ENS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 530

1. On 20 March 2017, the Tribunal delivered written reasons in which it affirmed the delegate's decision to refuse to grant the applicant the visa (Decision) (CB 66-76).
2. The Tribunal identified the primary criteria for the grant of a protection visa as set out in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). It acknowledged that an applicant must be either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class (s 36(2) of the Act) (CB 67 [5]-[6]).
3. The Tribunal considered the meaning of a 'refugee' in accordance with ss 5H(1)(a) and 5H(1)(b) of the Act and considered the meaning of a well-founded fear of persecution under ss 5J(1), 5J(2)-(6) and 5K-LA of the Act (CB 67 [7]-[8]).
4. The Tribunal correctly identified that under Ministerial Direction No. 56 made under s 499 of the Act, the Tribunal must take into account the policy guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (CB 68 [10]).
5. The Tribunal considered the background to the application for review and the applicant's immigration history (CB 68 [12]-[16]). It considered the claims contained in the applicant's application for the visa, namely that the economic situation in Malaysia was "acute" which resulted in political rebellion and protests to oppose the government, of which the applicant participated in. The applicant claimed that the economic circumstances caused him to struggle with the cost of living and finding employment. The Tribunal considered the applicant's claims that the Malaysian authorities will arrest and imprison those who protest against the government and that if the applicant returned to Malaysia, the authorities would find him and imprison him (CB 68-9 [17]).
6. The Tribunal acknowledged that on 20 February 2017, the Tribunal invited the applicant by email to attend a scheduled hearing to provide evidence and present arguments relating to his claims for protection. It confirmed that two SMS hearing reminders were sent to the mobile number provided by the applicant on 9 and 16 March 2017, noting that the delivery of those messages failed. It acknowledged that several attempts were made to contact the applicant by his nominated mobile number since the lodgement of his review application, which is evident from the Tribunal's case notes (CB 69 [21]).
7. The Tribunal was satisfied that the applicant was invited to appear before it as required by s 425 of the Act (CB 69 [22]). The Tribunal noted that an additional two hours was added to the hearing to allow the applicant to appear and present arguments and evidence and to allow for any late requests or submissions for an adjourned hearing (CB 69 [24]). The Tribunal also acknowledged that it waited three days after the scheduled hearing to allow for submissions or a medical certificate regarding the applicant's non-attendance (CB 69 [25]).
8. As neither the applicant nor a representative appeared on his behalf, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it (s 426A(1A)(a) of the Act) (CB 69 [26]).
9. The Tribunal went on to assess the applicant's "poorly articulated as well as unsubstantiated written claims to fearing his return to Malaysia". It acknowledged that the applicant made vague references to his fears of political persecution and imprisonment based on his opposition to the government and participation in protests (CB 70 [28]). As the applicant did not provide any corroborating evidence, testimony or supporting documents, the Tribunal acknowledged it would have explored his claims and sought further information on details relevant to the applicant's claims, had he attended the hearing (CB 70 [30]-[31]). The Tribunal would have sought clarification as to what protest/s the applicant was involved in and when and where they were held, as well as its prominent leaders and the goals of the movement. The Tribunal stated that it would have asked why the applicant did not mention the campaigns about electoral reform in his application for the visa, as these were central to his claimed fears in not returning to Malaysia (CB 70 [32]).
10. The Tribunal noted that it would have made further inquiries of the applicant, including how he discovered he was a person of interest for the authorities due to his political opinion and if he was directly attacked during a rally or protest (CB 71 [33]). The Tribunal would have asked the applicant about country information available to the Tribunal (CB 71 [34]):

[34]...including from the most recent Department of Foreign Affairs & Trade (DFAT) report on Malaysia from 19 July 2016. It would have put to the applicant that DFAT assesses that protesters face a low risk of arrest when engaged in political rallies. Such individuals have commonly been released on bail shortly following their arrest. High-profile organisers of political rallies face a moderate risk of official discrimination and could be charged under the Peaceful Assembly Act or the Criminal Code. The Tribunal would have asked about the most recent Bersih 4.0 and 5.0 rallies held on August 2015 and November 2016 respectively which had much smaller attendances, which were provided with permits to proceed, and in which authorities had little to no interest in the demonstrators that took part. It would have also requested the applicant to respond to questions about why he did not depart the country earlier given that the last report of tear gas being used at a Bersih by the authorities was in 2011, if it were applicable to his circumstances. Given this country information, it would have asked the applicant whether he would face a real chance or real risk of being harmed, including being arrested, charged, fined or sentenced to prison for any length of time as this country information did not appear supportive of this otherwise weak and poorly expressed written claims, including the specific claims that the government of Malaysia does not tolerate any political dissent or would have chased him all over his country of reference

