CZT19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 82

1. By Application filed on 6 August 2019, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 30 May 2017 (Tribunal's Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) (Application).
2. The Application was filed 763 days outside of the prescribed 35 day timeframe pursuant to s 477(1) of the Migration Act. As a result, the Applicant requires an extension of time to prosecute his review Application (Extension of Time Application).
3. By the Tribunal's Decision made on 30 May 2017, the Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act.
4. The hearing of the Application took place at the Melbourne Registry of the Court on 27 January 2026 (Hearing). The Minister was represented by a solicitor. The Applicant was self-represented with the assistance of a Malay interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.

1. The Applicant is a citizen of Malaysia.
2. On 12 August 2015, the Applicant arrived in Australia as the holder of a Visitor visa.[2]
3. On 6 October 2015, the Applicant applied for the Visa, the subject of these proceedings.[3]
4. On 1 March 2016, a Delegate of the Minister refused to grant the application for the Visa on the basis that they were not satisfied that the Applicant met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate's Decision).[4]
5. On 28 March 2016, the Applicant applied to the Tribunal for review (Review Application).[5]
6. On 31 March 2016, the Tribunal acknowledged receipt of the Review Application.[6]
7. On 24 March 2017, the Tribunal invited the Applicant to attend a hearing on 16 May 2017.[7]
8. On 16 May 2017, the Applicant attended the hearing with the assistance of a Malay interpreter.[8]
9. On 30 May 2017, the Tribunal affirmed the Delegate's Decision.[9]

1. The Tribunal's Decision is at pages 82 to 87 of the Court Book.
2. The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal's Decision [3] to [8].
3. The Tribunal outlined the Applicant's claims and evidence[10] and in the circumstances did not accept that he had borrowed money from unregistered money lenders. The Tribunal did not accept that the Applicant feared harm from money lenders as claimed.[11] The Tribunal found that the Applicant's claims were not credible or plausible on the basis that the Applicant had no knowledge of the money lender's identity, interest rate information or the nature of the charge.[12] The Tribunal found that the Applicant's evidence was "scant and implausible".[13]
4. The Tribunal noted the Applicant's contention that he was unaware of some of the claims in his visa application and that he had not read the Delegate's Decision.[14] The Tribunal considered the Applicant's position as inconsistent with an applicant fearing genuine harm.[15] On this basis, the Tribunal did not accept that the Applicant faced a real chance of persecution as required by s 5J of the Migration Act.
5. The Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations under s 36(2)(a) of the Migration Act. The Tribunal was not satisfied that there were grounds for believing that the Applicant faced a real risk of significant harm upon return.[16]

1. On 6 August 2019, the Application was filed in this Court, outside of 35 days of the date of the Tribunal's Decision pursuant to s 477(1) of the Migration Act.
2. On 13 October 2021, Orders were made by Registrar Carney of this Court, among other things, for the application be listed for hearing of an extension of time.
3. On 26 March 2025, Orders were made by Registrar Foster of this Court, among other things, for the First Respondent's name be amended to "Minister for Immigration and Multicultural Affairs". For all extant programming orders be vacated. For the matter be listed for hearing of an extension of time. For the Applicant to file and serve at least 28 days before the hearing: any amended application, any affidavits and written submissions. For the First Respondent to file and serve at least 14 days before the hearing: written submissions and any affidavits.
4. The Court noted that the Applicant had retained a copy of the Court Book.
5. This matter was heard on 27 January 2026 for a Hearing before me.
6. The Applicant relied upon the following documents:

(a) the Application filed 6 August 2019; and

(b) affidavit of the Applicant sworn on 6 August 2019 (Applicant's Affidavit).[17]

1. Both parties relied on the Court Book.[18]
2. The Applicant's Affidavit provides the following explanation for delay:
   1. I did not have a lawyer and advise that I could go to court.
   2. I am the applicant in the proceeding.
   3. I was unaware that I could apply for financial hardship for my filing.
   4. I had attached my decision record together with my affidavit.

1. The Application contains the following ground of review (Ground of Review):
   1. The Tribunal found that it could not hear my case because was not satisfied under protection obligations.

I was not given a second chance to provide further evidences for my claim.

The interpreter language I could not understand because of the accents used was not my accents. I requested the interpreter to ask a chance to have a hearing again but was not [indec.]

I had explain my fear if I return back to my country but was not concerned at all, I also provided evidences.

Therefore the decision made by the Tribunal is unfair to me.

