CTY23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 995

1. Before this Court is an application filed on 22 November 2023 under s 477(2) of the Migration Act 1958 (Cth) (the Act). The applicant seeks an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 March 2020. The Tribunal affirmed a decision of the Department of Immigration and Border Protection (the Department), as delegate for the first respondent, to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa.
2. The application for judicial review of the Tribunal decision was filed on 22 November 2023. This was 1322 days after the expiry of the requisite 35-day filing period.
3. The application is dismissed for the following reasons.

1. The applicant is a citizen of the People's Republic of China (Court Book (CB) 41). She arrived in Australia on 15 June 2000 as the holder of a Business (Short Stay) (Subclass 456) visa. The visa ceased on 6 July 2000, and the applicant became an unlawful non-citizen (CB 71). She was unlawful until 5 August 2016 when she applied to the Department for the Protection (Class XA) (Subclass 866) visa (CB 1-37). She was granted a bridging visa in association with the protection visa application (CB 71).
2. On 8 June 2017, the applicant was invited to an interview by the Department to be held on 23 June 2017 (CB 64-66). The applicant did not attend the interview (CB 75).
3. On 23 June 2017**,** the Department refused to grant the applicant the visa (CB 71-78).

1. On 5 July 2017, the applicant lodged an application with the Tribunal seeking review of the decision of the Department (CB 79-80). A nominated email address was provided. On 8 January 2018 and 11 July 2018 requests were made from that email address for information to provide to Medicare (CB 85 and 87).
2. On 29 January 2020, the Tribunal wrote to the applicant to invite her to a hearing scheduled on 18 February 2020 (CB 91-92).
3. On 18 February 2020, the Tribunal dismissed the application for protection pursuant to s 426A (1A)(b) of the Act (CB 104), as the applicant did not appear at the hearing on 18 February 2020 (CB 97-99 and 104).
4. The applicant did not apply to the Tribunal for reinstatement within the prescribed period.
5. On 4 March 2020, the Tribunal confirmed the dismissal decision under s 426A (1E) of the Act (CB 110-111) (Tribunal Decision).
6. The applicant was notified of the Tribunal Decision by email to the email address which had been nominated by the applicant (CB 107-111).
7. On 9 November 2023, the applicant emailed the Tribunal and submitted a Freedom of Information request (FOI Request) seeking a copy of the Tribunal's decision and notification (CB 112-118).
8. On 13 November 2023, the Tribunal acknowledged receipt of the applicant's FOI Request and released correspondence to the applicant pertaining to the request for access to documents. (CB 119).

1. The applicant commenced proceedings in this Court by way of an application filed on 22 November 2023. The applicant seeks an extension of time in which to apply for judicial review of the Tribunal Decision.
2. The application was accompanied by an affidavit filed 22 November 2023 which annexed the Tribunal Decision and a copy of the applicant's passport.
3. The applicant appeared at a hearing on 3 June 2025. She was unrepresented. Mr Westenberg from Sparke Helmore Lawyers appeared for the first respondent. An interpreter assisted the Court.
4. As the applicant was a litigant in person, the Court took some time to explain the processes of the court and outline the principles pertinent to extension of time applications. The applicant was also provided with an opportunity to elaborate on the grounds for review.

1. Section 477 of the Act provides the time limit which applies to applications for judicial review of tribunal decisions in respect of which this Court has jurisdiction, and the basis upon which it may be extended. At the time of the Tribunal Decision, the provision relevantly provided:

s 477 Time limits on applications to the Federal Circuit Court

(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. The principles regarding applications for extensions of time have been considered in several cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa). These principles are referred to in more detail in the consideration below.

Lodgement of application for judicial review of the Tribunal Decision

1. As the Tribunal Decision was made on 4 March 2020, the time to apply for judicial review expired on 9 April 2020 (35 days from the Tribunal Decision: s 477(1) of the Act).
2. The application for review of the Tribunal Decision was not lodged by the applicant until 22 November 2023 which was 1322 days out of time or as pointed out by the first respondent, roughly 3 years and 8 months late.
3. The application for judicial review was not lodged within the prescribed time as set out in s 477(1) of the Act.
4. The applicant has applied for extension of time pursuant to s 477(2) of the Act. The Court must consider the two limbs of s 477(2) of the Act.

