DPZ20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 395

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court, the Applicant seeks an order that time be extended under section 477(2) of the Migration Act 1958 ('Act') in order to permit him to pursue a substantive application to review a decision made by the Administrative Appeals Tribunal ('Tribunal') on 1 May 2023 (Court Book ('CB') 214).
2. For the reasons that follow, I have decided to dismiss the application for an extension of time.

1. The Applicant is a Malaysian national (CB 29). He arrived in Australia on 17 December 2016 (CB 36). He applied for a Protection (Class XA) (Subclass 866) visa ('visa') on 24 February 2017 (CB 86).
2. On 26 April 2017, a delegate refused to grant the Applicant the visa (CB 97). The delegate notified the Applicant of her decision. It is now accepted by the Minister that the letter notifying the Applicant of the decision to refuse his visa did not comply with section 66(2) of the Act having regard to the decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189; (2019) 271 FCR 517 ('BMY18') at [35].
3. The Applicant applied to the Tribunal for review of the delegate's decision on 25 May 2017. (CB 121-131). In his application, the Applicant nominated the following email address for all correspondence to be sent: andysui1987@gmail.com ('andysui address') (CB 126).
4. The Tribunal wrote to the Applicant on 8 June 2017. In the letter, the Tribunal indicated that the application it had received appeared not to be a valid application as it was not lodged within the relevant time limit. The Applicant was invited to comment on whether a valid application had been made (CB 136). There is no evidence the Applicant responded to the invitation.
5. On 18 July 2017, the Tribunal decided that it did not have jurisdiction to determine the application for review filed by the Applicant ('no-jurisdiction decision') (CB 139). On 19 July 2017, the Tribunal notified the Applicant of the no-jurisdiction decision (CB 138).
6. Subsequently, on 30 May 2020, following the decision in BMY18, the Department wrote to the Applicant and notified him again of its decision to refuse his application for the visa (CB 117). The re-notification was sent to: happyyip87@gmail.com.
7. On 1 December 2021, the Applicant filed an application in this Court. In that application, he sought orders to extend the time in which he could file an application to review the no-jurisdiction decision. The application also set out proposed grounds of review in relation to any substantive application (CB 144-151). In the application, the Applicant listed his email address as: kangtoksui3020@gmail.com ('kangtok address').
8. The application to extend the time for filing an application came before a Registrar of the Court on 14 September 2022. On that day, the Registrar made orders by consent which provided, among other things, as follows:

(a) the time for seeking judicial review of the decision of the Second Respondent be extended to 26 November 2021;

(b) a writ of certiorari issue, quashing the decision of the Second Respondent dated 18 July 2017; and

(c) a writ of mandamus issue, requiring the Second Respondent to determine the application for review made by the Applicant on 25 May 2017 according to law.

1. The Registrar also made the following notation to the orders, by consent:

The first respondent concedes that the decision of the second respondent (Tribunal) made on 18 July 2017 is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]-[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [32]-[35] per Reeves, Perram and Charlesworth JJ. In circumstances where the letter dated 26 April 2017 notifying the applicant of the decision of the first respondent's delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate's refusal decision in accordance with the statutory requirements (at [3]), that the review application made on 25 May 2017 was out of time, and that it had no jurisdiction to entertain the review application (at [6]-[7]).

