MMF25 v Minister for Immigration and Citizenship [2026] FedCFamC2G 403

1. This is an application under section 477(2) of the Migration Act 1958 (Cth) ('Act'). The Applicant seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) ('Tribunal') made on 8 August 2024. In that decision, the Tribunal confirmed the decision of a delegate of the Minister to dismiss the Applicant's application for a protection visa.
2. The Minister opposes time being extended. The Minister contends that the application should be dismissed with costs.
3. For the reasons that follow, I have decided to dismiss the application for review.

1. The Applicant applied for a Protection (subclass 866) visa ('visa') on 11 September 2019.
2. On 11 June 2020, the Department of Home Affairs ('Department') wrote to the Applicant to request further information in support of his protection claims. The Applicant was given 28 days to respond. No response was received by the Tribunal.
3. On 20 July 2020, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
4. On 1 August 2020, the Applicant applied to the Tribunal for merits review of the delegate's decision.
5. On 24 - 25 November 2022 and 16 February 2024, the Applicant corresponded with the Tribunal in relation to various matters.
6. On 3 June 2024, the Tribunal sent an email to the Applicant. The Applicant was asked to complete a pre-hearing information form within seven days. The Applicant did not complete the pre-hearing information form or otherwise respond.
7. On 2 July 2024, the Tribunal invited the Applicant to give evidence and present arguments at an in-person hearing on 23 July 2024. The hearing invitation included the following statement:

What will happen if you don't appear

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us...

...

A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

1. On 16 July 2024, the Tribunal sent an SMS message to the Applicant to remind him of the upcoming hearing.
2. On 18 July 2024, the Applicant sent an email to the Tribunal stating he 'will not be able to attend the hearing on July 23th'.
3. On 22 July 2024, the Tribunal sent a further SMS message to the Applicant to remind him of the hearing.
4. The Applicant did not attend the hearing on 23 July 2024. The Tribunal dismissed the Applicant's application under section 426A(1A)(b) of the Act (as it then was) ('non appearance decision'). In its decision, the Tribunal noted that the Applicant did not appear at the hearing, that he had been properly invited to the hearing, that it was satisfied the hearing invitation had not been returned to sender and that two SMS reminders had been sent to the Applicant about the hearing. The Tribunal stated that in the circumstances, it decided to dismiss the application without further consideration.
5. The Applicant was notified of the non-appearance decision on 24 July 2024. In the communication sent to the Applicant, the Tribunal stated 'You may apply to us, in writing, for reinstatement of the application by 7 August 2024'. The Applicant did not apply for reinstatement.
6. On 8 August 2024, the Tribunal confirmed the decision to dismiss the application. The Tribunal noted that on 24 July 2024, it had dismissed the application under section 426A(1A)(b) of the Act because the Applicant had failed to appear before it, that it had notified the Applicant of the non-appearance decision and advised the Applicant that reinstatement could be sought within 14 days failing which the Tribunal would confirm the non-appearance decision. The Tribunal noted that the Applicant did not apply for reinstatement and that in those circumstances, the decision under review was affirmed.
7. On 27 October 2025, the Applicant applied to this Court seeking to review the decision of the Tribunal. Included in the Applicant's originating application was an application to extend time under section 477(2) of the Act.
8. The Applicant relied on his Originating Application lodged 27 October 2025 ('Application') and his affidavit lodged 27 October 2025. The Minister relied on his Outline of Submissions filed 13 February 2026, the affidavit of Thomas Greenaway of 13 February 2026 and the Court Book. Both parties made brief oral submissions during the hearing.

PRINCIPLES RELATING TO EXTENSION OF TIME APPLICATIONS

1. Under section 477(1) of the Act, an application of the type before me must be made to this Court within 35 days of the decision of the Tribunal. Under section 477(2) of the Act, the Court may extend the 35-day time-period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so. The expression 'in the interests of the administration of justice' is not defined in the Act.
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 ('Katoa'), a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [12] with respect to the similar provision at section 477A(2) of the Act:

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.

(footnotes omitted)

1. Further, at [13], the majority noted and endorsed the well-established guiding principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles identify the following matters as requiring consideration:

(a) the extent of the delay;

(b) the explanation of the delay;

(c) any prejudice to the respondents;

(d) the interests of the public at large; and

(e) the merits of the substantive application. It is appropriate to assess the merits of the proposed grounds of review at a 'reasonably impressionistic level' (Katoa at [17]; CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19]).

1. Further, in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585, Mortimer J at [63] considered that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time 'may be expressed by the use of language such as whether the ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success".
2. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J discussed the history and rationale for limitation periods. At 553-554 of the judgment, His Honour stated:

'In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced" But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.'

(footnotes omitted)

1. In Commonwealth of Australia; ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 ('Marks'), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be 'exceptional' before the time for commencing proceedings was enlarged by many, many months.
2. It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:

'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.'