1. The first limb in s 477(2)(a) of the Act is whether an application has been made to the Court in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time.
2. In her application for an extension of time to this Court, the applicant specified the following grounds (set out without alteration):
   1. I couldn't get in touch with my previous agent since the pandemic.
   2. My friend helped me to get the decision letter from AAT by my own email box.
   3. I really hope that the officer would carefully consider me situation and give me another opportunity to stay in Australia legally.
3. The Court is satisfied that s 477(2)(a) of the Act is met, as an application has been made to the Court in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order extending time.

Necessary in the interests of the administration of justice

1. The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time.
3. The High Court observed in Katoa at [11], that the text of equivalent provisions (relevant to the Federal Court), reveals a legislative intention to restrict exercise of the jurisdiction by placing a 35 day limit on applications, and ameliorating injustice that might result by allowing that time to be extended only where a judge has reached a state of satisfaction that it is in the interest of administration of justice to extend (per Kiefel CJ, Gageler, Keane and Gleeson JJ at [11]). The Court also stated that the Court's power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice (at [12]).
4. In BTI15 at [40], Jagot and Halley JJ stated that the Court has an obligation to 'evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice'(see also Katoa at [12] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ). Their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(a) the extent of the delay and explanation for it;

(b) any prejudice;

(c) the impact on the applicant if the time was not extended;

(d) the interests of the public at large; and

(e) the merits of the substantive application.

The extent of the delay and explanation for it

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the decision by the Tribunal. The Tribunal Decision was dated 4 March 2020 and therefore the application for review was required to be made by 9 April 2020. The applicant lodged the application for review on 22 November 2023, a period of 1322 days after the prescribed time.
2. This is a significant delay. As pointed out by the first respondent, the delay is over 37 times the legislated time limit, or roughly 3 years and 8 months late.
3. The applicant claimed in her application that she had been unable to get in touch with her previous agent 'since the pandemic'. She said that a friend helped her get the Tribunal Decision from her 'own email box'. At hearing, when asked if she wished to elaborate on reasons for the delay, the applicant stated that her migration lawyer went into bankruptcy (Tp 8.19-21). She submitted that she only found out that he was bankrupt when she sought him out to extend her Medicare card (Tp 8.21-23). She said that she did not receive correspondence from him or from any government agency (Tp 8.23-24). She said that she did not seek him out because of the COVID-19 pandemic (Tp 8.24-26) and she did not know how to contact the Department or Tribunal. She said that later a friend introduced her to a different agent so that she could find out the result of her application (Tp 8.28-29). She went to a building, and he was not there. She said that she then found out that there had been a result in 2020 (Tp 8.29-30).
4. The first respondent submitted that the length of delay was 'extreme', and the applicant's explanation did not comprise a satisfactory explanation for the delay. The first respondent submitted that there was no sworn evidence about the bankrupt agent, as required by Rule 29.05 (2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) (Tp 8.46 -9.1-2). The first respondent also submitted that it was unclear why the applicant waited three years to find a friend to check the Tribunal's decision (Tp 9.4-6).
5. The longer the delay the more persuasive the explanation for that delay needs to be. Where there is significant delay, the matter would need to be extraordinary or exceptional for the extension of time to be granted: Katoa at [18]. The applicant may be required to show that their case is strong or even exceptional; Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) at [38].
6. Generally, a delay over seven months is significant, and ordinarily would be a sufficient basis to refuse an application for extension of time: Tran at [38]: Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at [190]. The delay in this case is over three years. The Court is not persuaded that there is an adequate explanation for such a significant delay in the lodgement of the application for judicial review. The applicant has claimed that her agent was not in touch with her since the pandemic. While the applicant's agent may not have been in contact with her, it is not explained why she did not seek out information herself at some time during the three-year period, even given the difficulties the COVID-19 pandemic may have imposed. Notably, ignorance of the time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J. At the hearing before this Court, the applicant also claimed that her agent was bankrupt. No evidence of bankruptcy has been provided. However, even if the agent were bankrupt, no satisfactory explanation has been provided as to why the applicant did not seek the agent out or try and find out the result of her application to the Tribunal.
7. In the absence of a satisfactory explanation, this delay weighs against the grant of an extension.
8. In any event, even if the Court were to be satisfied that there was a satisfactory explanation for the delay in lodgement of the application, the application for an extension of time would have been refused. This is on account of findings in relation to the merits of the proposed application, considered below: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].

