa. There was no evidence produced by the applicants of the threats made against them. There was no evidence of the time at which these threats were made. There was no evidence of any report to police or of any steps taken by the applicants in Thailand to obtain protection.

(e) On 14 December 2018, a delegate of the Minister refused to grant the applicants the visas.

(f) On 16 December 2018, the applicants applied to the Tribunal to review the delegate's decision. At that time, they gave an email address for the service of any documents on them by the Tribunal.

(g) On 29 March 2021, the Tribunal invited the applicants to attend a hearing to present evidence and arguments, which was to be held on 15 April 2021. The invitation was sent to the nominated email address for the service of documents. The applicants did not respond to the invitation from the Tribunal.

(h) On 15 April 2021, the applicants failed to appear before the Tribunal at the hearing .

(i) On 16 April 2021, the Tribunal dismissed the application for review for non-appearance at the hearing. That Decision was also sent to the applicants at their designated email address.

(j) On 14 May 2021, the Tribunal confirmed the Decision to dismiss the application for review. It did so pursuant to s 426(1E) of the Act, because no application for reinstatement had been made by the applicants.

1. On 6 May 2025, an application for an extension of time and an application for judicial review was filed with the registry of this Court. In that application, the applicants identified four reasons why an extension of time should be granted.. They are:

1. We are currently facing serious financial hardship. Because of our visa conditions, we are not allowed to work and have no steady income. We have struggled just to meet our basic living needs, let alone afford a lawyer or migration agent to assist us. This financial situation made it extremely difficult for us to prepare the necessary documents or even know how to begin the judicial review process in time.

2. English is not our first language, and we have found it very hard to understand legal words and procedures. When we received the decision from the Tribunal, we could not clearly understand what it meant or what actions we had to take. There were no translated versions or support services available to help us, and we were confused about how much time we had to respond. This misunderstanding was not intentional-it came from our limited English skills and a lack of guidance.

3. This is the first time we have ever been involved in any legal or court process. We don't come from a background where we understand how these systems work. We didn't have a lawyer, and we had no one to explain what we needed to do. We were unfamiliar with the steps, the paperwork, and especially the deadlines. Our delay happened because we were confused and overwhelmed-not because we were trying to delay anything.

4. We honestly believe our case has important issues that deserve a proper review by the Court. We did not miss the deadline on purpose. Our situation is the result of real challenges - language problems, financial hardship, and no legal knowledge. We are doing our best now to follow the right steps, and we kindly ask the Court to allow our case to be heard so that we can have a fair chance to present our situation.

1. The applicants also identified five grounds of review by which it was alleged that the Tribunal had fallen into jurisdictional error as follows:

Ground 1: Denial of Procedural Fairness -Failure to Ensure Effective Communication and Understanding

We were denied procedural fairness because the Tribunal did not take adequate steps to ensure that we understood the hearing process, its significance, or the consequences of not attending. While a notice of hearing was sent to us, it was in English and not accompanied by any translation, interpreter service, or guidance. We do not speak or read English fluently, and we were unrepresented and unfamiliar with legal procedures in Australia.

In our vulnerable position-without legal advice, financial support, or language assistance-we did not grasp the importance of the Tribunal hearing or understand the requirement to attend in person. We believe that the Tribunal had a duty to consider our capacity to understand and meaningfully participate, particularly given the serious consequences of a dismissal. The failure to ensure effective communication and comprehension deprived us of a fair opportunity to present our claims and amounted to a breach of procedural fairness.

Ground 2: Jurisdictional Error-Failure to Consider Whether There Was a Valid Reason for Our Non-Appearance

The Tribunal made a jurisdictional error by failing to inquire into or consider whether there was a valid or reasonable explanation for our absence at the hearing. We were facing multiple barriers at the time-severe financial hardship, language difficulties, emotional stress, and complete lack of legal advice or support. These circumstances prevented us from properly responding to the hearing invitation.

