Federal Court of Australia

Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1010

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application dated 29 October 2024 seeking an extension of time to lodge an application for an order of review is dismissed.

2.    The applicant pay the respondent’s costs, as agreed or to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NESKOVCIN J:

1    The applicant was born in India and arrived in Australia in 2008 at the age of 19. The applicant is currently detained in immigration detention as an unlawful non-citizen, as required by s 189(1) of the Migration Act 1958 (Cth).

2    On 29 October 2024, the applicant commenced a proceeding in this Court by filing:

(a)    an application seeking an extension of time to make an application for judicial review of a decision of the Administrative Appeals Tribunal dated 29 May 2023 (Tribunal’s decision). By that decision, the Tribunal dismissed the applicant’s application for review under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for his failure to appear at the Tribunal hearing on 29 May 2023; and

(b)    an originating application for judicial review of the Tribunal’s decision

(the applications).

3    The applications were listed for hearing on 26 June 2025 and were heard at the same time.

4    An extension of time to file the application for judicial review is necessary because any application for review of the Tribunal’s decision was required to be filed within 35 days of the date of the Tribunal’s decision: s 477A(1) of the Migration Act. That is, the applicant was required to file an application for review in this Court by 3 July 2023. The applications were filed on 29 October 2024, approximately 16 months out of time.

5    Before the Court, the applicant was assisted by Mr Kikkert, who appeared as pro bono Counsel. The Court is grateful for and acknowledges the assistance of Mr Kikkert, who assisted the Court with carefully prepared and considered submissions.

6    For the reasons that follow, the application for an extension of time should be dismissed. As a result, it is unnecessary to consider the application for judicial review. However, were it necessary to consider the application for judicial review, I would dismiss the application.

background

7    On 23 January 2015, the applicant was granted a Partner (Residence) (Class BS) (Subclass 801) visa (partner visa).

8    On 22 April 2021, the applicant was convicted of Common assault (DV)-T2, Assault occasioning actual bodily harm (DV)-T2 and two counts of Contravene prohibition/restriction in AVO (Domestic) in the Local Court of New South Wales, and sentenced to an aggregate term of 12 months imprisonment. On appeal, his convictions and term of imprisonment were confirmed, although the non-parole period was varied to six months.

9    On 17 June 2021, the applicant was notified that a delegate of the Minister had cancelled his partner visa under s 501(3A) of the Migration Act (original decision) as the delegate was satisfied that he did not pass the character test under s 501(6)(a) of the Act as the applicant had a substantial criminal record according to s 501(7)(c) of the Act, because the applicant was serving a sentence of imprisonment of 12 months or more for an offence against a law of the Commonwealth, a State or a Territory.

10    Section 501 of the Migration Act relevantly provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate––natural justice applies

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

… and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record test

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more

11    On 13 July 2021, the applicant made representations to the Minister seeking revocation of the mandatory cancellation of his partner visa, having been invited to do so pursuant to s 501CA(3) of the Migration Act.

12    On 7 August 2021, the applicant was placed in immigration detention having been detained under s 189(1) of the Migration Act.

13    On 20 October 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the original decision (non-revocation decision).

14    On 26 October 2022, the applicant sought review of the non-revocation decision in the Tribunal.

15    On 22 December 2022, the Full Court handed down its decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Allsop CJ, Rangiah and SC Derrington JJ). In Pearson, at [40]–[49], the Full Court concluded that a person sentenced to a term of imprisonment of more than 12 months based on an aggregate sentence “was not sentenced (for an offence) to a term of imprisonment of 12 months or more” and, as such, fell outside the meaning of “substantial criminal record” in ss 501(6)(a) and (7)(c) of the Migration Act. As a consequence, the validity of the cancellation of the applicant’s partner visa was called into question.

16    On 28 December 2022, the applicant was released from immigration detention.

17    On 3 January 2023, the Tribunal dismissed the application in the Tribunal on the basis that there was no reviewable decision before it.

18    On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Aggregate Sentences Act) came into effect. It inserted s 5AB into the Migration Act which makes it clear that ss 501(6)(a) and (7)(c) apply to aggregate sentences for more than one offence. Item 4 of Sch 1 of the Aggregate Sentences Act has the retrospective effect of validating cancellation (and non-revocation) decisions that were otherwise invalid due to the Full Court’s decision in Pearson, including in relation to the applicant’s partner visa.