Any prejudice to the respondent if an extension were granted

1. In written submissions, the Minister submitted that there was 'some prejudice' if the applicant were granted an extension of time, given the extreme delay and the Minister's interests in the finality of administrative decision-making.
2. There is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15].
3. As specific prejudice to the first respondent has not been identified, the Court has considered this factor neutrally in respect of whether to grant the extension.

1. There is a public interest in ensuring that administrative decisions are made lawfully and expediently.
2. Regarding the impact upon the applicant, if the extension of time is refused then the Tribunal's decision will stand, with all the consequences that follow for her protection visa application. The impact on the applicant is significant in that she may no longer be able to stay in Australia lawfully although she has lived in Australia for 20 years. In her initiating application to this Court she has said that she loves the country, has made contributions and it is her 'second home'.
3. This is a matter weighing in favour of the grant of an extension.

1. In considering whether a proposed appeal has merit, the Court will usually do so at a 'reasonably impressionistic level' by way of assessing whether the proposed grounds are 'arguable', 'reasonably arguable' or 'sufficiently arguable' to warrant the grant of extension of time: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63], and approved by the Full Court in MZABP v Minister for Immigration and Border Protection (2016) FCAFC 110. An applicant need only identify an 'arguable case' (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB).
2. In Katoa at [18], the High Court said that where the delay is lengthy, the applicant may be required to show that the case is strong, rather than arguable (references omitted):

.. if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.

