DTE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1270

Application for review to the Administrative Appeals Tribunal

1. On 17 February 2024, the applicant applied to the Tribunal for a review of the delegate's decision (CB 40-47).
2. On 6 March 2024, the Tribunal sent the applicant a letter inviting him to comment on the validity of the application (CB 52-53). The Tribunal advised that the application for review had not been lodged within the relevant time limit pursuant to reg 4.31(2) of the Migration Regulations 1994 (Cth) ("the Regulations"). The Tribunal stated that the relevant time limit was 28 days, 'commencing on the day the applicant is notified of the decision'. Further, the Tribunal stated that as 'the primary decision was emailed to [the applicant] on 10 January 2024... the last day for lodging the application for review was 6 February 2024' and explained that 'as the application was not received until 17 February 2024, it appears to be out of time. However, this was a matter to be determined by a Member'. The Tribunal invited the applicant to comment in writing by 20 March 2024, on whether a valid application had been made.
3. On 6 March 2024, the applicant responded by email to the Tribunal (CB 54). He explained that he lost his phone and once he bought a new phone, he forgot his password for his email. He further explained that once he remembered his email password, the time for him to lodge an application for review with the Tribunal had already passed.
4. On 3 April 2024, the Tribunal emailed a letter to the applicant in which the Tribunal notified the applicant that it did not have jurisdiction to determine the application because it had not been lodged within the 28 days, commencing on the day the applicant was notified of the decision (CB 57-59). The Tribunal provided written reasons for its decision and gave the applicant a copy of its written reasons ("Decision") (CB 57-59).

1. The application before the Court is not a hearing of the applicant's substantive application for judicial review. Nevertheless, given the Court is to make an assessment of the merits of the substantive application were time to be extended, it is useful to set out a summary of the Tribunal's decision so far as it is relevant to the Court's assessment of the merits of the grounds of review in the substantive application for judicial review.
2. The Tribunal identified that an application for review of a delegate's decision must be made within 28 days, commencing on the day that the applicant is notified of the delegate's decision pursuant to r 4.31(2) of the Regulations ([2]).
3. The Tribunal stated that the applicant was notified of the delegate's decision via email on 10 January 2024, sent to the nominated email address and said that it was satisfied that the applicant had been notified in accordance with the statutory requirements ([3]).
4. The Tribunal recounted that on 6 March 2024, it wrote to the applicant and advised him that his application for review did not appear to be valid as it had not been lodged within the prescribed time limit pursuant to r 4.31(2) of the Regulations and that the applicant was advised that the delegate's decision was emailed to him on 10 January 2024, making the deadline for lodgement of a review application 6 February 2024. The Tribunal noted that it invited the applicant to comment in writing by 20 March 2024 on the validity of his application ([4]).
5. The Tribunal recounted that on 6 March 2024, the applicant emailed the Tribunal advising that his application for review of the delegate's decision was lodged out of time because he had lost his phone and encountered issues accessing his email ([5]).The Tribunal acknowledged that whilst it might be that the applicant had lost his phone and encountered issues accessing his email, his response did not raise any issues regarding a breach of the notification requirements ([5]).
6. Therefore, the Tribunal, being satisfied that the applicant had been notified in accordance with the statutory requirements, found that the applicant was taken to have been notified of the delegate's decision on 10 January 2024 and that accordingly as the application for review of the delegate's decision was not received until 17 February 2024, the application was filed out of time ([6]). The Tribunal concluded that it did not have jurisdiction to hear the matter ([7]).

1. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 12 June 2024. The applicant also filed an affidavit affirmed on 20 May 2024. The affidavit annexes a copy of the Tribunal's decision.
2. Pursuant to s 477(1) of the Act, the application was required to be made within 35 days of the Tribunal's Decision, that is, by 8 May 2024. Accordingly, the application was filed 35 days out of time.
3. Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he sought to rely on and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely on. Orders were also made as to the preparation, filing, and service of a Court Book.
4. The material before the Court was the application, the applicant's affidavit, the first respondent's response, the first respondent's written submissions and the Court Book. The Court also had before it an affidavit of Leith Helsdon, affirmed on 24 June 2025, deposing to the fact that a copy of the fact sheet titled 'Information about Decisions' provided to the applicant as an attachment to the Tribunal's email to the applicant on 3 April 2024 (CB 56), was inadvertently excluded from the Court Book and annexed a copy of the fact sheet marked as LH-1 ("the Helsdon Affidavit"). The Court will take annexure LH-1 to be part of the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents with him.
5. The applicant appeared via Microsoft Teams. The applicant was unrepresented. The applicant had the assistance of an interpreter in the Indonesian and English languages.

