DBA23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 459

1. Before this Court is an application filed on 15 December 2023 seeking an extension of time in which to lodge an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 February 2021. The Tribunal found that it had no jurisdiction to review a decision of a delegate of the Minister for Immigration and Border Protection (delegate), dated 16 May 2020. The delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
2. The application for judicial review was filed on 15 December 2023. This was 996 days after the expiry of the requisite 35-day filing period. The first respondent (the Minister for Immigration and Citizenship) opposes the application for extension of time.
3. The application is dismissed for the reasons that follow.

1. The applicant is a citizen of Malaysia (Court Book (CB) 56). He arrived in Australia on 12 September 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa (CB 76).
2. On 1 December 2016, the applicant applied to the Department of Immigration and Border Protection (Department) for the protection visa (CB 19-55).
3. The applicant claimed to fear physical and mental torture by a 'loan shark' in Malaysia from whom the applicant had borrowed money to start a business. The applicant claimed that he could not repay the loan (CB 51-52).
4. On 7 March 2017, the Department refused to grant the applicant the protection visa (CB 72-75) finding that he did not meet any of the relevant requirements under s 36(2) of the Migration Act 1958 (Cth) (Act). He was notified on the same day (CB 76).
5. On 16 May 2020, the Department re-issued the Department decision after finding that the applicant had not been notified correctly (CB 105-108).
6. On 29 June 2020, the applicant applied to the Tribunal for review of the Department's decision (CB 122-123).
7. On 1 July 2020, the Tribunal acknowledged the application and invited the applicant to provide material and written arguments for the Tribunal to consider (CB 126-127).
8. On 17 July 2020, the Tribunal invited the applicant to comment on the validity of his application for review. In the invitation letter, the Tribunal identified that the application had been lodged outside of the relevant 28-day time period as prescribed by the Migration Regulations 1994 (Cth) (Regulations). The Tribunal invited the applicant to respond, in writing, by 31 July 2020 (CB 148).
9. The applicant did not respond to the invitation to comment, and no hearing was held in the matter.
10. On 17 February 2021, the Tribunal determined that it did not have jurisdiction in the matter (CB 155) and notified the applicant by way of email on the following day (CB 151).

TRIBUNAL DECISION DATED 17 FEBRUARY 2021 [TD] (CB 155-156)

1. The Tribunal identified the visa under review and summarised the procedural history of the matter (TD [1]).
2. The Tribunal identified that under the Regulations the applicant was required to lodge his application for review within 28 days of having received notice of the delegate's decision (TD [2]).
3. The Tribunal was satisfied that the applicant had been properly notified of the decision on 16 May 2020 pursuant to s 494C of the Act and that the prescribed period to apply for review therefore ended on 12 June 2020 (TD [5]).
4. The Tribunal found that it did not have jurisdiction in the matter as the application was not received until 29 June 2020 (TD [6-7]).

1. The applicant applied to this Court for an extension of time in which to apply for judicial review in an application filed on 15 December 2023.
2. The applicant also filed an affidavit deposed on 26 November 2023 attaching a copy of the Tribunal Decision and containing a number of statements.
3. By orders of the Court on 10 November 2025, the applicant was ordered to file and serve an amended application, any affidavit evidence and submissions by 18 November 2025.
4. No further documents were filed.
5. The applicant's grounds for judicial review are set out in the application filed on 15 December 2023. If the extension is granted, the applicant seeks orders that the Tribunal Decision be quashed and that the decision be remitted to the Tribunal for reconsideration.
6. On 2 December 2025, the applicant appeared before this Court as a litigant in person. Ms Juarez of Mills Oakley appeared for the first respondent. An interpreter assisted the Court. The applicant confirmed that he could understand the interpreter.
7. The following documents were before the Court - the initiating application for judicial review, the supporting affidavit of the applicant filed on 15 December 2023, a Court Book (numbering 156 pages and marked as Exhibit 1R) filed 18 December 2024, and written submissions of the Minister filed on 6 November 2025. The affidavit included a number of statements, which have been treated as submissions by this Court, with no objection from the Minister.