1. The Tribunal also noted that it would have asked the applicant for considerably more information about the economic situation in Malaysia and the reasons that compelled him to protest against the government (CB 71 [35]).
2. At paragraph [36] of the Decision, the Tribunal made the following findings (CB 72 [36]):

[36] This country information does not indicate to the Tribunals that the economic situation is acute in Malaysia as vaguely claimed by the applicant. Had the applicant attended the scheduled hearing, it would have provided him the opportunity to comment upon such information and elaborate how the economy has or will negatively impact upon him; whether the harm regarding the economic situation in the context of his own personal circumstances would amount to serious harm as outlined in s.91R(2) or significant harm as outlined in s.36(2A). However, the applicant neither attended n or provided country information regarding the economic situation in his country.

1. The Tribunal found that, although the applicant did not claim that he would be persecuted based on his ethnicity, country information indicated that as an ethnic Malay, the applicant would have benefited from Malaysia's bumiputera policies. It noted that had the applicant appeared at the scheduled hearing, it would have inquired as to whether the applicant had any other fears of persecution or significant harm if he was to return to Malaysia (CB 72 [37]).
2. The Tribunal found that the applicant's non-attendance strongly indicated there was "no basis for the applicant's claimed fears of political or any other persecution for the reasons outlined in s 5J(1)(a)" of the Act (CB 72 [38]).
3. The Tribunal concluded that the applicant would not be denied effective protection measures by the relevant State, party or organisation in Malaysia and therefore did not satisfy ss 5J(2) and 5LA of the Act. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act (CB 72-3 [40]). It also considered whether the applicant met the complementary protection criterion under s 36(2)(aa) of the Act (CB 72 [41]).
4. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm of any kind as required by s 36(2)(aa) of the Act (CB 73 [42]). It was not satisfied that the applicant was a person in respect of whom Australia has protection obligations, and therefore did not meet the criterion set out in ss 36(2)(a) or 36(2)(aa) of the Act (CB 73 [43]-[44]).

1. On 3 September 2018, the applicant filed an application for judicial review in this Court. The application contained the following grounds of review (verbatim):
   1. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal) which a decision was made on 20th March 2017 where the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Protection Subclass 866 Visa.
   2. The tribunal constructively failed to exercise its jurisdiction.
   3. PARTICULARS
   4. The applicant applied to the Department of Immigration and Citizenship for a Protection subclass 866 visa on. The delegate refused him. He appealed to the Administrative Appeals Tribunal. The visa was affirmed on the 20th March 2017.
   5. The applicant did not receive letters inviting him to attend a tribunal hearing and the tribunal made a decision affirming the decision of the delegate.
   6. The applicant was represented by an agent and was not advised of his invitation to attend hearing. The applicant was also not advised of his refusal.
   7. The tribunal has made errors in administration and has not determined the case according to law.
   8. The tribunal failed to give the applicant an opportunity to state his case. The tribunal therefore failed to exercise its jurisdiction according to law.
   9. The applicant was not advised that he could appeal the decision to the Federal Circuit Court and applied for Ministerial Intervention but now wishes to put his case the court for determination according to law.
2. The application for judicial review was also supported by an affidavit of the applicant affirmed 3 September 2018 which set out the following (verbatim):
   1. I am the applicant herein.
   2. I applied for a Protection subclass 866 visa. I was refused a protection visa by the delegate and appealed to the Administrative Appeals Tribunal.
   3. At that time I was represented by an agent. I was constantly asking them for update however they advised they had not received any correspondence.
   4. I was not invited to attend a hearing and was not given a copy of my decision.
   5. I did not attend a hearing and the tribunal member affirmed the decision without my evidence being heard or an opportunity for me to respond to any information.
   6. I believe I was not provided with natural justice as the tribunal made no attempts to contact me.
   7. I approached Sabelberg Morcos lawyers who lodged a freedom of information request and was advised a decision has been made and receive a copy of my decision for me. This is what lead to my application being out of time and I was unaware a decision had been made.
   8. A copy of the Administrative appeals Tribunal decision record is annexed herto and marked "annexure A"
3. On 13 March 2020, the applicant filed an amended application which set out the following grounds of review (verbatim):
   1. THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY AFFIRMING NOT TO GRANT ME A PROTECTION VISA ON 20 MARCH 2017 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS. I WAS REPRESENTED BY AN AGENT AND WAS NOT ADVISED ABOUT THE INVITATION FOR HEARING.
   2. I WAS TOTALLY UNAWARE ABOUT THE HEARING AND THAT THE RESULT WILL BE DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION. THE REPRESENTATIVE THAT I SEEK ASSISTANCE DID NOT CONTACT AND COULD NOT BE CONTACTED AFTER THAT.
   3. THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.
   4. ACCORDING TO MIGRATIO ACT 1958 - SECT 414, THE TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
   5. I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUEMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.
   6. THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID'NT GET THE RIGHTS TO PRESENT MY ARGUEMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
   7. I SEEK THE COURT FOR JUDICIAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
4. The application for an extension of time under s 477(2) of the Act was listed for hearing before this Court at Melbourne on 25 March 2025. The applicant appeared self-represented and was assisted by an interpreter fluent in the Malay and English languages.
5. Mr Barrington of Counsel appeared on behalf of the Minister.
6. At the hearing, the Court confirmed that the applicant received a copy of the Court Book dated 15 April 2020, Supplementary Court Book dated 25 February 2025 and outline of written submissions dated 25 February 2025 prepared on behalf of the Minister.
7. Noting that the applicant was unrepresented, the Court gave the applicant the opportunity to elaborate on why the application for judicial review was filed 497 days out of time and why it was in the interests of the administration of justice to extend time.

