CQX19 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FedCFamC2G 245

1. The name of the first respondent be amended to "Minister for Immigration and Citizenship".
2. The name of the second respondent be amended to "Administrative Review Tribunal".
3. The application for an extension of time filed on 5 July 2019 be dismissed.
4. The applicant pay the first respondent's costs fixed in the amount of $4,553.02.

Note: The form of the order is subject to the entry in the Court's records.

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. By an application filed on 5 July 2019, the applicant seeks orders setting aside a decision of the second respondent (Tribunal) made on 5 June 2017. By that decision, the Tribunal dismissed for non-appearance, the applicant's application seeking merits review of a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection (subclass 866) visa (the visa). The Tribunal confirmed its decision on 20 June 2017.
2. Because the originating application was filed out of time, the applicant cannot proceed with his substantive application unless the Court first makes an order extending the 35-day period that would ordinarily apply by reason of s 477(1) of the Migration Act 1958 (Cth) (the Act). The Minister opposes the granting of an extension of time relying principally on what it contends is the lack of merit in the underlying claim. The Tribunal entered a submitting appearance save as to costs and has not participated in the proceeding.

1. The applicant is a Malaysian citizen. He first arrived in Australia on 11 November 2015 on a visitor visa (CB 21).
2. On 23 January 2016, the applicant lodged an application for the visa (CB 1-37). The applicant claimed to have left Malaysia because he fears being harmed or killed by the "along" criminal gang who operate in illegal money lending (loan sharks). The applicant claimed to have borrowed money from the loan sharks and to have acted as guarantor for loans taken out by friends. According to the applicant, the loan sharks engaged in a variety of intimidatory acts including to splash his house with red paint and eggs. He claimed to have reported his case to several unidentified parties in Malaysia, but they were unable to help (CB 32-34).
3. On 22 March 2016, a delegate of the Minister (delegate) made a decision to refuse to grant the applicant the visa (CB 42-53). The refusal decision was communicated to the applicant by email on 29 March 2016 (CB 39-41).
4. Amongst the findings recorded by the delegate were that the applicant's claims lacked detail and were not supported by corroborating evidence or country information. The delegate found that the applicant did not satisfy the criterion in s 36(2)(a) or s 36(2)(aa) of the Act.

1. On 13 April 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 54-63). In his application form, the applicant ticked the box to indicate his consent to the Tribunal sending communication to him by email, which address he nominated as 'xx@xx.com' (CB 60).
2. On 15 April 2016, the Tribunal acknowledged receipt of the application by email correspondence (CB 64-66).
3. On 3 May 2017, the Tribunal emailed the applicant at his nominated email address and attached an invitation to attend a hearing on 5 June 2017 (CB 67-69). The invitation informed the applicant that the Tribunal was unable to make a favourable decision on the information that was presently before it alone. The applicant was also informed that a failure to attend the scheduled hearing might result in the Tribunal making a decision on the review without taking any further action to allow or enable him to appear before the Tribunal or dismissal of his application.
4. On 29 May 2017 and 2 June 2017, the Tribunal sent the applicant SMS hearing reminders to the mobile phone the applicant had nominated in his review application (CB 58, 74).
5. On 30 May 2017, the applicant submitted a response to hearing invitation via email confirming his attendance and requesting the assistance of an interpreter in the Bahasa Melayu and English languages (CB 70-73).
6. When the Tribunal constituted for a hearing on 5 June 2017, there was no appearance by the applicant, and he was recorded on the hearing record as a "no show" (CB 75).
7. On the same day, the Tribunal made a decision to dismiss the applicant's application under s 426A(1A)(b) of the Act (dismissal decision). In the reasons for the dismissal decision, the Tribunal noted that the applicant had not appeared before the Tribunal on the day and at the scheduled time and place. The Tribunal was satisfied that the applicant had been properly invited to a hearing in accordance with an invitation sent by email and no reason for the non-appearance had been given (CB 80).
8. In the letter to the applicant that attached the dismissal decision, the Tribunal informed the applicant that he may apply in writing for reinstatement of his application by 19 June 2017 (CB 79).
9. On 20 June 2017, the Tribunal made a decision to confirm the decision to dismiss the applicant's review application (confirmation decision). In its statement of decision and reasons it recorded relevantly that (CB 84):

The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s. 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances the decision under review is taken to be affirmed.

