CRT22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 902

1. This is an Application for the review of a Registrar's decision that found that the applicant's application to the Court for judicial review of an Administrative Appeals Tribunal (the Tribunal) decision of 9 June 2022, which dismissed her application on the basis that the application for review to the Tribunal was out of time.
2. An application for review of a Registrar's decision is a de novo hearing. That means I have to consider the matter afresh and consider again whether or not the Application made by the applicant for the judicial review of the Tribunal's decision has merit. Regrettably, the Application to this Court for the review of the Registrar's decision to dismiss the matter was, itself, made 26 days out of time.
3. Accordingly, I need to consider whether or not I should grant leave to extend the time for the review of the Registrar's decision. In considering whether to exercise my discretion to extend time, under rule 21.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), there are no prescribed statutory criteria, but it is well settled the Court will generally take into account the following three matters. First, the length and reasons for the applicant's delay; second, the prejudice to the respondent or any third parties; and third, the merits of the underlying application.

1. The first respondent opposes the grant of an extension of time. In relation to the first matter, being the length and reasons for the applicant's delay in lodging the request for review, the review Application is 26 days out of time. The first respondent submits this is a moderate delay. In her review Application, the applicant states the reasons for the delay are:

Due to personal reasons, I was unable to submit the application within seven days of the rejection decision.

1. When asked what her personal reasons were, the applicant stated:

1. The Court notes that the applicant was, however, able to lodge an application both for the judicial review of the Tribunal decision as well as the Application for review of the Registrar's decision. Ignorance of the law is not an excuse. Whilst I do not consider the 26-day time frame to be excessive, I accept the first respondent's submission that the applicant's explanation for the delay is unsatisfactory. This factor mitigates against an extension of time being granted.

Prejudice to the Respondent or any Third Parties

1. In relation to the second matter, being prejudice to the respondent, the first respondent acknowledges that they would not be greatly prejudiced by an extension of time being granted, apart from the issue of costs. That, however, is not the end of the matter. There is a significant public interest in a timely and effective disposal of litigation, particularly in public law, where delays in dealing with applications for visas are, regrettably, very lengthy. Additional delays are to be avoided wherever they can. I consider this matter to be neutral in relation to whether or not an application for an extension of time should be granted.

1. The last matter concerns the merits of the underlying application. If there is no merit in the underlying application, it would be pointless to grant an extension of time. The decision that is the subject of the judicial review Application concerns a decision of the Tribunal dated 9 June 2022, that found the Tribunal itself had no jurisdiction to review the decision of a delegate of the First Respondent (the delegate) to refuse the applicant her visa. The material before the Tribunal, which has been also supplemented by an affidavit by Ms Edmondson, a Solicitor in the employ of the first respondent's solicitors, shows that the applicant was notified of the decision to refuse her visa application by a letter emailed to her relevant contact address on 2 November 2021.
2. The applicant was advised in that notification that she had 28 days to lodge any application for review to the Tribunal. The review application was lodged with the Tribunal on 7 March 2022. Accordingly, the Tribunal found that the review application itself was lodged out of time, and, therefore, the Tribunal had no jurisdiction and no capacity to review the decision to refuse the applicant her visa.
3. The grounds of judicial review are twofold. The first one alleges unreasonableness in the delegate's decision. This Court has no capacity to review a delegate's decision, as it is a primary decision and outside the jurisdiction of the Court, pursuant to s 476(2)(a) of the Migration Act 1958 (Cth). The ground, as expressed in relation to the delegate, has no merit. If the applicant was referring to the decision of the Tribunal, it is well established the Tribunal has no power to extend the time for the lodgement of an application for review no matter how small the delay or compelling the circumstances. As the application was lodged out of time, the Tribunal made the only decision it could in the circumstances. That decision is not unreasonable. This ground has no merit.
4. In ground two, the applicant contends the Tribunal improperly applied the law in its no-jurisdiction finding. I am satisfied the Tribunal did properly apply the law. I am satisfied the applicant was properly notified of the refusal decision by the delegate, and that the notification decision complied with all requirements. It was validly transmitted to her by a lawful means, by email to the address stated in the application for the visa. The applicant, by reason of law, was deemed to receive the notification at the end of the day on which it was transmitted. The time for the application therefore began to run at midnight on 2 November 2021. That time frame expired on 29 November 2021, and I am satisfied there was no error in the Tribunal in finding it had no jurisdiction to hear the matter, as the application was made nearly four months late. This ground has no merit.
5. Accordingly, I am satisfied that the underlying merits of the Application have no merit, and this significantly weighs in favour of the Application being dismissed. Noting that the Application for a review of the Registrar's powers was made out of time, and that the explanation, in my view, is inadequate, and that while there was no particular prejudice to the Minister, there is no merit in the underlying Application.

1. In these circumstances, I am not satisfied it is appropriate to grant an extension of time for the lodgement of the review Application against the Registrar's decision. The Application should be dismissed. In so doing, I note that even if I did grant an extension, as there is no merit in the underlying Application, I would still have dismissed the Application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge D Humphreys.