DAL24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 539

1. This is an application for an extension of time to review a decision of a Registrar of this Court ordering summary judgment for the respondents against the applicant pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). An extension of time is required in circumstances where the application was filed 15 days late.
2. The first respondent (the Minister) opposes an extension of time being granted.
3. The second respondent (the Tribunal) submitted to any order the Court may make save as to costs.
4. For the reasons that follow, I have decided to refuse to extend the time for filing the application for review.

1. From the court book (CB) and affidavit evidence 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 citizen of Malaysia. He arrived in Australia with his brother on 13 October 2017 on UD-601 Electronic Travel Authorities (CB 44). On 8 January 2018, the applicant and his brother applied for XA-866 protection visas (CB 44).
3. On 11 April 2018, a delegate of the Minister refused the applicant and his brother's applications for protection visas (CB 39-51). On 14 April 2018, the applicant applied to the Tribunal for a review of the decision made in respect of his own visa application (case number 1810501).
4. Almost two years later, on 26 February 2020, the applicant was contacted by the Department of Home Affairs by email (CB 52-53). The Department notified the applicant that following "a court outcome for another person", they were required to send new correspondence to him about his refused protection visa application.
5. While not expressly stated in the correspondence, the reference to a "court outcome for another person" was a reference to the decisions of the Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189 concerning the statutory requirements for notification of visa refusals.
6. On 6 June 2020, the Department sent the foreshadowed correspondence to the applicant (CB 60-63). The correspondence renotified the applicant of the delegate's decision made on 11 April 2018, which remained unchanged.
7. On 10 June 2020, the applicant lodged a further application for review of the decision made in respect of his application for a protection visa (case number 2009667) (CB 64-65).
8. On 12 June 2020, the Tribunal acknowledged receipt of the applicant's second application (CB 66-71) and on 30 November 2023, the applicant was provided with a pre-hearing information form to complete (CB 72-78).
9. Almost 4 years later, on 20 February 2024, the Tribunal invited the applicant to attend a combined hearing for cases 1810501 and 2009667 to be conducted on 19 March 2024 (CB 92-94).
10. At the hearing on 19 March 2024 the applicant appeared with assistance from an interpreter (CB 114-119).
11. On 9 May 2024, in case number 1810501, the Tribunal affirmed the decision not to grant the applicant the visa sought (BR-1 to the affidavit of Mr Brendan Richardson affirmed on 20 October 2025).
12. The Tribunal's decision states under the heading "Repeat review application" that:
    1. On 6 June 2020, the second named applicant lodged a further review application relevant to this matter (2009667).
    2. That review application appears to be in response to a further notification of the delegate's decision which was issued to the second named applicant by the Department of Home Affairs on 6 June 2020. That notification relevantly states:
       • The Department has assessed your case and found that you were not correctly notified of this decision. Because of this, I am now re-notifying you that the visa application for the applicant listed above has been refused.

After careful consideration of all the information available, the delegate who signed the attached decision record was not satisfied that you met the relevant criteria for the grant of the visa as provided in Australian migration law.

1. The Tribunal notes that the attached 'protection visa decision record' is the same decision related to the first review application (1810501) and carries the same date.
2. The Tribunal discussed the potential 'no jurisdiction' issue with the second named applicant at the hearing, as it appeared a valid application for review in relation to this decision had already been made (1810501).
3. The Tribunal noted that the second named applicant had been renotified of the original decision and he had lodged a further application for review. The second named applicant indicated he understood. The Tribunal explained that the Tribunal would need to assess which review application was the valid application, but in either respect his protection claims would be considered and a decision would be made. In terms of the other review application, the Tribunal would find that it has no jurisdiction. The Tribunal asked the second named applicant if he had any concerns. He indicated that he did not. The Tribunal is satisfied the second named applicant understands the jurisdictional issue in terms of the repeat application and has had an opportunity to comment on those issues.
4. In terms of the current review, the Tribunal is satisfied the delegate made a decision to refuse to grant the applicants protection visas on 11 April 2018. On 14 April 2018, the applicants lodged a review application with the Tribunal, well within any prescribed period. That review application included both the first and second named applicants. The Tribunal is satisfied it has jurisdiction with respect to both the first and second named applicants in the current review.
5. On 22 May 2024, in case number 2009667, the Tribunal delivered a statement of decision and reasons which stated that it did not have jurisdiction to review the matter as the delegate's decision had already been the subject of a valid review by the Tribunal in case number 1810501 (CB 122-127).
6. It is convenient to set out that decision in full:
   1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 6 June 2020 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
   2. The review application was lodged with the Tribunal on 10 June 2020. An application for review of the delegate's decision was previously made to the Tribunal on 14 April 2018 (1810501). The Tribunal made a decision in relation to that application on 9 May 2024.
   3. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
   4. The Tribunal discussed the potential 'no jurisdiction' issue with applicant at a Tribunal hearing on 19 March 2024, as it appeared a valid application for review in relation to that decision had already been made (1810501) albeit at that point the matter had not been decided. The Tribunal noted that the applicant had been renotified of the delegate's decision and he had lodged a further application for review (2009667 - the current review application). The Tribunal explained that the Tribunal would need to assess which review application was the valid application, but in either respect his protection claims would be considered and a substantive decision would be made in respect of one of the review applications. In terms of the other review application, the Tribunal would find that it has no jurisdiction.
   5. The Tribunal asked the applicant if he had any concerns at the hearing. He indicated that he did not. The Tribunal is satisfied the applicant understands the jurisdictional issue in terms of the current application and has had an opportunity to comment on those issues.
   6. As the delegate's decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
7. The application filed in this Court concerns the Tribunal's decision of 22 May 2024 in case number 2009667. The decision of the Tribunal in case number 1810501 is not the subject of the application before me.

