JEZ25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 609

1. This is an Application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 August 2020, affirming a decision of a Delegate of the First Respondent (the Delegate) to refuse to grant the Applicant a Protection (Subclass 866) Visa (the Visa).
2. The Applicant requires an Extension of Time (EOT) to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act) as her Application was filed 1,772 days outside the 35-day statutory timeframe under s 477(1) of the Act.
3. The Court had regard to both Applications on the date of the Hearing.
4. For the reasons set out below, the Application for an EOT is refused. Accordingly, the judicial review Application is dismissed.

1. The Applicant is a citizen of China.
2. The Applicant first arrived in Australia on 15 August 2017 as the holder of a Visitor Visa and has remained in Australia since that date.
3. On 28 August 2017, the Applicant applied for the Visa, claiming that the local government forcibly displaced her from her apartment to make way for a shopping mall. She alleged she was compelled to sign a contract for minimal compensation after the local Government sent gangsters to threaten her and her family. The Applicant said her complaints to authorities were ignored, and that when she tried to relocate within China, she was 'chased by them'. She feared detention if returned to China.
4. On 18 December 2017, the Delegate, by letter, invited the Applicant to attend an interview scheduled for 10.00 am on 15 January 2018. The Applicant did not respond to the invitation or attend the interview.
5. On 15 January 2018, the Delegate refused to grant the Applicant the Visa. The Delegate noted that the Applicant had failed to attend the interview without seeking a reschedule or providing any material in support of her protection claims. Accordingly, the Delegate was not satisfied that the Applicant was a refugee within the meaning of s 5H of the Migration Act 1958 (Cth) (the Act). For the same reasons, the Delegate found there was no real risk of significant harm for the purposes of s 36(2)(aa) of the Act if the Applicant were returned to China.
6. On 17 January 2018, the Applicant applied to the Tribunal for a merits review of the Delegates' decision and provided copies of the decision record and the notification letter. No authorised representative was appointed to act on her behalf or receive correspondence.
7. On 24 September 2018, the Applicant lodged a Form MR6 with the Tribunal, notifying the Tribunal of a change of contact details. She provided a new email address (the nominated email address) and a mobile telephone number (nominated mobile number).
8. On 15 January 2019, 29 July 2019, 16 September 2019, and 16 March 2020, the Applicant contacted the Tribunal from the nominated email address to request Medicare letters.
9. On 2 July 2020, a letter was sent to the nominated email address, notifying her of a Tribunal hearing scheduled for 12.00 pm on 5 August 2020, to be conducted by telephone. The letter advised that if she did not appear, the Tribunal might determine the review without further action or dismiss the application without further consideration.
10. On 29 July 2020 and 4 August 2020, SMS hearing reminders were sent to the Applicant's nominated mobile number. The Applicant did not respond to the hearing invitation.
11. On 5 August 2020, a Tribunal Officer attempted to telephone the Applicant on the nominated mobile number. A male answered the call and, through an interpreter, indicated he was unaware of the hearing and asked, "What is the issue?" After being informed of the purpose of the call, the male terminated the call. The Tribunal Member recorded the hearing as a "no show".
12. On the same day, the Tribunal dismissed the application (the dismissal decision). Notice of that decision was sent to the Applicant's nominated email address on 6 August 2020, advising that she had until 20 August 2020 to apply for reinstatement, failing which the dismissal would be confirmed. The Applicant did not apply for reinstatement.
13. On 25 August 2020, the Tribunal confirmed the dismissal decision (the confirmation decision).
14. On 1 September 2020, the Applicant was notified of the confirmation decision by letter sent to her nominated email address.
15. On 5 August 2025, the Applicant filed an Application for judicial review of the confirmation decision in this Court (the Originating Application).

1. As the Application was lodged outside the prescribed 35-day time limit, the Court must consider whether to grant an EOT.
2. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an EOT should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an order extending the time for filing an application.
2. The decision to grant an EOT is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]:

The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a Court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v R [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)).

1. To the above, the Court would add that the greater the delay, the more persuasive the explanation for the delay must be. In considering whether to grant an EOT, there are no mandatory relevant considerations: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu'uta) at [12]:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach 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 the administration of justice.