APPLICANT'S TIMELINE AND SUBMISSION - ADMISSABILITY

1. The applicant sought to tender a document which in effect contained written submissions and a timeline of events. The document annexed extracts from the Court Book, including the Tribunal Case Notes (SCB 6-7), the review application form (CB 55-6), as well as email correspondence between the applicant and his then lawyer. The document was not filed in accordance with the pre-hearing orders made by a Registrar of the Court.
2. On behalf of the Minister, Mr Barrington objected to the tender of certain parts of the document on the grounds of relevance. There was no objection to paragraphs one to six of the document, but Mr Barrington objected to paragraphs seven and eight which appeared to raise new claims for protection. The objection was that these claims were not relevant to the Court's task of considering whether to extend time or to the merits of the application for judicial review.
3. Mr Barrington also opposed the Court considering as relevant evidence the screenshots of the email correspondence between the applicant and his then lawyers in 2019 and 2021. This correspondence did not appear to relate to any explanation as to the delay in filing the application and was therefore irrelevant, particularly as it also post-dated the Decision and the filing of the application for judicial review on 3 September 2018. Those documents did not provide an explanation for the delay in commencing the application and were irrelevant to the Court's jurisdiction and discretion to extend time.
4. The Court allowed the applicant to tender the timeline and documents annexed which was admitted as evidence and marked exhibit "A1", noting that the screenshots of the correspondence with the applicant's lawyer and the new claims raised in paragraphs seven and eight of the timeline would not have any probative value to the application before the Court.

