FRA24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 416

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. The applicant seeks an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to make an application for judicial review of a decision of the second respondent (Tribunal) made on 25 November 2021. The Tribunal affirmed a decision of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
2. The application for judicial review was filed 964 days after the date prescribed by s 477(1) of the Act. To obtain an order extending the time within which to file an application, the Court must be satisfied that it is necessary in the interests of the administration of justice (s 477(2)(b) of the Act).
3. Reference in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit "R1".

1. The applicant is a citizen of China who first arrived in Australia on 13 June 2017 on a Visitor visa (CB 21).
2. On about 14 July 2017, the applicant applied for the visa (CB 1-40). Attached to the application was a personal statement that claimed that the applicant was the victim of intimidation, assault and damage to his personal property from an elected "deputy head" of his village in China (CB 38-40).
3. On 21 September 2017, the department invited the applicant to attend an interview to provide further information regarding his claims for protection (CB 41-7). A further invitation was sent on 5 January 2018 for an interview to be held on 22 January 2018 (CB 50-1). The applicant did not attend that interview.
4. On 1 February 2018, the applicant was notified that a delegate of the Minister refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (CB 52-4). Attached to the notification were written reasons (CB 55-62).
5. On 14 February 2018, the applicant applied to the Tribunal for review of the delegate's decision (CB 63-4).
6. On 8 November 2021, the Tribunal invited the applicant to attend a hearing via video link on 24 November 2021 to give evidence and present arguments (CB 70-2). Attached to the invitation was a Fact Sheet regarding hearings and advised that the Tribunal may make a decision on review of the application if the applicant did not attend the hearing (CB 73-7).
7. Two SMS reminders confirming the hearing date before the Tribunal were sent to the applicant's nominated phone number on 17 November 2021 and 23 November 2021 (CB 81). The applicant did not attend the scheduled hearing on 24 November 2021 (CB 78-80).
8. On 25 November 2021, the Tribunal notified the applicant of its decision to dismiss the application for review under s 426A(1A)(b) of the Act for non-appearance without further consideration of that application (CB 83-96). The notification attached the written reasons of the Tribunal which were brief. They primarily pertained to the process of accessing hearings via video link during COVID-19, specifically the lack of evidence that the applicant had attempted to access the virtual hearing and the Tribunal's satisfaction that the applicant had been properly invited to a hearing pursuant to s 441A(5) of the Act. Attached to the decision record was a fact sheet explaining the applicant's right to seek reinstatement within fourteen days (CB 87-8). The applicant did not apply to reinstate the application for review
9. On 15 December 2021 the Tribunal confirmed the decision to dismiss the application for review (CB 91-2) (Decision).

1. On 2 August 2024, the applicant filed an application for judicial review in this Court. The application for judicial review incorporated an application for an extension of time pursuant to s 477(2) of the Act. The application was supported by an affidavit affirmed by the applicant on 29 July 2024. The application was filed 964 days after the 35-day expiry of the time limit under s 477(1) of the Act.
2. The grounds of application for extension of time were as follows (verbatim):

(1) I couldn't get in touch with my previous agent since the pandemic.

(2) My friend helped me to get the decision letter from AAT by my own email box.

(3) I really hope that the officer would carefully consider me situation and give me another opportunity to stay in Australia legally.

1. The grounds of application for judicial review were as follows (verbatim):

(1) THE TRIBUNAL OFFICER REFUSED MY APPLICATION BECAUSE THEY COULD NOT SATISFIED MY EVIDENCE TO SUPPORT MY CLAIMS.

(2) THE TRIBUNAL OFFICER DID NOT ACCEPT THAT I WAS PERSECUTED BY CHINESE GOVERNMENT. BUT I SHOULD SAY THERE IS REALLY NO HUMAN RIGHTS IN CHINA.

(3) I HAVE BEEN OUTSIDE CHINA FOR SUCH A LONG TIME. I CAN'T PROVIDE ANY MORE EVIDENCE TO THE ADMINISTRATIVE APPEALS TRIBUNAL DEPARTMENT TO PROVE THAT I WAS PERSECUTED.

(4) AFTER STAYING IN AUSTRALIA FOR MORE THEN 7 YEARS, I LOVE IT SO MUCH. AND I HAVE INDIRECTLY MADE CONTRIBUTIONS TO THIS COUNTRY. I HOPE I COULD STAY HERE. AUSTRALIA IS ALREADY MY SECOND HOME.

1. The affidavit of the applicant affirmed on 29 July 2024 simply attached a copy of the Decision, the covering letter from the Tribunal and a copy of the applicant's passport. There was no explanation given for the delay in making the application to this Court.
2. On 1 November 2024, a Registrar of this Court ordered the applicant to file and serve 28 days before the final hearing any amended application with proper particulars of the grounds of his application for judicial review, written submissions and any additional evidence on which the applicant seeks to rely. There was no further affidavit or evidence filed with the Court by the applicant to support the application for an extension of time or the grounds of review.
3. The hearing of the application to extend time was listed to be heard by this Court on 20 February 2025 at Perth. The applicant appeared in person, self-represented, and was assisted by an interpreter fluent in the English and Mandarin languages.
4. The Minister was represented by Mr Mayne, solicitor.