GROUNDS OF APPLICATION FOR AN EXTENSION OF TIME

1. The Applicant advances one Ground of Application for an EOT contained in the Originating Application. The sole Ground of Application for an EOT is as follows (without alteration):
   1. The email which the Administrative Review Tribunal had notified was one that was created by an agent. They never informed me of any decision that was made by the Tribunal. The mobile number is also incorrect. Once I received the decision through a Freedom of Information request, I am applying to the Federal Circuit Court for this application. Please allow for an extension of time.

1. The Tribunal's confirmation decision in this matter comprises two pages and five paragraphs, which are reproduced below.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 January 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).

2. On 6 August 2020 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4. As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

DECISION

1. The Tribunal confirms the decision to dismiss the application.

1. The Applicant advances six Grounds of judicial review contained in the Originating Application. The Applicant's Grounds of judicial review are as follows (without alteration):
   1. I had purchased an apartment at the centre of the village in my local area. It was a good investment because the price had raised so much over time. I had been living in it, and was hoping to one day sell it so that I could move elsewhere. But I was not ready to move yet, I wanted the value of the apartment to continue to rise. The local government forced me to move out of the home because there was a new shopping mall which should be built there.
   2. The local government did not want to provide me with fair compensation. The amount that they offered was very low. I tried to complain to the local government and even higher, but there was no one that I could complain to. I refused to sell to the local government because of the low compensation that they were offering.
   3. When I did not want to sell to the local government, they put more pressure on me by sending gangsters to the apartment to threaten me and my family. They broke in and then spray painted the walls telling me to leave. They pushed me down to the ground when I told them to leave.
   4. There is no way that I could stay in China. I tried to move somewhere else to get away, but this was still a problem. Because the local government officials can use the police to find me, then they could send more gangsters. There is no one in the Chinese authorities that can help me either.
   5. When I return to China, the local government officials would still be searching for me again. They will be notified of my return. There are many reasons where I will still be harmed. The government officials will want to make sure that their treatment of me is kept quiet. How they used the police to search for me, and how they used gangsters and other men to threaten me and hurt me. Because of the harm that will happen if I were to return to China, then I need to protected by the Australian government. This is where the jurisdictional error has happened. In s36(2)(aa) of the Migration Act, the Department of Home Affairs should have made sure that I was safe. By refusing the visa, they are sending me to China where I will face further harm.
   6. The Administrative Review Tribunal also made a jurisdictional error by not conducting a review on the information and evidence before them. Instead they quickly dismissed my application.

1. The Applicant appeared before the Court unrepresented. She was assisted by a Mandarin interpreter. Prior to the Hearing commencing, the Court ensured that the Applicant was in possession of a copy of the relevant Court Book and that the First Respondent's written submissions had been translated to her. The Court also ensured that the Applicant had access to a pen and paper so she could take notes during the Hearing, should she wish to.
2. At the commencement of the Hearing, the Court explained that it was undertaking judicial review, not merits review, and outlined the differences between the two types. The Court also explained the procedure by which the Hearing would be undertaken.
3. Despite Court Orders, no written submissions or other material were provided to the Court by the Applicant in support of her case.
4. In an Affidavit filed with the Court on 5 August 2025, after repeating her grounds of judicial review, the Applicant claimed the following:

The email which the Administrative Review Tribunal had notified was one that was created by an agent. They never informed me of any decision that was made by the Tribunal. The mobile number is also incorrect. Once I received the decision through a Freedom of Information request, I am applying to the Federal Circuit Court for this application. Please allow for an extension of time.

1. During the course of the Hearing, the Applicant agreed that her application was lodged 1,772 days out of time. She reiterated that an agent also created her Visa application and subsequent application to the Tribunal. She claims she has no knowledge of either the Visa application or the Tribunal application. She was not told of the Tribunal hearing date and thus did not attend the scheduled hearing.
2. The Applicant was asked if she could tell the Court who the agent was. She was unable to provide any information about the agent's identity, where they worked, or their contact details. She claimed not to know the email address or telephone number provided in the application to the Tribunal.
3. The Applicant was asked how she learned of the Tribunal's decision. She claimed that a student assisted her in determining her migration status. She was unable to give any details of this student.

