DZH21 v Minister for Immigration and Citizenship [2025] FCA 881

1. The applicant, DZH21, seeks leave to appeal a decision of the Federal Circuit and Family Court of Australia (Division 2) delivered on 14 March 2024: see DZH21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 403 (DZH21 (No 2)).
2. The requirement to seek leave arises because the primary judge refused to grant the applicant an extension of time to seek review of the decision of a judicial Registrar of 13 December 2023: DZH21 (No 2) [15]. That refusal was an "interlocutory judgment" and, accordingly, leave is required to appeal from it: Federal Court of Australia Act 1976 (Cth), s 24(1A). The primary judge otherwise dismissed the application for review of the decision of the Registrar: DZH21 (No 2) [14]. In short, the Registrar had summarily dismissed, pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules), an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), of 14 October 2021, which found it did not have jurisdiction to review a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (class XA) Visa to the applicant: see DZH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1196 (DZH21 (No 1)).
3. It is to be noted that, in keeping with the current Commonwealth Administrative Arrangements, the correct title of the first respondent is, "Minister for Immigration and Citizenship", and an order should be made changing the title of these proceedings to reflect that position.
4. It is also noted that the merit of this application turns upon specific provisions of the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations). As is to be expected, those instruments have evolved with the passage of time; as such, these reasons will refer to them as they existed as at the time of their application by the Tribunal in late 2021.

1. The applicant is a citizen of India. He arrived in Australia in November 2019.
2. On 16 December 2019, the applicant applied for a protection visa (the Visa Application). The foundation of his claim was identified as follows. The applicant claimed he operated a business involved in the supply and manufacture of footwear products in western India. Circumstances are said to have transpired such that he could not deliver products to his customers for which they had paid nor could he repay those monies they had advanced to him. Such customers are alleged to have chased and attacked the applicant. Similar allegations were raised with respect to entities who had once supplied leather to his business, as well as local authorities.
3. These claims were recorded in the Visa Application and a letter dated 14 December 2019. No corroborative evidence was provided. For instance, the Visa Application only identified that:

Provide reasons why this applicant left that country or those countries:

TO SAVE MYSELF FROM THE BIG FINANCE COMPANY AND CLIENT AND THE LOCAL GOVERNMENT.

...

Give details including:

• the name of the person/organisation/authorities this applicant asked for help

• what help they provided, if they helped

YES, CONTACTED POLICE BUT THEY IN STEAD OF HELPING ME, TORTURED ME.

...

Explain what the applicant thinks will happen to them if they return to that country or those countries:

IN WILL DEFINITELY BE PUT BEHIND BARS BY THE STATE GOVERNMENT IF I RETURN BACK.

1. The Visa Application also identified the applicant's "email address for correspondence". This is, as will be seen, of some significance. The applicant's email was set out below the following:

The Department [of Home Affairs] prefers to communicate electronically as this provides a faster method of communication and delivery of information. If you (the applicant) agree that the Department can communicate with you electronically, provide an email address in the space below.

1. On 30 October 2020, a delegate of the Minister (the Delegate) sent a letter to the applicant that enclosed a request for further information in support of the Visa Application. That letter noted:

You must respond to this request within 28 days after you are taken to have received this letter.

...

If you do not reply within the timeframe specified above your application may be decided without the requested information being taken into account. If you are unable to provide this information within this time you should contact Humanitarian Program below.

1. The request for further information included a not insubstantial list of material that the Delegate required, such as a broader articulation of the applicant's claims and any supporting evidence. As the Delegate later noted, this was because the "claims put forward in [the Visa Application] lacked significant details such as why [the applicant] feared harm from the state government".
2. The applicant did not respond to this request.

1. On 22 April 2021, the Delegate dismissed the Visa Application (the Delegate's Decision). This was because the Delegate was satisfied that the applicant was not a person in respect of whom Australia owed any protection obligations under the Act. Nor was he a "member of the same family unit" as a non-citizen who (a) the Minister was satisfied that Australia owed protection obligations to; and (b) held a Protection visa of the class as that applied for by the applicant.
2. In his reasons, the Delegate recorded that, on 30 October 2020, the applicant was "sent a letter inviting them under s 56 of the Act to provide additional information about some of the claims in their application and to provide clarification on particular points" (including substantiating details, such as dates and locations of alleged events). The reasons also record that such letter advised the applicant that, in order to allow proper consideration of the legitimacy of his claims, further information vis-à-vis what had allegedly transpired in India was required. It was noted that the applicant had been advised of the time-frame for providing the additional information sought, as well as the possible consequences that would befall him should he fail to do so.
3. The Delegate then recorded that, as at the date of the assessment, the applicant had not provided additional information in relation to his claims. Nor was there evidence that he had attempted to contact the Department to request any further time to do so. As such, the Delegate held that the applicant had been afforded a reasonable opportunity to provide additional information and evidence to substantiate his claims and that, in the circumstances, it was appropriate to proceed with the decision-making process on the basis of the information then before the Department.
4. On that footing, the Delegate ultimately determined that the applicant had provided insufficient information to substantiate the facts that were provided in support of the Visa Application. In particular, it was found that he had failed to prove that he had been "targeted by any groups or individuals due to his financial situation before he left India". Similarly, the Delegate found that the applicant had failed to provide any cogent evidence that he would be targeted by State authorities in India were he to return, nor was it apparent why any such authorities would have any adverse interest in him. As such, the Delegate did not accept the applicant had "departed India because he feared harm from the state authorities" or that he had been "arrested, tortured or suffered any other forms of harm at the hands of the Indian authorities before his departure".
5. As a result of the foregoing, the Delegate determined that the applicant had failed to establish that he was a person to whom Australia owed protection obligations under the Act:

Part 7: Findings on Australia's protection obligations

I am not satisfied that [the applicant] is a refugee as defined by s5H of the Act. Therefore, I am not satisfied [the applicant] is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.

I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed to India, there is a real risk they will suffer significant harm as defined in s36(2)(aa) of the Act.

Therefore, I am also not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.

1. On 22 April 2021, the Department sent a notification letter, enclosing the Delegate's Decision, to the applicant's nominated "email address for correspondence" (as per the Visa Application). That letter relevantly identified the time limits, imposed by reg 4.31(2) of the Regulations, on the making of an application for review of the Delegate's Decision before the Tribunal:

Review rights

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.

In those circumstances, having received the Delegate's Decision on 22 April 2021, the last day upon which the applicant could seek review of that decision by the Tribunal was 19 May 2021.

Review of the Delegate's Decision by the Tribunal

1. On 11 August 2021, the applicant applied to the Tribunal for review of the Delegate's Decision.
2. Some two weeks later, on 26 August 2021, the Tribunal invited the applicant to comment upon the validity of his application given it appeared to have been lodged outside the time prescribed by the Regulations. In its letter, the Tribunal indicated the applicant was to make any comments upon the validity of his application for review by 9 September 2021.
3. On 9 September 2021, the applicant wrote a letter to the Tribunal. The letter relevantly stated:

I understand I have not lodged my appeal within relevant time limit. The decision was sent to me on 22 April 2021 and the last day lodging the appeal for review was 19 May 2021. I lodged my application on 11 August 2021 as soon as I have realised that the delegate of the Minister made the decision and refused my application. I moved to remote area of Queensland and there was no internet available. The decision was sent to my email only and I have not received any decision in my residential address.

1. On 14 October 2021, the Tribunal determined that it did not possess jurisdiction to review the Delegate's Decision. It noted the applicant had been notified, on 22 April 2021, of the making of the Delegate's Decision by an email sent to his "email address for correspondence" (as had been identified in the Visa Application). It followed that, in accordance with the Regulations, the time in which the applicant was entitled to seek review of that decision expired on 19 May 2021. The applicant did not file his application for review before that time; he was, therefore, out of time. Nevertheless, the Tribunal noted that the applicant had provided several comments on 9 September 2021 that sought to rationalise his failure to comply with the time limit defined by the Regulations. The Tribunal was not swayed by such assertions. It found, correctly, that it was the applicant's responsibility "to keep the Department apprised of [his] effective contact details for communication. The Department discharges its responsibility to applicants when it correctly uses the contact details as provided by the applicant, as it has done in this matter".
2. In the result, the Tribunal concluded that:

As the application for review was not received by the Tribunal until 11 August 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

Review of the Tribunal's Decision by the Federal Circuit and Family Court of Australia

1. The applicant sought judicial review of the Tribunal's Decision (on the grounds enumerated in DZH21 (No 1) at [12]). On 13 December 2023, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) dismissed the application on the basis that the applicant did not have "reasonable prospects of successfully prosecuting" it: DZH21 (No 1) [14] - [19].

Review of the Registrar's decision by the Federal Circuit and Family Court of Australia

1. Some eight days later, on 21 December 2023, the applicant sought an extension of time to apply for review of the decision reached in DZH21 (No 1): but see DZH21 (No 2) [2]. Such extension was required because, by that time, the seven days in which the applicant could seek review of the Registrar's decision had elapsed: rr 21.01(1) - (2) of the Rules; s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That application was heard (and dismissed) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 March 2024.
2. The primary judged dismissed the application for the reasons recorded in DZH21 (No 2). His Honour identified, correctly, that the relevant questions then before him were whether (a) there was any reason for the applicant's delay in filing the application for review of the Registrar's decision; (b) the Minister would suffer any prejudice if an extension of time were granted; and (c) the applicant had established the existence of an arguable case in relation to the application for review. The matter was said to turn upon the last of those considerations (at [3]).
3. After setting out the background to the matter (at [4]), his Honour noted that (a) the applicant had a right of review with respect to the Delegate's Decision "but only if he made an application to the [Tribunal] within 28 days of being notified of the decision"; (b) the relevant legislation did not "allow for any extension of time, or compassionate consideration, if a person does not file the application within [that] time"; (c) the applicant had not filed an application for review of the Delegate's Decision within 28 days of 22 April 2021; (d) the Department had sent the Delegate's Decision to the applicant's "email address for correspondence" and had, in so doing, discharged its obligation to provide notification to the applicant of such decision (at [5] - [9]).
4. The primary judge observed that the applicant was unable to advance any argument as to why the Tribunal was in error in concluding that it had no jurisdiction to determine his application for review (at [10] - [11]). His difficulty accessing the internet in remote Queensland was not an answer to the issue (at [12]). Nor were any of the other circumstances raised, including his difficulty arranging face-to-face appointments with lawyers and certain "flood issues" (at [12]). Those facts were irrelevant to whether the Tribunal's Decision contained jurisdictional error.
5. It followed, so said the primary judge, that the Tribunal had reached the only conclusion that it could, namely that it did not possess jurisdiction to consider the relief sought in the application for review of the Delegate's Decision. Thus, there was no arguable case to be advanced by the applicant and the application for an extension of time was, in turn, dismissed (at [13] - [15]).

1. On 27 March 2024, the applicant filed an application for leave to appeal the decision in DZH21 (No 2). The proposed appeal is devoid of merit. So too is the application for leave to appeal.
2. The applicant needs leave to appeal the primary judge's decision. This is because the decision was an interlocutory judgment. Relevantly, it also dealt with an issue of practice and procedure, being whether an extension of time should be given to allow the applicant to file an application for review of the Tribunal's Decision. As was identified by Yates J in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2023] FCA 707 (at [5]):

Not only is the judgment below an interlocutory judgment, it is one dealing with a matter of practice and procedure involving the exercise of judicial discretion. In relation to such judgments, the consistent practice of the Court in relation to whether the leave to appeal should be granted is to address the two interrelated questions posed in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor Corporation): (a) whether, in all the circumstances, the decision under review is attended with sufficient doubt to warrant it being reconsidered by a Full Court; and (b) whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.

Consideration (1): Was the primary decision attended with sufficient doubt?

1. It is appropriate to first address whether the primary judge's decision is attended with sufficient doubt to warrant the subject matter being reviewed by the Full Court.
2. The grounds cited in the application for leave to appeal from DZH21 (No 2) were as follows:

Grounds of Application

1. The Hon Judge failed to consider that The Tribunal decision was effected by jurisdictional error in that the Tribunal failed to correctly apply the law.
2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.

1. Those grounds do not contain particulars from which the Minister might be able to formulate any useful response. In this sense, they are inappropriate and do not sustain a valid application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35].
2. In any event, the primary judge's decision was self-evidently correct. The Delegate's Decision was a "Part 7-reviewable decision" within the meaning of s 411(1)(c) of the Act. By reason of s 412(1)(b) of the Act and reg 4.31(2) of the Regulations, an application for review of any such decision was required to have been given to the Tribunal within the "period prescribed", being a period ending not later than 28 days after the applicant received notification of the decision. The applicant was notified of the Delegate's Decision on the day that it was sent to his "email address for correspondence", being 22 April 2021: ss 66, 494B(5)(b) and 494C(5) of the Act. It follows that the last day on which the applicant could have applied to the Tribunal for review was 19 May 2021. That period had expired when the applicant filed his application for review on 11 August 2021. Once it was established that the application had been filed out of time, the Tribunal held no jurisdiction to deal with it: ERT19 v Minister for Immigration [2020] FCCA 2620 [41], citing Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
3. There is no question that the letter of notification of the Delegate's Decision complied with the requirements of s 66(2)(d)(ii) of the Act. That provision required that the letter state "the time in which the application for review may be made". The letter was sent to the nominated email address of the applicant. Amongst other things, it advised the applicant of his rights of review and clearly stated the time in which he had to apply to the Tribunal for review; namely 28 days. It also expressly noted that the 28-day period was prescribed by law and could not be extended.
4. When the application came on for hearing, the applicant appeared and addressed the Court with the assistance of an interpreter. It was explained to him that his application to the Tribunal was not within the time limit for seeking review and, therefore, the Tribunal possessed no power to undertake any review. Despite that, he asserted that the Court should take into account certain factors which he claimed had prevented him from filing his application with the Tribunal within the permitted timeframe. Those factors included the occurrence of flooding in Queensland, as well as the fact that the applicant was (a) suffering financial difficulties; (b) otherwise engaged in looking for suitable accommodation; (c) unable to secure legal advice; (d) required to move to South Australia to acquire such legal advice; and (e) not then in a position to pay the filing fees that were required. None of these assertions were evidenced in any affidavit or document.
5. Even if such factors had been established by admissible evidence, they would not have had any bearing upon the applicant's prospects of success. Such matters are irrelevant to the objective question of whether the Tribunal had jurisdiction to review the Delegate's Decision. Given the applicant had been validly notified of the decision, the only relevant question was this: had the applicant provided, to the Tribunal, an application for review of the Delegate's Decision by 19 May 2021? He had not. There is no provision in the Act or the Regulations which permits any extension. The necessary consequence of this is that the Tribunal correctly determined that it did not have jurisdiction in relation to the application for review that was filed 11 August 2021.
6. It follows that the primary judge's decision in DZH21 (No 2) is not attended with the requisite degree of doubt to warrant the subject matter being reviewed by the Full Court.

Consideration (2): Would there be substantial injustice if leave to appeal was refused?

1. It can be accepted that the possibility exists that the applicant might suffer substantial injustice in circumstances where he has an entitlement to a protection visa and has been prevented from agitating his claim before the Tribunal. Though none of the parties on this application provided any submissions as to the merits of the Visa Application, even on a cursory consideration of that which the applicant advanced to the Delegate, there is very little likelihood of the applicant securing a better outcome before the Tribunal (assuming that it did have jurisdiction). At best, all that can be said is that the applicant did not demonstrate that he would suffer any substantial prejudice if he were to be prevented from seeking review of the Delegate's Decision.

1. It follows the applicant has not established either of the relevant criterion to warrant the Court exercising its discretion to give leave to appeal from the decision of the primary judge.
2. In those circumstances, the application for leave to appeal should be refused.

1. The Minister is entitled to an order for costs as against the applicant. He asks that an order be made in the amount of $4,000.00. There is no doubt about the breadth of the Court's discretion with respect to costs: Ali v Minister for Home Affairs [2019] FCA 1102: nor as to its ability to fix costs in appropriate cases: Costs Practice Note, GPN-COSTS (25 October 2016) [3.1], [3.5]; BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 [29] - [30].
2. Here, it is appropriate to fix the order for costs as sought by the Minister. The amount sought is less than the amount that can be claimed in a Short Form Bill for an application involving a migration decision that has been dismissed: see Schedule 3, Item 15 of the Federal Court Rules 2011 (Cth). It is also, may it be added, reasonable and proportionate to the nature of the case.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.