1. The Court confirmed that the applicant had received the Court Book and the outline of written submissions filed on behalf of the Minister. The applicant confirmed that the materials had been interpreted to him and that he understood the documents.
2. The Court explained that the applicant was required to explain his reason for his delay in filing the application and also satisfy to the Court that it was necessary in the interests of the administration of justice to make an order extending time.
3. The applicant was invited to put before the Court any further evidence or documentation upon which he sought to rely upon in support of his application for an extension of time. The applicant did not wish to rely on any further material.
4. The Court asked the applicant to explain why he was late in bringing this application. The applicant explained that he had an "unreliable" legal representative. After he received the notification from the Tribunal that the Tribunal had dismissed his application for review, he unsuccessfully attempted to contact his legal representative. He then submitted that he was never provided any correspondence or documents "from the government".
5. The Court reminded the applicant that he was not represented at the time of the hearing and referred the applicant to his application to the Tribunal that was lodged by the applicant, not a legal practitioner (CB 63-4). The applicant confirmed that the email address on the application for review by the Tribunal was his, however he claimed that he does not have any correspondence from the Tribunal "in his phone".
6. The Court explained that the Tribunal dismissed his application due to non-appearance at the scheduled hearing and the Tribunal had notified the applicant that he had fourteen days to apply for reinstatement. The applicant said he did not receive any correspondence to that effect. When asked what he believed was happening at this hearing the applicant responded - "I don't know". When asked if he attempted to contact the Tribunal or his legal representative the applicant responded "no" and "I don't know, I'm not too sure".
7. The Court asked the applicant why he thought the Decision to dismiss his application for review was wrong to which the applicant responded, "I don't know". The applicant was otherwise unable to assist the Court or adequately explain his delay in seeking judicial review.

1. On behalf of the Minister, Mr Mayne tendered the Court Book which was marked as exhibit "R1" and sought to rely on the outline of written submissions filed 4 February 2025.
2. The Minister opposed the application for an extension of time. The Minister's primary submission was that it was not in the interests of the administration of justice to extend time in this case because, even on an "impressionistic basis", the application for judicial review had no prospects of success.
3. Mr Mayne submitted that the applicant's explanation of delay was vague and did not properly explain a delay of 964 days. Further, there has been no evidence provided to this Court to support the assertion that the applicant had engaged a legal representative before or after the date of the Decision, as asserted in the applicant's oral submissions.
4. Further, in relation to ground two of the applicant's application for an extension of time, the applicant has confirmed with the Court that the email address given to the Tribunal belonged to him, despite oral submissions that he could not find the notification of the Decision in his phone or any other correspondence from the Tribunal. Mr Mayne submitted that the assertion that he was assisted by a "friend" to access the Decision is irrelevant as the applicant is taken to have received notification from the Tribunal by email at the end of the day on which notification is transmitted, with or without assistance to access his emails (s 441C(5) of the Act).
5. Moreover, the merits of the applicant's proposed judicial review application, critically, the grounds raised in the application for judicial review, cannot succeed because they do not relate to the Tribunal's Decision. The grounds essentially relate to the merits of the applicant's protection claims which the Court cannot consider, nor did the Tribunal refer to them in reaching the Decision. The application for review by the Tribunal was dismissed for non-appearance and not on the merits of the claims for protection. That was because the applicant did not appear at a scheduled hearing before the Tribunal and did not seek reinstatement within fourteen days of notification of dismissal.
6. Finally, the Tribunal complied with its procedural fairness obligations by inviting the applicant to attend a hearing pursuant to s 441A(5) of the Act. Dismissal of the application was based on non-appearance pursuant to s 426A(1A)(b) of the Act which was submitted as reasonable when the applicant had no engagement with the Tribunal, with the exception of seeking a Medicare letter request which was sent to the Tribunal on 15 February 2020 (CB 86). No other correspondence was received by the Tribunal from the applicant and there was an apparent lack of interest in the outcome or progress of the review.
7. The Minister submitted that the application for an extension of time should be denied and that the applicant had not established that it is necessary and in the interests of the administration of justice to extend time on this occasion.

1. The applicant reiterated his oral submissions that he did not receive any correspondence from the Tribunal and contended that he "did not understand the situation".
2. The applicant submitted that he wants to stay in Australia as he believes it is a free country and contends that he was "ill-treated" in China and fears return. He missed the appeal date because he did not receive any correspondence.
3. The applicant was unable to otherwise assist the Court on the merits of his application for judicial review and submitted no evidence to explain or to support his application for an extension of time.