1. I now turn to consider the application to extend time by reference to the principles above.

1. In the Application, the Applicant sets out two grounds in support of the application to extend the time for filing. They are as follows:
   1. I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
   2. The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.
2. Further, the Application sets out seven substantive Grounds of Review as follows:
   1. I came to Australia as a visitor visa holder and made an application for further visa and made and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application with The Tribunal. I was received an invitation to attend a hearing with The Tribunal about my application for review of a decision to refuse to grant protection visa.
   2. I did not appear to give evidence and present documents at the time and date of the scheduled hearing with The Tribunal and then The Tribunal confirms the decision to dismiss the application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter. I was advised by Tribunal to apply for reinstatement of the application within the 14 days period of receiving the dismissal statement.
   3. The reason I did not appear at the hearing with The Tribunal and did not apply for reinstatement of the application within the 14 days period was because at that time I was not aware about the hearing with the Tribunal and I required judicial review in Court to seek justice where I believe there was a lack of procedural fairness.
   4. I have lost my mobile phone and after that when I replaced a new one, I had a problem opening my email but once I figured it out, it was late for me to attend the hearing and my application was dismissed by The Tribunal.
   5. This is clear unfair treatment by The Tribunal to myself. The Tribunal has a refusal letter from the Minister for Immigration and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
   6. I would like to request Federal Circuit Court to accept my application and give me chance to present fresh evidences to support my claim in my visa application so that I could get fair trial in this matter.
   7. I would like to request to Federal Circuit Court to set aside old orders made by The Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.
3. The Applicant did not file any written outline of submissions. His oral submissions before me were brief. He stated that Australia suited him and he was happy with his work here, his visa application and application to the Tribunal was dealt with quickly, and that when he received the email from the Tribunal, he was not really checking his emails 'back then'.
4. The delay in filing the Application is significant - over 400 days. The High Court has made it clear that such a lengthy delay requires exceptional reasons to justify an extension of time. No exceptional reason, or indeed any plausible reason, was offered by the Applicant for the delay. Not being aware of the time limit (as stated in the Application) is not an adequate explanation for the delay. Nor is the explanation that he was not checking his emails 'back then' an adequate one. I agree with the submissions of the Minister that the more likely explanation for the delay (though it was not advanced by the Applicant) is the fact that the Applicant had previously filed an application for judicial review in this Court on 2 August 2024, but then failed to appear at a callover, resulting in the dismissal of the application then before the Court on 12 August 2025. The present application before me was filed some 76 days after the Court dismissed the initial application. The delay is significant and there is not a reasonable explanation for it from the Applicant.
5. The Minister accepts that there is no prejudice to him if the time-period for filing is extended. That is an appropriate concession.
6. I turn to the substantive grounds of the Application and whether they are reasonably arguable at an impressionistic level.
7. At a general level, none of the grounds of review assert error made by the Tribunal or if they can be said to assert error, particularise the error complained of.
8. The only apparent complaint about the Tribunal is the Applicant's assertion in Ground 5 that he was subject to 'clear unfair treatment' by the Tribunal. There are no clear particulars of this complaint. To the extent it is a complaint about a lack of procedural fairness by the Tribunal toward the Applicant, it cannot be sustained. The Applicant was properly invited to attend a hearing before the Tribunal, a point the Applicant clearly acknowledges in Ground 1 of the Grounds of Review. The hearing invitation from the Tribunal complied with the requirements contained in section 425A of the Act - it contained the date, time and place of the hearing, was sent to the last email address that the Applicant provided to the Tribunal, gave notice that was greater than the prescribed period and contained a statement advising the Applicant of the consequences of his failure to appear at the hearing. The Applicant's failure to attend the hearing enlivened a discretion within the Tribunal to dismiss the application before it. There was nothing unreasonable about the Tribunal exercising its discretion in the way that it did. Nor is there anything unreasonable, or any lack of procedural fairness to the Applicant, arising from the way in which the Tribunal confirmed the non-appearance decision. The Applicant received notification that the Tribunal had dismissed his application for failure to appear and was informed of his right to seek reinstatement. The decision by the Tribunal to confirm the non-appearance decision was the only decision open to it. The Tribunal did not act unreasonably in confirming the non-appearance decision.
9. As to the other grounds of review, in addition to what I have set out above, I find as follows:

(a) Grounds 6 and 7 appear to be an invitation to the Court to assess the merits of the Applicant's visa application. The Court cannot do this.

(b) Grounds 1 and 2 recite background information. They are not proper grounds of review and do not identify any error made by the Tribunal.

(c) in Grounds 3 and 4, the Applicant says that he was not aware of the hearing before the Tribunal. That proposition cannot be accepted. As the Applicant's email of 18 July 2024 shows, he was aware of the hearing date. Further, the assertion in Ground 4 about a lost mobile phone is inconsistent with what the Applicant now says before me - that he was not checking his phone 'back then'.

1. When merits of the Applicant's substantive claim are weighed, they do not disclose a reasonably arguable case assessed at an impressionistic level.
2. When all of the above matters are weighed, I am of the view that the application to extend the time for filing should be dismissed. The delay in filing was a lengthy one and no adequate explanation for the delay has been advanced by the Applicant. Moreover, and significantly, the substantive application is lacking in merit.
3. The Minister seeks costs of $4,553.02 in accordance with the scale. The Minister has been wholly successful in the proceeding. It is appropriate that the Minister receive his costs. I will make an order to that effect as well as orders dismissing the Application.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.