1. Pursuant to s 477(2) of the Act, the Court may, by order, extend the time for the making of an application for a remedy to be granted in the exercise of the Court's jurisdiction under s 476 of the Act. Section 477(2) provided:
   1. The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate, if:
      1. an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
      2. the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
2. The phrase 'necessary in the interests of the administration of justice' is 'deliberately broad' and it is in each case for the judge hearing the extension of time application to determine which of a range of potentially relevant factors are to be taken into account in evaluating whether the interests of the administration of justice make it necessary for an extension of time to be granted in that particular case (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [39] ("Katoa") per Gordon, Edelman and Steward JJ).
3. Nevertheless, factors commonly regarded include (Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ; [40] per Gordon, Edelman and Steward JJ ):
   1. the length of the delay;
   2. the explanation for the delay;
   3. any prejudice to the respondent or third parties;
   4. any prejudice to the administration of justice as a result of the delay; and
   5. the merits of the underlying application.
4. The Court has taken the approach of considering those factors in determining whether it is satisfied in the interests of the administration of justice that time should be extended.
5. The Court explained to the applicant that as the application for judicial review was not filed within 35 days of the date of the Tribunal's decision, the purpose of the hearing was to consider whether the Court should exercise its discretion to extend time for the filing of his application for judicial review. The Court explained that the factors it would consider were length of the delay and the explanation for the delay; any prejudice to the parties; and whether the proposed grounds of review had any prospects of success were an extension of time to be granted.

1. The application for judicial review was filed on 12 June 2024. Accordingly, as already noted, the application was filed 35 days outside the 35-day time limit.
2. The first respondent submits that a delay of 35 days is a moderate delay (first respondent's submissions ("FRS") [14]). The Court agrees.
3. In the application, the applicant provides the following as the grounds of the application for extension of time (without alteration):
   1. I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
   2. The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
4. Ground two does not explain the delay but seeks to engage the Court on the merits of the substantive application.
5. Despite the order requiring him to do so, the applicant did not file any affidavit explaining the reason for the delay in filing his application for judicial review. Further, despite the procedural order requiring him to do so, the applicant did not file any written submission explaining why it is necessary in the interest of the administration of justice for time to be extended. The applicant was given the opportunity, with the assistance of the interpreter, to make oral submissions in support of the application to extend time and in response to the first respondent's submissions.
6. At the hearing, the applicant told the Court that he was unaware of the Court's procedures and was confused.
7. The Court agrees with the first respondent's submission that it is the applicant's responsibility to ascertain his review rights and any applicable time limits (FRS [17] citing SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] (Foster J_); MZZYV v Minister for Immigration and Border Protection_ [2016] FCA 957 at [25]).
8. In any event, the Tribunal informed the applicant of the time limit for making an application for judicial review to this Court in the fact sheet titled "Information about hearings" which was attached to the Tribunal's email to the applicant on 3 April 2024 (annexure LH-1 to the Helsdon Affidavit). The fact sheet outlined that the applicant may apply to this Court for judicial review of the Tribunal's decision and that the court will consider whether the Tribunal made a jurisdictional error. The fact sheet went on to state that if the applicant wishes to apply for review, the applicant must do so within 35 days of the date of the Tribunal's decision.
9. In the circumstances, the Court is not satisfied that the applicant has provided a plausible, reasonable, adequate or persuasive explanation for the delay in filing the application. On that basis alone, the Court would not be prepared to grant an extension of time as it would not be necessary in the interests of the administration of justice to do so. However, the Court has gone on to consider whether the other factors and, in particular, prospects of success should however persuade the Court to exercise its discretion to grant the requested extension despite the delay.

Prejudice, impact on the public and the applicant

1. The first respondent conceded that there was no specific prejudice to it in the granting of the extension of time but submitted that there is a public interest in the finality of administrative decision making (FRS [18] citing Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491). The first respondent, however submitted, that the mere absence of prejudice is insufficient to warrant the grant of an extension of time (FRS [18] citing Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) ALR 305_; SZTRY v Minister for Immigration and Border Protection_ [2015] FCAFC 86).
2. As to the impact on the applicant, the Court observes that no right of appeal would lie to the Federal Court of Australia in the event that this Court did not grant the extension sought although an application could be made to that Court for judicial review (BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [4] per Logan J).
3. On balance, the Court is satisfied that this factor weighs in favour of an extension being granted.