19    By letter dated 17 February 2023, the Department of Home Affairs notified the applicant of the Aggregate Sentence Act and said:

The effect of the Aggregate Sentences Act is that the original decision to cancel your visa on 17 June 2021 remains valid and you do not hold a valid visa to remain in Australia.

The Aggregate Sentences Act contains provisions to restore a person’s right to seek review, or to seek revocation of the cancellation decision if they had not done so before the Pearson decision was made, provided they were still within the relevant timeframes to do so.

…

Opportunity to apply for merits review of the original decision to cancel visa

Although you originally applied for merits review of the cancellation decision, the AAT determined that there was no jurisdiction to review your case as a result of the Pearson judgment. However, as a result of the validating provisions of the Aggregate Sentences Act, you may now wish to pursue review of the validated visa cancellation decision or decision to not revoke a mandatory cancellation. Should you wish to seek merits review of the validated visa cancellation decision or a decision not to revoke a mandatory cancellation, you will need to reapply to the AAT.

20    On 20 February 2023, the applicant applied to the Tribunal for review of the non-revocation decision.

21    On 8 March 2023, the Tribunal listed the matter for hearing on 16 and 17 May 2023.

22    On 15 May 2023, the applicant’s then legal representative sent an email to the Tribunal requesting that the hearing listed on 16 and 17 May 2023 be rescheduled. The email to the Tribunal stated:

We refer to the above matter that is listed for a Hearing on 16 & 17 May 2023.

We were just informed by our client that he has a medical condition and will not be able to attend the Hearing.

Please find attached medical certificate from our client.

We request that the Hearing for 16 & 17 May 2023 is vacated.

23    The email attached a medical certificate and a pathology request for blood tests. The medical certificate stated:

This is to certify that Mr Ahmed Mohammed is unable to attend court from 14/05/2023 to 20/05/2023 inclusive due to a medical condition, severe depression. He is being assessed for a mental health plan.

24    Within a short period, the respondent’s solicitors sent an email to the Tribunal consenting to the requested adjournment. The email stated:

Noting the medical evidence provided and noting that this matter is not an 84 day matter, the Minister would consent to the hearing listed tomorrow and Wednesday being adjourned to the next available dates after 20 May 2023, pending Tribunal availability.

25    Later that day, the Tribunal sent a notice to the parties re-listing the matter for a hearing on 29 and 30 May 2023, which stated:

What happens if you do not attend?

If you cannot attend at the time listed above, you should advise us as soon as possible.

If an applicant or an applicant’s representative fails to attend, the Tribunal may dismiss the application under section 42A(2) of the AAT act.

26    On 25 May 2023, the applicant’s then legal representative wrote to the Tribunal stating that they no longer acted for the applicant and provided the Tribunal with an email address at which the applicant could be contacted.

27    On the same day, the Tribunal sent an email to the applicant, which stated:

Your application with the Tribunal is listed for an in person hearing on 29–30 May 2023 at 10:00AM - 4:00PM (Sydney time).

Attached is a document which outlines appearances, witnesses and materials for consideration.

28    The applicant having failed to appear at the hearing on 29 May 2023, the Tribunal dismissed the application for review pursuant to s 42A(2) of the AAT Act. The Tribunal’s decision stated:

The Tribunal is satisfied that the applicant was given appropriate notice of the time and place of the hearing of this application which was listed to be held on 29–30 May 2023.

The applicant failed to appear at the hearing on 29 May 2023.

Pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses this application.

29    Furthermore, on 29 May 2023, the Tribunal emailed a copy of its decision to the applicant, along with a letter, which said:

Enclosed is a copy of a decision dismissing your application for non-appearance.

You may apply to have the application reinstated, but you must do this within 28 days after receiving this notification. We may allow you more time in special circumstances. If you want to ask us to reinstate the application, please contact us as soon as possible.

30    After the applications were filed in this Court, the Minister sought leave to issue a subpoena to the Tribunal to produce all file notes concerning telephone conversations between the Tribunal and the applicant.

31    A file note was produced which recorded that the applicant telephoned the Tribunal on 31 May 2023. The file note stated:

A called in order to discuss reinstatement. I advised him as per the letter sent 29.5.23 he has 28 days to apply for reinstatement.

