FSB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1297

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 wants to challenge a decision made by the Administrative Appeals Tribunal. The Tribunal's decision was made on 26 March 2020. The applicant did not approach the Court until 24 November 2022 at which point he filed an application for an extension of time. The application for extension of time - which is before me today - was necessary because s 477(1) of the Migration Act 1958 (Cth) requires that an application for judicial review of a Tribunal decision must be filed within 35 days of the decision. This application was filed at least 938 days (or two and a half years) late.
2. I must decide whether it is appropriate to extend time pursuant to s 477(2) of the Act. The discretion to extend time may be exercised when I am satisfied "that it is necessary in the interests of the administration of justice to make the order".
3. As I explained to the applicant at the start of the hearing, the Act does not specify the factors that are relevant to my deliberations on this question but the authorities[1] suggest I would ordinarily have regard to:
   • The extent of the delay, and the reasons given for the delay;
   • The potential prejudice to the respondent if the extension of time is given, and the extent of any prejudice to the applicant if the extension of time is not allowed; and
   • The merits of the underlying case.
4. In an affidavit filed in connection with this application, the applicant says only that he was not aware of the decision at the time it was made. That does not take us very far. I took the opportunity at the hearing to discuss those considerations with the applicant after hearing from Mr Taverniti on behalf of the minister.

1. The delay is very lengthy: nearly two and a half years. While the applicant is deemed by law to have been aware of the decision shortly after it was handed down, there is no doubt the applicant was actually aware of the decision by 15 May 2020 when the Tribunal provided him with a copy after he had earlier written to the Tribunal to ask about the status of the case.
2. The applicant has told me from the bar table today that he was working on a farm at around the time of the decision. He said he was not being paid and he described what amounted to exploitative conditions. He said he asked his boss to help him but his boss took the phone which was his only means of communication. That is a worrying story and may explain part of the delay.
3. Having said that, the applicant claimed the exploitative situation persisted for about four or five months. When I asked him why he did not afterwards pursue the matter, he said he was stricken with poverty and felt overwhelmed.
4. Even if I take a generous view of the applicant's initial delay, he still delayed for over two years after the decision was provided to him before acting. I am worried about the story the applicant told about his exploitative conditions on the farm, and I am conscious he appears to have been in personal and economic difficulty in the period that followed. However that does not entirely justify or explain the extent of the delay.

1. The minister said such a long delay does not necessarily prejudice him in the circumstances. It is true there is a public interest in finalising decisions and it is inelegant when decision-making processes are re-opened long after the event, but there is no specific prejudice to the minister if an extension of time were granted.
2. The applicant will presumably experience prejudice to the extent that he will not be able to press his claim for a protection visa - but the extent of that prejudice is affected by the merits of the underlying application for review. If the case is not meritorious, then there would be no prejudice.

1. That brings me to the merits of the underlying application for judicial review of the Tribunal's decision. The Tribunal's reasons for decision dated 11 March 2020 are very short. They note the applicant had been invited to attend a hearing but the applicant did not appear. The Tribunal elected to dismiss the application for review pursuant to s 426A(1A)(b) of the Act without proceeding to a review. In a further set of reasons published on 26 March 2020, the Tribunal notes the applicant was informed of the outcome and the opportunity to seek reinstatement. The Tribunal noted there was no application and confirmed the decision under review.
2. The proposed grounds of review are included in the application documents that were filed in the Court. The applicant contends the Tribunal's decision was based on a false factual premise and said it was not grounded on probative material and logical grounds. In the accompanying particulars, the applicant refers to the exercise of the discretion in s 426A(1E) of the Act. That provision refers to the Tribunal's powers where an applicant does not file an application for reinstatement within the appropriate time after the application is dismissed for non-appearance. That subsection does not confer any discretion as such: it says the Tribunal is required to confirm the dismissal decision in the absence of a timely application for reinstatement. It is common ground there was no timely application for reinstatement in this case.
3. I asked the applicant to explain what he meant in the grounds of review, but he did not draft them and was unable to comment. I gave him the opportunity to explain his criticisms in his own words.
4. Mr Taverniti for the minister argued the Tribunal's decision was free of error. He drew my attention to the hearing invitation sent out on 21 February 2020 which is reproduced at pp 101-102 of the court book. That document:
   • Gives the applicant notice of the time, day and place of the hearing as required under s 425A(1);
   • Was communicated by email to the applicant's last known address, which is an approved mode of communication;
   • Provides in excess of 14 days' notice of the hearing, which is the minimum; and
   • Contains a statement about the consequences of non-attendance.
5. The minister says in that event the Tribunal's discretion to dismiss under s 426A(1A) was enlivened when the applicant failed to appear at the hearing. While the Tribunal did not articulate in detail the reasons for exercising the discretion as it did, those reasons are obvious in the circumstances, which include the provision of a valid notice and the Tribunal's statutory objective in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth): put simply, it is obvious the Tribunal was satisfied the applicant had a proper opportunity to present his case and he did not take up that opportunity. There is no obvious basis for questioning the reasonableness of that decision. The Tribunal afterwards communicated with the applicant about the decision and the right to apply for reinstatement (at pp 106-109 of the court book). That notice appears to be in order. I note the formal notice annexes an information sheet about dismissals and reinstatement which satisfies the statutory requirements.
6. It follows there is no prospect of success if the applicant were given an extension of time.
7. Even if I accept there is no prejudice to the minister, and if I give the most sympathetic consideration to the applicant's stated reasons for his delay, the absence of merit is decisive. It would not be in the interests of the administration of justice to allow this matter to go forward. The application for an extension of time must therefore be formally refused.
8. That leaves only the question of costs. I took submissions from the parties on this issue before adjourning. The minister says it would be appropriate to make an award of costs in the minister's favour in the event he is successful - which he has been. While recognising an order for costs is a matter of discretion, the minister says there is no reason not to exercise the discretion in this case since the minister has incurred costs which will otherwise have to be met out of public monies. He has asked for costs in a fixed amount of $4,189.38 which is consistent with the amount indicated in the Court's scale; I was told the minister's actual costs are more than $2,000 more than that.
9. I asked the applicant what he had to say about an award of costs in that amount. It is obvious to me that he is worried about the burden and that he has been in difficult financial circumstances for a long period of time. While I am sympathetic to him, that is not ordinarily a reason for not ordering costs. Whether or not the costs would be recovered is a matter for another day. I am satisfied it is appropriate to make an award of costs in the fixed amount of $4,189.38.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe.

[1] See, for example, MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [12] per Mortimer J