LZW25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 413

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. On 20 October 2025, the applicant lodged an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 August 2024.
2. For the reasons that follow, the application to this Court to extend time is dismissed.

1. In November 2015, the applicant, a citizen of Malaysia, first arrived in Australia as the holder of a visitor visa.
2. In December 2016, the applicant lodged an application for a protection visa, claiming to fear harm from loan sharks in Malaysia.
3. On 29 June 2017, a delegate of the first respondent refused to grant the visa on the basis that they were not satisfied the applicant was a person in respect of whom Australia has protection obligations under 36(2) of the Act.
4. On 15 June 2020, the applicant applied to the Tribunal for review of the delegate's decision. In lodging the application for review with the Tribunal, the applicant provided her email address (Nominated Email Address) and phone number. The applicant's three year delay in applying to the Tribunal following the delegate's decision is not explained in the materials before the Court.
5. On 7 May 2024, the Tribunal sent the applicant a letter requesting she complete a pre-hearing information form. The applicant did not respond to the Tribunal's letter.
6. On 17 July 2024, the Tribunal invited the applicant to appear at a hearing on 6 August 2024, to give evidence and present arguments.
7. On 6 August 2024, the applicant failed to attend the hearing before the Tribunal. That same day, the Tribunal made a decision dismissing the application to the Tribunal (Dismissal Decision). Later that day the Tribunal emailed a copy of the Dismissal Decision to the applicant at the Nominated Email Address. A covering letter informed the applicant that she may apply for reinstatement within 14 days and a failure to do so would result in the Tribunal confirming the Dismissal Decision.
8. On 21 August 2024, in circumstances where the applicant failed to apply for reinstatement within the 14 day prescribed period, the Tribunal confirmed the Dismissal Decision (Confirmation Decision). The Tribunal emailed a copy of the Confirmation Decision to the applicant at the Nominated Email Address.

1. The Tribunal at [2] noted that the applicant "did not appear before the Tribunal on the day" of the hearing.
2. The Tribunal at [3] was "satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5)" of the Act, and noted "the Tribunal also sent an SMS reminder message for the hearing ... to the mobile number provided with the application for review".
3. The Tribunal at [4]-[5] found that "there is ... no satisfactory explanation provided for [the applicant's] non-appearance at the hearing on 6 August 2024" and, in these circumstances, "decided to dismiss the application without further consideration of that application or the information before the Tribunal".

1. The Tribunal at [3] found that "the applicant was notified of the dismissal decision ... in accordance with s 426B(5)" of the Act, and that "the applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement".
2. Given that the applicant did not apply for reinstatement, the Tribunal at [4] found it "must confirm the decision to dismiss the application".

Application and steps up to hearings in March 2026

1. On 20 October 2025, the applicant lodged an application in this Court seeking judicial review of the Tribunal's decision dated 6 August 2024 (Application). The Application contained the following three grounds (as written):
   1. I was denied procedural fairness because the tribunal decided my review in my absence.
   2. My non-attendance happened because I was misled and not properly advised by my former representative.
   3. The Tribunal made a jurisdictional error by deciding without fairly considering my real situation or the evidence, and acted unreasonably and arbitrarily.
2. In light of the time limit for filing applications in s 477(1) of the Act, the applicant lodged the Application about 405 days after the expiry of the time limit and therefore requires an extension of time. The Application lists the following grounds for extending time:
   1. The applicant was misled by her former agent and did not receive proper advice about attending the tribunal hearing.
   2. After being mislead, I had no legal representative and did not understand the legal or court process.
   3. I could not afford to hire a lawyer and had to prepare and file this application on my own.
3. On 20 October 2025, the applicant also lodged an affidavit. In the affidavit, the applicant said nothing to explain her delay of about 405 days, between August 2024 and October 2025, in applying to the Court for judicial review of the Tribunal's decisions.
4. On 2 December 2025, a registrar of the Court made procedural orders, including that the applicant file and serve a written submission, any amended application with proper particulars, and any additional evidence by 20 January 2026.
5. On 18 February 2026, the Court sent an email giving notice that the matter was listed for hearing at 10:15 am on 9 March 2026. Due to an administrative error, the email was sent to an incorrect address for the applicant. About an hour before the hearing commenced, the email error was identified and the listing notice was sent to the applicant's correct address. Until this time, the applicant was unaware of the hearing.
6. On 3 February 2026, the first respondent filed a written submission (RS).
7. The applicant did not file a written submission or any other documents prior to the hearing.

