DET18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 268

1. On 28 August 2017, the applicant attended a hearing before the Tribunal. The hearing commenced at 9.48 am and concluded at 11.28 am. As recorded on the Refugee Hearing Record, the applicant did not provide any documents to the Tribunal at that hearing.[6]
2. On 11 September 2017, the Tribunal affirmed the decision of the delegate finding the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act (first Tribunal decision). That decision was sent to the applicant by email under cover of a letter dated 12 September 2017. Annexed to that letter was a three-page Tribunal form headed MR25 Information about decisions - MR Division with an issue date of May 2017 (Form MR25).[7]
3. On 3 October 2017, the applicant applied again to the Tribunal for review of the delegate's decision (second review application).[8] On 30 October 2017, the Tribunal determined the second review application, deciding it did not have jurisdiction to review the delegate's decision a second time (second Tribunal decision).[9] The Tribunal noted that a decision in relation to a review of the delegate's decision had already been made on 11 September 2017.[10] The Tribunal found that once it has received a valid application for review of a reviewable decision and has performed its statutory function by making a decision on that application, the original decision ceases to be a reviewable decision: SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164; (2008) 216 FLR 157; FMCA 164 at [41].[11] The Tribunal further held it had no jurisdiction to review a delegate's decision twice: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; SZASP v Minister for Immigration and Citizenship [2007] FCA 771.[12]
4. On 23 November 2017, the applicant applied again to the Tribunal for review of the delegate's decision (third review application).[13] On 12 January 2018, the Tribunal determined the third review application, deciding it did not have jurisdiction to review the delegate's decision, which had already been reviewed (third Tribunal decision).[14]
5. On 6 February 2018, the applicant applied again to the Tribunal for review of the delegate's decision (fourth review application).[15] On 21 February 2018, the Tribunal determined the fourth review application, deciding it did not have jurisdiction to review the delegate's decision, which had already been reviewed (fourth Tribunal decision).[16]
6. On 12 March 2018, the applicant applied again to the Tribunal for review of the delegate's decision (fifth review application).[17] On 10 April 2018, the Tribunal determined the fifth review application, deciding it did not have jurisdiction to review the delegate's decision, which had already been reviewed (fifth Tribunal decision).[18]

1. The Tribunal identified the issue on review as whether the applicant was owed Australia's protection under either the refugee criterion or the complementary protection criterion.[19]
2. The Tribunal described the criteria for the protection visa as set out in s 36 of the Act and sch 2 to the Migration Regulations 1994 (Cth).[20] The Tribunal took account of Ministerial Direction No. 56 made under s 499 of the Act and the policy guidelines as prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines.[21]
3. The Tribunal outlined the applicant's written protection claims and oral evidence at hearing that he feared harm in Malaysia due to his political beliefs and activities.[22] The Tribunal did not find the applicant's claims to be credible due to inconsistencies between his written and oral evidence and his inability at hearing to recall significant events in his written claims.[23] The Tribunal further found his oral evidence unconvincing, extremely vague, lacking in persuasive detail and not supported by available country information.[24]
4. The Tribunal found the applicant's claims were not otherwise credible due to a lack of corroborating documentation. When pressed to account for why he had not provided corroborative evidence of certain claims, the applicant gave a variety of responses, ranging from him having no knowledge of the need to provide such evidence to the difficulties his family faced to obtain certain evidence and send it to him in Australia, to a general difficulty to obtain such evidence and ask people in Malaysia to post it to him. In considering those responses, the Tribunal reminded the applicant that his application for protection was made over two years earlier. The applicant acknowledged that concern but did not request additional time to provide any corroborative evidence.[25]
5. On account of his inability to recall significant events in his written claims and the lack of corroborating documentation to support his claims, the Tribunal found the applicant was not a credible witness and his claims were fabricated in order to achieve a favourable migration outcome.[26]
6. The Tribunal concluded the applicant was not a person in respect of whom Australian owed protection under either the refugee criterion or complementary protection criterion.[27]