Instead of exploring whether these factors provided a satisfactory explanation, the Tribunal concluded that no reason had been given and proceeded to dismiss our matter. This rigid approach failed to account for our real situation. The Tribunal was required to examine whether a lawful basis existed for exercising its power to dismiss, but it failed to do so in our case.

Ground 3: Constructive Failure to Exercise Jurisdiction -No Real Opportunity to Be Heard

We did not receive a meaningful opportunity to present our claims, which is a fundamental right under section 425 of the Migration Act 1958. While a hearing was technically scheduled, the circumstances we were in made it practically impossible for us to attend. Our poor English skills, lack of legal support, absence of financial resources, and general confusion meant that we did not understand how to respond or what to do.

The Tribunal's obligation to give us an opportunity to be heard is not satisfied by simply scheduling a hearing. It must be a real, practical opportunity to participate. By failing to accommodate or even consider the barriers we faced, the Tribunal effectively denied us that chance. As a result, it constructively failed to exercise its jurisdiction and to perform its duty under the Act.

Ground 4: Legal Unreasonableness - Disproportionate and Inflexible Use of Procedural Powers

The decision to dismiss our review application due to non-appearance-without making any further effort to understand our situation-was legally unreasonable. A reasonable decision-maker would have considered our language limitations, financial struggles, and vulnerability as unrepresented asylum seekers. It was unreasonable to rely strictly on our procedural non-compliance without examining whether it was fair or proportionate to do so.

We did not miss the hearing on purpose or through neglect. We simply did not understand what was required of us and had no one to help. The Tribunal's decision to dismiss our case in these circumstances lacked an intelligible justification and was manifestly unjust in its outcome.

Ground 5: Failure to Consider Relevant Humanitarian and Personal Circumstances

The Tribunal failed to consider relevant and critical matters that affected our ability to attend the hearing and the importance of hearing our claims. At the time, we were experiencing psychological distress, fear of removal, isolation, and a complete lack of support. We were also under immense emotional pressure related to our visa status and our fear of returning to Thailand, where we believe we are at serious risk of harm.

These are matters that the Tribunal ought to have taken into account before dismissing our case without a hearing. The dismissal prevented any meaningful assessment of the core humanitarian issues in our application. This failure to consider relevant and compassionate factors amounts to a jurisdictional error and undermines the lawfulness of the decision.

1. The hearing of the application for an extension of time was listed for hearing before this Court today. The applicants appeared self-represented and were assisted by an accredited interpreter fluent in the English and Thai languages. Mr O'Connell, solicitor, appeared for the Minister.
2. The Court confirmed that the applicants had received a copy of the Court Book and outline of submissions prepared on behalf of the Minister. The Court explained the role of the Court and for the need to establish jurisdictional error by the Tribunal. The Court also explained that before an extension of time could be granted, the applicants must explain the reasons for their delay in bringing the application, and that their application for judicial review had arguable merit.
3. The applicants explained that they did not understand the Court process; they were assisted by a friend to bring the application for the visa; they only recently learned of their rights of appeal; they did not receive a copy of the Tribunal Decision; they first discovered they had rights of appeal in January of this year; they did not receive a copy of the Tribunal Decision because they moved homes and did not have access to the email address they had provided; their understanding of written English was poor, and they did not have the financial resources to obtain legal or other advice.
4. They explained that they needed protection because if they were to return to Thailand, there was a risk of significant harm.
5. On behalf of the Minister, Mr O'Connell relied upon the outline of written submissions dated 23 July 2025. He explained that in order to obtain an extension of time, the applicants must explain the length of, and reasons for, the delay in bringing the application for review and that the application for judicial review had some potential merit. It was submitted that the length of delay in this case was very significant, and the explanation given for the delay was inadequate.
6. In relation to the claim for financial hardship, the Minister relied upon the decision in Tran v Minister of Immigration and Border Protection [2014] FCA 533 [35] (Tran).It was submitted that a lack of legal advice is not alone a sufficient excuse for failure to lodge an appeal, nor was a limited ability to read or converse in English a reasonable reason for an extension of time. The lack of English ability skills alone will not generally be an adequate reason for filing an application out of time. So, too, a lack of understanding of Court process was not a satisfactory explanation for a delay, especially for a period of almost four years.
7. The Minister submitted that the very significant delay in this case and the lack of adequate explanation weighed against the Court granting an extension of time. Mr O'Connell correctly conceded that there was no prejudice to the Minister other than the significant public interest in the finality of migration applications and applications to the Court. However, the absence of prejudice to the Minister does not justify the exercise of the discretion to extend time. It was also submitted that the merits of the underlying application for judicial review were poor, if not non-existent.
8. Mr O'Connell relied upon the decision of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 [12] (Katoa) and the principle that when seeking an extension of time for a lengthy delay, the applicants may need to show that their case is strong or even exceptional. The grounds of judicial review identified in the application for judicial review did not disclose jurisdictional error. The lack of merit in the underlying application weighed against the granting of an extension of time.
9. Mr O'Connell then addressed each of the grounds of review and explained why they lacked merit. In particular, it was said that the Decision of the Tribunal was reasonably made, in circumstances where the applicants failed to appear at a hearing, had not engaged with the Tribunal regarding their application, and did not seek reinstatement of their application after the first dismissal for non-appearance. In those circumstances, the Tribunal was bound by the Act to confirm the Decision to dismiss.
10. In reply, the applicants were unable to make any further submission regarding the merits of their claim or their explanation for delay.