1. On 20 September 2022, the Tribunal wrote to the Applicant. In the letter, the Tribunal informed the Applicant of the remittal of his application. The correspondence from the Tribunal was sent to the andysui address and kangtok address. The Applicant was informed the Tribunal would use the andysui address to contact him unless the Applicant advised otherwise. The Applicant replied to the Tribunal on the same day. He completed a 'Change of Contact Details - MR Division' form and in that document, he confirmed that the kangtok address was his nominated email address (CB 177). The Applicant also provided his mobile telephone number (CB 177).
2. The Tribunal wrote to the Applicant on 12 April 2023. In that correspondence, the Tribunal invited the Applicant to attend a hearing on 1 May 2023 (CB 184). The correspondence from the Tribunal to the Applicant was sent to the kangtok address. The hearing invitation included a fact sheet that outlined the consequences if the Applicant did not appear at the scheduled hearing (CB 187-191).
3. The Tribunal wrote to the Applicant again on 20 April 2023. In that correspondence, the Tribunal invited the Applicant to attend a pre-hearing test call (CB 196). The Applicant did not take up the invitation to attend the test call.
4. On 26 April 2023, the Applicant sent an email to the Tribunal. In the email, the Applicant confirmed that he had received an email notifying him of the hearing on 1 May 2023. He also indicated he had received an email about the test call, but had missed it. The Applicant asked whether this would affect his hearing scheduled for 1 May 2023. The Tribunal responded by return email to the Applicant. In its email, the Tribunal stated that 'Failure to attend at the Test session does not affect your right to a hearing with the Tribunal'. The Tribunal also stated 'please ensure your equipment and internet connection is set up and ready to go on 1 May 2023 so that technical issues do not delay the commencement of the hearing'.
5. On 28 April 2023, the Tribunal sent an SMS hearing reminder to the Applicant's nominated phone number (CB 219).
6. On 1 May 2023, the Applicant failed to appear at the hearing before the Tribunal. The Tribunal member declared a 'no show' at 10:00 am, following three attempts to call the Applicant's nominated phone number. The Tribunal proceeded to dismiss the application for non-appearance pursuant to section 426A(1A)(b) of the Act (CB 206-207) ('non-appearance decision').
7. The Applicant was notified of the non-appearance decision on 1 May 2023. The notification of the non-appearance decision was sent to the Applicant at the kangtok address (CB 204). In the notification of the non-appearance decision, the Applicant was informed that 'You may apply to us, in writing, for reinstatement of the application by 15 May 2023'. There is no evidence the Applicant applied to have his application reinstated.
8. On 16 May 2023, the Tribunal confirmed the non-appearance decision ('confirmation decision') (CB 214). On 17 May 2023, the Tribunal wrote to the Applicant and informed him of the confirmation decision. The Tribunal letter was addressed to the Applicant at the kangtok address.
9. On 4 December 2023, the Applicant applied to the Court for an extension of time in which to seek judicial review of the non-appearance decision ('Application'). The Application was accompanied by a supporting affidavit.
10. Despite being given the opportunity to do so, the Applicant, who is unrepresented, did not file an amended application or written submissions. The Minister filed written submissions and a Court Book.

1. Pursuant to section 477(1) of the Act, an application made to this Court must be filed within 35 days of the date of the relevant decision. The Application was filed on 4 December 2023. The Application is therefore almost six months out of time. The Minister opposes the grant of an extension of time.

1. Pursuant to section 477(2) of the Act, this Court may extend the 35-day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
2. The expression 'in the interests of the administration of justice' is not defined in the Act.
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 ('Katoa'), a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [12],with respect to the similar provision at section 477A(2) of the Act:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

[footnotes omitted]

1. Further, at [13], the majority noted and endorsed the well-established guiding principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. Those principles identify the following matters as requiring consideration:

(a) the extent of the delay;

(b) the explanation of the delay;

(c) any prejudice to the Respondents;

(d) the interests of the public at large; and

(e) the merits of the substantive application. It is appropriate to assess the merits of the proposed grounds of review at a 'reasonably impressionistic level' (Katoa at [17]; CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19]).

1. In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585, Mortimer J, as she then was, at [63] considered that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time 'may be expressed by the use of language such as whether the ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success"'.
2. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ('Taylor'), McHugh J discussed the history and rationale for limitation periods. At pages 9 and 10 of his judgment, His Honour stated:

'In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced" But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.'

[citations omitted]

1. The delay in this matter is significant. It is not a matter of days, but rather almost six months. In the words of McHugh J in Taylor, the Applicant needs to demonstrate a 'justifiable exception' to the usual rule. In my view, the delay itself represents a significant obstacle for the Applicant.

