Zhan v Minister for Immigration and Citizenship [2026] FedCFamC2G 267

1. The applicant, a citizen of China, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 June 2022. The Tribunal found it did not have jurisdiction in the matter and therefore could not review the decision of a delegate of the Minister dated 14 September 2021 refusing to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (partner visa).
2. Pursuant to s 477(1) of the Migration Act 1958 (Cth) (Act), an application for judicial review is required to be filed within 35 days of the date of the migration decision, which in this case refers to the Tribunal's decision. Pursuant to ss 477(3)(b) and 368(2) of the Act, the date of the migration decision is the date on which the written statement of the Tribunal's decision is made, namely 6 June 2022. Accordingly, the 35-day period the applicant had to file an application in this Court ended on 11 July 2022 at 4:30pm: r 2.05(4)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The applicant's judicial review application in this Court was filed at 5:06pm on 11 July 2022 (as marked on the application) and pursuant to r 2.05(4)(b) of the GFL Rules, was taken to have been filed on 12 July 2022. Therefore, the applicant was one day late. The applicant requests the Court to exercise the power under s 477(2) of the Act to extend the 35-day period to enable her to pursue the judicial review application in this Court.

1. The applicant and the sponsor, Mr Ningyu Li (sponsor) commenced a de facto relationship on 1 March 2018 (Court Book (CB) 79, 89 to 90). On 7 July 2018, they obtained a relationship certificate from the NSW Registry of Births Deaths and Marriages (CB 101).

1. On 1 August 2018, the applicant lodged an application for a partner visa, sponsored by Mr Li (CB 78 to 99). In her partner visa application, the applicant provided her email address, which I will refer to as "E1" in this judgment, as her address to receive all correspondence, "including notification of the outcome of the application" (emphasis added) (CB 82). In the application for the partner visa, the applicant did not nominate an authorised recipient to receive written correspondence on her behalf (CB 81).
2. On 7 December 2019 (CB 125 to 128), 7 March 2020 (CB 139 to 142) and 14 August 2021 (CB 151 to 154) respectively, the Department of Home Affairs (Department) sent letters to the applicant's nominated email address, E1, requesting additional information from the applicant in relation to her partner visa application, including evidence that the applicant continued to be the spouse or de facto partner of the sponsor, an Australian permanent resident. Each of the said letters stated that if the applicant did not send to the Department the information it needed within the specified timeframe, the Department could decide the application with the information it had at that time (CB 126, 140 and 152). The Department did not receive any response from the applicant and determined the matter (CB 168).

1. On 14 September 2021, a delegate of the Minister refused the applicant's partner visa application on the basis that the applicant failed to meet the criteria in cl 820.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 167 to 169). Clause 820.221(2) of the Regulations required the applicant to be a spouse or de facto partner of the sponsor at the time of the decision. Given the applicant had not provided any evidence that she continued to be the de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen as required by cl 820.211(2), the delegate was not satisfied that the applicant met the requirements of cl 820.221(1) of the Regulations. As the applicant did not meet cl 820.221(1) of the Regulations, the delegate found the criteria for the grant of a partner visa were not met and therefore refused the applicant's application (delegate's decision).
2. The delegate's decision was sent to the applicant's nominated email address, E1, with a covering letter dated 14 September 2021 from the Department (CB 163 to 166, Annexure A of Affidavit of Wenjia La affirmed on 7 January 2026). The covering letter stated the following under the subheading "Review rights":

The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision.

An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.

You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time the application for merits review is made.

(Emphasis added)

1. On 26 November 2021, the Department received the following two emails from Hong (Grace) Fang (Ms Fang), a registered immigration agent from Australia Grace Home Education & Immigration Pty Ltd (Annexures B and C of Affidavit of Wenjia La affirmed on 7 January 2026):

(a) an email in response to a Departmental request for more information from the applicant's sponsor dated 14 August 2018, which attached identity documentation and police checks for the applicant and sponsor; and

(b) an email requesting a Medicare letter for the applicant.

1. On 7 December 2021, the Department wrote to Ms Fang stating that Departmental records showed that Ms Fang was not an authorised contact on the applicant's application for a partner visa (Annexure D of Affidavit of Wenjia La affirmed on 7 January 2026). The Department advised that, should the applicant wish to nominate Ms Fang as her migration agent, a Form 956 needed to be provided so that the Department could update the application details accordingly.