1. The applicant submitted that he did not receive any emails or SMS notifications from the Tribunal inviting him to attend the hearing on 20 February 2017. He referred to paragraph [21] of the Decision where the Tribunal recorded that two SMS hearing reminders sent to his mobile phone number on 9 and 16 March 2017 had "failed" (CB 69 [21]).
2. He further submitted that on 30 March 2017, he went to the "immigration counter" and was advised that the hearing invitation was sent at the postal address provided in his review application, located in Rochester, Victoria and not by email. He submitted that the Tribunal made a misleading statement on the review application form which read, "Note: Electronic communication is the department's preferred method of communication" (CB 17). If that was so, the applicant rhetorically queried why the Tribunal sent the invitation letter by post.
3. The applicant informed the Court that from January 2017, he was working in Boneo on the Mornington Peninsula and was provided with accommodation by his employer. He submitted that his employer withheld payment of his wages and he was forced to work 14 to 18 hours a day. The applicant told the Court that he did not receive letters sent to his Rochester address because he was not living there and could not get to Rochester due to the onerous work conditions imposed by his employer.
4. The applicant submitted that on 5 March 2018, he went to the "immigration office" to seek assistance from the Status Resolution Support Services (SRSS) where an officer at the counter asked for the applicant's passport. The applicant claimed that the officer asked him to sign a form and was advised that if he refused to do so, the applicant would be "sent back to Malaysia immediately". The officer then told the applicant that if he signed the form, he would receive a Bridging Visa E and would need to return to Malaysia within two weeks' time. He told the Court that he was deceived into signing the form without informed consent. The relevance of this submission was not immediately apparent.
5. The applicant went on to say that in September 2018, he engaged legal representation to assist him with his application. He was advised by his then lawyer that had the applicant not signed the form at the immigration office, he may have been eligible for a Bridging Visa A. The applicant was advised that his lawyer would "handle everything from A to Z", however, despite numerous attempts to contact the lawyer, he did not receive any updates on his application and "did not know what to do".
6. The Court directed the applicant to the Tribunal's hearing invitation dated 20 February 2017 and inquired when the applicant first became aware of the Decision (CB 61). In response, the applicant told the Court "I got to know when I checked my VIVO and my visa was expired...I'm not sure the exact time but it was within 28 days...somewhere in the month of March or April".
7. The Court sought further information from the applicant about his visit to the Tribunal to inquire about his application. The applicant responded, "I never went to the Tribunal...on 30 March 2017 I went to the immigration counter".
8. The Court informed the applicant that it was not until 3 September 2018 that the application for judicial review was filed in this Court. The Court queried why it took the applicant 18 months from the date of the Decision to commence the application, to which the applicant said, "at the time, I did not know what I can do, I was very lost...I asked my friends regarding this visa, they advised me to go to SRSS".
9. The Court explained why the Tribunal affirmed the delegate's decision to refuse to grant the visa, one of those reasons being that the political circumstances in Malaysia had changed. The Court asked the applicant why the Decision was wrong, to which the applicant replied, "I attended a few rallies in Malaysia. I was paid by officers associated with certain political figures. My image was taken and shared by journalists and I was identified by the Royal Malaysian Police...which is one of the reasons why I cannot go back to Malaysia".
10. The applicant went on to say that after being identified by the Malaysian authorities, he fled his home and temporarily lived with a friend. He then submitted that people from the other political party discovered his whereabouts and "planned to attack us and harm us...we were beaten badly and warned not to go against the party again...that place...political parties were using that place to start riots and unwanted things...they wanted to show the government was not liked by the people...it was not safe for my family...that's why I decided to come to Australia".
11. The applicant also submitted that his situation has now changed and that he is now concerned for the human rights of his 3-year-old daughter if he was forced to return to Malaysia (Exhibit A1 paragraph [8]).
12. The Court informed the applicant that the Tribunal found there was no evidence to substantiate the applicant's claims and therefore, the applicant was not entitled to the visa. The Court again asked why the Decision was wrong and in response the applicant said, "I said it should be sent via email or SMS but I don't understand why they sent it to my address, because of that I was not able to attend the hearing at the given date".
13. The Court asked the applicant what other evidence or documents he would have provided to the Tribunal had he appeared at the hearing before it. The applicant told the Court that he would provide evidence "showing a machete which was used to cut my body and also I was dragged on the street...evidence showing that my family especially my younger sister was assaulted".