1. The present proceeding was commenced by originating application filed on 27 May 2024 and affidavit in support dated 27 May 2024. At the time the proceeding was commenced the applicant represented himself.
2. The Minister's response filed on 17 June 2024 sought that the proceeding be disposed of by way of summary judgment.
3. On 17 June 2025, a Registrar of the Court made orders timetabling the matter for hearing of the summary judgment application. On 4 September 2025 lawyers came on the record for the applicant. An amended originating application was filed on 11 November 2025.
4. Further orders were made varying the original timetable on 8 September 2025, 6 November 2025, 11 November 2025 and 12 January 2026. By the orders made on 12 January 2026, the summary dismissal application was listed for hearing on 20 January 2026.
5. On 19 January 2026, the applicant's legal representatives withdrew. In those circumstances, the hearing of the summary judgment application did not proceed on 20 January 2026 and the Registrar adjourned the application for a directions hearing on 27 January 2026. The notations to the orders made by the Registrar on 20 January 2026 state:

THE COURT NOTES THAT:

1. The solicitors for the applicant emailed the Court at 2.16pm on 19 January 2026 seeking leave to withdraw from the proceeding.

2. The notice of intention to withdraw annexed to the notice of withdrawal, filed on 19 January 2026 without leave, indicates that the solicitors for the applicant were aware that the applicant intended to appear in person with the assistance of a Malay interpreter but did not take any steps to communicate their intention to withdraw or that an interpreter was required before emailing the Court yesterday.

3. Given the late notice, the Court was unable to secure a suitable interpreter and the hearing was unable to proceed.

4. The solicitors for the applicant were put on notice that consideration will be given to an order pursuant to r 32.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) for costs thrown away and for any other appropriate costs orders on resolution of the summary judgment application.

5. The solicitors for the applicant were also put on notice that their conduct of these proceedings and other proceedings in which they have withdrawn at or immediately before an interlocutory hearing will be referred to the Principal Registrar for consideration as to whether a referral to the relevant professional regulators is appropriate.

1. The applicant represented himself at the directions hearing on 27 January 2026 with the assistance of a Malay interpreter. The Registrar made orders listing the summary judgment application for hearing on 3 February 2026. The orders note that the Registrar explained the purpose of the summary judgment hearing to the applicant.
2. The summary judgment application was heard and determined by the Registrar on 3 February 2026. The applicant represented himself at the hearing with the assistance of a Malay interpreter. The Registrar ordered judgment for the respondents against the applicant for the whole of the applicant's claim and dismissed the application for judicial review.
3. The orders made by the Registrar on 3 February 2026 also included an order reserving costs. Subsequently, on 5 February 2026, the Registrar made orders for material to be filed on the issue of costs, including the applicant's former solicitor to file material as to whether he had acted in contravention of s 486E of the Act and whether an order for costs should be made against him pursuant to r 32.05(1) of the Rules. Those costs issues are not before me on this application as they remain reserved before the Registrar.