1. The terms of s 477(2) of the Act are clear. This Court may, by order, extend the time within which to make an application for judicial review if the Court is satisfied that it is necessary and in the interests of justice to make the order.
2. The considerations relevant to the exercise of the Court's discretion to extend time include (but are not limited to) the length of the delay, the explanation of the delay, any relevant prejudice to the first respondent and the merits of the proposed substantive application (see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [12] and [14] (Tu'uta Katoa) and AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [35] and [40]).
3. When considering the merits of the proposed substantive application, the Court need only consider the merits on an impressionistic level and not whether the applicant's grounds for review would ultimately succeed on the final hearing of the application (Tu'uta Katoa at [14]). The Court need not descend into a complete or full determination of the merits, but some scrutiny must be undertaken before even an impressionistic view might be formed (see GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [32]).
4. Here the delay between the Decision and the application to this Court was 964 days after the initial 35-day period to make the application. That is a substantial if not inordinate delay. The evidence placed before this Court to explain that delay was unsatisfactory. In general, the longer the delay, the more persuasive the explanation needs to be (see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J). The absence of a satisfactory explanation let alone a persuasive explanation is a basis upon which to refuse an application for an extension of time.
5. The applicant said in his oral submissions to the Court that he did not make an application to this Court because he had an "unreliable" legal representative, and he was not provided any correspondence from the Tribunal or "from the government". These explanations are quite unsatisfactory and do not discharge the applicant's onus to provide a credible and persuasive explanation for the delay in this case.
6. There is no evidence to suggest that the applicant was assisted by a lawyer or migration agent at any time. The application for the visa was completed without assistance (see Question 6 at CB 10). The application for review to the Tribunal indicated that correspondence should be sent by email to the review applicant personally (CB 64). The email address given to the Tribunal was the same as the email provided to the Minister in the application form (CB 17, 64). The Act deems that correspondence sent by the Tribunal by email to a person is taken to have been received at the end of the day on which the document is transmitted (s 441C(5) of the Act). That is regardless of whether it is received (see SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271: [2010] FCA 621 at [36] per Barker J). The Tribunal is not responsible for monitoring the applicant's email and there was no evidence from the applicant that, for some innocent or understandable reason, the Decision was not actually received when it was sent by email on 15 December 2021. Having made an application for review to the Tribunal in February 2018, the applicant made no inquiry until sometime in about 2024 as to the progress of his application The explanation is unconvincing.
7. In the absence of an adequate and persuasive explanation of the delay in this case, the application for an extension of time must be dismissed.
8. The Minister did not seek to identify any real prejudice if the Court were to grant an extension of time. However, the Minister will suffer the general prejudice of delay in the administrative process of dealing with the applicant's entitlement to a visa as well as the general prejudice to all litigants of the protracted resolution of disputes. There is also the general observation to be made that there is a significant public interest in the timely and effective disposal of litigation particularly in public law where delays in dealing with applications for visas are to be avoided where possible (see Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] per Gyles J). That is also a consideration relevant to the dismissal of the application.
9. The unexplained delay alone is sufficient to dispose of this application, however for the sake of completeness the grounds for the application for judicial review lack merit even on an impressionistic basis. The simple fact here is that the applicant did not appear at a scheduled hearing of the Tribunal and the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act as it was entitled to do. Notification was then given to the email address for service given by the applicant, together with a fact sheet explaining that the applicant could apply for reinstatement within fourteen days (CB 87-8). That the applicant claims that he did not receive those documents, does not establish a basis to find that there was a material jurisdictional error by the Tribunal. Nothing said by the applicant in the four grounds identified in the application for judicial review alters that position. The Tribunal did not consider the applicant's claims for protection or persecution because it was not required to do so and the application was dismissed for non-appearance not because of any rejection of the merits of the applicant's claims for protection. The grounds of review are entirely misconceived.
10. The application for an extension of time under s 477(2) of the Act is dismissed.

1. At the conclusion of the Minister's submission, the solicitor for the Minister informed the Court that if the application for an extension of time was dismissed, the Minister sought costs fixed in the amount of $4,189.38. That sum is the scale amount that may be awarded for a migration proceeding that is finalised after the conclusion of an interlocutory hearing (Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)). That amount is fair and reasonable and should follow the event of this application. The applicant is ordered to pay the Minister's costs and disbursements of and incidental to this proceeding fixed in the sum of $4,189.38.
2. Further, the Minister sought to change the name of the first respondent and the title to the proceeding to the current title of the Minister responsible under the Act. Further, due to the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the 'Administrative Review Tribunal'. Orders will be made amending the name of both respondents and the title to the proceeding.

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 application for an extension of time filed on 2 August 2024 is dismissed.
4. The applicant pay the first respondent's costs and disbursements of and incidental to the application for review fixed in the sum of $4,189.38.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.