1. Counsel referred the Court to EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402 (EDY18) at paragraph [57] where this Court cited Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) in which Wigney J found that the longer the delay in making an application for judicial review, the more persuasive the explanation needs to be (see Tran at [38]). Mr Barrington submitted that here, the delay was substantial and excessive and called for a very persuasive explanation to the Court.
2. Counsel for the Minister then referred the Court to the affidavit of the applicant affirmed 3 September 2018. It was submitted that the explanation that emerged from the affidavit was that the applicant was only made aware of the Decision when he received documents in response to his Freedom of Information request by his then lawyers. This conflicted with the explanation set out in the applicant's amended application and exhibit A1. Based on the grounds in the amended application for judicial review, the Minister presumed that the explanation is now that the applicant did receive the Decision by email when it was made on 20 March 2017, but did not take any steps to seek judicial review. He thereafter attended the Tribunal on 30 March 2017 to inquire about the Decision, which is consistent with the Tribunal's Case Note and the applicant's oral submissions at the hearing before this Court (SCB 6).
3. It was submitted that because the applicant received the Decision on the day that it was sent to him on 20 March 2017, the applicant had the ability to make an application in this Court within the prescribed time frame. Mr Barrington asserted that the applicant has essentially "done nothing" to progress the application until it was filed on 3 September 2018. Rather, the applicant went to the Immigration Department on 5 March 2018 to seek assistance from the SRSS it was after that encounter the applicant sought to set aside the Decision.
4. The applicant's explanation for the delay as set out in his amended application is that he did not have a lawyer and was unaware that he could seek judicial review, and that he was facing financial hardship and was unaware he could seek a filing fee exemption. Mr Barrington submitted that previous cases in this Court and the Federal Court of Australia make clear that ignorance of time limits, financial hardship or lack of legal advice does not constitute a satisfactory reason for the delay (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] (Foster J) (SZSDA); MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25] and DWK17 v Minister for Home Affairs [2019] FCA 66 at [7]- [14]).
5. As to the question of whether the Minister would suffer prejudice if the applicant's extension of time were granted, Counsel took the Court to EDY18 at paragraph [61] in which this Court referred to the findings of Derrington J in WRQJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at paragraphs [40]-[44]. It was submitted that the Minister would not suffer any prejudice if an extension of time were granted, however, it is well established that the absence of such is not, of itself, sufficient to warrant extending time.
6. Turning to the merits of the amended application, Mr Barrington submitted that grounds one, two, five and six are complaints that the Tribunal made the Decision in the applicant's absence and that he was prevented from presenting his claims to the Tribunal. Insofar as these grounds are a complaint about procedural fairness, Counsel submitted that they must be rejected as the requirements of procedural fairness codified in Pt 7 of the Act were complied with. The hearing invitation dated 20 February 2017 complied with s 425A of the Act and provided the applicant with notice of the time, date and place of the hearing more than 14 days before the scheduled hearing. The invitation also contained a statement to the effect of s 426A of the Act, namely that the Tribunal may make a decision on the review without taking any further action to enable the applicant to appear before it (CB 61).
7. Further, at question three of the review application to the Tribunal, the applicant was asked to provide his contact details in Australia and provided his Rochester address and mobile number. At question nine of the review application, the applicant said he did not wish to appoint a representative (CB 52). At question 13 of the review application, the applicant is asked where correspondence regarding his application should be sent, and the applicant again provides the same Rochester address and his email address. Counsel then directed the Court to question 14 therein, where the applicant selected the box agreeing to the Tribunal sending him all correspondence by email, acknowledging the risks involved in transmitting information via email (CB 55).
8. Mr Barrington admitted that there may be some ambiguity arising from the fact that the applicant provided his residential address, email address and mobile number as means for the Tribunal to contact him, however, the applicant did declare in his review application that if he failed to notify the Tribunal of any changes to his contact details, the Tribunal may proceed to make a decision about his case even if it cannot contact him (CB 57). It was submitted that the applicant has the onus of updating the Tribunal as to his new contact details.
9. Therefore, it was within the Tribunal's discretion to determine the method of communication used to contact the applicant and there was no error in sending the invitation letter notifying the applicant of the date of the hearing by post, even in circumstances where the applicant consented to receiving correspondence by email. The Tribunal could choose either mode of communication.
10. Counsel referred the Court to Minister for Immigration and Border Protection v Kim & Another [2014] FCA 390 at [30] per Buchanan J (Kim) which considered a similar issue where the applicant consented to the Department communicating by fax, email or other electronic means. Mr Barrington read paragraphs [27]-[28] of that decision in which Buchanan J observed that the "question which is central to the resolution of the present appeal is whether the Minister retained an effective discretion to choose any of the methods prescribed by s 494B (including delivery by hand) to communicate a visa refusal". His Honour then referred to Singh v Minister for Immigration and Citizenship [2011] FCAFC 27; (2011) 190 FCR 552 (Singh). In that case, the representative of the visa applicant identified both a post office box and street address for communication with the Minister. A notice of cancellation of visa was sent to the representative's post office box and not the preferred street address. On appeal, the Full Court found at paragraph [40] that the visa applicant, having invited the "sending of correspondence to any one of a number of addresses can sensibly be taken to have assumed responsibility for checking his or her mail" and the Minister may exercise the discretion to communication in any of the ways authorised under s 494B of the Act.
11. Counsel then took the Court to Dzhakhanhirova v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 894 (Dzhakhanhirova) at paragraphs [21]-[22] where Rares J referred to both Kim and Singh when finding that the Minister was entitled to send the notification of a visa refusal and Decision Record by either email or post or both where the applicant nominated both modes of communication in her application form.
12. Turning to grounds three and four of the amended application for judicial review, it was submitted that the applicant bares the onus of putting evidence before the Tribunal and that the Tribunal did not have any obligation to make inquiries of the applicant or otherwise investigate the merits of his claims for protection. Further, notification that an application had been received by the Tribunal and had been made "validly" does not mean that the decision under review will be set aside.
13. Mr Barrington submitted that the only relevant claims for protection made by the applicant are to be found in the initial application for the visa (CB 32-3), which did not contain the same claims and details as those now set out in exhibit A1. If the claims for protection are not well founded then the Tribunal was correct to affirm the decision of the delegate to refuse the visa. There was no material jurisdictional error apparent in the Decision.
14. Finally, whilst not raised by the applicant, the Minister observed that the Tribunal elected to decide the application rather than simply dismiss the application for review pursuant to s 426A(1A)(a) of the Act. In DKN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DKN17), Horan J held that it was unreasonable for the Tribunal to exercise its discretion to make a decision on the review pursuant to s 426A(1A)(a) of the Act, as opposed to exercising its discretion to simply dismiss the application under s 426(1A)(b), in circumstances where the Tribunal did not provide reasons why it chose to exercise the power under s 426A(1A)(a) of the Act. Mr Barrington again referred to EDY18 at paragraph [64] where this Court recently examined the complexities arising from DNK17.
15. Counsel submitted that the present matter is distinguishable from DNK17, particularly because the appellant in DNK17 engaged extensively with the Tribunal by seeking adjournments before the review was decided, as well as on the day of the hearing. Here, there was nothing before the Tribunal at the time of the Decision explaining the applicant's non-attendance and indicating that the applicant would seek reinstatement if the Tribunal made a decision under s 426A(1A)(b).
16. Counsel highlighted that the delegate's refusal of the visa was due to the applicant's failure to provide any evidence to substantiate his claims for protection, noting that the applicant did not file any submissions or materials in support of his review application to the Tribunal.
17. Mr Barrington emphasised that the Tribunal made several attempts to contact the applicant and provided him with additional opportunities to seek a late adjournment by waiting three days after the scheduled hearing to deliver its Decision. Simply put, the Tribunal was confronted with an applicant who did not engage with it and did not provide any submissions or materials to assist it.
18. Counsel submitted that if the applicant moved residence then it was his duty to inform the Tribunal. He did not do so and this was a further example of a lack of engagement with the Tribunal and the review process.
19. At the conclusion of the Minister's submissions, Mr Barrington tendered the Court Book and Supplementary Court Book which was admitted as evidence and marked exhibits "R1" and "R2" respectively.