1. At the hearing in this Court on 9 March 2026, there was no appearance by the applicant. Sam Parsons from Sparke Helmore Lawyers appeared for the first respondent. Since the Court had not properly notified the applicant about the hearing date, I adjourned the hearing to 16 March 2026.
2. Following the hearing, an email was sent to the parties (this time to the applicant's correct email address) notifying them that the hearing was adjourned to 16 March 2026.

1. At the hearing in this Court on 16 March 2026, the applicant appeared before the Court unrepresented, assisted by an interpreter in the Malay language. Mr Parsons appeared for the first respondent.
2. The applicant did not bring to the hearing any documents in the matter. Mr Parsons gave the applicant a copy of relevant documents, including the Application, her affidavit lodged on 20 October 2025 (which annexed the Dismissal Decision) and the first respondent's written submission.
3. At the commencement of the hearing, I told the applicant there were two matters she must address as follows:

(a) The applicant must identify a jurisdictional error, which I described as a significant mistake or error, in or in connection with one or both of the Tribunal's decisions.

(b) Since the applicant filed the Application more than 35 days after the date of the Tribunal's decisions, she must persuade the Court to extend time for the filing of the Application. In particular, she must persuade the Court she has a satisfactory explanation for her lengthy delay of over 13 months between 21 August 2024 (date of Confirmation Decision) and 20 October 2025 (date applicant commenced proceeding in this Court).

1. Mr Parsons tendered the Court Book (CB) which contained the Tribunal's two decisions and documents before the Tribunal.
2. I read the applicant's affidavit lodged on 20 October 2025.
3. In relation to the applicant's delay in commencing this Court proceeding, I noted that the delay is extensive and the applicant has not provided evidence to explain the delay. I stated that I would permit the applicant to give oral evidence to explain the delay at the hearing if she wished to do so. The applicant stated that she wanted to give oral evidence.
4. The applicant entered the witness box. The applicant stated:

(a) In the lead up to the hearing before the Tribunal on 6 August 2024, she was aware of the hearing. She then spoke with a "friend of a friend" who told her that she could either attend or not attend the hearing. The applicant decided to not attend the hearing.

(b) The friend of the friend said that he would "fight for" the applicant, he would help the applicant, and he told her to wait for an email. The applicant relied on this person and, for this reason, she did not more promptly commence proceedings in this Court to challenge the Tribunal's decisions.

(c) The applicant then commenced the present proceeding in October 2025 so that she could get a work permit and have her case re-heard in the Tribunal.

1. During closing submissions, I asked the applicant to identify any significant mistake in or in connection with one of the Tribunal's two decisions. After a long pause, the applicant asked if she could check her emails. I said "yes". The applicant, after looking (presumably at an email) on her mobile phone, then said that she understood the Tribunal's decisions and she could not identify an error in the decisions. I explained to the applicant that, if there is no error in or in connection with the Tribunal's decisions, I must dismiss the Application. I asked the applicant if she wanted to withdraw her Court proceeding. The applicant stated that she did not want to withdraw.
2. Mr Parsons, in his oral submissions, principally relied on the first respondent's written submission filed in February 2026.

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that "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" and "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".
2. In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that "in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level", but "there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits", "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even 'exceptional'", and ultimately the provision "entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application".

1. Length of delay: The 35 day timeframe for the applicant to apply to the Court for judicial review of the Tribunal's decisions ended on 10 September 2024. The applicant did not apply for judicial review until 20 October 2025. The applicant therefore requires an extension of time of about 405 days. The first respondent at RS [22] categorised the applicant's delay as "extreme". I agree.
2. Reasons for delay: The applicant, in the Application, acknowledged she needs an extension of time. She wrote under the heading "Grounds of application for extension of time" that she "was misled by her former agent and did not receive proper advice about attending the Tribunal hearing" on 6 August 2024 and then, after her matter was dismissed by the Tribunal, she "had no legal representation and did not understand the legal or court process".
3. The applicant, in her affidavit dated 20 December 2025, said nothing to explain her delay between August 2024 and October 2025 in commencing this Court proceeding.
4. The applicant's oral evidence at the hearing on 16 March 2026 concerning the reasons for her delay is set out in paragraph 31 above. There are at least two differences between her evidence to the Court on 16 March 2026 and her explanation in the Application set out in paragraph 17 above as follows:

(a) In the Application, the applicant blamed a former migration agent for misleading her in relation to attending the Tribunal hearing. In her evidence to the Court on 16 March 2026, the applicant made no reference to a former migration agent misleading her and instead said she received advice from a "friend of a friend" in relation to attending the Tribunal hearing.