1. The delay of 1322 days is lengthy. The Court has therefore considered whether the applicant's case is strong. In her application, the applicant relies on the following four grounds of review (reproduced without alteration):
   1. The Tribunal officer refused my application because they could not satisfied my evidence to support my claims.
   2. The Tribunal officer did not accept that I was persecuted by Chinese government. But I should say there is really no human rights in China.
   3. I have been outside China for such a long time. I can't provide any more evidence to the Administrative Appeals Tribunal Department to prove that I was persecuted.
   4. After staying in Australia for more than 20 years, I love it so much. And I have indirectly made contributions to this country. I hope I could stay here. Australia is already my second home.
2. Although invited to make submissions on these grounds at hearing, the applicant refrained from doing so (Tp.11.5-13).
3. As argued by the first respondent, grounds one to three proceed on a misunderstanding of the Tribunal Decision, as the Tribunal dismissed the application for non-appearance and was not required to consider the merits of the decision: s 426A(1A)(b) of the Act; BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [21]. This was explained to the applicant at the hearing of this Court, and she was provided with an opportunity to make submissions, but she did not do so (Tp.11.5-13).
4. There is no suggestion by the applicant that the Tribunal did not comply with the relevant legislative provisions in dismissing the application. Indeed, as set out in [28-30] of the first respondent's written submissions, the Tribunal invited the applicant to a hearing in accordance with s 425 of the Act. She was notified that if she did not appear that her application may be dismissed. The Tribunal then dismissed the application in accordance with s 426A of the Act. The Tribunal notified the applicant of the initial dismissal in accordance with s 426B of the Act. On the same day it made its dismissal decision, the Tribunal notified the applicant of the initial dismissal at the last email address as nominated by the applicant (CB 101-103). As the applicant did not apply for reinstatement within the prescribed period, the Tribunal was required by s 426A(1E) of the Act to dismiss the application under s 430 of the Act.
5. Given the circumstances set out above, the Tribunal was not required to consider the merits of the case, and it did not do so. It is therefore incorrect to state (as the applicant has done in ground one to three of this application) that the Tribunal refused her application for a protection visa because there was insufficient evidence, or because the Tribunal did not accept that she was persecuted in China. The Tribunal did not make these findings, instead dismissing the matter in accordance with s 430(1)(e) of the Act on procedural grounds as she did not attend the scheduled hearing.
6. Therefore, grounds one to three must fail, as they are not based on an accurate portrayal of the Tribunal Decision.
7. In ground four, the applicant states that she has lived in Australia for more than 20 years, loves it, has made contributions and treats Australia as her second home. This is a statement expressing her reasons to wish to stay in Australia, rather than a ground of jurisdictional error. The Court has sympathy for the applicant who clearly loves Australia, and the length of her stay in Australia has been considered in respect of the impact on her of a decision not to grant an extension. However, the ground has no merit, as it is not an articulation of a ground of jurisdictional error.
8. Mindful of the Court's obligations towards unrepresented litigants: MZAIB at [59]-[77], [100] and [112]-[113], the Court has scrutinised the application, the Court Book marked R1 and the Tribunal Decision, to identify any jurisdictional error, but has not been able to identify any error. As referred to at [8] of this judgment, the Tribunal invited the applicant to a hearing on 18 February 2020 in accordance with s 425 of the Act, by notice sent to the last notified address. In the hearing invitation from the Tribunal, the applicant was notified that if she did not appear at the Tribunal hearing her application may be dismissed. The Tribunal then dismissed the application in accordance with s 426A of the Act when she did not appear at the hearing. The Tribunal notified the applicant of the initial dismissal in accordance with s 426B of the Act at the last email address as nominated by the applicant (CB 101-103). As the applicant did not apply for reinstatement within the prescribed period, the Tribunal was required by s 426A(1E) of the Act to dismiss the applications under s 430 of the Act. The Tribunal Decision does not indicate that there was any irregularity in the Tribunal processes.
9. Given the findings above that grounds one to three are based on a misunderstanding of the Tribunal Decision, and ground four is misconceived, the Court is of the view that the proposed grounds are not strong: Katoa at [18]. The Court is of the view that these grounds are not even arguable or strongly arguable, the lesser standard expressed in MZABP at [62]-[63].
10. This weighs heavily against granting an extension of time.

1. The Act was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (ART) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Consequential Act).
2. This judgment relates to a decision of the Tribunal which predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal's decision (or as at the date of any relevant matter referenced in this judgment).
3. The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party in pending proceedings. Item 25 of the Consequential Act relates to any proceeding in a court that is not finalised before the transition time and provides that proceedings continue in accordance with the new law.
4. In the circumstances, this Court will make an order substituting the ART as the Second Respondent in this proceeding.
5. On 13 May 2025 by Administrative Arrangements Order signed by the Governor-General of the Commonwealth of Australia, the Act is to be administered by the Department of Home Affairs. The newly named portfolio of Department of Immigration and Citizenship forms part of the Department of Home Affairs.
6. In these circumstances the Court will make an order substituting the Minister of Immigration and Citizenship as the first respondent in these proceedings.

1. As the application for judicial review of the Tribunal Decision was made outside the statutory timeframe, the Court may only grant an extension of time if it is satisfied such extension is in the interests of the administration of justice: s 477(2) of the Act.
2. The Court has considered the various factors above, based on the decision in Katoa. Although there may be significant impact on the applicant if no extension is granted, the Court has taken guidance from the High Court in Katoa at [12], that the Court's power to extend time is not focused on the interests of the applicant but rather on the broader interests of the administration of justice. Given the very lengthy delay (1322 days) in applying for judicial review, the absence of a satisfactory explanation for the lengthy delay, and, importantly, the fact that there are no arguable prospects of success, the Court is not satisfied that it is in the interests of the administration of justice that an extension of time be granted in this matter.
3. The application for extension of time is dismissed.
4. The Court will hear the parties as to costs.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.