CONSIDERATION
15 As noted, an application for review of the Tribunal's decision is to be filed within 35 days of the date of the migration decision: s 477A(1). The application is substantially out of time. The Court's discretion to grant an extension of time under s 477A(2) arises if the 'Court is satisfied that it is necessary in the interests of the administration of justice to make the order'. That discretion is broad and the relevant considerations are not confined by express words in the statute. Typically, the considerations the Court will have regard to in considering whether to extend time include the extent of the delay and any explanation offered for it, whether the respondent is prejudiced by an extension of time being granted and the merits of the case.
16 In relation to the reasons proffered for the delay, Mr Lesianawai states in his affidavit that he has been in prison 'at all times since 2007 till 2021', that he lacked for resources, that he was 'never advised by the respondent whats [sic] happening to my case' and that the Tribunal 'advised me that Federal Circuit Court have jurisdiction on my case'. These are not satisfactory explanations for the delay. Mr Lesianawai has shown himself capable of instituting proceedings in courts and in the Tribunal itself despite his incarceration. The delay of over 800 days in commencing these proceedings, even taking into account his application to the Federal Circuit Court which he ultimately discontinued, is left unexplained. Mr Lesianawai's statement that he was improperly advised is contradicted by the Tribunal's letter informing him that he may be able to seek review only in this Court. He had the assistance of a lawyer in his Federal Circuit Court proceedings, and in his second application to the Tribunal. It is left unexplained why he delayed so significantly in coming to this Court.
17 On the question of prejudice, the Minister concedes he would suffer no particular prejudice if an extension of time were granted. However, the mere absence of prejudice does not of itself justify the granting of an extension of time: DLE16 v Minister for Home Affairs [2019] FCA 136 (at [27]), citing Parker v The Queen [2002] FCAFC 133 and Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 (at 348-349).
18 As to the merits of any proceeding, Mr Lesianawai, in his draft originating application appears to question why the Tribunal dismissed his application without a review despite having a reasonable decision before it. Mr Lesianawai also appears to challenge the delegate's decision to cancel his visa under s 501(2) of the Migration Act. As stated above, the Court lacks jurisdiction in relation to the latter decision by the delegate to cancel his visa.
19 Mr Lesianawai in his draft originating application otherwise appears to challenge the Tribunal's decision first, on the basis that he was denied procedural fairness in that he was not given an opportunity to explain why his application was made out of time, and secondly, on the basis that a letter sent to him by the Minister's representatives dated 18 December 2018 inviting him to discontinue his Federal Circuit Court proceedings failed to give proper advice that this Court had jurisdiction to review the Tribunal's decision. Mr Lesianawai also asserts that he did not understand the migration review process and lacked access to the 'welfare department staff' that were assigned to assist him since he was in prison.
20 It is necessary for the Court to consider the merits of Mr Lesianawai's proposed grounds only on an impressionistic basis for the purposes of determining whether an extension of time ought to be granted: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (at [58]-[63]), approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 (at [38]). Even on an impressionistic level, the proposed grounds of review do not reveal any arguable challenge to the Tribunal's decision.
21 The Tribunal was correct to determine that it did not have before it a decision capable of review. Section 25(1) of the AAT Act provides that an:
enactment may provide that applications may be made to the Tribunal, (a) for review of decisions made in the exercise of powers conferred by that enactment, or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
22 Section 500(1)(b) of the Migration Act gives the Tribunal jurisdiction to review decisions of a delegate of the Minister made under s 501. Section 500(6B) provides that such applications for review must be made within nine days of notification under s 501G(1). The extension of time provisions in ss 29(7), 29(8), 29(9) and 29(10) do not apply: s 500(6B). As stated above, Mr Lesianawai was substantially out of time in seeking review of the delegate's decision to cancel his visa, and the Tribunal was correct in so finding. It had no choice to find otherwise.
23 The evidence reveals that Mr Lesianawai was properly notified of the decision to cancel his visa. The requirements for the notification are set out in s 501G(1) of the Migration Act. Relevantly, the notification letter:
(a) set out the decision;
(b) specified the provision under which the decision was made, and gave reasons for the decision: s 501G(1)(c) and s 501G(1)(d);
(c) informed Mr Lesianawai he could apply to the Tribunal for review: s 501G(1)(f)(i);
(d) informed Mr Lesianawai that any review to the Tribunal had to be brought within nine days: s 501G(1)(f)(ii);
(e) enclosed a fact sheet about the review: s 501G(1)(f)(iv) and s 501G(1)(f)(v); and
(f) was sent by prepaid post and dispatched within three working days to Mr Lesianawai's last residential address: s 501G(3) of the Migration Act and regs 2.55(3)(c) and 2.55(4) of the Migration Regulations 1994 (Cth).
24 Realistically, it may well be accepted that Mr Lesianawai has been confused by the technicalities involved. That would be hardly surprising. But it does not follow that he has not been accorded an adequate opportunity within the requirements of the Migration Act to address the matters he now seeks to raise. In relation to the contention of a denial of procedural fairness, whether the Tribunal had jurisdiction to review the delegate's cancellation decision, in light of the prescribed time limit in s 500(6B), is a question of jurisdictional fact. The answer to that question is not dependent upon whether the Tribunal afforded procedural fairness to Mr Lesianawai. In any event, the evidence shows that the issue of the Tribunal's jurisdiction was raised and he had an opportunity to make submissions to the Tribunal about its jurisdiction at the case management directions hearing that was held on the day of the Tribunal's decision. The assertion of a denial of procedural fairness fails at an impressionistic level to make out error in the Tribunal's decision.
25 As to Mr Lesianawai's contention that he was not given proper advice about the jurisdiction of this Court when he was invited by the Minister to discontinue the Federal Circuit Court proceedings, this is not a matter that has any bearing on the preceding decision of the Tribunal. In any event, Mr Lesianawai had taken his own legal advice.