1. On 20 June 2018, the applicant commenced proceedings by way of originating application, seeking an extension of time under s 477(2) of the Act to seek review of the fifth Tribunal's decision.
2. On 20 February 2025, the applicant was granted leave by Registrar Roberts to ensure the applicant made clear he sought an order for a writ of mandamus. On that basis, the application was so amended.
3. At hearing, it became apparent that the applicant was seeking to impugn the first Tribunal decision rather than the fifth Tribunal decision which he had annexed to his affidavit deposed 4 May 2018. After considerable discussion with the parties about the degree to which the applicant demonstrated confusion in his repeated engagements with the Tribunal and making of his judicial review application, I was satisfied that this case involves an applicant of the kind described in [15] of Justice Flick's judgment in BWI18 v Minister for Home Affairs and Border Protection [2020] FCA 290. Put simply, this is an applicant who is clearly ignorant of the procedural requirements to be met when seeking to have a decision reviewed by this Court. The Minister's representative, Mr Taverniti, acknowledged that issue, a matter which had been properly foreshadowed in the Minister's written submissions at [17]. On that basis, the Minister did not oppose leave being granted to allow the applicant to amend his originating application so as to substitute the fifth Tribunal decision with the first Tribunal decision. Accordingly, leave was so granted and the application was amended.
4. The applicant advanced a sole ground of review (reproduced below without alteration):

1. The application was accompanied by an affidavit containing the following statement, which I regard as a submission:

My application decision was affected by an error of law was taken without proof.

1. As the first Tribunal decision was made on 11 September 2017, the applicant had until 16 October 2017 to bring this proceeding. Because the application was not filed until 20 June 2018, it was brought 247 days out of time.
2. The materials before the Court include:

(a) the originating application for judicial review filed 20 June 2018;

(b) the affidavit of the applicant filed 20 June 2018, attaching a copy of the fifth Tribunal decision;

(c) a Court Book numbering 110 pages, and containing the first Tribunal decision, filed 27 July 2018 (tendered into evidence at hearing on 19 February 2026 by the first respondent and marked as Exhibit 1R);

(d) a supplementary Court Book numbering 39 pages filed 13 February 2026 (tendered into evidence at hearing on 19 February 2026 by the first respondent and marked as Exhibit 2R);

(e) written submissions filed on behalf of the first respondent on 13 February 2026;

(f) a list of authorities filed on behalf of the first respondent on 17 February 2026; and

(g) a copy of the letter from the Tribunal to the applicant dated 12 September 2017 notifying him of the outcome of the first review application along with a copy of Form MR25 (handed up and tendered into evidence at hearing on 19 February 2026 by the first respondent and marked as Exhibit 3R).

1. The consequence of the application before this Court being filed late is that the Court must consider the two limbs of s 477(2) of the Act.

1. The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
2. In his originating application, the applicant sought leave of the Court to grant him an extension of time and specified the following grounds of application for extension of time:

1. Section 477(2)(a) of the Act is thus satisfied.

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. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; HCA 28 (Tu'uta Katoa) at [12], the High Court observed that the Court's power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. 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 but the Court may look at a myriad of facts and circumstances including the length of the delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case at [40], Jagot and Halley JJ found 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 to the first respondent if an extension were granted;

(c) the interests of the public at large;

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

(e) the merits of the substantive application.

The extent of the delay and explanation for it

1. As stated above, the applicant's delay in filing his judicial review application amounts to 247 days out of time.
2. Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay: see Tran v Minister for Immigration and Border Protection [2014] FCA 533 per Wigney J at [38]; Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at [195].
3. At hearing, the applicant submitted various reasons explaining the delay. First, the applicant submitted that he had lost his job and source of income but did not explain further how that matter affected his ability to file the judicial review application in a timely manner (first reason). Second, the applicant submitted that he forgot to check his emails and therefore did not realise the Tribunal had sent him the first Tribunal decision (second reason). The third reason he gave for the delay was that he could not access, or had difficulty accessing, his emails (third reason).
4. At the conclusion of the applicant's oral submissions, I posited whether those submissions and the evidentiary material, when understood cumulatively, were indicative of the applicant not understanding what was required of him in order to make the judicial review application in relation to the first Tribunal decision. The applicant accepted that characterisation of his submissions and the evidentiary material, so I took it to be a fourth reason for the delay (fourth reason).
5. Mr Taverniti submitted that the extent of the delay is 'inordinate or extreme' and that the delay was unexplained or at least not sufficiently explained. Further, Mr Taverniti addressed each of the reasons proffered by the applicant as follows:

(a) In relation to the first reason, the applicant's loss of employment was not an explanation at all. It was not made clear how that event gave rise to the applicant having filed his judicial review application two hundred and forty-seven days out of time.