1. To assist the applicant, the Court summarised the Minsiter's submissions including the Minister's position that the applicant had not properly explained the delay in filing his application for judicial review. It invited the applicant to provide any further submissions, however, the applicant could not otherwise assist the Court and made no further submissions in reply.

1. The Court has a broad discretion to grant an extension of time pursuant to s 477(2) of the Act. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 at 348-9 (Hunter Valley)). These considerations provide guidance and consistency in the approach to such applications, however, are not exhaustive considerations that the Court must apply (see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]- [43]). The discretion to extend time in appropriate circumstances is unfettered (see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at paragraph [12] (Tu'uta Katoa)).
2. Other than the "interests of the administration of justice", there are no mandatory relevant considerations (see SZUWX v Minister for Border Protection (2016) 238 FCR 458; [2012] FCAFC 77 at [11]- [12]). The focus of s 477(2) of the Act is not on the interests of the applicant, but the broader interests of the administration of justice. The Court may look at a myriad of facts and circumstances, but the level of satisfaction 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 justice (see Tu'uta Katoa at [12]).

1. In Tran, Wigney J considered an application for an extension of time to bring an application for judicial review that was 18 months out of time. His Honour said at [38]:

[38] The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran's application for an extension of time.

1. In this case, the delay was 532 days. That is a substantial delay that requires a very persuasive explanation. Unfortunately, the explanation given by the applicant is confusing and inconsistent. The explanation is far from satisfactory or persuasive.
2. It now appears that the applicant did in fact receive a copy of the Decision on about 20 March 2017 (Exhibit A1). This was different to the explanation or grounds for extension in the original application for judicial review filed on 3 September 2018. In paragraph seven of the applicant's affidavit affirmed 3 September 2018, the applicant said that he did not receive a copy of the Decision until after he retained a solicitor and that he was not aware that a decision had been made. That is entirely inconsistent with the applicant's current grounds where he says that he was ignorant of his legal rights and was under financial hardship. Neither of which grounds are supported by evidence or affidavit.
3. Generally speaking, a party's financial circumstances or difficulties alone are an insufficient excuse for delay and will not provide a justification for an extension of time (see GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [25] citing QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] and SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]). Here, there is no explanation given of the financial circumstances of the applicant at the time of the Decision or at any time before filing the application for judicial review on 3 September 2018. That ground for an extension has not been made out.
4. In AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176, a Full Court of the Federal Court (Collier, Farrell and Abraham JJ said at paragraphs [44]-[45]:

[44] This Court has previously held that a delay caused by an applicant's attempts to gain legal representation can be a relevant factor where the applicant has provided evidence to that effect, and that delay is not inordinate: see for example Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [45]. That is not the case currently before the Court.

[45] An inability to obtain legal representation is not, of itself, adequate explanation for delay: GOK18 at [25]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31]; Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516 at [41]- [44]; BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31].

