IYN25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 511

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 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 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Section 477 of the Migration Act 1958 (Cth) (Act) requires applications to this Court to be filed within 35 days of an applicable Tribunal (Tribunal) decision. When the application is out of time - and this application is 25 days out of time - an extension of time must be sought, and the Court must decide whether it is in the interests of the administration of justice to extend time in the matter.
2. It will not be in the interests of the administration of justice to extend time if the matter cannot succeed. That is the case here, together with the absence of any satisfactory explanation for the delay. Accordingly, the application will be dismissed with costs in a fixed sum.

1. The applicant is a Chinese citizen who arrived in Australia in 2017 on a visitor visa, and shortly thereafter she applied for a Protection (subclass 866) visa. A delegate of the Minister refused the visa on 24 May 2022, and there were two challenges in the Tribunal. The first application for review, on 13 June 2022, was dismissed because the applicant did not appear at the scheduled Tribunal hearing. The Tribunal then dismissed that first application for non-appearance under section 99 of the Administrative Review Tribunal Act 2024 (Cth) and, in the absence of any application for reinstatement, the Tribunal confirmed its decision on 24 February 2025. No application has been brought from that decision.
2. In the meantime, on 11 February 2025, the applicant made a second Tribunal application for review of the same delegate's decision on 24 May 2022, although she provided a second email address, different to the address she had earlier provided. On 2 June 2025, the Tribunal decided it had no jurisdiction to entertain that application because it had already been the subject of a valid review by the tribunal and was no longer a reviewable decision. The Tribunal said:

"3. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771. This is the case even where the previous application for review was made to the Administrative Appeals Tribunal before 14 October 2024: item 21 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)."

1. I have earlier set out in EMO20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2030 at [3], my understanding of the principles for when it would be appropriate to grant an extension of time as follows:

[3] In summary, the general principles are as follows:

(a) Accepting that declining to do so will always adversely affect an applicant for review, an extension of time beyond the prescribed 35-day limit can only be made if the Court is "satisfied that it is necessary in the interests of the administration of justice to make the order": section 477(2)(b) of the Act.

(b) Leaving aside case-specific prejudice (and here the Minister does not assert any), such delay always prejudices the orderly and proper administration of the Act because it:

(i) defeats Parliament's expressed intention that applications be made within 35 days;

(ii) detracts from the Minister's legitimate interests in the timely disposition of visa decisions under the Act;

(iii) is contrary to the public interest that litigation, including public law litigation, comes to a timely end; and

(iv) often has a real resources impact for both the executive and judicial branches of government.

(c) In every case, explanation for the delay is required. The longer the delay, the more important the cogency of that explanation. If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even exceptional.

(d) The court may also engage in at least a reasonably impressionistic assessment of the merits of the jurisdictional errors of the Tribunal below as asserted by the applicant's grounds of review, but it may go further and as the plurality of the High Court said in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28:

[18] ... the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power ... does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

[19] As the merits of a proposed application are a permissible consideration, it is within the ... Court's jurisdiction ... to have regard to that factor [the proposed grounds of review] in such manner as it considers appropriate in the circumstances.

(e) Where there are no prospects of the applicant's grounds of review succeeding, an extension is to be refused.

1. The applicant, who appeared at the hearing with the assistance of an interpreter, had little, if anything, to add to the application for an extension of time. As to the grounds for the extension of time, her application provided:

"(1) I really did not have that much money to apply this review until today. I still did not get enough money for this review, so I applied to wavie (sic) my application fee for FCFCOA review.

(2) My English is bad, so I need more time to find the way to submit my appealing for FCFCOA."

1. The Minister points out that there is no absolute right to legal representation; that the Tribunal did not need to provide a translation of its decision, and that neither excuse was really an explanation amounting to an excuse for the failure to file the application on time. Turning to the grounds of application, Ground one is as follows:

"The Department of Home Affairs was (sic) unfairly treated my claims and evidence with Wendesbury, W-e-n-d-e-s-b-u-r-y (sic) unreasonableness."

1. The difficulty with this ground is that it does not refer to the Tribunal at all, but rather refers to the decision of the Minister's delegate, being an officer of the Department of Home Affairs. This Court has no relevant jurisdiction to review such a primary decision; the ground cannot succeed.
2. Ground two provides:

"The Department of Home Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of item 21 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) properly to assess my case."

1. Again, the reference to the Department of Home Affairs cannot give rise to a reviewable decision, nor is the reference to this Court of any present relevance. Insofar as the complaint concerns the then Tribunal, it draws attention to a relevant transitional provision, which was indeed that cited by the Tribunal in the decision from which an extension of time in which to bring an application is made. Item 21 of Schedule 16 provides:

21 No duplicate applications

(1) This item applies if, before the transition time:

(a) a person made an application to the AAT for review of a decision (the initial decision); and

(b) the AAT made a decision on the application or dismissed the application.

(2) This item also applies if:

(a) a person made an application to the AAT for review of a decision (the initial decision) before the transition time; and

(b) immediately before that time, the AAT had not made a decision on the application or dismissed the application.

(3) The person is not entitled to apply to the ART for review of the initial decision.

1. It can be seen that where the AAT application was made before the transition time, then a person is not entitled to apply to the ART for review of the initial decision. The Minister submits - and I agree - that once the Tribunal had completed its task of reviewing the delegate's decision on the first Tribunal application:

The means of review provided for in Part 7 (and by extension Part 5) of the Act were exhausted.

1. Further, in SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [21] Bennett J said:

Further, the second Tribunal had already reviewed the delegate's decision. Once the Tribunal has delivered its decision free from jurisdictional error, it is functus officio. Once the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate's decision (Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 per Goldberg J at 311).

1. The Tribunal was indeed, functus officio. That is to say, it had no further relevant function to perform, and there is no error in the decision sought to be reviewed. For completeness, the Minister went on and submitted that there was no jurisdictional error in the first Tribunal decision. And for the reasons set out in the Minister's written submissions, were it necessary for me to decide that question, I would agree with the Minister's submissions; however, it is not.
2. The Court is limited to considering the extension of time application and to a Tribunal decision set out in that application which is the subject of an extension of time for an application for review. There is simply no arguable jurisdictional error. For that reason and, if necessary, also for the reason that there was no adequate explanation for the delay, I conclude that it is not in the interests of the administration of justice to extend time.
3. The application for an extension of time will be dismissed with costs.

1. For these reasons, I have made the following orders:
   1. The application for an extension of time be dismissed.
   2. The applicant is to pay the first respondent's costs in a fixed amount, namely $4,553.02.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.