(b) In relation to second and third reasons, the Tribunal discharged its obligations towards him by notifying him of the outcome of his first review application. In those circumstances, there was nothing further the Tribunal was required to do and it was the applicant's responsibility to ensure that he accessed, or at least maintained access to, his email account in order to remain aware of any outcome of his first review application and thereby take steps in relation to that outcome should he wish to do so.

(c) In relation to the fourth reason, the applicant's ignorance of legal process was not a satisfactory reason to explain the delay. Reliance was placed upon the Tribunal having notified the applicant of its first Tribunal decision, along with the provision of information setting out details as to when the applicant needed to file an application before this Court so that he would not be required to seek an extension of time and provide any explanation for late filing. Furthermore, additional information was provided to the applicant in relation to accessing assistance in order to make his judicial review application. That information was contained within the Form MR25. Moreover, the file note of the applicant's conversation with the Tribunal officer on 25 July 2017 which similarly made clear to the applicant that it was his responsibility to inform himself about the next steps he could take in circumstances where the first Tribunal decision was unfavourable.

1. Having considered the parties' submissions and the available evidence, I am of the view that the extent of the delay in the applicant making his application to this Court is significant. I am persuaded by the Minister's submissions in relation to the insufficiency of the applicant's various explanations, having considered them individually and cumulatively. Specifically, in relation to the fourth reason, ignorance of the legal process and procedure is an unsatisfactory explanation for filing the application out of time: CKA15 v Minister for Immigration and Border Protection [2017] FCCA 1089 per Nicholls J, citing SZJRV v Minister for Immigration and Citizenship [2008] FCA 298; SZLIH v Minister of Immigration and Citizenship [2009] FCA 108.
2. Therefore, in the absence of a satisfactory and acceptable explanation, this delay weighs against the grant of an extension.

Prejudice and Interests of the public at large

1. The applicant was unable to address the Court in relation to these matters, even after having heard the Minister's oral submissions.
2. The Minister conceded that there would be no specific prejudice to him if the application for an extension of time was granted. Nevertheless, the mere absence of prejudice is insufficient to warrant the grant of an extension of time: see Re Commonwealth of Australia; Ex Parte Marks [1910] ArgusLawRp 141; (2000) 17 ALR 491; HCA 67 at [16]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
3. The Minister further submitted that there is a public interest in the swift resolution of administrative review processes, particularly given the statutory timeframe in which to seek review. Granting an extension of time of almost 250 days, where there is no persuasive explanation as to why it took as long as it did, would be inconsistent with that public interest.
4. I agree with the Minister that despite his concession that he would not suffer substantial prejudice if the extension of time were to be granted, any delay caused would undermine the public interest in the finality of decision making: see Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J.
5. Having considered these matters, I afford them some weight against the grant of an extension.

1. If the extension of time is refused then the Tribunal's decision will stand, with all the consequences that follow for the applicant in relation to his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
2. I am of the view the impact on the applicant is significant in that he would be returned to his country of nationality which is a circumstance he claims to fear. I consider this to be a matter weighing in favour of the grant of an extension.

1. In considering whether a proposed appeal has merit, the Court will 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: see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158; FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
2. The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu'uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):

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

1. Importantly, an applicant need only identify an 'arguable case' (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted: see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158; FCA 1392 (MZAIB).
2. Mindful of the Court's obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], I have scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error. I have also read the applicant's ground as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal's part. Nevertheless, I am of the view that, on a reasonably impressionistic level, error has not been disclosed and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.