1. On 18 August 2021, a Registrar of the Court made procedural orders including that the applicant file and serve 28 days before the extension of time hearing date any amended application with proper particulars of the grounds of the application, any affidavits or supplementary court book and written submissions.
2. On 8 December 2025, the parties were notified that the application for an extension of time had been listed for hearing on 16 February 2026. Despite this notification, the applicant did not file any further material and therefore is taken to rely upon his originating application and affidavit filed on 5 July 2019. The affidavit does not address itself to any of the matters germane to an extension of time application but simply annexes a copy of the dismissal decision.
3. On 2 February 2026 the Minister filed written submissions and a supplementary court book that included two documents that had been omitted from the court book filed on 1 September 2021.
4. At the hearing, the applicant engaged with the Court with the assistance of an interpreter in the Malay and English languages. The applicant was provided with hard copies of his originating application and affidavit, the court book and the Minister's written submissions.
5. I explained to the applicant that as this was an extension of time application, he should address me on the reasons why such an extension should be granted. I told the applicant that in doing so, he might wish to provide an explanation as to why his application had been filed outside of the time specified in the Act. I told the applicant that he might also wish to tell the Court why the dismissal and confirmation decisions were wrong, bearing in mind that the decision did not involve the Tribunal rejecting his claims to be a refugee but instead it reflected the failure of the applicant to attend the Tribunal on the day of the scheduled hearing and to seek the reinstatement of the review application within 14 days of receipt of the dismissal decision (or at all).

1. Despite the lack of legislative prescription as to how the interests of the administration of justice might be exercised for the purpose of s 477(2) of the Act, the factors which are understood generally to inform the exercise of the discretion to extend time include the following:

(a) the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47];

(b) whether there is any prejudice to the Minister; and

(c) whether the applicant's proposed grounds seeking judicial review justify the extension of time.

1. The question of substantive merit was addressed by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. There was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a myriad of facts and circumstances and that, reflecting the breadth of the discretion, it is within the power of the Court to have regard to the merits of a proposed application in such manner as it considers appropriate.
2. The majority in Tu'uta Katoa was also at pains to point out that the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration. In this regard, the level of satisfaction for the Court to reach was described as "not low".[1]

1. The applicant seeks judicial review of the dismissal decision, which was made on 5 June 2017. Pursuant to s 477(1) of the Act, the application for judicial review was required to be filed by 10 July 2017, 35 days from the date on which the dismissal decision was made.
2. The application was instead filed 725 days (1 year, 11 months and 25 days) out of time, which the Minister submits is an inordinate delay.
3. I accept that the delay is very significant and weighs against the granting of an extension of time.

1. In his originating application, the applicant identified the following grounds for an extension of time:
   1. The reason I need to extend the given time frame, is due financial language issues and lack of familiarity regarding judicial review application process.
   2. The language barrier made it harder for me to find a job, that is part of reason in relation of my financial issues. Financial issues make me submit the application out of time frame due it take a time to make a saving for this application.
   3. In addition, the language barrier made it hard for me to collect the accurate information for the application process. Most information is gained through from friends, in which some information is not accurate and it looks time for me to collect the accurate information and for me to make the best decision on what I should do to get the reappealing of my application. Hence, that is part of the reason on why I'm not submitting the form in given time frame.
   4. In relation lack of familiarity regarding judicial review application process make me difficult to do this application because some people told me that I need to hire a lawyer for application. Until one day I've met with my friend to assisted me with the application. He also told me that I can reappeal my application to FCC by myself instead of hiring a lawyer. Thus, that what made me to drag my application until the given time frame.
   5. Due to obstacles that I'm facing I would like to appeal my application to FCC for reconsideration and for the extension of my application time frame.
2. When invited to address this consideration at hearing, the applicant made the same general references to poor English language skills, financial difficulties and unfamiliarity with the legal process. He made no effort to meaningfully engage with the consideration or to offer an explanation as to why, notwithstanding these challenges, there was a significant period of apparent inertia, before the applicant finally sought the assistance of a friend in making his judicial review application.
3. The Minister was critical of the failure of the applicant to go on affidavit about the reasons for delay. As far as these reasons were concerned, the Minister submitted that they did not withstand scrutiny. it was the applicant's responsibility to ascertain his review rights and the applicable time limits (referring to MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]). Further, the Minister submitted that it is well established that financial issues or a lack of legal advice are inadequate explanations for a delay (referring to DWK17 v Minister for Home Affairs [2019] FCA 66 at [7]- [14]).
4. I acquiesce in the view taken by the Minister. While I have some sympathy for the predicament the applicant found himself in, the difficulties he confronts are not unusual in this jurisdiction and do not explain the very lengthy delay in the filing of the application to this Court. The explanation is devoid of detail and provides no insight as to what steps, apart from approaching a friend, the applicant took to understand his rights and obligations and to prosecute his application in a timely manner.
5. This consideration weighs against the granting of an extension of time.