1. The Court has a broad discretion to grant an extension of time. The Court may have regard to the length of, and the explanation for, delay. The Court may also consider any prejudice any other party to the proceeding may suffer, and the merits of the underlying application for judicial review considered on an impressionistic basis. The merits are to be considered on an impressionistic or preliminary basis.
2. These principles were decided in the decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 344 at 349 - and I will put the citation for that case in the final reasons. They were also confirmed by the High Court in Katoa. In Tran [38], a decision of Wigney J in the Federal Court of Australia, his Honour observed that the longer the delay, the more persuasive the explanation for that delay needs to be.
3. In this case, the delay is almost four years, is excessive and has not been properly explained by the applicants. The claim for financial hardship has not been verified by any evidence, and whilst the applicants may not have strong English language skills, lack of knowledge of the procedures is not an adequate explanation for a delay of this length. There is no credible evidence on affidavit, or other document produced to the Court, to support the applicants' claim for an extension. There is no prejudice that was claimed to be suffered by the Minister, but that is not conclusive.
4. There is an overarching public interest in the timely resolution of disputes, and the need for certainty when dealing with applications of this kind - and I will set out in my final reasons an extract from the case of WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736:

[41] There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

1. I have also considered that the merits of the application for judicial review are very poor, and unlikely to succeed. I need only consider the merits on a preliminary level, but there has been no genuine explanation given as to why the applicants did not appear before the Tribunal, why they did not engage with the Tribunal process, or why the discretion was unreasonable or contrary to law.
2. I have considered the documents in the Court Book, and the submissions made on behalf of the Minister, and there is no obvious denial of procedural fairness or denial to the applicants of an opportunity to be heard.
3. There is no duty on the Tribunal to translate documents from English to Thai, and there is no duty on the Tribunal to inquire about a failure to appear at a hearing. It was not unreasonable for the Tribunal to dismiss the application for review pursuant to s 426(1A)(b) of the Act. The confirmation decision of the Tribunal made on 14 May 2021 was also not unreasonable in circumstances where the first dismissal Decision had been sent to the email address given by the applicants to the Tribunal when there had been no application by the applicants for reinstatement of their application for review.
4. In all of the circumstances of this case, and given the very lengthy delay without an adequate explanation, it is not in the interests of the administration of justice to grant an extension of time.

1. The applicants' application for an extension of time within which to seek judicial review is dismissed.
2. The applicants pay the first respondent's costs and disbursements of and incidental to the application for an extension of time, fixed in the sum of $4,189.38.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.