CSH20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1733

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. The applicant seeks an extension of time to make an application for judicial review of a decision of a delegate of the respondent (the Minister) to refuse to grant him a protection (subclass 866) visa (the visa).
2. For the reasons set out below, the Court does not have jurisdiction to review the delegate's decision. On that basis, the application for an extension of time cannot succeed.

1. The applicant is a citizen of Malaysia who first arrived in Australia on 26 December 2016 (Court Book (CB) 14, 21).
2. On 24 March 2017, he applied for the visa which is the subject of this application (CB 13-37, 50).
3. On 8 August 2017, a delegate of the Minister refused to grant the applicant the visa (CB 50-57).
4. The applicant unsuccessfully sought review of the delegate's decision in the Administrative Appeals Tribunal (the Tribunal). The applicant's subsequent application for judicial review of the decision of the Tribunal is considered in CSH20 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1734 (CSH20 (No 2)), which further sets out the applicant's background and procedural history.

1. On 15 June 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the delegate's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
2. Section 477(1) of the Act requires an application for judicial review to be filed within 35 days of the date of the migration decision. Accordingly, the application for judicial review was almost five years out of time, and the applicant seeks an order under s 477(2) that the time for making such an application be extended.
3. The application for extension of time contains the following three grounds (without alteration):
   1. I attached all supporting document with my afidavit
   2. I dont have any lawyer to refer to or asked for advice
   3. I dont know what to do until I found someone asked me to legal aid and come to court.
4. The applicant filed an affidavit along with that application, annexing a copy of the delegate's decision and stating:
   1. I am the applicant in the proceeding
   2. I am applying for the judicial review of the decision of the tribunal department
   3. I have attached my decision record together with my affidavit
5. The applicant appeared before the Court on 1 September 2025 without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's written submissions.
6. The materials before the Court include the application for an extension of time to seek judicial review and the supporting affidavit filed on 15 June 2020 (the affidavit being taken as read and in evidence at the hearing on 1 September 2025), a Court Book numbering 61 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 5 September 2024.
7. The Court took some time to explain that it only has power in certain specific circumstances to consider decisions made by a delegate of the Minister. The Court explained to the applicant that the decision he is seeking to review is a primary decision for which he had the right to seek merits review by the Tribunal. As it happens, the applicant did in fact later apply to the Tribunal for merits review of the delegate's decision. As observed above, that Tribunal decision is the subject of CSH20 (No 2). The Court explained therefore that it does not have power to review the delegate's decision, but it does have power to review the Tribunal's decision. Nevertheless, the applicant was given an opportunity to explain why he says the Court has power to review the delegate's decision.
8. Against this background, the applicant said on two occasions that he has applied to the Court for review because he wants to stay in Australia legally and he wants to work.

1. The Minister's submissions in this matter were brief and directed to whether the Court has jurisdiction to review the delegate's decision.
2. The Minister submitted that the Court does not have jurisdiction to review the delegate's decision because that decision is a primary decision as defined in s 476(4) of the Act. The Court accepts the Minister's submission and agrees that there is no reasonable argument to contend against the clear meaning of s 476 with respect to the Court's jurisdiction to review the delegate's decision.
3. At the time of application, s 476 of the Act relevantly provided:

Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)

(1) Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:

primary decision means a privative clause decision or purported privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b) that would have been so reviewable if an application for such review had been made within a specified period; or

(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

1. The delegate's decision is a primary decision as defined in s 476(4) of the Act as it is a privative clause decision which would have been reviewable under the then Part 7 of the Act. Section 476(2) confirms that this Court does not have jurisdiction with respect to primary decisions (see Liu v Minister for Immigration [2006] FMCA 1712 at [21]- [24]; EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 706 at [45]- [46]).
2. It follows that the Court does not have jurisdiction to review the delegate's decision.

1. In those circumstances, the Court finds that it does not have jurisdiction to consider an application for judicial review of the delegate's decision.
2. Accordingly, the application for an extension of time is dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.