1. The absence of legal representation for the period from 20 March 2017 until 8 September 2018 is not explained by the applicant. There is no evidence of attempts to obtain a lawyer or that the applicant was unable to obtain representation due to his financial circumstances.
2. In SZSDA, Foster J said at paragraph [38]:

[38] In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.

1. Given the length of the delay, the onus was on the applicant to provide a credible and persuasive explanation of why an extension of time was necessary in the interest of the administration of justice. The applicant has not done so. This alone is a reason to dismiss the application for an extension of time.

1. There was no prejudice that was claimed to be suffered by the Minister but that is not conclusive (see Hunter Valley at 349 per Wilcox J and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (SZTRY)). There is an overarching public interest in the timely resolution of disputes and the need for procedural certainty when dealing with applications, especially in administrative law matters. In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, in relation to a delay of 26 months, Derrington J observed at paragraphs [40]-[44]:

[40] The Minister acknowledged that he would not suffer any specific prejudice if an extension of time were to be granted in this particular case. However, it is well established that the absence of such prejudice is not, of itself, sufficient to warrant extending time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].

[41] There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

[42] More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 [62].

[43] In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister's legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal's decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.

[44] The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.

1. When coupled with the significant delay, the general prejudice to the timely administration of justice is also a persuasive reason not to grant an extension of time in this case.

1. The grounds for judicial review identified in the amended application filed 13 March 2020 do not disclose any material jurisdictional error by the Tribunal in making the Decision.
2. In ground one of the amended application, the applicant claims that he was not aware of the invitation to attend a hearing before the Tribunal. He says that he was not informed by his agent of the hearing. However, no agent was recorded as acting for the applicant at the time of the invitation letter from the Tribunal (CB 61-2). The Tribunal sent the invitation letter to the applicant by post on 20 February 2017 to one of the addresses given for contact details in the application for review to the Tribunal (CB 53, 55). Counsel for the Minister referred to three authorities that conclude that the Tribunal and the Minister may elect to adopt any of the modes of delivery identified in s 441A of the Act (see Kim, Singh and Dzhakhanhirova cited above).
3. There was no failure by the Tribunal to give proper notice to the applicant of the hearing date and the Tribunal was entitled to assume that the applicant would check whether he received mail at his nominated contact address (see Singh at [40]).
4. There was no obligation on the Tribunal to permit the applicant to reinstate the application for review after the Decision (Ground two). Section 430(2A) of the Act prohibits the Tribunal from varying or revoking a decision after it is made. The Tribunal has limited power to recall a decision if there is an obvious jurisdictional error (see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [53] (Bhardwaj)). However, no obvious error of the kind recognised by the Court in Bhardwaj was apparent in this case. The Tribunal's conclusion that it did not have jurisdiction to entertain a further application was correct (CB 80-1).
5. In ground three, the applicant says that the Tribunal failed to properly consider his application for protection. He claims that both the delegate of the Minister and the Tribunal "acknowledged" that he lodged valid applications. This is a reference to the delegate's decision (CB 42) and the letter of acknowledgment sent to the applicant by the Tribunal on 12 May 2016 (CB 59-60), which was sent by post to the applicant's residential address. An acknowledgment that an application has been validly made or received does not mean that the applicant has satisfied the criteria necessary for the grant of a visa. An acknowledgment of receipt of an application to the Tribunal does not discharge the obligation of the Tribunal to review the delegate's decision and consider the information before it. This is not a ground for judicial review, nor does it disclose jurisdictional error by the Tribunal in making the Decision.
6. Ground four is a general assertion that the Tribunal did not make a decision in accordance with the Act. The applicant does not identify the nature of the Tribunal's error, or the part of the Act the Tribunal failed to apply or consider. No jurisdictional error is disclosed, and the Decision does not reveal a failure to consider any material fact or question of law. The Tribunal considered the applicant's claims for protection in his absence when he failed to appear at the scheduled hearing. It did so on the available evidence as it was entitled to under s 426A(1A)(a) of the Act. This ground does not establish jurisdictional error.
7. Grounds five and six are assertions of a lack of procedural fairness for making a decision in the applicant's absence. However, for the reasons explained above, the Tribunal did comply with the statutory obligations to give proper and adequate notice of the hearing to the applicant (ss 425 and 425A of the Act). It did so by giving notice by post pursuant to s 441A(4) of the Act. There was no denial of procedural fairness to the applicant.
8. Ground seven is a general claim for judicial review of the Decision. It is not a ground of review that discloses any particular error. The Court has scrutinised the Decision, the Court Book and the evidence available to the Tribunal when making the Decision. No jurisdictional error is apparent and for the reasons that follow, this is not a case where the Tribunal acted unreasonably in the circumstances such as occurred in DNK17.