1. In relation to prejudice, the Minister accepts that he will not suffer any specific interest beyond the public interest in the finality of administrative decision making.
2. I accept that delay impacts on the efficiency and timeliness of the judicial review process. Prejudice, in this broader sense, is a further consideration that operates against an extension of time.

1. The applicant's proposed grounds of judicial review appear in his originating application as follows:
   1. The decision made by AAT on 05/06/2017 is refused to grant a protection visa. Hence I would like to reappeal to FCC to reopen case because AAT has not treated fairly when refused my application.
   2. I decided to fly to Australia due to facing hard circumstances and having a danger threats towards my life. Back in Malaysia I will facing genuine risk of my life because lots of people look for my self due I can't get done all my debt previously I loan. They are threaten to me and I received threats by them continuously myself.
   3. AAT fully aware my safety can't be granted if I'm back in Malaysia because legal justice can't protect me at all time but AAT still not accept my application even explanation given to them. AAT member has not used his discretion as this is clearly unfair decision to my self.
   4. On 05/06/2017, I was unable to attend hearing season due myself was facing are very hard of circumstances on that time. Unexpected thing was happen to myself when my daughter was involved in accident and was passed away one weeks before the hearing date. I clearly inform AAT with dispatch a letter to postpone the hearing dated because I having extremely depressed and lost consciousness with the incident happen.
   5. AAT haven't responded and keep send me reminder to attend the hearing. Since AAT did not reply I was try to communicate with Department of Home Affairs but they still as me to refer the matter to AAT. Department of Home Affairs should have to assist me for the application due AAT not done the right thing to me. Department of Home Affairs also not use they discretion as this is clearly unfair decision to myself.
   6. The reason I am not appeal the reinstatement in time frame given because AAT member not done the right thing while make a error decision to dismiss my application even though AAT fully aware that I having genuine reason for not attend the hearing. That are the fact they not take a consideration.
   7. AAT did not accept my application and AAT was fully aware on the fact that I have lodged an application for protection to having genuine fear my life in Malaysia and that information is clearly stated on Department of Home Affairs refusal letter.
   8. I would like to request for FCC to set aside old orders and replaced by new orders and accept my application for review as a valid application and decide on this matter at FCC.
2. The applicant's challenge to the merits of the dismissal decision must be understood in its proper statutory context which revolves firmly around s 426A of the Act. At relevant times, this provided:

Scope

(1) This section applies if the applicant:

(a) is invited under section 425 to appear before the Tribunal; but

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A) The Tribunal may:

...

(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

...

Note 2: Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

...

(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note: Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

1. Pursuant to s 426B of the Act, if the Tribunal dismisses an application under s 426A(1A)(b), it is required to notify an application of its decision:

(2) If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

(a) sets out the decision; and

(b) sets out the reasons for the decision; and

...

(d) records the day and time the statement is made.

(5) The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is taken to have been made; and

(b) by one of the methods specified in section 441A.