32    A further file note was produced which recorded that the applicant also telephoned the Tribunal on 8 October 2024. The file note stated:

Applicant called 8/10/24 about application being reinstated. I advised him the matter was dismissed as he failed to attend hearing. Ha [sic: he] said he knew about hearing but didn’t attend as his rep had ceased to act for him. He wanted to know what he could do as he is now been put into immigration. I suggested that he contact immigration s [sic: as] the Tribunal could not reinstate his application as the request was outside of the time limit. I confirmed with him that he was aware of the hearing date and time and he said he was.

33    The applicant did not deny the telephone calls to the Tribunal on 31 May 2023 and 8 October 2024 or seek to contradict the contents of the file notes. As noted in the second file note, the applicant was placed back into immigration detention in October 2024, having been arrested by the Australian Border Force.

34    On 25 October 2024, the applicant received a Notice of Intention to Remove him from Australia to India on or after 8 November 2024.

35    On 29 October 2024, the applicant sought and was granted an injunction to restrain the Minister from removing him from Australia. At the injunction hearing, which came before me as the Victorian General Duty Judge, the applicant gave the following evidence about a telephone call he said he made to the Tribunal before the hearing on 29 May 2023 to request an adjournment:

… Yes. So I do call after my lawyer has filled out the application, I call AAT and explain to them the situation, like what exactly is going on. I haven’t got a legal representative. I need a bit of time. And they said like, I have to come on a court hearing to get an extra time. So I don’t know what happened after that. I wasn’t aware because I haven’t got proper, like, guidance for going to the court hearing as well.

36    The Minister did not seek to cross-examine the applicant. The Minister submitted, however, that the Court should find that the applicant telephoned the Tribunal after the hearing on 29 May 2023.

37    There was no file note of the applicant’s telephone call to the Tribunal before the hearing on 29 May 2023 in the materials produced under the subpoena. Nevertheless, I accept the applicant’s evidence that, prior to the hearing, he contacted the Tribunal and told the Tribunal that he needed more time and effectively requested an adjournment of the hearing.

LEGAL PRINCIPLES

38    Section 42A of the AAT Act relevantly provided:

42A    Discontinuance, dismissal, reinstatement etc. of application

…

Dismissal if party fails to appear

(2)    If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)    if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision

…

Dismissal if party fails to appear—giving of appropriate notice

(7)    Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

Reinstatement of application

…

(8A)    If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.

…

(11)    For the purposes of subsections (8), (8A) and (10), the period is:

(a)    28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or

(b)    if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.

39    Section 477A(2) of the Migration Act provides:

447A    Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) 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 Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

40    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 the High Court addressed the power conferred by s 477A(2). Kiefel CJ, Gageler, Keane and Gleeson JJ said, at [12]:

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” (CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 [19]; WZASS v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 282 FCR 516 at 522-523 [29]-[33]). 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 (SZUWX v Minister for Immigration & Border Protection (2016) 238 FCR 456 at 458 [11]-[12], 459 [18], [19]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40). The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice (cf BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421-422 [15]). 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.

41    Kiefel CJ, Gageler, Keane and Gleeson JJ continued, at [17]–[19]:

[17]    … it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level” (CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 [19]). That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed (MZABP (2015) 242 FCR 585 at 597 [58]), that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant (Federal Court of Australia Act 1976 (Cth), s 24(1)(a)).

[18]     However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional” (cf, eg, Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89 at 90 [3]; 326 ALR 391 at 392, citing Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [13]; 177 ALR 491 at 495 citing Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 481). In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130). The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

[19]     It follows that the Full Court in DHX17 was wrong to say that “the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review” (DHX17 (2020) 278 FCR 475 at 493 [68]). As the merits of a proposed application are a permissible consideration, it is within the Federal Court’s jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal 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 (Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 572 [67]). The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant’s case is likely to commit jurisdictional error, was mistaken.

THE APPLICANT’S SUBMISSIONS

42    The applicant acknowledged that the application for an extension of time was made approximately 16 months out of time.

43    The applicant’s explanation for the delay in filing the application for an extension of time was that, as a self-represented litigant, he was confused and had difficulty in understanding and navigating the legal system. In regard to the applicant’s confusion and misunderstanding, the applicant referred to the following matters.

44    First, on 15 May 2023, the applicant’s then legal representative wrote to the Tribunal and requested that the hearing, which was originally scheduled for 16 and 17 May 2023, be vacated. The request for an adjournment was supported by a medical certificate which stated that the applicant was “unable to attend court from 14.5.2023 to 20.5.2023 inclusive due to a medical condition, severe depression”. The medical certificate also indicated that the applicant was being assessed for a mental health plan.

45    Secondly, on 25 May 2023, only four days before the rescheduled hearing, the applicant’s then legal representative wrote to the Tribunal stating that they no longer acted for the applicant.

46    Thirdly, before the hearing on 29 May 2023, the applicant contacted the Tribunal to explain the situation and said that he needed more time. He said he asked for an adjournment of the hearing, but the adjournment request was refused, and he was told he would need to “come to a court hearing” to get more time.

47    The applicant submitted that, having contacted the Tribunal to explain the situation after his solicitor ceased to act for him, he was given no guidance as to what to do in the future and the Tribunal did not provide the kind of support or consideration that reflected his change in status from legally represented to self-represented. The applicant further submitted that through a lack of assistance from the Tribunal, and having received poor legal advice when he was legally represented, he did not appreciate the significance of the Tribunal’s decision or understand what was required of him.

48    The applicant submitted that the prejudice to the Minister, if the extension of time were granted, was minimal. In contrast, the prejudice to the applicant is significant as he will be denied the opportunity for a merits review of the non-revocation decision.

49    In relation to the substantive application for review of the Tribunal’s decision, the applicant submitted that the Tribunal’s decision to dismiss the application is tainted by jurisdictional error, on the grounds of denial of procedural fairness. In the written outline of submissions filed on behalf of the applicant, it was submitted that:

(a)    The Tribunal had a duty to consider the applicant’s circumstances prior to dismissing his application, including that the applicant was self-represented. Having squarely raised a matter regarding his mental health, the applicant submitted that the Tribunal was obligated to consider that matter prior to dismissing his application, relying on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] (Black CJ, French and Selway JJ); SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365; [2014] FCA 863 at [75], [81] (Griffiths J); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] (Bell, Gageler and Keane JJ).

(b)    The Tribunal denied the applicant procedural fairness by failing to:

(i)    take into account that the applicant had engaged with the review before the Tribunal at various points, relying on Kaur v Minister for Immigration and Border Protection [2014] FCA 915 at [83], [95], [142] (Mortimer J, as her Honour then was);

(ii)    take into account the applicant’s medical/mental health condition;

(iii)    take into account the applicant’s change of status from represented to self-represented: Kaur at [83], [95], [142]; and

(iv)    provide the applicant, as a self-represented person, with a requisite level of assistance, relying on She v RMIT [2021] VSC 2 (Incerti J).

Consideration

50    An extension of time to apply for review of the Tribunal’s decision can only be exercised when the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The considerations relevant to the exercise of the discretion include whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be no undue prejudice to the respondent if the Court were to grant the extension of time and whether there is merit in the substantive application: Katoa at [17] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

51    The applicant did not appear at the Tribunal hearing on 29 May 2023 and the Tribunal dismissed the application for review pursuant to s 42A(2) of the AAT Act. The Tribunal had power to dismiss the applicant’s application for review, having satisfied itself that appropriate notice was given to the applicant of the time and place of the hearing: s 42A(7) of the AAT Act. The applicant did not take issue with that aspect of the Tribunal’s decision.

52    The applicant filed the application for an extension of time in this Court in October 2024, after he was arrested and placed into immigration detention, and having received the Notice of Intention to Remove.

53    The applicant was legally represented in the application before the Tribunal until shortly before the hearing. The applicant did not explain why he was unable to seek further legal advice or legal representation after he received the Tribunal’s decision.

54    The applicant says he is aggrieved that he has not had a merits review of the non-revocation decision. The Tribunal’s dismissal of the applicant’s application for review was subject to a right of reinstatement of the application pursuant to s 42A(8). This was reflected in the Tribunal’s letter sent to the applicant on 29 May 2023. The applicant must have understood that he had a right to apply for reinstatement of the application because he contacted the Tribunal about the reinstatement on 31 May 2023 and 30 October 2024. The applicant did not seek to explain why he did not seek to exercise the right to apply to reinstate the application before the Tribunal.

