RDYQ v Minister for Immigration and Citizenship [2025] FedCFamC2G 1407

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).

(Delivered ex tempore and revised from the transcript)

1. The applicant, who is a citizen of the United States of America and Canada, applied for a protection visa in Australia. A delegate of the Minister refused to grant him a protection visa and that decision was affirmed by the Administrative Review Tribunal (Tribunal) on 27 November 2024. The applicant made an application for judicial review of the Tribunal decision on 6 January 2025, with that application being lodged at 5:38 pm. The application was made five days outside the time limit set by s 477(1) of the Migration Act 1958 (Cth) (Migration Act), which requires any application to this Court to be made within 35 days of the date of the Tribunal decision.
2. The applicant has applied in writing for the Court to make an order extending the time for him to make an application pursuant to s 477(2) of the Migration Act. The applicant's grounds for seeking an extension of time are:
   1. I have been attempting to apply since 29 December2024 which is inside of the 35 day window.
   2. I am self representing so did not fully understand why my applications were being denied.
   3. Due to the holiday season it was difficult to reach out to anyone who could help me.
3. The Minister has not consented to the grant of an extension of time, but does not oppose the extension of time being granted. In taking this position, the Minister makes no concession as to the merits of the ground raised in the substantive judicial review application.
4. For the following reasons, I am satisfied that it is appropriate to make an order granting the applicant an extension of time to file his application for judicial review.

Considerations relevant to the grant of an extension of time

1. Pursuant to s 477(2) of the Migration Act, the Court may make an order extending the 35 day time limit to make an application if the applicant has applied for an extension of time in writing and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. There are no prescribed factors that the Court is required to take into account, or precluded from taking into account, in deciding whether to exercise its discretion to grant an extension of time. However, in considering whether to grant an extension of time, the Court will often have regard to matters such as the length of the delay, the explanation for the delay, any prejudice that the respondents would face as a result of the delay and the merits of the proposed substantive application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

1. The delay in this case is short, being only five days.

1. The explanation for the delay is set out in the applicant's grounds for seeking the extension of time and in an affidavit filed on 7 January 2025. The affidavit has not been properly witnessed, but the Minister makes no objection to this and I will have regard to the affidavit. In his affidavit, the applicant said that he first attempted to apply within the 35 day window but it took him longer to file the correct application due to:

(a) him being, at that time, a self-represented litigant;

(b) confusion as to his applications being rejected; and

(c) not being able to get help during the holiday season.

1. There are some gaps in the applicant's explanation for the delay. For example, there is no detail as to the attempt the applicant claims to have made to file an application within time and no copy of any rejected application or communications with the Court has been provided. Further, although the applicant said he was not able to get help during the holiday season, he has not given any evidence of what steps he took to get help and when those steps were taken.
2. Nevertheless, despite these deficiencies in the explanation for the delay, I accept that the applicant has provided an adequate explanation for a short delay of only five days, taking into account the time of year at which the application was filed.

1. The Minister, appropriately, has not claimed that he will face any prejudice as a result of the delay, and I am satisfied that the Minister will not face any material prejudice as a result of the applicant's five day delay in making the judicial review application.

The merits of the proposed judicial review application

1. In considering whether to grant an extension of time, the Court will often consider the merits of the proposed judicial review application at a reasonably impressionistic level, although this is not necessary in all cases: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [17]- [19] and [49].
2. The applicant's grounds of application are not clearly articulated. However, having regard to his judicial review application and the submissions provided in support of that application, it appears that the applicant asserts that the Tribunal misapplied the relevant tests in considering whether the applicant faces a real chance of serious harm or a real risk of significant harm. In particular, the applicant asserts that the Tribunal did not correctly consider whether there was a real chance that the National Sex Offenders Registry would be made publicly available and would result in a well-founded fear of persecution on the part of the applicant.
3. The applicant asserts that the Tribunal was riddled with doubts as to whether the National Sex Offenders Registry would not be made publicly accessible, but failed to consider the 'what if I am wrong?' test and engage in reasonable speculation about the real chance of persecution that goes beyond the future likelihood of an occurrence.
4. I have already accepted that the applicant's delay in making the judicial review application is short and has been adequately explained, and there is no material prejudice arising to the Minister from the delay. In these circumstances, the Court would not generally refuse to grant an extension of time on the basis of merit unless the Court considered that the judicial review application had no prospects at all or was bound to fail: see, for example, SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [84] and MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [65].
5. I am satisfied in the present case that the applicant's judicial review application is not wholly without prospect or bound to fail. It is unnecessary to say anything more about the merits of the proposed judicial review application at this stage.

1. Having regard to the short extent of the delay, the explanation offered for the delay, the lack of prejudice to the Minister and that the applicant's proposed judicial review application is not bound to fail, it is appropriate to extend the time for the applicant to make his judicial review application to the date that the application was filed.
2. In circumstances where the application was lodged at 5:35pm and would therefore be taken to be filed on the following day, Counsel for both parties have submitted that it would be appropriate to extend the time to the day the application is deemed to be filed, being 7 January 2025. I therefore make the following order in this matter:

Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time within which the applicant may file an application for judicial review of the decision made by the second respondent on 27 November 2024 is extended to 7 January 2025.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.