1. On 8 April 2022, the applicant applied to the Tribunal for review of the delegate's decision (CB 211 to 218). In the application for review, the applicant provided a new contact email address, which I will refer to as "E2" in this judgment (CB 214). The application for review also listed Ms Fang as the applicant's authorised recipient, and advised the Tribunal that it should send correspondence about the application to Ms Fang's nominated email address (CB 215 to 216).
2. By letter dated 12 April 2022 to the applicant's representative's nominated email address, the Tribunal acknowledged the applicant's application (CB 220).
3. By letter dated 3 May 2022 to the applicant's representative's nominated email address, the Tribunal informed the applicant of its view that the application for review was not a valid application as it was not lodged within the relevant time period, being 21 days from the day on which the applicant was taken to have been notified of the delegate's decision (CB 233). The Tribunal advised the applicant that given the delegate's decision was emailed to the applicant at E1, the applicant was taken to have been notified on 14 September 2021, and the last day for lodging the review was therefore 5 October 2021. The Tribunal invited the applicant to make any comments on whether a valid application had been made in writing by 17 May 2022.

1. By letter dated 6 June 2022 to the applicant's representative's nominated email address (CB 235), the Tribunal notified the applicant that the Tribunal could not review the delegate's decision as the Tribunal had no jurisdiction to determine the application for the following reasons (CB 237):

(a) Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, the applicant was required to make an application for review of the delegate's decision within 21 days after she was properly notified of the delegate's decision ([3] of the Tribunal's reasons). The delegate's decision dated 14 September 2021 was sent by email to the applicant's nominated email address on that same date ([4] of its reasons). Pursuant to s 494C of the Act, the applicant was taken to have been notified of the decision on 14 September 2021 ([7] of its reasons).

(b) Given the matters in the preceding subparagraph, the prescribed period to apply for review ended on 5 October 2021. The application for review of the delegate's decision was not received by the Tribunal until 8 April 2022 ([7] of its reasons).

1. Accordingly, the Tribunal found that the applicant failed to apply for review of the delegate's decision in accordance with the statutory requirements and the Tribunal did not have jurisdiction in the matter ([7] and [8] of its reasons).

1. The application for judicial review in this Court was lodged electronically on 11 July 2022 and contained the following grounds for an extension of time (as per original):

14 September 2021 My spouse visa is refused because I didn't reply Department of Home affairs, but in fact, I notice it I changed email address but they still send to my old email address. Even it in Nov 2021 I called the department they still say my case in process. 6 June 2022, my AAT is refused. 21 June 2022 I lodge court but court made it pending because I didn't give right documents. 30 June 2022 court reject my application even if I submitted requested documents 25 June 2022 (court still thought not right). After I confirm with court today 8 July 2022 to give me details of right documents then I lodge it again.

(Emphasis added)

1. The application raised the following grounds for judicial review (as per original):
   1. I meet the condition to grant spouse visa
   2. My case is needed to be revoked in AAT and Home Affairs

1. The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the Mandarin and English languages. The Minister was represented by Ms N Chandra (Ms Chandra), a solicitor from Hicksons | Hunt & Hunt. Mindful of the Court's duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application for judicial review, supporting affidavit of the applicant deposed on 8 July 2022 (applicant's affidavit), the applicant's email referred to at [19] of this judgment, the Minister's written submissions dated 7 January 2026 and the Minister's affidavit affirmed on 7 January 2026 (Minister's affidavit). I ensured the applicant had interpreted to her the relevant documents except the Court Book.
2. The evidence before the Court comprised of the Court Book, tendered by the Minister and marked "Exhibit R1" and the Minister's affidavit.

Applicant's email treated as written submissions

1. On 18 September 2025, the applicant sent to my chambers an email explaining why she considered that the delegate made an error that led to the refusal of her partner visa application. On 22 September 2025, my chambers replied to the applicant stating that the said email could be treated as submissions.
2. At the hearing before me, the applicant relied on her email dated 18 September 2025 as written submissions and the Minister relied on his written submissions dated 7 January 2026. The applicant and Ms Chandra also made oral submissions.