1. In his Application, and in his supporting affidavit, the Applicant proffers the following in relation to the delay for filing the Application:
   1. My Protection Visa was initially refused in 2017 and renotified in 2020, and later I applied for the merit review at AAT. The AAT said has no jurisdiction in my case then I made the judicial review at FCC court. My FCC case was remitted to the AAT. In this case, I asked an agent to take care of my AAT case. I waited for updates, but the agent disappeared. Recently, I discovered that my AAT decision was made months ago without my knowledge. Now, I want to apply for an FCC review on my own instead of relying on the unreliable agent. I understand that I need to do this within 35 days of the AAT decision date, so I need to apply for an extension of time.
2. The explanation the Applicant provided orally did not match the reason set out above. Before me, the Applicant stated that when his visa was refused by the Tribunal, he did not know what to do, so he asked some friends, who told him to apply to the Court. When it was put to the Applicant that this was inconsistent with what he had set out in the Application, he said he approached friends only after finding out that the agent he had retained had disappeared.
3. There are difficulties with the reasons proffered by the Applicant for his delay in filing the Application with the Court.
4. The Applicant's evidence that he asked an agent to assist with his case in the Tribunal is vague. The agent is not named in the Application. When asked by me to name the agent, the Applicant mentioned the first name of 'Lenny' but could provide no other details. The date the agent was appointed is not identified. The Applicant has not produced any correspondence between himself and the agent. There is no evidence that the Applicant ever sought to follow-up with the agent as to what was going on. The Applicant has not indicated when he became aware of the Tribunal decision or how, in circumstances where he claims an agent was appointed, he became aware of the Tribunal decision.
5. The evidence with respect to the appointment of an agent is also inconsistent with other evidence in this matter. The Tribunal records that are before the Court do not disclose that any agent was appointed to act on behalf of the Applicant in the Tribunal. Correspondence from the Tribunal to the Applicant was sent to the Applicant at the email address that he nominated on the relevant Tribunal forms. Moreover, the Applicant responded directly and personally to correspondence received from the Tribunal.
6. The Tribunal notified the Applicant of the non-appearance decision and the confirmation decision using the kangtok address. There is no evidence from the Applicant about how it is that he did not receive both of these decisions at this email address, when other correspondence from the Tribunal arrived at that address and was responded to by the Applicant.
7. Finally, the Applicant's statement that he became aware from friends that he could lodge an application in the Court and then proceeded to do so is not credible. The Applicant had previously filed proceedings, on his own behalf, in this Court on 19 January 2022 (MLG 3097/2021). He knew what needed to be done in order to seek review of the decision of the Tribunal.
8. In the circumstances, I do not accept the Applicant's evidence as to the reasons for the delay in filing the Application. The Applicant does not have an explanation for the delay in filing the Application.

1. The Minister accepts that he would not be prejudiced if the matter were to proceed. That is an appropriate concession in the circumstances of this case.

1. The Grounds of Review in the Application are as follows:
   1. I believe that the case officer has failed to investigate the applicant's claim, especially on the grounds of the situation in Malaysia. The immigration department made a judicial error by saying that I am not defined as a refugee as outlined in migration regulations. A refugee is a person who has, as defined in subsection 5J(1)(a), a well-founded fear of persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion'. I was prosecuted by local gangs and authorities because of bad debts, so I believe I satisfy the definition. It is a substantive judgment and a judicial error.
   2. I believe that the AAT case officer made a jurisdiction error in the decision to dismiss the AAT application. I was not correctly notified by the AAT following the AAT rule, under section 424A of the Act and, make no attempt to, and did not, comply with the requirements set out in section 424A of the Act. I did not know the application status or any hearing invitation from AAT. The AAT failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
2. The Applicant did not address either of these Grounds before me, despite an invitation to do so. He submitted that he intends to return to Malaysia at the end of the year once he has finished paying off his debts.
3. Ground One lacks merit. It is apparent from the way that Ground is framed and the reference to 'case officer' and 'immigration department' that the Applicant contends the delegate made an error. The Court does not have jurisdiction to review a decision of the delegate: see section 476(2)(a) and section 476(4)(a) of the Act.
4. Accordingly, the focus is on Ground Two. It is appropriate to start with what the Tribunal did.
5. In the non-appearance decision, the Tribunal dismissed the application under section 426A(1A)(b) of the Act. The Tribunal recorded, inter alia, that:

