DTE24 v Minister for Immigration and Citizenship [2026] FCA 211

1. On 8 August 2025, the Federal Circuit and Family Court of Australia (Division 2) (the FCFCOA) refused an application made by the applicant for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act): DTE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1270 (J).
2. By an originating application filed in this Court, the applicant seeks to set aside the orders of the Court below for alleged jurisdictional error. The first respondent (Minister) filed submissions and appeared at the hearing of the application. A Judge of the FCFCOA, being the primary judge, was named as the second respondent to this proceeding, and filed a submitting notice save as to costs. The applicant did not appear.

1. The applicant is a citizen of Indonesia and arrived in Australia on 11 August 2022 on a visitor visa. On 8 November 2022, the applicant applied for a Protection (Class XA) (Subclass 866) visa on the basis that he feared harm related to his family's economic problems which were caused by the bankruptcy of the family's business and the unemployment rate in Indonesia.
2. On 10 January 2024, a delegate of the Minister refused to grant the applicant the visa on the basis that they were not satisfied that the applicant met the criteria in ss 36(2)(a) or (aa) of the Act.
3. On 17 February 2024, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. The application was filed out of time. On 3 April 2024, the Tribunal notified the applicant that it did not have jurisdiction to determine the application because it had not been lodged within 28 days, commencing on the day that the applicant was notified of the decision. The Tribunal provided written reasons for its decision and gave the applicant a copy of its written reasons.
4. On 12 June 2024, the applicant filed an application in the FCFCOA seeking judicial review of the Tribunal's decision. That application was also filed out of time, and so as part of his application in the FCFCOA, the applicant sought an extension of time. This was the application which came before the primary judge, and which was dismissed.
5. The primary judge stated that, for the purposes of the 35-day timeframe in s 477(1) of the Act, the applicant ought to have made an application for judicial review on or before 8 May 2024, and was consequently 35 days out of time: J [17].
6. The primary judge identified that her principal task under s 477(2) of the Act was 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", citing Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [39]: J [21]-[22].
7. The primary judge then identified a non-exhaustive list of factors which are usually regarded as being relevant to the exercise of the Court's power to extend time, namely: the length of the delay and the explanation for it; any prejudice to the Minister; any prejudice to the administration of justice as a result of the delay; and the merits of the underlying application: J [23]-[25].
8. The primary judge then made findings at J [45] by reference to the non-exhaustive factors. In particular, the primary judge accepted the Minister's submission that the Tribunal had no jurisdiction to hear the matter for the following reasons:

(a) The delegate notified the applicant of their decision in the prescribed way by email sent to the applicant at the nominated email address;

(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: 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: DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5];

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

1. The primary judge concluded that the Tribunal made the only decision that was legally open to it where it did not have the power to waive or extend the relevant time limit, and that it had no jurisdiction to hear the application: J [45]-[46]. This conclusion was correct as a matter of law: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [83] (McKerracher, Reeves and Thawley JJ).

1. The grounds of the application in this Court are as follows:

(1) The decision of the Court failed to lawfully apply the 'interests of the administration of justice' test in s 477(2) of the Migration Act 1958 (Cth) or, alternatively, failed to consider a significant matter bearing on the question of what is in the 'interests of the administration of justice', namely that this application concerned a protection claim.

(2) The Court should have had regard to the severe prejudice to the applicant by returning him to the place where he claims his life was in danger if the discretion was not exercised in his favour. The Court did not balance the prejudice against the lack of any prejudice to the Minister caused by the delay.

(3) The Court failed to act on its observation at [31] of its reasons that there has been a breakdown of understanding of Court procedures and could have made a referral for assistance under the pro bono assistance scheme.

(4) The Court erred in finding that there was insufficient merit in the proposed grounds of review or to at least allow an extension of time.

1. On 6 November 2025, the applicant was notified of the hearing date of 4 March 2026 and was ordered to file and serve any written submissions by 28 January 2026. No written submissions were filed.
2. On 6 February 2026, the Minister served submissions on the applicant, with a covering letter which referred to the listing of the application on 4 March 2026, and which advised that the Minister would seek orders that the matter be dismissed with costs if the applicant did not attend the hearing.
3. On 16 February 2026, my chambers caused the Registry to write to the applicant asking for his written submissions and inquiring whether he intended to pursue the application. No response was received.
4. An interpreter was organised for the hearing on 4 March 2026, and the matter was called by the court officer, but the applicant did not appear.
5. The Minister then sought an order that the proceeding be dismissed with costs fixed in the amount of $5,000. I made that Order. These are my reasons for doing so.

1. Ground one is expressed in general terms and does not identify the nature of the alleged misapplication of the test in s 477(2) of the Act. In all of the circumstances and with respect, the primary's judge's decision to refuse to extend time was based on an orthodox application of the law to the facts, and there is no basis to conclude that there was any misunderstanding as to the nature and extent of the jurisdiction conferred by s 477(2) of the Act.
2. Ground two also lacks merit. The primary judge considered the prejudice to the applicant if time was not extended, and to the lack of specific prejudice to the Minister if time was extended, and found that, on balance, this factor weighed in favour of extending time, which was a finding that was favourable to the applicant: J [35]-[37].
3. Ground three has no merit as the applicant was not prevented from raising the possibility of obtaining a referral for assistance under the pro bono assistance scheme with the FCFCOA, which he did not do. The FCFCOA cannot be criticised in these circumstances.
4. Ground four is expressed in general terms. As the applicant did not appear or file submissions, the basis of the error has not been identified.
5. In addition to the grounds lacking merit, the applicant failed to appear at the hearing of his application in this Court, and to otherwise take steps to prosecute his application.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.