1. It is helpful to set out the relevant legal principles that apply to this Court's consideration as to whether or not to exercise the power to extend the time within which to allow an applicant to make a judicial review application.
2. Sections 477(1) and 477(2) of the Act provide:

(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. The meaning of the date of the migration decision is set out at s 477(3) of the Act.
2. The applicant has made an application for an extension of time. The question is whether this Court is satisfied it is necessary in the interests of the administration of justice to make the order extending time.
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12], the High Court observed that the Court's power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time, but the Court may 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.
4. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to "evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice". Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time, although it is noted that this list is not exhaustive:

(a) the length and explanation of delay;

(b) any prejudice to the parties if an extension was granted;

(c) the impact on the applicant if the time was not extended;

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

(e) the merits of the substantive application.

1. Pursuant to s 477 of the Act, an application to this Court for review of the Tribunal's decision is required to be made within 35 days of the date of the migration decision. In this case, there had been a 36-minute delay in filing the application to this Court, meaning the application was taken to be accepted for filing one day late. The applicant's explanation for the delay was that she attempted to submit the application for judicial review on 21 June 2022, but it was rejected because the documents were not provided correctly. There is no evidence before the Court of this. Further, the applicant stated she lodged the application on 8 July 2022, however no evidence has been provided to support this assertion. The evidence before the Court indicates that the application was lodged electronically at 5:06:09 PM AEST on 11 July 2022 (CB 1).
2. In any event, I find that the length of the delay is minor and the real issue in this case is whether the substantive application has merit, which is dealt with at [32] to [44] of this judgment.

1. The Minister accepted that there is no relevant prejudice in this matter should an extension of time be granted. However, I note this is not in itself sufficient to award an extension of time.

1. There is no public interest concerned in this matter.
2. With regard to the impact upon the applicant, if an extension of time is refused then the Tribunal's decision will stand, with all the consequences that follow for her visa application.

1. The applicant contends in her grounds for extension of time that she did not receive the delegate's decision as she had changed her email address and the delegate's decision was sent to her old email address. The Court will first consider whether the applicant was "properly notified" of the delegate's decision and whether, as a result, the Tribunal was correct in determining that it did not have jurisdiction in this matter.

1. The statutory provisions at the time of the delegate's decision on 14 September 2021 were as follows.
2. Pursuant to s 338(2) of the Act, the delegate's decision was a Part 5-reviewable decision.
3. Sections 347(1)(b) and 347(5) of the Act required that an application for review of a Part 5-reviewable decision must be lodged with the Tribunal within the prescribed period. The relevant prescribed period was outlined in reg 4.10(1)(a) of the Regulations, which provided:

4.10 Time for lodgment of applications with Tribunal (Act, s 347)

(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:

(a) if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act - starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or...

1. For that 21-day period to commence, the Department must notify the applicant of the delegate's decision in accordance with the requirements in s 66 of the Act. If the notification did not meet those requirements, then there had been no notification of the decision to the applicant and the time period did not commence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [59], [75] and [76], [78] and [103].
2. Section 66(1) of the Act specified that when the Minister refused to grant a visa, the Minister must notify the applicant of the delegate's decision in the prescribed way. Section 66(2) of the Act outlined how an applicant was to be notified of a decision, providing as follows:

66 Notification of decision

...

(2) Notification of a decision to refuse an application for a visa must:

(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

(c) unless subsection (3) applies to the application - give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made; and

1. Regulation 2.16 at the relevant time set out the way of notifying a person of a decision to refuse to grant a visa for the purposes of s 66(1). Relevantly, reg 2.16(3) stated as follows:

2.16 Notification of decision on visa application

...

Refusal to grant visa

(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.

Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

1. Section 494B of the Act set out the methods by which the Minister gave documents to a person and included transmission by fax, email or other electronic means:

494B Methods by which Minister gives documents to a person

...

Transmission by fax, email or other electronic means

(5) Another method consists of the Minister transmitting the document by:

...

(b) email; or

...

to:

(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents;

1. Section 494C of the Act specified when a person is taken to have received a document from the Minister including where the Minister gives a document by the methods set out in s 494B of the Act, including s 494B(5):

494C When a person is taken to have received a document from the Minister

...

Transmission by fax, email or other electronic means

(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

1. The Minister submitted that pursuant to ss 494B and 494C, the applicant was taken to have received the delegate's decision by email (CB 163) and the applicant was notified pursuant to s 66 of the timeframe within which her application for review could be lodged with the Tribunal (CB 163 and 164). The Minister contended that the application to the Tribunal was not lodged until 8 April 2022, well after the expiry of the 21-day period, and the Tribunal had no legislative discretion to extend the time limit for lodging a valid application: DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801 at [66].
2. The applicant's written submissions from her email dated 18 September 2025 are to the following effect (as per original):

Please consider the administration err that the case officer doesn't contact me by the other contact methods especially by my phone to cause my visa refusal needs to be revoked from your court.