1. On 11 March 2026, the applicant filed the present application for an extension of time to review the summary judgment order.
2. I heard the application on 20 March 2026.
3. The applicant appeared at the hearing via Webex and was assisted by a Malay interpreter. The Minister was represented by solicitor advocate.
4. 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 the extension of time application. I also explained the process by which the hearing would be conducted.
5. The applicant relied on his application for review and the affidavit made in support of his application. In his oral submissions he explained why he had filed his application late and said that he wanted his matter to be determined by the Court. He also clarified that he did not wish to rely on the amended application and written submissions (in opposition to summary judgment) prepared by his previous lawyers. During the hearing he conceded that the Tribunal had not made any error in its decision.
6. The Minister relied on his response, the court book, affidavits of Mr Brendan Richardson, a solicitor employed by the firm acting for the Minister, affirmed on 20 October 2025 and 2 December 2025, and a written outline of submissions dated 2 December 2025.
7. I note that after the Minister's oral submissions, the applicant asked the Court to "pause" the hearing as he wanted to take his wife to the hospital. With the assistance of the interpreter I asked the applicant some questions about the nature of the apparent medical emergency to understand whether there was a proper basis to adjourn the hearing. The applicant said that his wife had a stomach-ache. I was not prepared to adjourn the hearing based on that explanation and I asked the applicant to continue his oral submissions, which he did.

A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal but rather a hearing de novo where the matter is considered afresh: see generally, Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 and Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [1]- [31].
2. Rule 3.06 of the Rules provides that an application for review of a Registrar's decision must be made within 21 days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and, unless impractical to do so, within 28 days after the date of filing.
3. Here, the Registrar's orders were made on 3 February 2026. The last day of the prescribed time-period for the applicant to file the application for review was 24 February 2026. The application was lodged on 3 March 2026, 7 days outside the prescribed time for filing. After various correspondence with the Court's registry about the form of his application, and amendments to the application, the applicant's application for review was accepted for filing on 11 March 2026, 15 days outside the prescribed time. In those circumstances, before hearing the summary judgment application afresh, I must first determine whether I should exercise my discretion to grant the applicant an extension of time to file the review application.
4. The Court has a broad discretion under r 1.15 of the Rules to extend time for the filing of an application for review. While the Rules are silent as to the matters that might be relevant to the exercise of the discretion, it is well established in this and other jurisdictions that the essential considerations on an extension of time application are as follows:

(1) the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably;

(2) whether there is any prejudice to other parties; and

(3) the merits of the substantive application, noting that in considering whether the underlying application has merit, a 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: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]- [63], and approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38].

1. Like all such powers, the discretion to extend time must be exercised judicially "to ensure that justice is delivered... effectively and efficiently": s 5(a) of the FCFCOA Act.

Length of delay and adequacy of the explanation

1. The application for extension of time was filed 15 days outside the period prescribed by the Rules. The applicant's affidavit does not directly explain the reasons for the late filing of his application. At the hearing he explained that he had challenges filing the documents in the correct form with the Court's registry and that his car was stolen with his belongings and documents inside.
2. The Minister submits, and I accept, that in the circumstances of this case, the explanation proffered is inadequate. While self-represented litigants may face challenges, there was no evidence of steps being taken by the applicant to protect his interests within the 21 day period prescribed by the Rules. Even if I accept the applicant's submission that he had difficulty filing his application, and that there was some back-and-forth with the Court's registry in relation to his application after it had been lodged before it was accepted for filing, it remains the case that the applicant did not lodge his application until 4 March 2026, which is 7 days outside the prescribed time for filing.
3. Further, even if I accept the applicant's claim that his car was stolen (on some unspecified date in this period) and that this may have caused some stress and inconvenience to the applicant, it does not justify the late filing of his application.
4. Insofar as the applicant's affidavit might otherwise suggest that the delay may have been caused by a lack of understanding and/or lack of resources, a person's ignorance of the necessary time limits or method and pathway for seeking review does not generally justify delay. 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].
5. Similarly, a mere failure to obtain legal advice does not, without more, explain the delay: Englezos v Secretary, Department of Social Services [2023] FCA 31 at [38].
6. Having said that, in my view the quality of the explanation for what is, in the scheme of things, a relatively short delay, does not weigh heavily against the exercise of the discretion. The more important factor in this case is the merit of the underlying application.

1. The Minister concedes that he would suffer no prejudice if an extension of time were granted. However, 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]. There is also an interest in finality of proceedings which must also be taken into account: FEH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1512 at [24].
2. I consider this factor to be neutral in my consideration of whether to grant an extension of time.