1. A court has an intrinsic duty to assist unrepresented litigants: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Hamod v New South Wales [2011] NSWCA 375 per Beazley JA (Giles and Whealy JJA agreeing). At [309] to [316] in Hamod, Beazley JA outlined the relevant principles in ensuring there is the right balance between impartiality and assisting litigants in person (citations omitted):
   • The duty reposes in the individual judicial officer hearing a case.
   • The touchstone is that of fairness.
   • The duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.
   • Trial judges should ensure that litigants do not remain ignorant of fundamental procedures which if invoked may prove advantageous.
   • The court has an obligation to ensure a fair trial for all parties such that the impartial function of the judge should be preserved, and no advice should be given as to how rights should be exercised.
   • The unrepresented litigant should have sufficient information about the practices and procedure of the court so far as reasonably practicable for the purpose of ensuring a fair trial.
2. These principles apply in civil cases: Mortimer J in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (MZAIB) at [70] - [75]. Mortimer J referred to various authorities noting that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. She endorsed the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997) at [9] who observed that while judges should maintain neutrality, the boundaries of legitimate intervention are flexible.
3. In the case before me, I confirmed that the applicant had a copy of the Court Book and the Minister's submissions. At the hearing I outlined the role and processes of the Court and explained that jurisdictional error must be demonstrated if the applicant were to succeed in his application. I explained in order for extension of time to be granted I needed to be satisfied that it was in the interests of the administration of justice to extend. I explained the principles of extension of time cases. I explained that the Court cannot undertake a merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

CONSIDERATION OF THE EXTENSION OF TIME APPLICATION

1. Section 477 of the Act sets out 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:

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.

(3) In this section:

date of the migration decision means:

(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

(ca) in the case of a migration decision made by the Immigration Assessment Authority - the date of the written statement under subsection 473EA(1); or

(d) in any other case - the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

1. The legislation does not prescribe what factors a court should consider in determining whether extension of time is necessary in the interests of the administration of justice, pursuant to s 477(2) of the Act. Courts usually takes into consideration principles such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (SZRIQ) at [46]-[48].
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) the majority of the High Court held at [12] that:

(a) The focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and

(b) 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.

Lodgement of application for judicial review of the Tribunal Decision

1. As the Tribunal Decision was made on 17 February 2021, the time to apply for judicial review expired on 24 March 2021 (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 15 December 2023 which was 996 days after the prescribed time as set out in s 477(1) of the Act.
3. 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. The applicant made an application in writing on 15 December 2023 seeking judicial review. In the application, the applicant applied for an order that the time for the making of the application be extended and contended the following grounds (reproduced without alteration):
   1. Extension of time to come up with more evidences to make my claim strong.
   2. My feel the decision made is unfair, so I need more time to bring and collect my side of evidences from Malaysia

Im seeking to judicial can give me a extension of time for come with more evidences.

1. I am satisfied, based on this application, that the applicant complied with s 477(2)(a) of the Act.

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]).
4. In BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 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'. 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.
2. As the Tribunal Decision was made on 17 February 2021, the time to apply for judicial review expired on 24 March 2021 (35 days from the Tribunal Decision: s 477(1) of the Act).
3. The application for review of the Tribunal Decision was not lodged by the applicant until 15 December 2023 which was 996 days (or two years and 8 months) after the prescribed time as set out in s 477(1) of the Act.
4. This is a very significant delay. Generally, a delay over seven months is significant, and ordinarily would be a sufficient basis to refuse an application for extension of time: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195.
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]; Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42 (Vella) at [3] per Gageler J.
6. The applicant claimed in his written application for the extension of time that he wanted an extension to come up with further evidence. The desire to find new evidence is not a reasonable explanation for delay. The applicant has not specified what evidence this was.
7. At the hearing before me I asked the applicant if he wished to provide an explanation for the delay. He said that he did not know how to 'make an application' (Tp 7.33).
8. The Minister responded to this at the hearing. She pointed out that in the Notification of Decision letter provided by the Tribunal, the Tribunal enclosed an MR25 Information about Decisions Fact Sheet (CB 152-153) (Tp 12.9-19). The fact sheet explained that an applicant could apply to this Court for judicial review of a Tribunal's decision which must be done within 35 days of the date of the Tribunal Decision (CB 153). It appears from this material that the applicant was adequately notified of how to apply for judicial review.
9. I note further that generally it is the applicant's responsibility to make proper enquiries and take reasonable action to make an application to the court: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 (SZSDA) at [38] per Foster J. Additionally, ignorance of the time limits is generally not a satisfactory explanation for a failure to comply with them: see SZSDA per Foster J at [38].
10. At the hearing before me the applicant contended that he had provided a new email address to the delegate (Tp 11.22-34). However, there is nothing in the Court Book to indicate such a notification and I do not accept that it was made. Indeed, the applicant notified both the delegate and the Tribunal of his nominated email address which according to the Minister was 'used at all relevant times' (CB 36, 72, 105, 123 and 150). The email address was provided to the Tribunal on 29 June 2020 by the applicant in his application for review (CB 123).
11. I am satisfied that the Tribunal Decision was notified to the applicant at the email address provided.
12. No reasonable explanation has been provided by the applicant for the delay.
13. Even if I was satisfied that there was a satisfactory explanation for the delay in lodgement of the application, the application for an extension of time would be refused. This is because I have found that there are no merits in the application, considered in more detail later in this judgment: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23]; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed.

