Federal Court of Australia

Mukhtar v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1077

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time, filed 16 December 2024, be dismissed.

2.    The applicant pay the respondents’ costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

1    In this application for an extension of time, Ali Mushtaq Muktar seeks leave pursuant to s 477A of the Migration Act 1958 (Cth) to seek judicial review of a decision of the (then) Administrative Appeals Tribunal delivered on 8 August 2024: Mukhtar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2886. Written reasons were provided by the Tribunal on 15 August 2024. The first respondent is the Minister for Immigration, Citizenship and Multicultural Affairs. The second respondent is the Administrative Review Tribunal.

2    In the decision, the Tribunal found that the applicant did not pass the character test as defined in ss 501(6)(a) and 501(7)(c) of the Act because of his substantial criminal record and that there was not another reason why the decision to cancel the applicant’s Child (Class AH) (Subclass 101) visa should be revoked pursuant to s 501CA(4) of the Act.

3    The application was filed 95 days after the 35 days allowed for the filing of an application under s 477A(1) of the Act. At the time of the decision, the applicant was in immigration detention. He was notified that he would be removed to his country of citizenship, Fiji, and then applied to the court for an urgent injunction restraining the removal. That application failed: Mukhtar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1497 (Kennett J). The consequence is that the applicant is now resident in Fiji. He appeared by video link at the hearing of the application and represented himself but filed no submissions in advance of the hearing. The Minister was represented by Nicole Maddocks of counsel, who filed written submissions. Those submissions were sent by email to the applicant. The applicant confirmed that he had received them.

4     Section 477A provides relevantly:

(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.

…

5    In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 Kiefel CJ, Gageler, Keane and Gleeson JJ said of this provision:

11.    At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).

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". 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)

6    In the present case it is appropriate to focus, for the purpose of my consideration, on matters surrounding the length of the delay, the explanation for it, any prejudice the Minister and third parties may suffer and the merits of the substantive application.

7    A delay of 95 days is non-trivial. Against that I balance the fact that the applicant is self-represented and was in immigration detention at the time that it was made.

8    As to the explanation for delay, the applicant relies on no affidavit in support, but states in his application that he was in a vulnerable state, struggling with mental health issues and lacking adequate support to address these challenges. He was also coping with the strain of being separated from his children, and his sister has been battling cancer. In oral submissions, the applicant said that there were no computers available to him in detention and that he was not good with IT. He noted that was assisted by Legal Aid in preparation for the judicial review process before the Tribunal. He tried to obtain legal assistance but failed. All of this took time. Another inmate helped him to get his paperwork together.

9    I accept that the general circumstances of his being in detention and without legal advice will cause impediments to filing but also note that his explanation as to his health condition was unsupported by any affidavit evidence or supporting documentation. The Minister does not submit that he will suffer any prejudice if an extension is granted. He submits, however, that there will be prejudice to the administration of justice. This, however, much depends on the next consideration, which concerns the merits of the substantive application.

10    The decision of the Tribunal records in the Background that the applicant arrived in Australia in August 2001 at the age of 18 and that he has been convicted of multiple offences, commencing in 2004. It records at [110] of its reasons that he was released from gaol in September 2007, but after the end of his parole in March 2009 he committed further criminal offences from 2010 to 2014, in relation to driving and possessing a prohibited drug. Following a further release from gaol in August 2014, he resumed offending from April 2015, including committing offences in relation to possession of a prohibited drug, attempting to dishonestly obtain financial advantage by deception and contravention of an apprehended domestic violence order: at [112]. Further offences are recorded. In December 2022, the applicant was convicted of four counts of assault occasioning actual bodily harm, “destroying or damaging property”, two counts of “stalk/intimidate intend fear physical etc harm (domestic)” and two counts of “intentionally choke etc person without consent (DV)”: at [91].

11    After setting out the history of the applicant in some detail, the Tribunal concluded at [134] that primary consideration 1 of Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110) (protection of the Australian community) weighed “very heavily” against revocation of the cancellation decision. Primary consideration 2 – family violence committed by the non-citizen – similarly weighed heavily against revocation (at [137]), the Tribunal explaining that the applicant has been convicted of numerous offences involving family violence perpetrated against his then partner in 2021 and 2022: at [133]. The Tribunal assessed primary consideration 3 – strength, nature and duration of ties to Australia – taking into account the applicant’s wish to remain in Australia and his family circumstances. It considered that this factor weighed moderately in favour of the application for revocation and that primary consideration 4 – best interests of minor children in Australia – weighed marginally in favour of revocation having regard to the applicant’s two minor children and (to a negligible extent) having regard to the interests of his three nieces and three nephews: at [138]–[162]. The Tribunal considered that primary consideration 5 – the expectations of the Australian community – weighed heavily against revocation having regard to the applicant’s numerous criminal offences in Australia over almost 20 years and also its finding that the applicant presents a real and not insignificant risk of reoffending: at [163]–[171].