55    As acknowledged by the applicant, the application for an extension of time was made approximately 16 months out of time. As the respondent submitted, lack of legal advice alone is not a sufficient excuse or acceptable explanation for the failure to lodge an application for review within time: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] (Farrell J), citing SZNYE v Minister for Immigration Citizenship [2010] FCA 500 at [8] (Katzmann J); SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J).

56    The period of delay in this case is substantial. In general, the longer the delay the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Wigney J), citing Jess v Scott (1986) 12 FCR 187 at 195 (Lockhart, Sheppard, Burchett and Wilcox JJ). In my assessment, the applicant has not provided an acceptable, let alone persuasive, explanation for the 16 month delay in bringing the application for an extension of time.

57    While it may be accepted that the applicant will suffer some prejudice if the application for an extension of time is not granted as he will be deported to India, as the respondent submitted, the focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice: Katoa at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

58    In my assessment, this case falls within the circumstances noted in Katoa, where the delay is lengthy and not adequately explained and it is appropriate for the Court to engage in more than an impressionistic assessment of the merits in determining what is necessary in the interests of the administration of justice: Katoa at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

59    As mentioned, the applicant submitted that the Tribunal’s decision is tainted by jurisdictional error on the grounds of a denial of procedural fairness. Essentially, the denial of procedural fairness was put on the basis of the Tribunal’s failure to enquire into, and failure to take into account, the applicant’s circumstances including his medical/mental health and status as a self-represented person.

60    The judicial obligation relating to procedural fairness is concerned with a reasonable opportunity to present, or meet, a case. Fairness is not an abstract concept, it is essentially practical and the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [57]–[58], [60] (Gageler and Gordon JJ); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ); SZMTA at [38] (Bell, Gageler and Keane JJ); Karan v Minister for Home Affairs [2019] FCAFC 139 at [33] (Rares, Griffiths and Burley JJ).

61    The duty imposed upon the Tribunal is a duty to review. However, a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, constitute a failure that gives rise to a jurisdictional error by constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

62    The medical certificate, which was provided to the Tribunal before the initial hearing date, stated that the applicant was “unable to attend court from 14.5.2023 to 20.5.2023 inclusive due to a medical condition, severe depression”. As the respondent submitted, the medical practitioner who assessed the applicant did not consider it necessary to state that the applicant was unable to attend court beyond 20 May 2023. On 15 May 2023, when the Tribunal advised the parties that the hearing was adjourned to 29–30 May 2023, the applicant was legally represented and remained legally represented until 25 May 2023. The applicant’s legal representative did not object to the hearing going ahead on 29–30 May 2023 on medical grounds. Further, when the applicant contacted the Tribunal before the hearing, he said he needed more time because he was unrepresented. His status as an unrepresented litigant was also raised on 8 October 2024 when he enquired about reinstatement. On the latter occasions, the applicant did not raise that he was suffering from a medical condition.

63    I do not accept the applicant’s submission that the Tribunal was obligated to inquire into and consider the applicant’s mental health prior to dismissing the application. I do not accept that the Tribunal was under a duty to go behind the medical certificate, which was prepared by a medical practitioner, having already adjourned the hearing at the applicant’s request to a date after the dates referred to in the certificate.

64    Relatedly, the applicant submitted that the Tribunal should have turned its mind to whether the applicant was in a fit state to present evidence at the hearing and whether his mental health might explain his failure to appear, relying on SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481. In SCAR, O’Loughlin J referred, at [26] and [30], to the importance of a decision-maker having proper regard to whether the applicant in that case was in a fit state to give evidence. The applicant in SCAR, who was unrepresented, had heard that his father died four days before the Refugee Review Tribunal (RRT) hearing. A psychologist, who had seen the applicant shortly before the hearing, noted that he was in “a state of extreme distress”, “in need of medical intervention”, and “was in no condition” to handle his interview before the RRT: [7]–[8]. On appeal, the Full Court held that the primary judge’s findings of fact that the respondent was “not in a fit state to represent himself before the [RRT]” meant that the hearing invitation the respondent was entitled to under the legislation was not meaningful, he did not receive a fair hearing and the RRT had made a jurisdictional error: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [43] (Gray, Cooper and Selway JJ). The facts in that case were materially different to the present circumstances and SCAR does not assist the applicant.