(a) the Applicant had been invited under section 425 of the Act to appear before the Tribunal;

(b) there had been correspondence between it and the Applicant relating to a call preceding the hearing to test the Applicant's equipment;

(c) the Tribunal attempted to contact the Applicant on three occasions on the day of the hearing, but he did not answer; and

(d) the Applicant not having appeared at the hearing, the Tribunal was satisfied that he had been properly invited to attend the hearing under section 441A(5), and therefore the Tribunal decided to dismiss the application before it.

(a) noted that on 1 May 2023, it dismissed the application before it for non-appearance under section 426A(1A)(b) of the Act;

(b) recorded that the Applicant was notified of the decision and given a copy of the statement of reasons in accordance with section 426B(5) of the Act;

(c) noted that the Applicant was advised that reinstatement of his application could be sought within 14 days of receiving the non-appearance decision and that failure to apply for reinstatement would result in confirmation of the decision; and

(d) stated that as no application for reinstatement had been received, it was required to confirm the decision to dismiss the application before it.

1. Returning to the Ground of Review, the Applicant's reference to the Tribunal not complying with section 424A of the Act is misconceived. As can be seen from what is set out above, the Tribunal in making the non-appearance decision relied on, and acted under, section 426A of the Act. It was entitled to do so because the Applicant did not appear at the hearing. Section 424A has no application to the present circumstances.
2. Within the second Ground of Review, the Applicant also contends that he did not receive the invitation to hearing. That claim cannot be accepted. The correspondence from the Applicant on 26 April 2023 confirms that he received the hearing invitation and was aware of the date of the hearing.
3. Given the Applicant is unrepresented, it is appropriate to consider whether the Tribunal was entitled to proceed to make the non-appearance decision and the confirmation decision.
4. The ability of the Tribunal to make the non-appearance decision depends on whether the Applicant was properly invited to attend the hearing in accordance with the requirements of section 425 and section 425A of the Act. In my view, the Applicant was properly invited to attend the hearing in accordance with the requirements for the reasons outlined below:

(a) an invitation to attend the hearing was sent to the Applicant dated 12 April 2023. Moreover, the invitation was sent on this day, and the hearing was scheduled for 1 May 2023 which is more than the prescribed period of notice;

(b) the invitation identified the day on which and the time and place at which the Applicant was scheduled to appear;

(c) the invitation was given to the Applicant by email at the email address nominated by him; and

(d) the invitation contained a statement to the effect of section 426A.

1. As the Applicant was properly invited to attend the hearing on 1 May 2023 in accordance with the provisions of Act, the Tribunal was entitled to proceed as it did under section 426A(1A)(b) of the Act.
2. As to the confirmation decision, the Applicant did not apply for reinstatement. That had the consequence that the Tribunal was required to confirm the decision to dismiss the application under section 426A(1E) of the Act.
3. In the circumstances, the substantive application sought to be pressed by the Applicant is not sufficiently arguable. It has little merit.

1. Weighing the various matters set out above, including the length of the delay, the lack of explanation for the delay, prejudice and the merits of the case, it is not in the interests of the administration of justice to extend the time for filing of the Application. In the circumstances, I will issue orders dismissing the application to extend time.
2. The Applicant has been entirely unsuccessful. The Minister seeks costs of $4,000. In the circumstances, it is appropriate to make an order for costs in the sum sought by the Minister. An order will issue to that effect.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.