12    The Tribunal then turned to other considerations, as required in paragraph 9 of Direction 110. It considered the legal consequences of the decision to cancel the applicant’s visa, noting that in closing submissions the applicant raised non-refoulement obligations, arguing that because he was a Fijian Indian he might suffer persecution if he were returned to Fiji: at [177]. The Tribunal (at [183]–[185]) cited the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [30], [37] and [39] (Kiefel CJ, Keane, Gordon and Steward JJ), noting that it is open to the Tribunal in such a circumstance to defer consideration of non-refoulement obligations until such time as a protection visa is sought. It found, however, that there was insufficient evidence before it to make a determination as to the correctness of the applicant’s claim: at [186].

13    The Tribunal then considered the extent of impediments that would face the applicant upon his return to Fiji and the impact on Australian business interests, before concluding that, on balance, the relevant considerations weighing in favour of revocation of the cancellation decision do not outweigh the considerations against revocation: at [198].

14    The single ground relied upon by the applicant is:

In conducting the hearing the Administrative Appeals Tribunal did not provide the applicant with procedural fairness.

Particulars

1.    - The Tribunal overlooked substantial, clearly articulated submissions, or failed to consider relevant matters.

2.    – the Administrative Appeals Tribunal in listing the hearing on a date when the [sic]

3.    The Tribunals failed to comply with s 499(2A) of the Act and misunderstood, or misapplied, Direction 110; and/or denied the applicant procedural fairness.

15    There is little to commend these grounds. In oral submissions, the applicant submitted that he is not a bad person, that the Tribunal did not understand how everything happened to him and that it was one big mistake. He said that he could have invited people to give evidence from his family and community, but he could not get them. He contends that he was not taken seriously or understood by the Tribunal.

16    However, the Tribunal records in its reasons that it considered the applicant’s written material requesting revocation of the cancellation decision and that it had made directions for him to provide any witness statements, other evidence and a Statements of Facts, Issues and Contentions by 27 June 2024: at [23]. He lodged no such materials. The Tribunal also records that the applicant gave evidence before the Tribunal, was cross-examined and that the applicant also called his father to give evidence: at [24], [75]. Nothing on the face of the decision of the Tribunal suggests that it did not afford the applicant with procedural fairness.

17    I have reviewed the request for revocation advanced by the applicant dated 5 April 2023. It methodically addresses each of the considerations required under Direction 110. It appears that the applicant took the opportunity to advance his arguments in favour of revocation. The reasons of the Tribunal address each of them. In oral submissions, the applicant referred particularly to his poor mental and physical health. This, the Tribunal took into account in considering the extent of impediments to his return at [188], [190] and [193]. It cannot be said that the Tribunal failed to take these matters into account.

18    In particular 1 of his application, the applicant contends that the Tribunal overlooked clearly articulated submissions or failed to consider relevant matters, yet the applicant points to no submission that has been overlooked or not addressed. Indeed, a survey of the reasons of the Tribunal suggests that it attended to all of the arguments articulated by the applicant.

19    Particular 2 is inchoate.

20    In particular 3, the applicant contends that the Tribunal failed to comply with Direction 110. Again, this contention does not rise above bare assertion. The applicant has not developed the pleading by reference to any particular failure alleged on the part of the Tribunal.

21    I have surveyed the decision of the Tribunal above. It is not apparent from the decision that there is any material failure. It is apparent that the applicant had an opportunity to present his case and did so.

22    Finally, in oral argument in reply, the applicant submitted that he tried his best as a self-represented litigant. He submits that the decision of the Tribunal was unfair because of his circumstances in that he could not provide evidence and he needed a lawyer, but he did not have a chance to get one. However, there is no legal entitlement to legal representation in a migration case in legal proceedings: SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] (Katzmann J). The applicant was offered procedural fairness and took that opportunity.

23    In sum, the application for review of the decision of the Tribunal as presented would appear, at the impressionistic level appropriate to an application of this type (Tu'uta Katoa at [19]), to be very weak. The delay in filing the application is non-trivial and the reason for the delay is unsupported by cogent evidence. Even accepting, as I do, that the circumstance of being in immigration detention and having no legal assistance might generally militate in favour of granting a short extension, in the present case I am not persuaded that it is in the interests of justice to do so.

24    The application must be dismissed with costs.

Associate:

Dated:    3 September 2025