65    The applicant submitted that the Tribunal denied the applicant procedural fairness when it dismissed the applicant for non-appearance by failing to take into account that the applicant had engaged with the review before the Tribunal at various points, relying on the decision of Mortimer J (as her Honour then was) in Kaur at [83], [95], [142]. In Kaur, the Migration Review Tribunal (MRT) had determined the first appellant’s visa application at a review hearing in her absence without making any attempt to contact her. The MRT did so in circumstances where the MRT had decided that it needed to hear from the first appellant, the first appellant had a history of being responsive to communications from the MRT and the MRT knew and treated the applicant as involved and responsive to her review application: [88]–[90]. Her Honour considered that the MRT’s failure to attempt to contact the applicant, and to proceed with the review, was inexplicable: [96]–[99]. Her Honour found that the MRT, acting fairly, according to substantial justice and the merits of the applicant’s case, should have followed up the applicant and, as a result, the exercise of power to bring the review to an end was legally unreasonable and a denial of procedural fairness: [140] – [142].

66    Unlike Kaur, the applicant did not suggest that he did not know about the Tribunal hearing. Indeed, he knew the hearing was scheduled to take place and telephoned the Tribunal before the hearing to effectively request an adjournment. Further, the Tribunal dismissed the application for non-appearance with a right of reinstatement. As such, no practical injustice was suffered because of the Tribunal’s decision, however, the applicant did not elect to exercise that right at any time. Given these material differences, Kaur does not assist the applicant.

67    Finally, the applicant’s submission that the Tribunal failed to take into account the applicant’s change of status from represented to self-represented and failed to provide him, as a self-represented applicant, with a requisite level of assistance can be dealt with together. The applicant relied on Kaur, at [83], [95], [142], and further submitted that there is a duty on judicial officers and decision makers to ensure that a self-represented applicant understands the nature of the application, the legal points and the effect of the orders made, relying on She (Incerti J).

68    In She, the defendant had applied to strike out the self-represented plaintiff’s statement of claim. The Magistrate made an order that the statement of claim was “struck out” and an order that the “claim” was “struck out”. The plaintiff was confused about the effect of the order and raised the matter with staff at the Magistrates’ Court. The defendant acknowledged that the effect of the orders was not entirely clear: at [33].

69    After referring, at [74]–[78], to the general principles applicable to procedural fairness in the context of decisions of inferior courts, Incerti J referred to the inherent duty of a judge to ensure a fair trial by giving assistance to a self-represented litigant, at [79] – [85]. As her Honour noted, that obligation is part of a judge’s overriding obligation to ensure a fair trial.

70    In She, Incerti J noted that the Magistrate spent a considerable amount of time hearing from the defendant, and a limited amount of time hearing from the plaintiff. Further, the plaintiff did not receive the authorities or rules that were relied on by the defendant at the hearing. Her Honour found that the plaintiff was denied procedural fairness, and that there was a breach of s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), because the Magistrate had failed to provide the requisite level of assistance to the plaintiff, as a self-represented litigant, did not afford the plaintiff time to understand the hearing, failed to facilitate an opportunity for the plaintiff to advance her case, and made an ambiguous decision and orders: [142].

71    Contrary to the applicant’s submission, She is not an authority for the broad proposition that there is a duty on judicial officers and decision-makers to ensure that a self-represented litigant understands the nature of the application, the legal points and the effect of the orders. As Incerti J observed, the overriding obligation to assist a self-represented litigant is part of the inherent duty of a judge to ensure a fair trial and the scope and content of the obligation will depend on the circumstances of each case. Unlike the plaintiff in She, the Tribunal’s decision was made following the applicant’s non-appearance. The Tribunal was satisfied that the applicant had received notice of the hearing. The applicant had an opportunity to apply to reinstate his application, but failed to do so. As the respondent submitted, procedural fairness in the applicant’s case required the Tribunal to give the applicant notice and an opportunity to attend the hearing, but not to ensure that he took advantage of it.

72    For those reasons, in my assessment, the application for judicial review of the Tribunal’s decision is lacking in merit. In those circumstances, and where the applicant has failed to provide an acceptable, let alone persuasive, explanation for the delay, it is not in the interests of the administration the justice to grant the application for an extension of time to review the Tribunal’s decision. Were it necessary for me to consider the application for judicial review, I would also dismiss that application.

Conclusion

73    For the foregoing reasons, the application for an extension of time is dismissed.

Associate:

Dated:    26 August 2025