1. As the Tribunal decision was dated 25 August 2020, the Applicant was required to commence proceedings in this Court by 29 September 2020. However, the Originating Application was not filed until 5 August 2025, being 1,772 days (approximately 4 years, 10 months and 8 days) outside the 35‑day period prescribed by s 477(1) of the Act. The proceeding is therefore incompetent unless the Court is satisfied that it is necessary, in the interests of the administration of justice, to extend time under s 477(2) of the Act.
2. It is not necessary, in the interests of the administration of justice, to extend time because the Applicant has failed to provide a satisfactory explanation for the extreme delay and, critically, the proposed Grounds of judicial review are not sufficiently arguable, even at an impressionistic level. Further, even if an extension of time were granted, the substantive application should be dismissed with costs as no jurisdictional error is disclosed.
3. Regarding the extent and reasons for the delay, the Applicant's delay of 1,772 days is significant: SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165 at [40]. The longer the delay, the more compelling the explanation must be: Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195. The Applicant's explanation is unsatisfactory.
4. The Applicant asserts that she did not receive the Tribunal's decision because it was sent to her migration agent's email address and the agent failed to notify her. She also claims that the agent's phone number was provided, preventing her from receiving SMS notifications. The Applicant states that she only became aware of the decision through a Freedom of Information (FOI) request. Tribunal records confirm that a FOI request was received on 29 May 2025 and finalised on 3 June 2025 (CB [92]).
5. However, the Applicant has not identified the alleged agent and has provided no documentary evidence to substantiate the appointment of any agent. There is no evidence that the Applicant ever authorised an agent to act for her before either the Tribunal or the Department (CB [7], [62] - [63]).
6. On 24 September 2018, the Applicant lodged a Form MR6 with the Tribunal, withdrawing any third‑party authority and providing updated contact details, including providing an email address (the nominated email address) and a mobile phone number (the nominated phone number) (CB [70] - [72]). The Applicant subsequently contacted the Tribunal on multiple occasions between January 2019 and March 2020 using the nominated email address (CB [74] - [81]).
7. The Tribunal hearing invitation was sent on 2 July 2020 to the nominated email address in accordance with ss 425A(2)(a) and 441A(5)(b) of the Act (CB [82] - [90]). By operation of s 441C(5), the Applicant was deemed to have received the invitation on that date. Notifications of the dismissal decision and the confirmation decision were also sent to the nominated email address on 6 August 2020 and 1 September 2020, respectively, and were likewise deemed to have been received when transmission (CB [173] - [174], [180] - [181]).
8. In those circumstances, it was the Applicant's responsibility to access her correspondence or otherwise take steps to ascertain the outcome of her review and any applicable time limits: Tu'uta; FLC18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 212 at [19] citing QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108; NAAH v Minister for Immigration [2002] FCAFC 354.
9. The Applicant has claimed that she was able to obtain the Tribunal's decisions through an FOI request in 2025, yet provides no explanation for why she did not take similar steps years earlier, nor why she waited a further two months after receiving the documents to commence proceedings.
10. Although the First Respondent does not assert prejudice beyond costs, the absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349.
11. The First Respondent ought not be exposed to further litigation where the proposed application is entirely lacking in merit.
12. In assessing merit, the Court considers whether the proposed Grounds are arguable or sufficiently arguable to warrant the exercise of the discretion: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP) at [62]-[63], approved by the Full Court on appeal in MZABP at [38].
13. In appropriate cases, the Court may engage in more than a purely impressionistic assessment: Tu'uta at [18]. The background and Grounds of judicial review relied upon demonstrate that the proposed Application lacks merit.
14. Grounds One to Four amount to a request for impermissible merits review: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 (Ex parte Marks) at [15]-[17].
15. Ground Five asserts that the Tribunal failed to "make sure" the Applicant was safe under s 36(2)(aa) of the Act. This Ground merely disagrees with the outcome and misconceives the statutory task: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Tribunal was not required to accept the Applicant's unsubstantiated claims and was entitled to be unpersuaded on the evidence: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 - 170.
16. Ground Six alleges a failure to conduct a review because the Tribunal application was dismissed. This Ground is misconceived. The Applicant was validly invited to a scheduled Tribunal hearing. Upon her failure to appear, the discretion in s 426A(1A)(b) of the Act was enlivened. The Tribunal provided intelligible and rational reasons for exercising that discretion, which were legally reasonable: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [29]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [20]. The Tribunal was not required to consider the substantive merits once it dismissed the review application and was required by s 426A(1E) to confirm the dismissal in the absence of a reinstatement application: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [21]; FGB17 v Minister for Home Affairs [2019] FCA 725 at [12]; AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10].
17. The Applicant has failed to provide a satisfactory explanation for the extreme delay, and the proposed Application for judicial review lacks merit. It is therefore not necessary, in the interests of the administration of justice, to extend time under s 477(2) of the Act. The Application should be refused with costs fixed in an appropriate amount. In any event, even if time were extended, the substantive Application would be dismissed as no jurisdictional error is established.