1. The only potentially arguable ground of review that may assist the applicant to establish that it is necessary and in the interests of the administration of justice to grant an extension of time, is that the Decision was unreasonable for the reasons articulated by Justice Horan in DNK17. The Minister, as a model litigant, was correct to raise that ground as a relevant consideration for the Court. However, for the reasons articulated by the solicitor for the Minister, each case must be considered on its own facts and there are distinguishing facts in this case from those in DNK17, the most significant of which was the lack of engagement by the applicant with the Tribunal regarding his application for review.
2. In DNK17, the applicant did not appear at the scheduled hearing before the Tribunal, however before the hearing, the applicant made two requests for an adjournment, both of which had been granted and a third request that was denied and notified on the morning of the hearing. There was a clear attempt by the applicant to engage with the Tribunal and a clearly expressed desire to be heard.
3. In this proceeding, the applicant did not engage with the Tribunal at all and did not respond to the invitation to attend or complete the 'Response to hearing invitation' form. There was no attempt to supplement the evidence upon which the delegate made the decision to refuse the visa, and no new argument or submission made to explain the claims for protection.
4. DNK17 does not stand for the general proposition that it will always be unreasonable for the Tribunal to elect to make a decision on the review pursuant to s 426A(1A)(a) when an applicant fails to appear at a hearing. There would be no statutory purpose for that section of the Act if, in all circumstances, it was unreasonable for the Tribunal to exercise the power conferred. There is nothing in the reasoning in DNK17 to suggest that the power to decide rather than dismiss should not be exercised in appropriate cases.
5. The determinative issue in DNK17 was that the reasons of the Tribunal did not provide "an intelligible justification for deciding not to dismiss the application pursuant to s 426A(1A)(b) rather than making a decision on the review" (see DNK17 at [105]). In the present case, paragraphs [21]-[26] of the Decision explained the Tribunal's reasons for electing to decide rather than dismiss. The Tribunal did not give reasons as to why it did not consider dismissal under s 426A(1A)(b) as appropriate, but that was not unreasonable in this case. As Judge Symons found in Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091 at paragraph [54], "the narrative that underscored the Tribunal's approach was that the applicant having notice of the hearing, having been advised of the consequences of a failure to appear, and having failed to appear or respond to the hearing invitation, was unlikely to take up any further opportunity to engage with the Tribunal or the review process. This narrative provided a rational justification for the decision of the Tribunal".
6. Similarly in EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 173 (EEV18) and DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38 (DDF18) Judge Gostencnik found that the Tribunal's reasoning, albeit cursory, was sufficient in those cases and provided intelligible justification for the decision to proceed to decide under s 426A(1A)(a) rather than dismiss under s 426A(1A)(b). In both cases, the facts showed that the applicants did not engage with the Tribunal before the scheduled hearing or respond to invitations to appear. The decision to dismiss was not unreasonable in both cases.
7. This Court came to the same conclusion in EDY18.
8. As in those cases, the decision in DNK17 can be distinguished from the facts in this proceeding and there was no jurisdictional error in the approach adopted by the Tribunal in electing to deciding the application for review under s 426(1A)(a) of the Act, rather than dismissing under s 426A(1A)(b) of the Act.

1. There is no merit in any of the grounds of review identified and therefore it is not necessary in the interests of the administration of justice to grant an extension of time in this case. The delay here was significant and not adequately explained, but there are also no meritorious grounds of review available to the applicant. The application to extend time is dismissed.

1. At the conclusion of the Minister's submissions, Mr Barrington submitted that, in the event that the application for an extension of time is dismissed, the applicant be ordered to pay the Minister's costs fixed in the sum $4,189.38. That is the scale amount prescribed by Sch 2, Pt 2, Div 1, Item 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and is an appropriate sum in the circumstances of this application.

1. The name of the first respondent should be amended pursuant to r 7.01 of the Rules to the title of the current ministerial portfolio which is the Minister for Immigration and Multicultural Affairs.
2. As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is also to be amended to the Administrative Review Tribunal.

1. The name of the first respondent be amended to 'Minister for Immigration and Multicultural Affairs'.
2. The name of the second respondent be amended to 'Administrative Review Tribunal'.
3. The amended application for an extension of time to seek judicial review filed 13 March 2020 be dismissed.
4. The applicant pay the first respondent's costs and disbursement of and incidental to the proceeding fixed in the amount of $4,189.38.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.