(words as written)

1. The Applicant filed submissions dated 19 January 2026.
2. The Applicant made oral submissions supplementing his written submissions at the Hearing.
3. The Applicant said that if he was sent back to Malaysia, he would not be able to see his children who were living with his ex-wife. The Applicant said that his ex-wife was in Australia on a protection visa. He also said that he was financially providing for his ex-wife and children.
4. The Applicant said that after the Tribunal's Decision, he was alone and deferred to his friends for assistance. He asked his friends if they could help him with his application, but he still could not understand. After the Tribunal hearing, he paid a friend $1,000 to help with his visa. He said that his friend did not help and he later found out that this friend had returned to Malaysia.
5. Some time later, the Applicant met another person through word of mouth and paid him $500 to help with his application for review. That person brought the Applicant to the court. Presumably it was at that point that the Applicant filed his Extension of Time Application.
6. When I asked the Applicant why he had delayed more than 700 days in seeking review of the Tribunal's Decision, the Applicant said that no one had guided him and that he did not have money to seek legal advice from a "reputable" lawyer.
7. In relation to the claim in his Application that the Applicant was not given an opportunity to provide further evidence, he referred to a police report that had been made after the Tribunal's Decision.
8. In relation to the claim in his Application that there had been interpretation errors, the Applicant said that the interpreter before the Tribunal was not Malaysian, and that there was a word that the interpreter did not interpret. The Applicant could not remember the word.
9. The Minister filed submissions dated 13 January 2026.
10. At my request, the Minister's solicitor read the Minister's submissions so that they could be interpreted for the Applicant's benefit. The Minister's solicitor also made oral submissions supplementing the Minister's written submissions at the Hearing.

1. Section 476 of the Migration Act provides that 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 s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[19]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it". The court neither consider the merits of the decision nor remakes it.[20] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[21]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[22] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[23] Different kinds of error may overlap.[24] The categories are not closed.[25]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[26] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[27] It has been described as an "undemanding" standard.[28]

1. The Protection visa (Subclass 866) allows a person who is at real risk of significant harm or persecution in their home country to live in Australia permanently.
2. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Migration Regulations 1994 (Cth) (Regulations)) have been satisfied, and to refuse to grant the visa, if not so satisfied.
3. Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term "refugee" is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a "well-founded fear of persecution"[29] as defined by s 5J.
4. Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
5. Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
6. The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in Part 866 to Schedule 2 of the Regulations.

1. Section 477(1) of the Migration Act provides that an application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under s 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
2. Section 477(2) of the Migration Act provides the Federal Circuit and Family Court of Australia (Division 2) may, by order, extend the 35 day period as the court considers appropriate if an application for an order extending the time is made specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the court is satisfies that it is necessary in the interests of the administration of justice to make the order.

1. The Applicant applies pursuant to s 477(2) of the Migration Act to extend the time provided for in s 477(1) of the Act for review of the Tribunal's Decision.
2. The time prescribed by the legislative provision should not be ignored.[30] Those time limits are set "with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act".[31]
3. The court should not grant an extension unless it satisfied that it is appropriate in the interests of the administration of justice to exercise the discretion to do so. Factors relevant to the exercise of the discretion to extend time include:[32]

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

(b) any prejudice to the respondent by the delay and the public interest;

(c) impact on the applicant of a refusal to grant an extension; and

(d) the merits of the substantive application.

1. Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[33] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[34]
2. Financial difficulties[35] and lack of legal representation[36] alone, are not generally considered to be sufficient excuse for delay so as to justify an extension.
3. Absence of prejudice is not sufficient, in itself, to justify an extension of time.[37]
4. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38] the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the court,[39] which may include "impressionistic" assessment.[40]
5. The relevant authorities only operate as a guide to the exercise of the court's discretion,[41] as each case must ultimately turn on its own facts.
6. I turn then to the Applicant's Application for an extension of the 35 day period provided for by s 477(1) of the Migration Act.
7. The length of delay in the present case is 763 days, which is an extreme delay in the context of a statutory time period of 35 days.
8. The Applicant's explanation for the delay in filing the application for review of the Tribunal's Decision is that he did not have a lawyer and advice that he could go to court. The Applicant says that he was not aware that he could apply for financial hardship [presumably, to waive the filing fee]. It is hard to reconcile these two statements, presumably, awareness of an ability to apply to waive the filing fee would only have been necessary if he had advice [or knowledge] that he could seek judicial review.
9. I do not regard the Applicant's explanation for the extreme delay in filing the Extension of Time Application to be satisfactory.
10. The prejudice to the Minister by the delay in filing the Application for review is not particularly significant in the instant case, but he has a "legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas".[42] Further, there is a public interest in the "prompt disposition of administrative matters",[43] particularly in a context where there is a significant backlog of cases.
11. The prejudice to the Applicant by refusing an extension is that his Application for judicial review will not be heard on its merits. I shall have some regard to the merits of the underlying application in exercising my discretion under s 477(2) of the Migration Act.
12. I turn then to the merits of the underlying Application.
13. The Ground of Review is that:

The Tribunal found that it could not hear my case because was not satisfied under protection obligations.