(6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

1. It can be seen that the statutory scheme therefore permits the Tribunal, pursuant to s 426A(1A)(b), to dismiss an application for review if an applicant does not appear at a hearing without any further consideration of the application or information before the Tribunal. The statutory scheme further provides that the Tribunal must confirm the decision to dismiss the application if the applicant fails to apply for a reinstatement within 14 days after the receipt (or deemed receipt) of the written statement. The effect of such a decision is that the decision under review is taken to be affirmed: ss 426A(1E) and (1F) of the Act.
2. The legislature is taken to intend that a statutory power will be exercised reasonably by the decision-maker: Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).
3. When the applicant's proposed grounds are assessed within the parameters established by the statutory scheme, it can be seen that those grounds which involve complaints about the Tribunal's treatment of the merits of the applicant's claims to engage protection obligations (being grounds one, two, three and seven) are misconceived and cannot succeed. The Tribunal was not obliged to engage in an evaluation of the applicant's protection claims when it determined to proceed under s 426A(1A)(b) of the Act.
4. As far as the applicant alleges that the Tribunal erred in dismissing his application because it was fully aware that he had a genuine reason for not attending the hearing, I make the following observations.
5. In the first place, this allegation appears connected to what appears in ground four of the grounds of review, being an assertion that the applicant was unable to attend the hearing because his daughter was involved in an accident and passed away one week before the hearing date.
6. Of course, if these events did in fact occur, they are very serious (indeed, tragic) and would explain the applicant's failure to engage with the Tribunal hearing process. However, when ground four was translated by the interpreter at the hearing, the applicant's response was dissociated from the matters described. Instead, the applicant told the Court that he had channelled all his finances to deal with "the matter" and had delayed in responding. The applicant said nothing in this context or at any time during the hearing, despite repeated opportunities to address the Court, about the death of a family member.
7. The second matter that indicates that the applicant was detached from the application process and the matters recorded in his documents, is that ground four contains the assertion that the applicant informed the Tribunal by letter that he wished to postpone the hearing. By ground six, the applicant is critical of the decision of the Tribunal to dismiss his application despite its awareness that he had a genuine reason not to attend.
8. However, again, the applicant in his submissions to the Court made no mention of efforts made to postpone the hearing. To the contrary, his answers suggested he was aware of the hearing, and that he did not attend because he was dealing with financial challenges. The applicant acknowledged receipt of the SMS reminder messages and in fact accepted that he might be in part responsible for the outcome, having "overlooked the matter".
9. Furthermore, as the Minster submits, there is no evidence before the Court that the applicant ever communicated with the Tribunal to request an adjournment. To the contrary, the only communication passing between the applicant and the Tribunal that is in evidence is the completed response to hearing invitation that the applicant sent to the Tribunal less than a week prior to the scheduled hearing in which he indicated that he would take part in the hearing.
10. While the applicant may not have been aware of the matters recorded in his application document, he cannot shirk responsibility for their content, especially when they make grave allegations about the manner in which the Tribunal discharged its statutory function, which matters were capable of going to the reasonableness of the exercise of the discretion to proceed under s 426A(1A)(b), rather than by, for example, exercising the power in s 427(1)(b) of the Act to adjourn the review.
11. Instead, this becomes an orthodox case of the Tribunal dismissing an application for review in circumstances where the applicant failed to appear on the day, time and place scheduled for the hearing.
12. I am satisfied that the pre-conditions to the exercise of the discretion were met. In particular, the applicant was properly invited to attend a hearing under s 425(1) of the Act. The Tribunal's hearing invitation dated 3 May 2017 complied with the requirements of s 425A in that it:

(a) informed the applicant of the date, time and place of the scheduled hearing (s 425A(1) of the Act)

(b) was transmitted to the last email address provided to the Tribunal by the applicant in connection with the review (ss 425A(2) and 441A(5) of the Act), as recorded in the applicant's Tribunal application dated 13 April 2016 (CB 60). Further, the applicant responded to the hearing invitation on 30 May 2017, confirming his attendance at the scheduled hearing (CB 71);

(c) gave a period of notice that was longer than the prescribed period of 14 days (425A(3) of the Act and reg 4.35D of the Migration Regulations 1994 (Cth)); and

(d) contained a statement which explained the effect of s 426A of the Act, namely the consequences of the failure of the applicant to appear before it (s 425A(4) of the Act).

1. Furthermore, I accept that there was no unreasonableness (or, as the applicant describes it "unfairness") in the decision taken by the Tribunal to proceed under s 426A(1A)(b) of the Act. The written statement produced by the Tribunal reveals that the matters that informed this decision were the failure of the applicant to attend the scheduled hearing despite being properly invited to do so and the fact that no reason for the non-appearance had been given.
2. Further, when the Tribunal made the dismissal decision it provided the applicant with a written statement setting out the reasons for its decision to dismiss the decision which recorded the day and time the statement was made (s 426B(2)(a)-(c)) and, on 5 June 2017, the applicant was notified of the dismissal decision via the nominated email address and given a statement that described the effect of ss 426A(1B) to (1F). When the applicant did not make any contact with the Tribunal - either to explain his reasons for non-appearance at the hearing or to apply for reinstatement - the Tribunal was obliged after 14 days to confirm the dismissal decision pursuant to s 426A(1E) of the Act, which it did.
3. In the circumstances described above, I am not satisfied that it is necessary in the interests of the administration of justice to extend time to permit the applicant to make an application for judicial review of either the dismissal decision or the confirmation decision. The delay is lengthy and not adequately explained. The applicant has not identified any arguable ground of review.
4. I will order that the application for an extension of time be dismissed and the applicant pay the Minister's costs in a fixed amount reflecting the scale set out in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

[1] Tu'uta Katoa at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).