Li v Minister for Immigration and Citizenship [2026] FedCFamC2G 543

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. This is an application for review by Ms Li, who has three dependants. The outcome of Ms Li's visa application determines the outcome of the other visa applications, so I am focusing on her situation. In October 2014, Ms Li, who is a citizen of the People's Republic of China, applied for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa. She had a sponsoring employer, but unfortunately that sponsoring employer did not have an approved nomination. An approved nomination was required under the relevant criteria, which are found in cl 457.223 of sch 2 to the Migration Regulations 1994 (Cth). A delegate of the minister (the first respondent) refused the application for a visa.
2. Ms Li made an application to the Tribunal, which was then the Migration Review Tribunal, in 2015, and the outcome of that appeal is found at p 81 of the court book. At pp 82ff of the court book, the Tribunal recorded its finding that it did not have jurisdiction to deal with the matter. That 'no jurisdiction' decision was made because there was no live application for appeal by the approved sponsor in respect of the (refused) nomination. I understand there had been an appeal, but it was unsuccessful. Sometime later, on 13 December 2023, Ms Li and the other applicants made a further application seeking review of the delegate's decision to refuse her visa - this time to the Administrative Appeals Tribunal, which had absorbed the Migration Review Tribunal. The Tribunal responded to that fresh application with a request for comment. The Tribunal noted there was not a valid and pending application for review of the approval nomination, and since there was no approved nomination in place, that meant the applicant was unable to satisfy the requirements of the visa. There was no response to that invitation to comment. The Tribunal proceeded to make its decision without further reference to the applicant. That decision is found at pp 107ff of the court book.
3. Essentially, the Tribunal found it had no jurisdiction because there was no reviewable decision before it. The Tribunal appears to have based its 'no jurisdiction' decision on s 338(2)(d) of the Migration Act 1958 (Cth), which deals with applications for temporary visas of this kind. As I indicated during the course of the hearing before me, that provision requires that there be either an approved nomination in place or a live appeal of a decision to refuse such a nomination, and neither of those things was the case. The Tribunal's conclusion to that effect appears to be valid.
4. That is the background to the application that comes before me today, which is an application for an extension of time because the application for judicial review was lodged approximately 70 days out of time.
5. The time limit for making an application for judicial review is set down in s 477 of the Act. Section 477(2) permits the Court to extend time where an application is filed out of time. The discretion to extend time is available where the Court considers it is necessary in the interests of the administration of justice to order that extension of time. When considering whether to order the extension of time and what is in the interests of the administration of justice, the Court typically has regard to several things. One of those things is the explanation for the delay and the length of the delay. The second thing is the potential prejudice to the respondent, or to anybody else. I acknowledge that if the extension of time is not granted, the applicant may experience prejudice, although the extent of the prejudice will depend on the merits of the case.
6. The excuse the applicant has given for the delay is that she left the application to her agent. As I indicated to the applicant at the hearing, one always takes a risk when one leaves things to an agent, particularly if the agent is not on the record, because it is ultimately the applicant's responsibility to comply with deadlines and to inform themselves of those deadlines. Nonetheless, in the circumstances, I do not think the explanation given for the delay should count against the exercise of the discretion.
7. It has also been accepted by the respondent that there is no substantial prejudice to the respondent or any other individual, albeit that there is a public interest in finalising matters in a timely way. This consideration does not weigh for or against the exercise of the discretion to extend time.
8. The respondent says the third consideration, which is the merits of the underlying application for review of the Tribunal's decision, is determinative in this case. As I have already explained, the Tribunal reached the only decision that was open to it in the circumstances given the operation of the law. It follows the applicant would be most unlikely to succeed if the matter were to go through to a final hearing. It would be giving the applicant false hope as well as wasting the resources of the Court if the matter proceeded in those circumstances. I should add that even if I thought there was some possibility of error in the Tribunal's decision, the class of visa which the applicant sought is no longer available because that program has ended. That means that if the matter went back to the Tribunal, there would be no visa for it to give.
9. When I consider all these matters, I am forced to conclude it is not in the interests of the administration of justice for the extension of time to be granted. I am conscious that conclusion has implications for the applicant, who has been here a long time and whose family members are here, but my hands are tied because that is what the law says. It follows the application for an extension of time must be refused.
10. I explained to the applicant that it is often the case that an unsuccessful party will be asked to make a contribution towards the costs of the successful party in litigation. It is appropriate to make an order of costs in this case because the minister has incurred costs in defending the proceedings, and if the applicant does not pay, those costs will have to be met out of public monies. The minister has asked for $4,553.02 as a fixed cost award. That is the amount suggested by the Court's scale.[1] That strikes me as a reasonable amount having regard to the work done on the file and the fact that I am told it is substantially below what was actually billed to the minister.
11. I note the applicant has reported that she has financial obligations with her family members that mean a costs order would be an onerous burden. Unfortunately, that is not a reason for reducing or not making the costs order. Having said that, whether the costs are recovered and how they are recovered might be a matter for discussion elsewhere.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe delivered on 12 March 2026.

[1] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) sch 2 pt 3 div 1 item 2.