1. 1 August 2018 I lodged the spouse visa subclass 820/801 in Australia and use 3 methods as my contact :

1. my email : [E1]

2. my phone: [applicant's mobile number]

3. my residence address : [applicant's residential address]

I thought the immi case officer can reach me by 1), 2), 3) method, also if he/she can't reach me by one of 3 method, then he/she will contact me by the rest methods which he/she can reach me so that I can' t miss out :

1. if by phone, case officer can't reach me, then he/she will reach me by email /by my residence address, or

2. if by email, case officer can't reach me, then he/she will reach me by phone /by my residence address, or

3. if the residence address case officer can't reach me, then he/she will reach me by phone /by my email .

2. 14 Sep 2021 I got subclass 820 refusal because I didn't respond to the email from the case officer asking for the outstanding documents needed for 3 times on 7 Mar 2020, 7 Dec 2019 and 14 Aug 2021 .

I didn't reply because the case officer all the time sent the outstanding documents needed by my email only to [E1] which was the Chinese QQ email that I can't access in Australia.

3. The case officer should contact with me by the other contact methods if I didn't response it on 7 Mar 2020, 7 Dec 2019 and 14 Aug 2021, case officer needs at least give me 1 time chance to call me by my mobile [applicant's mobile number] or post to my residence address: [applicant's residential address]

(Note: I never change my phone and my residence address after my lodgement on 1 Aug 2018. They can reach me by phone and/or by posting the letter to my residence address, especially on the last time 14 Aug 2021 case officer needs to call me or post to my address because I had twice not responded to the emails.)

4. But the case officer did nothing. 7 Mar 2020-14 Sep 2021 during these 1 year 6 months 7 days requiring the documents period, the case officer didn't even call me once to ask me whether I received the email or not. Otherwise I won't miss it and I would have got my subclass 820 granted already.

I will have the first baby due on 4 Oct 2025. But during the past 4 years starting from 14 Sep 2021 til today 18 Sep 2025 that the mistake from the case officer has brought big stress to me/ my husband /my extended family member. My partner, now my husband, Ningyu Li has to work very hard to be able to afford the home loan and family expenses because I am not entitled to work for the past 4 years. I am suffering great mental stress as I am a burden to the family. Also, I am not entitled to any benefits from the Medicare facility, so my husband has to pay for all the hospital costs for the newborn baby which drains our finances.

Please consider the administration err that the case officer didn't contact me by my other contact methods especially by my phone, which causes my visa refusal needs to be revoked from your court.

Looking forward to my revoking being for the administration err from the case officer!

1. I have looked at the correspondence from the Minister to the applicant purporting to notify the applicant of the refusal of the application for a partner visa which is contained at CB 163 to 166 (notification decision), to assess whether it complies with s 66(2) as set out at [37] of this judgment and whether the applicant had been notified of this decision as required by the legislative provisions set out in [38] to [40] of this judgment. First, I am satisfied from looking at the notification decision that it, inter alia, specifies the criterion for the grant of the visa; gives written reasons as to why the criterion was not satisfied; specifies that the applicant has the right to have the decision reviewed by the Tribunal, the time in which the application for review may be made and who can apply, and where the application can be made, as set out at [7] of this judgment. Further, the applicant's partner visa application as noted at [4] of this judgment, set out the applicant's email address to receive all correspondence, "including notification of the outcome of the application". The Department sent to the email address at E1 as noted at [5] of this judgment and given the provisions set out at [37] to [40] of this judgment, I am satisfied the applicant was properly notified of the decision in accordance with those legislative provisions and was taken to have received the notification decision from the Minister on the 14 September 2021.
2. Further, in relation to grounds 1 and 2 of the substantive application and the other matters referred to in the applicant's written submissions, the applicant is doing no more than expressing disagreement with the decision of the Tribunal, which disagreement is an attempt to engage this Court in merits review. This Court has no power to conduct a merits review of either the delegate's or the Tribunal's decision.
3. Accordingly, I find that the Tribunal was correct that it had no jurisdiction in this matter. Given that the Tribunal was correct, I find there is no merit in the applicant's extension of time application, and for this reason I refuse to grant the extension of time in this case.

1. The extension of time application is refused and the judicial review application is dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.