Any prejudice to the respondent if an extension were granted and public interest

1. The Minister submitted that it could not be said that there would be no prejudice to the Minister although the prejudice may be limited: DZAEH v Minister for Immigration and Border Protection [2016] FCA 83 at [33] per Besanko J.
2. There is public interest in the smooth transition of matters through review, and the finality of litigation. As specific prejudice to the Minister has not been identified I have considered this factor neutrally in respect of whether to grant the extension.

1. If the extension of time is refused, the Tribunal Decision will stand, with all the consequences that flow for the protection visa application. The impact on the applicant may be significant in that he may no longer be able to stay in Australia lawfully. Given that the applicant has been in Australia for a significant period of time, this is a matter weighing in favour of grant of an extension.

1. In considering whether a proposed appeal 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' 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 at [62]- [63], and approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110. As referred to earlier, where there is a significant delay, I will consider whether the case is strong or exceptional: Katoa at [18]; Vella at [3] per Gageler J.
2. I have considered the grounds identified by the applicant in the application and have also remained alert to the possibility of error that may warrant an extension being granted: MZAIB at [110].

1. The applicant contended in his application that the first ground of jurisdictional error was (reproduced below without alteration):

The Tribunal affirm decision to be review again.

1. There is no jurisdictional error established in this ground, which is a statement rather than a ground.

1. The applicant contended that the second and third ground of review were that:

The decision under review was without giving me a consideration for extension of time.

The tribunal was made decision without looking at the evidence from my side.