I was not given a second chance to provide further evidences for my claim.

The interpreter language I could not understand because of the accents used was not my accents. I requested the interpreter to ask a chance to have a hearing again but was not [indec.]

I had explain my fear if I return back to my country but was not concerned at all, I also provided evidences.

Therefore the decision made by the Tribunal is unfair to me.

1. Doing the best that I can to interpret the Ground of Review, there appear to be two matters of substance raised by the Applicant:

(a) an allegation that the Applicant was not given an opportunity to provide further evidence; and

(b) an allegation of denial of procedural fairness because of errors in interpretation and/or understanding of what was said at the hearing.

1. I address these matters in turn.
2. I am not satisfied that there is any substantial merit to the claim of jurisdictional error on the basis that the Applicant was not given the opportunity to provide further evidence:

(a) on 31 March 2016, the Tribunal sent a letter to the Applicant by email which provided, amongst other things that "If you wish to provide material or written arguments for us to consider, you should do so as soon as possible";[44]

(b) on 24 March 2017, the Applicant was invited to appear before the Tribunal to give evidence and present arguments;[45]

(c) on 2 May 2017, the Applicant submitted a response to the Tribunal's invitation which indicated, amongst other things, that he did not intend to call any other witnesses;[46]

(d) on 16 May 2017, the Tribunal hearing took place. The Tribunal hearing record indicates "No docs";[47]

(e) on 30 May 2017, the Tribunal sent the Tribunal's Decision to the Applicant in which the Tribunal dismissed his application for review;[48] and

(f) there is no evidence before me that the Applicant sought an adjournment of the Tribunal hearing in order to provide further evidence, despite the reference in the Ground of Review to a request made to the interpreter "to ask a chance to have a hearing again".

1. I am not satisfied that there is any substantial merit to the claim of jurisdictional error on the basis of denial of procedural fairness because of errors in interpretation and/or understanding of what was said at the hearing. The hearing record indicates that the Applicant was assisted by a Malay interpreter at the hearing.[49] The transcript of the Tribunal is not in evidence before me. The Applicant has not sought to particularise or identify the alleged errors in interpretation and/or understanding. The Applicant has not adduced evidence establishing misinterpretation. The Applicant has not adduced evidence of misunderstanding of the evidence.
2. There is nothing in the Tribunal's Decision or the material in the Court Book which suggests that there was any breach or arguable breach of the statutory procedural fairness provisions under Division 4 of Part 7 of the Migration Act. The Applicant was on notice of the dispositive issue on review and there was no obligation for the Tribunal to give particulars of "information".[50]
3. Having regard to the state of evidence before me, I assess the merits of the Applicant's Ground of Review as weak.
4. Having regard to the matters set out above, particularly the extreme delay and lack of satisfactory explanation for that delay, I am not satisfied that it is in the interests of the administration of justice that the 35 day period provided for by s 477(1) of the Migration Act for a remedy in respect of the Tribunal's Decision be extended.

1. As the Applicant has not succeeded in his Application pursuant to s 477(2) of the Migration Act to extend the time provided for in s 477(1) of the Migration Act, the Extension of Time Application must be dismissed.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $4,553.02 being the scale amount.[51] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[52] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the court file.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 27 January 2026, Order 3.

[16] See s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)

[19] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).

[20] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ).

[21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [2].

[22] Plaintiff S157/2002.

[24] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].

[27] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[28] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].

[29] See s 5H(1)(a) of the Migration Act.

[30] Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550.

[31]WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (WQRJ) at [41]-[44].

[32] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (per Wilcox J at 348-349); compare Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Tu'uta Katoa) per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).

[33] Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195.

[34] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].

[35] GOK18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25].

[36] SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24].

[37] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

[38] [2022] HCA 28; (2022) 276 CLR 579.

[41] AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32].

[42] WQRJ per Derrington J (at [42]).

[43] WQRJ per Derrington J (at [41]).

[50] See s 359A(4)(a), (b) and (ba) of the Migration Act.

[51] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[52] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.