1. The Court may give summary judgment under s 143(2) of the FCFCOA Act and r 23.08 of the Rules. For the Court to do so it must conclude that an applicant has no reasonable prospects of successfully prosecuting the proceeding or claim. The Court is not required to be satisfied that the proceeding is hopeless or bound to fail for it to have no prospects of success: Spencer v Commonwealth (2010) HCA 28; (2010) 241 CLR 118 at [17]. The party pressing the application for summary judgment has the onus of proving that the applicant has no reasonable prospects of success.
2. Given orders are made for summary judgment at an early stage of the proceedings, the discretionary power to summarily dismiss an application must be exercised with caution: Spencer at [24]. It is not a power to be exercised lightly: Spencer at [60]. There must be a "high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way": Batistatos v Roads & Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46], citing Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552.
3. The Court must undertake "a critical examination of the available material to determine whether there is a real question of law or fact which should be decided at trial". What is required is "a practical judgment of the case at hand": Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [46].
4. The applicant's amended application for judicial review purports to identify six grounds of review. However, as set out earlier, during the course of the hearing the applicant conceded that the Tribunal had not made any error and he withdrew reliance on his grounds and the written submissions prepared by his previous lawyers in support of those grounds.
5. Given the significance of this concession, and given that the hearing was being conducted with the assistance of an interpreter, I asked the applicant to clarify this a number of times to satisfy myself that it was truly his position. I am satisfied that it was.
6. With respect, the concession was properly made by the applicant.
7. As was submitted by the Minister, the sole decision under review in this Court is the "no jurisdiction" decision dated 22 May 2024 in case number 2009667, and the sole task before the Tribunal in that case was to determine whether it had jurisdiction to review the delegate's decision in circumstances where it had already been the subject of a valid review in the 9 May 2024 decision in case number 1810501.
8. The Tribunal correctly found that the same delegate's decision had been the subject of a decision on 9 May 2024, and therefore it did not have jurisdiction to undertake a further review of the matter: SZBWJ v MIAC [2008] FMCA 164 at [41], Jayasinghe v MIEA (1997) 76 FCR 301 at 311, SZASP v MIAC [2007] FCA 771 at [17].
9. Contrary to the assertions contained within grounds one to six of the amended application, the Tribunal's decision plainly articulates the reason it did not have jurisdiction, finding at [6] of the decision (reproduced above) that as "the delegate's decision has already been the subject of valid review by the Tribunal, it was no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision".
10. Insofar as the grounds in the amended application assert that jurisdictional error arises as a consequence of the renotification of the delegate's decision, I can see no basis for that assertion. As was submitted by the Minister, in BMY18 the Court found that the original notification letter was not clear and therefore the time in which the applicant had to seek review had not commenced, but it did not invalidate an otherwise valid application for review made to the Tribunal. Relevantly, s 66 of the Act (as it applied at that time) required notice to be provided in the prescribed way, but expressly provided that a failure to give notification does not infect the validity of the decision made by the delegate. It follows that this does not render an application for review of that decision made within the prescribed time invalid. Where an applicant has taken up review rights, a BMY18 type error (whether renotified or not) does not invalidate the decision of the Tribunal: GDD25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1832 at [30].
11. Consequently, as was submitted by the Minister, the existence of the decision on 9 May 2024 is such that the only decision the Tribunal could make was made. It would be futile to remit the matter where the Tribunal made an earlier valid decision on review of the same delegate's decision. In those circumstances, the Tribunal lacks any jurisdiction to undertake a further review and would be bound to make the same finding on remittal.
12. It follows that there is no merit to the applicant's underlying application for judicial review, and he has no reasonable prospect of prosecuting those proceedings if he were allowed to go to a final hearing.

1. It follows from the above analysis that were I to grant an extension of time to file an application for review of the Registrar's decision, that review would inevitably be resolved against the applicant. The absence of merit weighs heavily - indeed, decisively - against exercising the discretion to extend time. The application for an extension of time must be refused.

1. The Minister seeks his costs of the extension of time application in the sum of $1,500.
2. The application for an extension of time having been refused, I am satisfied that costs ought to follow the event. I am further satisfied that the amount sought is reasonable, having regard to the work performed by the Minister on the application.
3. When invited to make submissions in relation to costs at the hearing, the applicant did not quarrel with the quantum of costs sought by the Minister, but asked whether he would have the opportunity to pay any costs in instalments. I noted 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 can speak about the costs order, including any possible reduction, time to pay or the ability to pay in instalments.
4. For the avoidance of doubt, the costs reserved on 3 February 2026 remain to be determined by the Registrar.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Edwards.