1. The Court is satisfied that the delay in lodging the Application for judicial review is extensive, amounting to some 1,772 days beyond the prescribed 35-day time limit. This, of itself, strongly mitigates against an EOT being granted.
2. The Applicant's explanation for the delay is also problematic. She claims she had no knowledge of the Tribunal application and that an agent did everything. She claims she only found out the result of her Tribunal application after lodging a FOI request.
3. First, the Applicant was unable to provide any details regarding the identity of her agent. No agent is nominated in her application to the Tribunal. The Applicant has used various email addresses over time. However, as of 24 September 2024, she used the nominated email address after submitting a Change of Contact details form. It was to the nominated email address that the Tribunal hearing invitation form was sent.
4. During the intervening period, the Tribunal received correspondence from the Applicant on four occasions requesting Medicare letters (CB 74 - 81)
5. I do not accept the Applicant's claims. I am satisfied, based on correspondence with the Tribunal regarding the Medicare letters, that she was aware of the Tribunal application. The inability to identify any details about her agent significantly undermines the credibility and reliability of her claims. This weighs heavily against granting an EOT.
6. The next consideration is prejudice to the Minister. A proper concession was made that the Minister will suffer no prejudice other than costs. However, this is not the end of the matter. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62], the following was said:

... there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.

1. There is also a significant public interest in the finality of administrative decisions. In Ex Parte Marks at [15], the following was said:

An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

1. In my view, notwithstanding the Minister's concession, this factor weighs somewhat against granting an extension.
2. This then leaves the final factor, being the merits of the proposed application. Grounds One to Four merely set out the factual background. They do not allege any jurisdictional error. They have no merit, even at an impressionistic level.
3. Ground Five alleges jurisdictional error, indicating that if the Applicant is returned to China, she will face harm. Properly understood, this Ground is no more than a vehement disagreement with the Tribunal's ultimate conclusion. It seeks for the Court to undertake impermissible merits review. The Court notes it was for the Applicant to convince the Tribunal that she met the criteria for the grant of the visa.
4. Ground Six complains that the Tribunal committed a jurisdictional error by failing to review the information and evidence before it.
5. I am satisfied that the Tribunal properly invited the Applicant to appear before it for a hearing of her matter. All legislative requirements under s 425 and s 425A of the Act were complied with.
6. Given that the Applicant did not appear at the Tribunal hearing, I am satisfied it was legally reasonable for the Tribunal to proceed in the manner it did and dismiss the Applicant's matter for non-appearance. In those circumstances, there was no requirement for the Tribunal to consider the merits of the review application: s 426A(1A) (b) of the Act.
7. I am satisfied that the Applicant was properly notified of the dismissal of her case. In circumstances where the Applicant did not seek reinstatement within the specified 14 day period, there was no other option than for the Tribunal to confirm the dismissal decision pursuant to s 426A(1B) and (1E) of the Act.
8. Ground Six has no merit even on an impressionistic basis.
9. As none of the proposed Grounds of judicial review have any merit, this weighs heavily against an EOT being granted.

1. None of the factors set out above favour granting an EOT. Accordingly, the Application for an EOT is refused, and the Application for judicial review is dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humhreys.