1. The Court is of the view that it is permissible and appropriate, in considering whether it is necessary in the interests of the administration of justice for time to be extended, for the Court to consider whether the proposed grounds of review have any merit.
2. In forming a view as to the merits of the substantive application, the Court is not necessarily limited to anything more than an impressionistic consideration of the grounds of review (Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ; at [54] per Gordon, Edelman and Steward JJ). The task of the Court in assessing merits is to evaluate whether a ground of review is 'arguable', 'reasonably arguable' 'sufficiently arguable' or has 'reasonable prospects of success' (Katoa at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 598 [63] per Mortimer J (as her Honour then was)).
3. Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review in the application are (without alteration):
   1. I came to Australia as a visitor visa holder and made an application for further visa and made and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application and The Tribunal has refused to accept my application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
   2. I lodged my application for review with The Tribunal but they have refused to accept my application for review stating that they have no jurisdiction on this matter because application for review had not been lodged within the required time limit.
   3. I do not lodge my application for review with The Tribunal within the relevant time limit. The reason it happened was because I had a problem opening my email. I lost my mobile phone and after that when I replaced a new one, I got problem to opened my email as I forgot my password for the email but once I figured out, it's been late for me to lodged my application for review with The Tribunal.
   4. This is clear unfair treatment by The Tribunal to myself. The Tribunal has refusal letter from the Department and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
   5. I would like to request to Federal Circuit Court to accept my application and have a fresh look on this matter and set a new order and replace orders made by Administrative Appeals Tribunal.
   6. I would like to request to Federal Circuit Court to set aside old orders made by Administrative Appeals Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.

Particular

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not comply with the requirements set out in section 424AA of the Act_._

1. Whilst the application enumerates six grounds of review, the thrust of the application is that the Tribunal denied the applicant procedural fairness in not considering his out of time application given the reasons he had provided to the Tribunal as to why he lodged his application out of time.
2. The first respondent submits that the grounds of review in the proposed substantive application lack merit and for that reason it is not necessary in the interests of the administration of justice to grant an extension of time, pursuant to s 447(2) of the Act (FRS [2]).
3. As the first respondent correctly observes, with respect to the merits of the application, the substantive application should have such prospects of success so as not to render the extension of time an exercise in futility (FRS [12] citing Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).
4. The Court invited the applicant to make oral submissions in support of the grounds of review. The applicant told the court that he did not have anything else to say beyond the reasons given in his application for review.
5. The court accepts the first respondent's submission that the Tribunal had no jurisdiction to hear the matter for the following reasons (FRS [22] - [23]):

(a) The delegate notified the applicant of their decision in the prescribed way by email sent to the applicant at the nominated email address: s 66(1); reg 2.16(3); s 494B(5)(b); 494B(5)(d);

(b) The applicant is taken to have received the notification of the decision at the end of the day on which the email was transmitted, that is, on 10 January 2024: s 494C(5); Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13].

(c) This is irrespective of whether the applicant had access to the nominated email address at that time and irrespective of any technical difficulties with access to that email address: Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 376 at [49];

(d) The applicant, having been properly notified of the decision, was required to file the application for review within 28 days after the notification of the decision including the date of notification which was by 6 February 2024: s 412(1)(b); reg 4.31(2); DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5].

(e) The application was not filed within the prescribed time.

1. Accordingly, having correctly found that the application for review had been lodged out of time, the Tribunal had no decision open to it other than to find that it had no jurisdiction. As the first respondent correctly submits, the Tribunal does not have the power to waive or extend the relevant time limit (FRS [23] citing Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15; ERT19 V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2620 at [41]). Therefore, no jurisdictional error is established.
2. The applicant also raised as a particular in the grounds of his application for judicial review, that he was not issued with a written invitation under 424A of the Act and the Tribunal did not comply with the requirements set out in s 424AA of the Act. In circumstances where the Tribunal had no jurisdiction to hear the application, neither s 424A nor 424AA were enlivened as there was no valid application before the Tribunal.
3. Although not raised by the applicant, the first respondent considered whether the matter was affected by an error akin to that identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 189 ("DFQ17"), where the 28-time limit had not begun to run at the time of lodging of the review application (FRS [25]). The court accepts the first respondent's submission that this matter is not affected by an error of the type identified in DFQ17. The court is satisfied that the delegate's notification letter met the requirements as to the content set out in s 66(2)(d)(ii) of the Act (FRS [25] referring to BDO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 65 at [76]- [81]).
4. Accordingly, the Court finds that the applicant's proposed application does not demonstrate sufficient merit to make it necessary in the interests of the administration of justice to grant the requested extension of time as the grounds of review in the proposed application have no prospects of success.

1. Accordingly, the Court finds that an extension of time within which to file the application for judicial review is not necessary in the interests of the administration of justice. The application is refused.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.