(b) In relation to the passing of time between August 2024 and October 2025, in her evidence to the Court on 16 March 2026, the applicant appeared to blame the "friend of a friend". In contrast, in the Application the applicant's sole explanation for the passing of time was she "had no legal representative and did not understand the legal or court process".

1. In relation to the passing of time between August 2024 and October 2025, I am not satisfied that the applicant relied, to her detriment, on the person she described as a "friend of a friend". The reasons I am not satisfied by the applicant's explanation are because of the inconsistencies explained in paragraph 40 above and the vagueness of her evidence. Further, even if the applicant relied to her detriment on the "friend of a friend", such reliance by the applicant over a period of over one year is careless and unsatisfactory.
2. For the above reasons, the applicant's explanation for her lengthy delay is highly unsatisfactory.

1. It is stated at RS [23] that "there is no specific prejudice" to the first respondent.

1. Although the applicant stated during the hearing in this Court on 16 March 2026 that there was no error in or in connection with either of the Tribunal's two decisions, it is appropriate to consider the grounds in the Application.
2. Ground 1: The applicant asserts that she "was denied procedural fairness because the Tribunal decided my review in my absence". However, first, the applicant gave evidence during the hearing in this Court on 16 March 2026 that she was aware of the hearing date before the Tribunal but, after speaking with a friend of a friend, decided not to attend the hearing. That the applicant chose not to attend the hearing does not, without more, give rise to a denial of procedural fairness. Second, in circumstances where the Tribunal validly invited the applicant to attend a hearing but the applicant failed to attend the hearing, the Tribunal's power to dismiss the application under s 426A(1A)(b) of the Act was enlivened. I agree with the first respondent's submission at RS [28] that "there was nothing unreasonable in the Tribunal proceeding to dismiss the application in circumstances where: it had sent a hearing invitation which was not returned to sender; it had also sent an SMS reminder to the applicant ahead of the hearing at the nominated phone number; neither the hearing invitation nor the SMS reminder were returned to sender; and the applicant had not responded to the hearing invitation or otherwise contacted the Tribunal about the hearing or since lodging her application with the Tribunal".
3. Ground 2: The applicant asserts that her "non-attendance happened because I was misled and not properly advised by my former representative". However, the applicant gave no evidence to support these assertions. While the applicant gave evidence at the hearing on 16 March 2026 of a conversation she had with a "friend of a friend", her evidence did not support the assertion that she failed to attend the hearing because she was misled.
4. Ground 3: The applicant asserts that "the Tribunal made a jurisdictional error by deciding without fairly considering my real situation or the evidence and acted unreasonably and arbitrarily". In relation to the applicant's assertion that the Tribunal acted unreasonably, as stated in paragraph 45 above, I consider there was nothing unreasonable in the Tribunal proceeding to dismiss the application when the applicant did not attend. The remaining assertions in this ground are misguided since, upon the applicant not attending the hearing, the statutory scheme permitted the Tribunal to dismiss the application without considering the merits of the applicant's claims.
5. In conclusion, the applicant has not identified a reasonably arguable case of jurisdictional error in the Tribunal's two decisions, let alone a "case [which] is strong or even exceptional": Katoa at [18].

1. The Court may only grant an extension of time if it "is satisfied that it is necessary in the interests of the administration of justice to make the order". For reasons explained above:

(a) The applicant's delay in filing the Application is lengthy and her explanation for the delay is highly unsatisfactory.

(b) The applicant has not identified a reasonably arguable case of jurisdictional error in the Tribunal's decision.

These matters support a conclusion that it is not necessary in the interests of the administration of justice for the Court to grant an extension of time.

1. Therefore, I refuse to extend time and dismiss the application for an extension of time.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. If the Application was dismissed, Mr Parsons sought an order that the applicant pay the first respondent's costs in the amount of $4,553.02, which is an itemised amount in Part 3 of Schedule 2 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2025 and less than the first respondent's solicitor/client costs. The applicant did not oppose this order. The amount claimed by the first respondent is reasonable. I will make this order.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.