CVQ23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 576

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) to file an application under s 476 of that Act to review a decision of the second respondent (the Tribunal) that it did not have jurisdiction to review a decision made by a delegate of the first respondent (the Minister).
2. The Minister opposes time being extended and seeks his costs of the proceeding.
3. The Tribunal filed a submitting notice.
4. For the reasons that follow, I have decided to dismiss the application with costs.

1. From the court book (CB) that was tendered on behalf of the Minister at the hearing of this application, the following background facts can be established.
2. The applicant is a Malaysian national. He arrived in Australia on 3 March 2018 on a visitor visa (CB 31). He applied for a Class XA (subclass 866) protection visa on 30 March 2020 (CB 22-40). The applicant's protection claim was made on the basis that he would have difficulty securing employment in his home country due to his age (CB 34-35).
3. In his visa application the applicant did not nominate any third party as an authorised recipient to receive communication on his behalf and agreed that the Department of Home Affairs could communicate with him electronically at his nominated email address (CB 28).
4. I interpose to note that the personal email address nominated by the applicant in his visa application (CB 28) is the same email address he gave for the purpose of his application to the Tribunal (CB 68) and as his address for service in this Court (CB 2). I will refer to this in my reasons as the applicant's nominated email address.
5. On 22 April 2021 a delegate of the Minister refused to grant the applicant a visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations under s 36(2) of the Act (CB 56-63). The applicant was notified of the decision by email correspondence to his nominated email address on the same date (CB 56-60).
6. The notification letter informed the applicant that he was entitled to apply to the Tribunal for merits review of the delegate's decision, stating that (CB 57-58):

Review rights

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

Lodging an application for merits review

Applications for review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT) as provided below.

1. Any application for review of the delegate's decision had to be made within 28 days of notification of the decision in accordance with reg 4.31(2) of the Migrations Regulations 1994 (Cth) - in this instance by 19 May 2021.
2. The applicant applied to the Tribunal for merits review of the delegate's decision on 26 May 2021, being six days late (CB 65).
3. Having identified the lateness of the application, on 28 May 2021 the Tribunal sent correspondence to the applicant (at his nominated email address) inviting him to comment on the validity of his application by 11 June 2021 (CB 72-74).
4. The Tribunal did not receive a response from the applicant.
5. On 29 June 2021 the Tribunal determined that it had no jurisdiction to review the delegate's decision (CB 80-81).
6. The applicant was notified of the Tribunal's decision on the same date by correspondence to his nominated email address (CB 75-81).
7. It is convenient to set out the Tribunal's statement of decision and reasons in full:
   1. This is an application for review of a decision of a delegate of the Minister for Immigration on 22 April 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 26 May 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
   2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
   3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 April 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
   4. On 28 May 2021, the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review. Specifically, the letter noted that the application appeared to have been made out of time. The letter noted that the applicant was taken to have been notified of the delegate's decision on 22 April 2021, and that in accordance with DZAFH v Minister for Immigration [2017] FCCA 387, the last day for lodging an application for review was 19 May 2021, but that the application was not received until 26 May 2021. The applicant was invited to comment on the validity of his application by 11 June 2021. As at the date of this decision, no comments have been received.
   5. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 April 2021: s.494C(5) of the Act. Therefore, the prescribed period to apply for review ended on 19 May 2021.
   6. As the application for review was not received by the Tribunal until 26 May 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
8. The Tribunal's correspondence included a fact sheet which, amongst other things, gave the applicant the following information about reviewing decisions of the Tribunal in this Court (CB 78):

Review of decisions

Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.

1. On 27 November 2023 the applicant filed the present application.
2. On 24 April 2024 the Minister filed his response in which, amongst other things, he opposed the application for an extension of time.
3. On 5 July 2024 a Registrar of this Court made orders timetabling the proceeding for an extension of time hearing on a date and time to be advised.
4. In accordance with those orders, on 26 July 2024, the Minister filed the court book.
5. On 31 October 2025, the parties attended a callover hearing before the Registrar where the earlier timetabling orders were vacated and new programming orders were made.
6. The notations to the order made on that date provide that:

THE COURT NOTES THAT:

1. The [Minister] will cause to provide a courtesy copy of the Court book by way of email to the applicant.

2. The applicant confirmed that their contact details as set out in their application for judicial review remain current.

3. The Court explained to the applicant that the Court does not have power to grant a visa to the applicant, and that the Court's function is to determine whether the [Tribunal's] decision was made according to law.

4. The Court summarised the concept of jurisdictional error to the applicant and explained that it would be necessary for the applicant to establish that the [Tribunal's] decision was affected by such an error for their application for judicial review to be successful, noting the extension of time issue.

5. The parties were advised that the matter may be listed at short notice after the deadlines to file materials as per the timetabling orders passes.