1. The sole ground of the application alleges 'the decision was taken without proof.' At hearing, the applicant explained why he took issue with the first Tribunal decision. He told the Court that he did have evidence, but the evidence was in Malaysia and there were challenges to have the evidence sent to Australia. He reiterated that this was the difficulty he had experienced.
2. In written submissions, the Minister properly acknowledged his model litigant obligation and submitted that while the applicant had not established an arguable jurisdictional error in the first Tribunal decision, no such error was otherwise apparent. It was submitted that the first Tribunal had:

(a) correctly set out the relevant law;[28]

(b) accurately summarised the applicant's claims and what occurred at the hearing;[29]

(c) recorded that it asked the applicant questions about his claims and put to the applicant concerns it had;[30]

(d) considered each of the applicant's claims, and the applicant's responses to the concerns it raised;[31] and

(e) assessed the applicant's claims against the refugee and complementary protection criteria by reference to his evidence.[32]

1. In oral submissions, Mr Taverniti, on behalf of the Minister, argued that applicant's complaint raised at hearing is perhaps best characterised as a criticism of the Tribunal's procedure and approach in two key respects:

(a) First, the Tribunal erred by not considering the applicant's evidence (first criticism);

(b) Second, the Tribunal erred by having not afforded the applicant additional time to provide further evidence (second criticism).

1. Turning to the first criticism, Mr Taverniti drew my attention to [16]-[36] of the first Tribunal decision and submitted that the Tribunal comprehensively recorded its exchanges with the applicant at hearing in those paragraphs of its decision.[33] Mr Taverniti noted that there was no identification within those paragraphs of the applicant having drawn the Tribunal's attention to the existence of such evidence or his willingness to provide further evidence in support of his review application. Mr Taverniti also drew to my attention that the applicant did not provide any documents to the Tribunal at hearing, as evidenced in the refugee hearing record document.[34]
2. Turning to the second criticism, Mr Taverniti drew my attention to [15] of the first Tribunal decision where the applicant confirmed with the Tribunal that the claims specified within his protection visa application were true and correct and that no important information had been omitted.[35]
3. In those circumstances, where there was no indication on the material before the Court of the applicant having told the Tribunal of the existence of further evidence in Malaysia or a request by him for additional time to provide evidence, Mr Taverniti argued that the applicant's complaints could not be sustained. On that basis, Mr Taverniti concluded that when looking at the Tribunal's decision, either at an impressionistic level or indeed, in greater detail, no clear jurisdictional error had been disclosed and there was no real prospect of the applicant being able to establish that the first Tribunal decision was affected by jurisdictional error.
4. I am persuaded by the Minister's submissions in relation to the applicant's first criticism.
5. However, in relation to the applicant's second criticism, I am not entirely persuaded by the Minister's submissions. In particular, I find the Minister has not fully engaged with the evidentiary material as it relates to the second criticism. That material warrants some further exposition and consideration.
6. A careful reading of the Tribunal's decision at [43] reveals a discussion at hearing between the applicant and the Tribunal in relation to the difficulties he claimed to have experienced in relation to obtaining evidence from Malaysia and providing it to the Department and the Tribunal in order to corroborate his claims. It is apposite to set out that paragraph of the Tribunal's decision:

The applicant's claims are not otherwise credible by reason of corroborating documentation. When asked why he did not provide a copy of the police report to the Department or the Tribunal the applicant's response was confusing: he said about his car being attacked, he did not report it because there was no action even though he made a report. When it was put to him that he had given evidence that he did make a police report and asked why he had not provided this report to the Department or the Tribunal, the applicant said he didn't know that he had to provide the evidence so he had not provided it yet. When the Tribunal noted he had also claimed that he was in hospital for two weeks but he hadn't provided any medical records about his treatment in hospital, he said he didn't do this as it was very hard for his family to get that report and send it to Australia. When he was reminded that in his written claims he referred to receiving a threatening letter but did not provide a copy in support of his claims, he said that he it was very hard to get this evidence and to ask people in Malaysia to post it to them. When the Tribunal noted he had applied for a protection visa in July 2015 and he had a long time to provide evidence in support of his case, the applicant said he understood. The applicant did not request additional time to provide evidence in support of his case and, having regard to its concerns about the credibility of his claims (set out above) the Tribunal is drawn to the conclusion that the reason the applicant has not provided any documentation corroborating his claims is because his claims have been fabricated. For all the reasons set out above, the Tribunal has concluded that the applicant is not a credible witness. The Tribunal finds that the applicant's claims have been fabricated in their entirety in the hope of obtaining a favourable immigration outcome. The Tribunal does not accept that he fears that he will be harmed if he returns to Malaysia because of his political beliefs and activities or that this was the reason he left Malaysia in 2015. The Tribunal does not accept that the applicant was ever part of political rallies in Kuala Lumpur or elsewhere in Malaysia. The Tribunal does not accept that the applicant attended political rallies in Malaysia, or that he was ever detained or arrested by the authorities as claimed. Nor, on the evidence before it, does the Tribunal accept that the applicant was ever detained or assaulted by unknown persons or that he and his family were ever threatened as claimed.

1. It must be understood that these exchanges occurred after the Tribunal raised various concerns about the distinct lack of corroborative evidence to support his claims. The applicant gave various explanations in an attempt to overcome those concerns. The Tribunal further raised its doubt about the veracity of those explanations by reminding the applicant that he had over two years to provide such documentary evidence, to which the applicant stated that he understood the Tribunal's concern. Importantly, the Tribunal recorded in its decision that the applicant did not request additional time to provide corroborative evidence.
2. In my view, the interaction at hearing detailed at [45] of the first Tribunal's decision discloses the Tribunal's proper adherence to its procedural fairness obligation under s 425 of the Act and provides a coherent and logical basis upon which the Tribunal partially rested its adverse credibility finding that the applicant had not provided any documentation corroborating his claims because his claims had been fabricated. Any suggestion that the Tribunal's approach was procedurally unfair or legally unreasonable cannot be sustained. On that basis, I am satisfied the applicant's second criticism does not reveal a reasonably arguable case of jurisdictional error.
3. Accordingly, the present case does not offer any 'exceptional' circumstances and the proposed grounds lack merit which would justify an extension of time being granted: see Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89; HCA 42 at [3]; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30]. For the foregoing reasons, I find that, on an impressionistic level, there are no reasonable prospects of success in relation to the originating application. I conclude the merits of the substantive judicial review application are lacking and this weighs heavily against granting an extension of time.

1. As the application was filed 247 outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
2. Taking into account the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the application and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter. Accordingly, the application must be dismissed and I will so order.
3. As a consequence of changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to Minister for Immigration and Citizenship. I will so order.

1. At the conclusion of the hearing, I heard the parties on the question of costs. The Minister sought costs fixed in the amount of $4,553.02 as the scale amount for a matter concluding at an interlocutory hearing pursuant to ch 4 sch 2 pt 3 div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). Mr Taverniti submitted that the scale amount operates as a proxy for default costs and the actual legal costs in this matter did exceed the scale amount. Mr Taverniti further submitted that the Minister's costs include consideration and response to the application for an extension of time, appearing at a first court date and successive callovers, the preparation of a Court Book, an outline of submissions, a supplementary Court Book, a list of authorities and attendance at the interlocutory hearing before me.
2. The applicant submitted in response that he would like a reduction in costs. I explained that the applicant either needed to persuade me that costs should not follow the event in this matter or give me an explanation as to why the amount the Minister sought was too much. The applicant confirmed his understanding of my question and submitted that he did not object to the Minister's costs application. I asked the applicant whether the financial strain mentioned in his application for an extension of time continued to be a cause for concern particularly given the Minister's costs application. The applicant responded that he was no longer facing financial difficulties and was 'back on track'.
3. Having considered the parties' submissions, I am satisfied that costs should follow the event and that the quantum of costs fixed in the sum of $4,553.02 sought by the Minister is fair and reasonable in the circumstances. I will so order.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[4] Supplementary Court Book (SCB) 1.