FRV18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1758

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is the written version of the reasons for my decision delivered orally on 2 October 2025. These reasons have been prepared with the assistance of the Court recording.
2. The applicant before me, Mr FRV18, has asked the Court for an order under s 477(2) of the Migration Act 1958 (Cth) extending the time to seek judicial review of a decision made by the Immigration Assessment Authority (the IAA) on 11 September 2018. The IAA had decided to affirm an earlier decision made by a delegate of the minister (the first respondent) to refuse Mr FRV18's application for a protection visa.
3. Section 477(1) of the Act says the applicant must file any application for judicial review of a migration decision within 35 days of the date of the decision. This time limit is set out for a reason: it assists the orderly administration of justice, and provides a level of administrative certainty. The applicant did not file the application for review until 29 October 2018, which is 13 days outside of the 35-day time limit. I should add there is evidence in the form of affidavits filed by the applicant which suggest he did attempt to engage at an earlier date with the Court but he was unable to complete the filing process.
4. I note the application filed on 29 October 2018 includes both an explanation for the delay and the proposed grounds of review if the matter is allowed to proceed.
5. Section 477(2) of the Act permits the Court to extend the time for filing the application where I am satisfied it is necessary in the interests of the administration of justice to make that order.
6. Cases like Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ) suggest the following matters are likely to be relevant to the question I must answer:
   • The extent of the delay and the explanation for that delay;
   • Any prejudice to the respondent or anyone else if the extension of time is granted;
   • The impact on the applicant if the time is not extended;
   • The interests of the public; and
   • The merits of the substantive application, which is often the decisive consideration.
7. I will consider each of these matters below.

The extent of the delay and the explanation for the delay

1. This application was filed 13 days late, although I accept the applicant made attempts to file on earlier dates which tends to indicate he was not resting on his rights. It would have been better if he had not left preparation of his application until the last moment: he says he was depressed and uncertain about the law and unable to obtain assistance. His reference to depression has not been supported by any medical evidence, so I infer he was disheartened rather than clinically ill. Having said that, given the applicant did not rest on his rights, I do not think this consideration weighs against the exercise of the discretion to extend time.

Any prejudice to the respondent or anyone else if the extension of time is granted

1. The first respondent has conceded he is unlikely to experience any practical prejudice if the extension of time is granted. I am not aware of prejudice to anyone else. It follows this consideration does not count against the exercise of the discretion.

The impact on the applicant if the time is not extended

1. I accept the applicant will be adversely affected to the extent that his review will be brought to an end if the extension of time is not granted - although the extent of any disadvantage will depend on the merits of his underlying application. If the application lacks merit, the applicant will not be adversely impacted on balance because he will have certainty. It follows the weight given to this consideration is bound up with my assessment of the merits.

1. The public is interested in ensuring that review rights are made available but not abused or wasted. While the public is concerned about unnecessary delays and unmeritorious cases clogging the system, it is not interested in discouraging appeals per se. It follows the weight given to this consideration is bound up with my assessment of the merits.

1. This factor is often decisive. As a general proposition, the Court is more likely to extend time where the underlying application is obviously strong - and it is less likely to grant an extension of time if the underlying case has poor prospects. It is not appropriate to conduct a mini-trial, so my assessment is an impressionistic one. Having said that, one must accept the case is at an early stage, and the extent of the engagement that is required to form a reliable impression will vary with each case.
2. The starting point is the proposed grounds of review, although I acknowledge I have read the IAA's decision which is included in the court book. I asked the applicant to talk about those grounds but also to explain in his own words his criticisms of the IAA's decision.
3. It is important to bear in mind that the Court's jurisdiction under s 476 of the Act is limited. In substance, my role is to determine whether the decision under review is affected by jurisdictional error. We discussed this concept at the hearing. A jurisdictional error is a serious legal defect in the decision or the decision-making process which spoils the decision, so that the proper course is to send it back so the process can be done over according to law. We discussed examples of legal errors that might have this impact. These include:
   • misunderstanding or misapplying the correct legal test;
   • failing to properly consider relevant arguments or evidence;
   • a denial of procedural fairness, including some sort of bias; and
   • unreasonableness - either because it was a decision which no reasonable decision-maker could have made in the circumstances, or because it is attended by illogicality.
4. I made clear to the applicant that I could not give him a visa, and I did not get to second guess the decision-maker and impose my own view of the evidence or of his claim.
5. That said, the applicant proposed three grounds of review. They read as follows:
   1. I fulfilled the Migration Act 1958 criteria for refugee section 5H(a) because it is evident that if I go back to Iran I am unable to protect myself from persecution.
   2. I also satisfy the criteria of section 36 (1A),(1B) and (1C) as I am not a risk or danger to Australian security
   3. And satisfy section 36 (2)(a) and (aa) as there are established grounds to be considered that I will be significantly harmed on returning to Iran.
6. I asked the applicant what he meant by these grounds and in his answers he referred to disagreements with the IAA's reasons. He plainly thinks the IAA should have assessed his claim differently. But the fact is the IAA did refer to the relevant evidence the applicant has mentioned (including evidence about a vindictive relative who was associated with the regime, and about his tattoos). I note the IAA mostly accepted his account. While it did not accept some matters, the real issue at the heart of the decision is that the IAA took a different view of the risk that the applicant faced after the IAA had regard to the country information. The IAA did refer at some length to the applicant's central concerns about the vindictive relative. I accept the applicant genuinely disagrees with that risk assessment, but I cannot fault the IAA's reasoning or conclusion. The grounds are not made out, and there is no basis for disputing the reasonableness of the conclusion that the IAA reached.
7. The first respondent did invite me to consider one issue for the sake of completeness. The IAA explained in its reasons that the applicant had provided some submissions with a statutory declaration, a photograph and a news report. The IAA properly considered whether it was able to consider that information as part of its deliberations given the IAA review process generally proceeds on the papers supplied by the department and there are limits on the reception of new information. It is apparent from a perusal of the IAA's discussion of the additional documents that it correctly applied the tests in s 473DD of the Act when it declined to consider the information.
8. It will be apparent from the foregoing discussion that I am satisfied the applicant's case would have limited prospects of success if an extension of time were given and the matter proceeded to a hearing. That consideration weighs decisively against granting an extension of time, even though I have taken a benign view of the other matters. That means the application for an extension of time must be refused, and the review proceedings come to an end.
9. I note the applicant has raised some fresh changes in his life that have occurred since the date of the IAA's review. I cannot consider those matters, but I will leave him to engage with the minister's department to determine whether those matters should be considered.
10. That leaves only the question of costs. I discussed this with the parties after delivering my reasons for decision. The minister sought costs in the amount of $4,553.02 which is the relevant scale amount in sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The minister's solicitor, Ms Pieri, said the minister sought costs according to the current scale as most of the work in this matter was conducted following the introduction of the new scale in September 2025.
11. I explained to the applicant that in litigation in Australia, the unsuccessful party is often, but not always, required to pay the costs incurred by the other party in the proceedings. The applicant did not have anything to say about the minister's application for costs.
12. While costs do not inevitably follow the event, I am satisfied it is appropriate to make an award of costs in the minister's favour given that the minister has incurred costs in defending these proceedings that would otherwise have to be borne out of public monies. I accept that an award in a fixed amount of $4,553.02 is reasonable having regard to the Court's scale and the work done on the file.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe delivered on 2 October 2025.