1. The Registrar's orders provided the applicant with an opportunity to file any amended application, written submissions and supporting evidence in support of his application for an extension of time by 21 November 2025. The applicant did not file any further material.
2. On 12 December 2025 the Minister filed a written outline of submissions.
3. On 19 March 2026 the application was allocated to the Court as presently constituted.
4. I heard the application on 31 March 2026. The applicant appeared in person representing himself and was assisted by a Malay interpreter who appeared via Webex. The Minister was represented by solicitor advocate.
5. As the applicant was not legally represented, at the commencement of the hearing I explained the issues that the Court would consider in relation to an extension of time application consistent with [35]-[40] below. I also explained the process by which the hearing would be conducted.
6. The applicant relied on his application for an extension of time and affidavit in support filed 27 November 2023. The Court invited the applicant to make oral submissions in relation to his application. The applicant's responses (where relevant) will be discussed in the consideration that follows.
7. The Minister relied on his response filed on 24 April 2024, written submissions filed on 12 December 2025 and an affidavit of Ms Alexandra Clare O'Grady affirmed on 26 March 2026. The Minister's legal representative made oral submissions as to each of the extension of time factors, the applicant's grounds for judicial review, and in reply to the oral submissions made by the applicant.
8. At the conclusion of the Minister's oral submissions, I asked the applicant if he wished to make any submissions in reply. He did not wish to say anything further.

1. The applicant's application sets out two grounds in support of his application for an extension of time (reproduced without alteration):
   1. I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
   2. I was only able to file my case when a friend advised me how to file my case to the Federal Circuit And Family Court.
2. The application then sets out two grounds of review (reproduced without alteration):
   1. There is jurisdictional error in the decision maker's decision to refuse my Protection Visa's application.
   2. The decision maker's statement about the applicant not facing harm when returned to Malaysia is purely based on his/ her personal opinion and not on any facts.

1. Section 477(1) of the Act provides that an application for judicial review must be made within 35 days after the Tribunal's decision. On application, the Court has a discretion to extend that period as it considers appropriate under s 477(2) of the Act.
2. The Court's discretion to grant an extension of time under s 477(2) of the Act arises if the "Court is satisfied that it is necessary in the interests of the administration of justice to make the order". That discretion is broad and the relevant considerations are not confined by express words in the statute. Typical considerations include the length of the applicant's delay, the reasons for the delay, any prejudice to the respondent, and the merits of the underlying application. The level of satisfaction for the Court to reach is not low; 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 of justice: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [11]-[13] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
3. In considering whether the underlying application 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", "sufficiently arguable" or have "reasonable prospects of success" such that they warrant an extension of time being granted: Katoa at [17]; see also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]- [63] approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38].
4. Where the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional": Katoa at [18]; Re Commonwealth; ex parte Marks [2000] HCA 67 at [13], as recently applied by the High Court in Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40 at [33].
5. As Thawley J said in FCFY v Minister for Home Affairs [2019] FCA 1222 at [8], it is "to be recognised that the legislature has prescribed a time limit and that there is a public interest in the finality of litigation".
6. Ignorance of the necessary time limits or method and pathway for seeking review does not generally justify delay as it is an applicant's responsibility to ascertain their review rights and applicable time limits: see MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25] citing SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. In this respect it may be relevant for the Court to understand what information was in fact made available to an applicant, and what steps, if any, the applicant took to remedy any gap in their understanding.

1. The applicant requested an extension of time in writing and provided "grounds" explaining why he believed that the extension of time should be granted. Section 477(2)(a) of the Act is thus satisfied.

Necessary in the interests of the administration of justice

1. In relation to s 477(2)(b) of the Act, the Court must consider whether it is "necessary in the interests of the administration of justice" to grant an extension of time in accordance with the principles set out earlier.

Length of delay and adequacy of the explanation

1. The application is made 846 days after the statutory timeframe expired. This is more than 2 years late. On any view this is a very substantial delay.
2. The applicant's explanation for the delay is that he was not aware of the process for applying for review and was only able to do so after his friend advised him how to file his case with the Court. At the hearing the applicant further explained that the delay was because he did not check his email.
3. I am not satisfied that this is a satisfactory explanation in circumstances where:

(1) the applicant represented himself before the Tribunal and provided his nominated email address for communications (CB 68-69);

(2) on 29 June 2021 the Tribunal sent the applicant (at his nominated email address) notification of its decision together with an information sheet which stated that the applicant may apply to the Court for judicial review of the Tribunal's decision within 35 days from the date of the Tribunal's decision (CB 75-81).

1. In accordance with s 441A(5) of the Act, it was permissible for the Tribunal to notify the applicant of its decision at his nominated email address, as this was the last email address provided to the Tribunal by the applicant in connection with his application. Consequently, in accordance with s 441C(5) of the Act, the applicant is "taken to have received" that correspondence at the end of the day on which it was transmitted.
2. Obviously enough, that the applicant did not check his email (as he now admits) does not give rise to any failure by the Tribunal to give proper notification.
3. It was the applicant's responsibility to review the information provided to him by the Tribunal at his nominated email address for receiving communications in relation to his application. It was also the applicant's responsibility to ascertain his review rights and the applicable time limits. As the authorities set out earlier provide, ignorance of those matters, even on the part of a self-represented litigant, does not provide a satisfactory explanation for delay.
4. The lack of an adequate explanation for a significant delay weighs against granting an extension of time.