• - Seeking for a concern order to hear my matter again for review

1. At the hearing the applicant was invited to make submissions or particularise the grounds. He said that he was unaware of the decision of the delegate as he did not receive the email from the delegate (Tp 11.22-24). He claimed that he provided a new email address as his old email address was not working (Tp 11.22-24). He said that he filled in a form which he provided to the Department, changing his contact details (Tp 11.26-29). This email address was the same one he used when he was at the Tribunal and the one used at the Court (Tp 11.40).
2. In essence, the applicant's grounds for review are that he was not properly notified of the delegate's decision and therefore applied for review to the Tribunal out of time and subsequently was not afforded procedural fairness.
3. The first question for this Court is whether there was jurisdictional error because the delegate's decision was not properly notified. I accept that the notification letter complied with the relevant requirements under s 66 of the Act for the following reasons:
   • On 1 December 2016 in his application form to the Department, the applicant agreed to electronic communications and provided an email address (CB 19, 36).
   • On 7 March 2017 the delegate notified the applicant of its decision to refuse the visa (CB 72).
   • In the decision, the delegate specified the criterion the applicant did not satisfy as required by s 36(2)(a) or s 36 (2) (aa) of the Act (CB 76).
   • The delegate's decision was sent to the applicant on 7 March 2017 by one of the methods specified in s 494B of the Act - by email to the last email address provided to the Minister for the purpose of receiving documents, as required by s 494B(5)(b) and (5)(d) (CB 72).
   • The Department later assessed that the applicant had not been correctly notified of the decision. On 16 May 2020 the applicant was renotified (CB 105), by email sent to the applicant's nominated email address (CB 104-121, Affidavit of Maxwell Hopkins affirmed on 19 December 2024, p. 5 (Annexure - 'MCH-1')).
   • The Department gave written reasons for its decision that the criterion was not satisfied in accordance with s 66(2)(c) of the Act.
   • In the decision, the delegate stated that the decision could be reviewed; the time in which the application for review could be made; who could apply for the review; and where the application for review could be made in accordance with s 66(2)(d)(i)-(iv) of the Act. The delegate explained the relevant time period to lodge an application for review with the Tribunal in full under the heading 'Review rights' (CB 106-107).
   • The findings in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; [2019] FCAFC 64 and BMY18 v Minister for Home Affairs (2019) 271 FCR 517; [2019] FCAFC 189 do not apply as the letter stated the time within which the review application was to be made in full under the heading 'Review rights'.
   • The applicant did not appoint an authorised recipient such that the re-notification letter is not affected by the decision of Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.
   • Pursuant to s 494C(5) of the Act, the applicant was deemed to have received the re-notification letter on the day it was sent (namely, on 16 May 2020).
4. I am satisfied that the applicant was properly notified of the delegate's decision and that the Tribunal correctly found that the period in which the applicant could validly lodge an application for review to the Tribunal was 28 days after he was notified of the decision: s 412(1)(b) of the Act and r 4.31 of the Regulations.
5. Where an applicant applies out of time, the Tribunal does not have a discretion to extend the time period.
6. In VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 at [33] the court found that the Tribunal correctly determined that it did not have a valid review application before it in circumstances where the time limitations were not met. The court found that the Tribunal did not have power to entertain the application lodged out of time.
7. In Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 62 Judge Driver said at [15] of a case involving lodgement out of time that:

The grounds advanced and the arguments provided to this Court indicate a complete misunderstanding of the legal position before the Tribunal. They appear to assume that the Tribunal could exercise some discretion or indulgence when plainly it could not...

1. In SZRHA v Minister for Immigration and Citizenship [2013] FMCA 131, while the court accepted that there was negligence on behalf of a migration agent, it held the terms of the Act were strict and clear and the Tribunal did not have power to allow extra time for the lodgement of a review application (per Cameron FC at [25]). This was upheld on appeal by Justice Nicholas; see SZRHA v Minister for Immigration and Citizenship [2013] FCA 541.
2. Similarly, in BET16 v Minister for Immigration and Border Protection [2016] FCCA 3165 at [20] the court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The court found that the applicant was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference.
3. The Full Federal Court in In Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 (Beni) expressly considered the provisions of the Administrative Appeals Act 1975 (Cth) which permit the other divisions of the Tribunal to extend time limits and held that they do not extend to migration decisions and confirmed that the Tribunal does not have the power to extend time limits in these situations (at [83]).
4. In the matter before me, as the decision of the delegate was validly notified and the applicant did not apply to the Tribunal for review within the prescribed time limit, the Tribunal was bound to find that it had no jurisdiction.
5. I am satisfied that the applicant was afforded procedural fairness in relation to the no jurisdiction decision. On 17 July 2020, the Tribunal emailed the applicant and informed him that it had formed the view that his application had been lodged out of time and invited him to comment (CB 147-149). This email and the lack of response by the applicant is referred to in the Tribunal Decision (TD [4]).
6. The applicant has also claimed that the Tribunal made a decision 'without looking at the evidence from my side'. As the Tribunal had no jurisdiction, it was not empowered to consider the applicant's evidence.
7. I am not satisfied that the substantive application has merit.

1. In this matter the applicant has applied for an extension of time to lodge the application for judicial review. I am not satisfied that such an extension is needed for the administration of justice. I acknowledge the significant repercussions for the applicant who may be required to return to his home country. However, I have been guided by the principles of 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 in the administration of justice. I have taken into consideration the significant delay (996 days), the unsatisfactory explanation for the delay and the absence of merits in the substantive application. Where there are no prospects of success, it is not in the interests of the Court or the parties to extend. I am not satisfied that it is necessary in the interests of the administration of justice to grant the extension of time.
2. Accordingly, the application for extension of time is dismissed.
3. I will hear the parties as to costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard.