ENI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 405

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order 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 is an application for extension of time in which to seek judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal). That decision affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Protection (Class XA) visa (visa).

1. The following background is taken from the first respondent's written submissions and the Court Book. Unless otherwise indicated, it is not in dispute.
2. The applicant is a citizen of Malaysia. On 17 May 2017, the applicant applied for the visa on the basis that he feared harm if he returned to Malaysia because he is homosexual. The applicant's alleged partner, (T), also made a protection visa application.
3. On 1 August 2016, a delegate of the Minister refused to grant the applicant a visa (CB 10). T's application was also refused. The applicant and T made a joint application to the Tribunal for review of their respective visa refusal decisions (CB 123). The Tribunal invited the applicant to appear before it in relation to his review (CB 129). T was also invited to attend the hearing.
4. Neither the applicant, nor T, appeared at the scheduled hearing.
5. On 30 May 2017, the Tribunal decided to proceed pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) (Act) to make a decision on the review, without taking any further action to allow or enable the applicant to appear before it (CB 135). The Tribunal, in its decision also dealt with T's review application, and also decided to proceed pursuant to s 426A(1A)(a) of the Act in respect thereof. On the material before it, the Tribunal concluded that neither the applicant nor T met the requirements either of ss 36(2)(a) or 36(2)(aa) of the Act. The Tribunal affirmed the decisions under review.

1. Pursuant to s 477(2) of the Act, an application to this Court seeking judicial review was required to have been made within 35 days of the date of the Tribunal's decision. By reference to the Tribunal's decision dated 30 May 2017, any application to this Court was required to have been made by 4 July 2017. Accordingly, the application to this Court made on 31 August 2018 is 423 days (or 1 year, 1 month and 27 days) out of time.
2. Upon their commencement, the proceedings were initially docketed to another Judge of the Court (first primary Judge). On 24 September 2018, a Registrar of the Court made orders (by consent) for the preparation of the proceedings for hearing. The applicant was granted leave to file any amended application by 5 November 2018. The proceedings were next to be listed for callover before the first primary Judge at a time to be fixed. The proceedings were later placed in the central migration docket. On 14 September 2023, the proceedings were called over (by telephone) before a Registrar of the Court. The applicant failed to attend that callover yet, despite that failure to appear and for reasons which are not clear to me, orders were made that the proceedings be listed for directions on a date to be fixed. On 12 March 2024, the proceedings came before the same Registrar of the Court. On that occasion the applicant did appear, with the assistance of an interpreter in the Malay language. Directions were made that the proceedings be listed for hearing of the application for extension of time on a date to be fixed.
3. On 30 August 2024, the proceedings were docketed to me and I made orders on that date listing them for hearing before me on 17 October 2024.[1] The applicant was again granted leave to file an amended application by 3 October 2024. The applicant and first respondent were directed to file written submissions 14 and 7 days before the hearing (respectively). The first respondent complied with that order. Other than his originating application and Affidavit filed in support, the applicant has not filed any additional documents in these proceedings since their inception, in time, or at all.
4. The parties appeared before me for hearing on 17 October 2024. The applicant was unrepresented and assisted by an interpreter in the Malay language (albeit he mostly preferred to address the Court in English). The first respondent was represented by Counsel.
5. The Court did not receive the Affidavit filed in support of the originating application as it served only to annex the Tribunal's decision, which was already in the Court Book. The Affidavit otherwise sought only to reiterate that the applicant's protection claims were true. As was explained to the applicant at hearing, assessment of the protection claims is not a part of the Court's task in judicial review.
6. The Court Book was tendered by the first respondent and marked Exhibit "1R". The first respondent read the Affidavit of Kym Andrew Fraser affirmed 2 October 2024 (Fraser Affidavit) without objection.
7. The applicant was not required for cross-examination about his explanation as to why the proceedings were not commenced in time.

1. The application to this Court is made by the applicant only. There is no application before the Court made by T. The evidence before the Court indicated that T had departed Australia and did not currently hold a visa that would permit him lawfully to return to Australia.[2] At hearing the applicant informed the Court that T had passed away since leaving Australia.
2. By his application, the applicant includes the following grounds of application for extension of time (errors in original):
   1. I was not aware of time limit of the judicial review. I was represented by any solicitor.
   2. I believe I have a genuine ground to appeal because I was not given opportunity to provide information before the Tribunal member.

1. While there are no further prescribed factors, or mandatory considerations for the Court to take into account when considering whether to extend time under s 477(2) of the Act, the matters to which the Court will ordinarily have regard include:

(a) the length of the delay;

(b) whether the applicant has an adequate explanation for the delay;

(c) whether the respondent would face any prejudice if an extension of time were granted; and

(d) the merits of the proposed substantive application: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa) at [12], [17] to [19] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ and [39] to [40] and [49] per Gordon, Edelman and Steward JJ.

1. In the present case the aforementioned factors do arise.

1. By his written submissions, the first respondent described the delay as being "_very significan_t", albeit this description might be tempered somewhat by the fact it was given in respect of a delay erroneously said to be in excess of 2 years.[3] However, I agree that the period of delay being more than a year out of time is one in respect of which a persuasive explanation must be provided, having regard to the principle that the longer the delay, the more persuasive the explanation for it needs to be: see Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J.
2. The length of delay is considerable and weighs against time being extended.

1. The applicant's explanation for delay is not given by Affidavit, but rather in the terms set out at [15] above. The applicant has provided no other explanation for the considerable delay in commencing these proceedings.
2. At hearing, the Court asked the applicant about his explanation for the delay. After some considerable exchange about the email addresses the applicant was using around the time of the Tribunal's decision, he ultimately confirmed that he did receive the Tribunal's decision at the time it was notified to him, but that it was not until sometime in 2018 that he opened the email which attached it. The applicant told the Court that the main reason he had not made his application in time was that he did not have the money to pay for a lawyer and that it was "very hard to get money and pay to lawyer to fix this case".[4]
3. The first respondent says that, absent a satisfactory explanation when balanced with that explanation, the delay warrants refusal in and of itself, citing SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [5] to [6], in which Flick J said that ignorance of time limits for judicial review is generally not a satisfactory explanation for failing to comply with them: see also SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J.
4. I am not prepared to dismiss the application by reference to the length of delay and the explanation, in and of themselves. However, in this case I agree that if the explanation turns on a failure to inform himself of the existence of a time limit and its parameters, it is not persuasive.
5. If, as later advanced at hearing, the applicant's explanation is that he could not afford a lawyer, that is also not persuasive. While the Court can accept that the applicant had limited funds such that he may not have been able to engage a lawyer, that was not a precondition to the making of an application to the Court in time. When he ultimately did apply, he did so as an unrepresented litigant. Accordingly, I am not satisfied that the applicant's inability to obtain legal representation satisfactorily explains the delay.
6. The Court is of the view that the most likely explanation for why the applicant failed to file in time was that he simply did not open and read the Tribunal's decision in a timely way (see [21] above). I am satisfied on the material in the Court Book that the Tribunal's decision was properly notified to him. However, as the applicant candidly told the Court, he did not read the decision until 2018. The applicant's failure to inform himself of the outcome of the Tribunal proceedings in circumstances where the decision was notified to him at the email address given by him in connection with the review, was a matter within his control and responsibility. It is also not a persuasive explanation for the delay.
7. Overall, this consideration also weighs against time being extended.

1. In terms of prejudice to the applicant, if the application to extend time was refused, these proceedings would ultimately be at an end, which would have potentially significant effects on the applicant's present and future migration status. Aside from the interests of the finality in public decision making,[5] and any costs incurred, there is no specific prejudice to the first respondent if the substantive application were to proceed by reason of time being extended. While this might be seen to weigh in favour of time being extended, a substantive assessment of prejudice first requires that consideration be given to the merits of the application. That is because, if the application lacks a reasonable prospect of success, the degree of prejudice may shift.

1. Having not availed himself of several opportunities to provide an amended application in these proceedings, if time were to be extended, the applicant seeks to raise the following grounds of review (errors in original):
   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia.

1. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

1. By ground 1, the applicant seeks to allege that the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act. When asked to speak to this ground at hearing[6] the applicant told the Court that he disagreed with the Tribunal's decision because it did not accept that that his claim to fear harm was genuine.
2. By his written submissions the first respondent said that the ground was "unexplained", that the Tribunal did properly apply s 36(2)(aa) of the Act, and expressly referred to the definition of "significant harm" in s 36(2A) at [4] of its reasons for decision. The first respondent said that the Tribunal's finding that s 36(2)(aa) was not met was open to it on the available evidence. I agree.
3. In circumstances where the applicant's central complaint arising from ground 1 is, by his own admission, that the Tribunal did not accept his claims, I am not satisfied that, even taken at an impressionistic level, the ground enjoys a reasonable prospect of success such that it would warrant time being extended in order to consider it at a final hearing.
4. The second ground alleges that the Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act. When asked to address the ground at hearing,[7] the applicant initially made submissions about having attended before the Tribunal. Given that the applicant did not attend, this was then clarified as being a reference to the applicant's interaction with the delegate. The Court explained that it does not have jurisdiction in respect of the delegate's decision, being a primary decision for the purposes of s 476(2)(a) of the Act.
5. The applicant then confirmed that the complaint in ground 2 is essentially the same as in ground 1, namely that the Tribunal did not accept his claims. By his written submissions, the first respondent observed that ground 2 is both unparticularised and unclear. The first respondent says the Tribunal made clear findings that it was not satisfied of the fundamental proposition underpinning the applicant's protection claims, namely, that he was homosexual and/or in a homosexual relationship.
6. I accept the submissions of the first respondent that the Tribunal made these findings having plainly had regard to (and properly applied) the Act. As such, taken at its highest (and not merely an attempt at merits review) I am not satisfied that ground 2 is sufficiently arguable such that time should be extended for its consideration on a final basis.
7. Based on an impressionistic assessment, the grounds of review proposed by the application for extension of time lack a sufficient degree of merit. This weighs against time being extended.

1. In his capacity as a model litigant, the first respondent identified for the benefit of the applicant and the Court that these proceedings may potentially be affected by the recent decision of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17) per Horan J.[8]
2. In DNK17 (supra), the Court found the Tribunal acted outside the bounds of legal reasonableness in exercising its discretion to make a decision on the review under

s 426A(1A)(a), as opposed to exercising its power to dismiss the application under

s 426A(1A)(b). In DNK17 (supra), Horan J found that the reasons given by the Tribunal did not address or explain why the Tribunal had considered it appropriate, in the exercise of its discretion, to make a decision on the review instead of dismissing the application with a (limited) right to seek its reinstatement. 3. Whether the Tribunal exercise its discretion in a legally reasonable way is a fact-sensitive exercise for this Court and, in DNK17, turned upon inferences drawn by the Court from the Tribunal's reasons for decision: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [84] per Nettle and Gordon JJ). I accept the submission of the first respondent that DNK17 does not demand a conclusion that the Tribunal's decision is affected by jurisdictional error. 4. In DNK17, the appellant sought (and was granted) two adjournments of his Tribunal hearing on medical bases, evidence of which had been provided to the Tribunal to ground the requests. Shortly before the third-scheduled hearing, the appellant made a "last-minute" request of the Tribunal that it again adjourn the hearing. The Tribunal declined to do so, and proceeded to a decision pursuant to s 426A(1A)(a). In DNK17 at [102], the Court said that two factual questions arose in the matter:

First, did the Tribunal in fact consider whether or not to exercise the power conferred by s 426A (1A)(b)? Secondly, if the Tribunal did consider the exercise of the power to dismiss the application under s 426A (1A)(b), why did it decline to exercise that power? An unreasonable failure to consider the exercise of the dismissal power, or an unreasonable decision not to exercise that power, would be susceptible to challenge by way of judicial review.

1. The first question was answered affirmatively on the basis that:[9]

there was no requirement to provide reasons for deciding not to dismiss (or, perhaps, not deciding to dismiss) the application under that provision.

1. However, the Court answered the second question by concluding that the Tribunal unreasonably failed to consider the exercise of the dismissal power under s 426A(1A)(b). His Honour held that it could be inferred that the Tribunal's reasons for not utilising the dismissal power were:[10]

similar to, if not the same as, the reasons given for refusing the adjournment request and making a decision on the review under s 426A(1A)(a). The difficulty, however, is that those reasons do not provide any intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b), rather than making a decision on the review.

1. Relevantly, Horan J identified factual features of the case that were critical to his conclusion that the Tribunal had failed reasonably to decide to proceed pursuant to s 426A(1A)(a) rather than (1A)(b).[11] By reference to the appellant's repeated adjournment requests, his Honour found that it was:[12]

not unlikely that the appellant would have applied for the reinstatement of the application if it had been dismissed under s 426A(1A)(b), which would have given the appellant a further and final opportunity to provide additional information in support of his claims.

1. The first respondent submits that no such conclusion could reasonably be drawn in the present case by reference to the information the Tribunal possessed at the time of its decision. I agree.
2. The instant Tribunal recorded the following in its reasons for decision at [4] (CB 136):

However, the applicants did not complete and return the Response to Hearing Invitation form provided with the invitation. The Tribunal sent SMS reminder messages to the applicants on 22 May and 26 May 2017. No response was received.

1. In DNK17, the appellant was engaged in prosecuting his review (at least to the extent that he was in contact with the Tribunal for the purposes of seeking to adjourn his hearing). I accept the first respondent's characterisation that the present applicant did not, by contrast, engage at all with the Tribunal. As such, the instant Tribunal's decision to proceed to make a decision pursuant to s 426A(1A)(a) was not, an outcome that "can be characterised as one that no reasonable decision-maker would have reached".[13]
2. It was open to the Tribunal in the present case to proceed under s 426A(1A)(a) by reason of the applicant's lack of response to its attempts to contact him, and there is nothing on the material before me which would lead me to infer, for the purposes of assessing whether there is an arguable DNK17-type error that the Tribunal failed to consider whether it should proceed under s 426A(1A)(b). Nor did the Tribunal's decision in this case lack an evident and intelligible justification.
3. The first respondent is to be commended for raising, as a potential basis for error which may warrant time being extended, the decision of DNK17. However, for the foregoing reasons, even on an impressionistic level I am not satisfied that such an argument enjoys a reasonable prospect of success that time should be extended in order that it can be considered on a final basis.

1. The period of delay is significant and not reasonably explained. The proposed grounds of review lack sufficient merit to warrant their consideration at final hearing and, even on an impressionistic level, the additional issue raised by the first respondent is also not a matter which is sufficiently arguable that time should be extended. Each of those matters weighs against the exercise of the Court's discretion. In those circumstances, the question of prejudice also shifts against the extension of time.
2. For the foregoing reasons, I am not satisfied that it is necessary in the interests of the administration of justice to make an order under s 477(2) of the Act. Accordingly, the application will be dismissed.
3. I will hear the parties as to costs.

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

[1] Due to an administrative error the orders were expressed as listing the proceedings for a final hearing, which error was corrected by orders made on 5 September 2024. There having been no order made pursuant to s477 of the Act, the effect of order 1 made on 30 August 2024 did not have the effect of extending time.

[2] Fraser Affidavit and Annexure "KAF-1" thereto

[3] First respondent's written submissions filed 9 October 2024 at [2] and [12]

[4] Transcript dated 17 October 2024 at T06.12

[5] Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 481 at [15] to [17] per McHugh J

[6] With the Court insisting that the interpreter be utilised in order that the grounds could be properly understood (see [10] above)

[7] Again, the Court having had the ground interpreted to the applicant.

[8] As a matter of formality, the first respondent also submitted that if the Court was sufficiently satisfied that time should be extended because of a potential DNK17 error and was ultimately satisfied at final hearing that the present case was affected by that error, the first respondent contends that DNK17 is wrongly decided.

[9] DNK17 (supra) at [103] per Horan J

[10] DNK17 (supra) at [105] per Horan J

[11] DNK17 (supra) at [107] per Horan J

[13] DNK17 (supra) at [108] per Horan J