1. The Minister accepted that he would not suffer any particular prejudice if time were to be extended, but submitted that there is a desirability of finality in administrative decisions that should be taken into account: see Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 at [128] citing McHugh J in Marks at [15].
2. Of course, the absence of prejudice alone is not a basis to grant an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
3. I consider this factor to be fairly neutral in my consideration of whether to grant an extension of time.

1. As set out earlier, I am required to consider whether the underlying application for judicial review has merit at a "reasonably impressionistic level" by assessing whether the proposed grounds are "arguable", "reasonably arguable", or "sufficiently arguable" to warrant the grant of an extension of time.
2. The applicant's two grounds of review were set out earlier.
3. On their face both grounds are wholly misconceived because they are concerned with the delegate's decision not to grant the applicant a protection visa. By operation of s 476(2)(a) of the Act the Court has no power to review a primary decision of a delegate.
4. Insofar as ground one may otherwise be understood as an assertion that there is jurisdictional error in the Tribunal's decision, the Minister submits, and I accept, that this ground is not sufficiently particularised to be the subject of a meaningful response: see for example, WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
5. Notwithstanding this, in circumstances where the applicant was unrepresented, I have endeavoured to remain alert to the possibility of an arguable case of jurisdictional error on the part of the Tribunal which might support an extension being granted: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100].
6. No such arguable case of jurisdictional error is apparent.
7. As was submitted by the Minister, and I accept:

(1) the delegate's decision made on 22 April 2021 was a Part 7-reviewable decision as defined in s 411(1)(c) of the Act;

(2) the applicant was notified of the decision on 22 April 2021 by email to his nominated email address in accordance with the requirements of ss 66(1) and 494B(5) of the Act, and reg 2.16(3) of the Regulations (CB 56-64);

(3) pursuant to s 494C of the Act, the applicant is taken to have received the notification at the end of the day on which it was transmitted, being 22 April 2021;

(4) the content of the notification complied with the requirements of s 66(2) of the Act (CB 57-63);

(5) pursuant to s 412(1)(b) of the Act and reg 4.31(2) of the Regulations, an application for review of a Part-7 reviewable decision was required to be given to the Tribunal within 28 days after the notification of the decision - here, by 19 May 2021 (in relation to the calculation of time see DZAFH v Minister for Immigration [2017] FCCA 387 at [45], endorsed on appeal in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5]);

(6) the application for merits review of the delegate's decision was received by the Tribunal on 26 May 2021 (CB 65);

(7) the Tribunal has no power to extend the time period for the lodging of a valid application for review to it, no matter how small the delay or compelling the circumstances, or whatever the reason for the default: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 at [82]; SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 at [3].

1. For those reasons the Tribunal was correct to find that the applicant was validly notified of the delegate's decision on 22 April 2021, that the applicant's application to review that decision was out of time when it was presented on 26 May 2021, and that the Tribunal had no jurisdiction in respect of that application.
2. When asked at the hearing if there was anything else that he wished to say about whether the Tribunal had made an error in deciding his application, the applicant made various vague submissions about paying someone else to prepare his visa application. There was no evidence of this before the Court, and in any event, plainly enough, this has no bearing on the validity of the Tribunal's decision that it did not have jurisdiction.
3. The lack of any arguable case of jurisdictional error on the part of the Tribunal weighs strongly against granting an extension of time.

1. Having regard to the very substantial delay in filing the application in this Court, the absence of any adequate explanation for that delay, and the lack of any arguable case of jurisdictional error by the Tribunal, I am not satisfied that it is necessary in the interests of the administration of justice to extend time.
2. Accordingly, the application for an extension of time must be dismissed.

1. The Minister sought his costs and disbursements of and incidental to the application for judicial review in the sum of $4,553.02, which is the scale amount for a contested application concluded at an interlocutory hearing in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
2. When invited to make submissions in relation to costs at the hearing, the applicant explained that because of his current financial position and family responsibilities he would not be able to pay that amount.
3. With respect, the applicant's asserted inability to meet a costs order is of no particular legal consequence. Impecuniosity resulting in an inability to meet a costs order is not relevant to the exercise of the discretion to award costs: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [36].
4. However, with a view to alleviating any particular stress that may be caused by a costs order, I noted at the hearing that the Court's understanding is that after a costs order is made, the solicitors for the Minister will write to the applicant to explain to him who at the relevant department he may speak to about the costs order, including any possible reduction, time to pay or the ability to pay in instalments.
5. The application for an extension of time having been refused, I am satisfied that costs ought to follow the event. I am also satisfied that the amount of costs sought by the Minister is reasonable having regard to the work performed by the Minister on this application and will make an order for costs in the amount sought.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Edwards.