Federal Court of Australia

Dajti v Minister for Immigration and Citizenship [2026] FCA 276

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time dated 8 October 2025 be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

O’Bryan J:

Introduction

1    On 8 October 2025, the applicant applied under r 31.23 of the Federal Court Rules 2011 (Cth) (Rules) for an extension of time within which to lodge an application for the review of a decision made by a delegate of the Minister for Immigration and Citizenship (Minister) on 26 August 2025 under s 501(1) of the Migration Act 1958 (Cth) (Migration Act) refusing the applicant’s application for a Return (Residence) (Class BB) visa (delegate’s decision). By the draft originating application which accompanied the application for an extension of time, the applicant sought orders quashing the delegate’s decision and remitting the visa application back to the Minister to decide according to law.

2    At the first case management hearing on 12 November 2025, the Court raised the question whether, if an extension of time were granted, the Court has jurisdiction to hear the proposed application for review, having regard to the terms of s 476A(1) of the Migration Act, which stipulates as follows:

Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)     both:

(i)     the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and

(ii)     the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the ART on review under section 500; or

(c)     the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d)     the Federal Court has jurisdiction in relation to the decision under section 176 (Federal Court has jurisdiction) or subsection 185(3) (referring questions of law) of the ART Act.

3    The applicant does not dispute that the delegate’s decision is a migration decision, and does not dispute that none of sub-paras (a) to (d) of s 476A(1) applies to the delegate’s decision.

4    In an attempt to overcome the jurisdictional barrier presented by s 476A(1), the applicant formulated an amended draft originating application. The applicant contends that the amended draft originating application seeks a public law remedy that does not involve direct judicial review of a migration decision and, as such, is not an application “in relation to a migration decision” and is not subject to the jurisdictional barrier presented by s 476A(1), citing DBE17 v Commonwealth (2019) 266 CLR 156 at [14]-[15] (Nettle J); McHugh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 283 FCR 602 at [15] and [18] (Allsop CJ), [74] (Besanko J) and [174] (Mortimer J); Fernando v Minister for Immigration & Citizenship (2007) 165 FCR 471 at [22] (Siopis J); Okwume v Commonwealth [2016] FCA 1252 at [28] (Charlesworth J); and BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 at [80] (Wigney J).

5    For the reasons that follow, I reject that contention. Much of the amended draft originating application is incoherent. However, to the extent that sense can be made of the document, it is clear that it purports to seek judicial review of the delegate’s decision, which is a migration decision. As the Court does not have jurisdiction to determine the subject of the amended draft originating application, the application for an extension of time must be dismissed.

Procedural background

6    The applicant’s application for an extension of time was supported by an affidavit of Marion Rose Le, the applicant’s Registered Migration Agent, dated 8 October 2025 (Le Affidavit). Ms Le deposed that the applicant had applied for a “resident return visa” on 4 September 2024, and that the applicant was notified of the decision that was the subject of the application for review on 27 August 2025. A copy of the decision record was annexed to the affidavit. The decision record confirms that the applicant had applied for a Return (Residence) (Class BB) visa. As noted above, the delegate’s decision, refusing the applicant’s visa application, was made on 26 August 2025 under s 501(1) of the Migration Act.

7    In accordance with r 31.23 of the Rules, the Le Affidavit annexed a draft originating application for review of the delegate’s decision (draft application). The draft application stated that it was an application under s 476A of the Migration Act and that the applicant sought orders:

(a)    quashing the delegate’s decision; and

(b)    remitting the visa application back to the Minister to be determined in accordance with law.

8    The draft application alleged two grounds of error with respect to the delegate’s decision:

(a)    that the decision was affected by illogicality and/or unreasonableness; and

(b)    that the delegate fell into jurisdictional error by failing to apply the Department’s “own policy”, which was alleged to be that, if there are character concerns affecting an applicant for a Return (Residence) visa who has been living in Australia for a significant period, the character test should be considered in the context of visa cancellation rather than visa refusal.

9    At a case management hearing on 12 November 2025, the Court raised the question whether, if an extension of time were granted, the Court has jurisdiction to hear the proposed originating application. The case management hearing was adjourned for two weeks to enable the applicant to consider his position. On 26 November 2025, the Court made consent orders at the request of the parties:

(a)    granting the applicant leave to discontinue the proceeding by filing a notice of discontinuance by 19 December 2025; and

(b)    stipulating that, if the applicant did not file a notice of discontinuance by 19 December 2025, the proceeding would be listed for a further case management hearing at 9.30 am on 30 January 2026.

10    The applicant did not file a notice of discontinuance. At the case management hearing on 30 January 2026, orders were made for the applicant to file and serve:

(a)    by affidavit, any amended draft originating application for review of a migration decision that the applicant wished to rely on; and

(b)    a written submission addressing the question whether, if an extension of time were granted, the Court has jurisdiction to hear the proposed amended originating application (jurisdictional question),

and for the Minister to file and serve responsive submissions addressing the jurisdictional question.

11    On 13 February 2026, the applicant filed an affidavit of Claire Bridget Kikkert dated 13 February 2026 (Kikkert Affidavit). Annexed to the Kikkert Affidavit was an amended draft originating application for review of a migration decision (amended draft application). The amended draft application purports to be an application under s 476A of the Migration Act and under ss 8 and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) and s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

12    The amendments to the draft application were substantial and rendered the document incoherent in many respects. The incoherence largely stems from the applicant’s reference to his “temporary Resident Return Visa application”.

13    In the amended draft application, the applicant no longer seeks orders quashing the delegate’s decision and remitting the visa application to the Minister for reconsideration. In place of those orders, the applicant proposes to seek:

(a)    a mandatory injunction and a writ of mandamus, each requiring the Commonwealth to consider the applicant’s “temporary Resident Return Visa (RRV) application, and/or apply the Departmental policy, and/or consider the best interests of the children”; and

(b)    a declaration that the Commonwealth failed to consider the applicant’s “temporary Resident Return Visa (RRV) application, and/or apply the Departmental policy, and/or consider the best interests of the children and/or provide procedural fairness that the best interests of the children would not be considered in regard to the above failures to do an act or thing”.

14    The applicant also removed its original grounds of review. In place of those grounds, the applicant has proposed a single ground of review as follows:

The Commonwealth did not fulfil it’s [sic] duty to consider the Applicant’s temporary Resident Return Visa (RRV) application, and/or apply the Departmental policy to allow the Applicant to return to Australia, and/or consider the best interests of the children.

15    As noted above, Ms Le deposed that the applicant had applied for a “resident return visa” on 4 September 2024, and that the applicant was notified of the decision that was the subject of the application for review on 27 August 2025. A copy of the decision record dated 26 August 2025 confirms that the applicant had applied for a Return (Residence) (Class BB) visa.

16    The Return (Residence) (Class BB) visa is listed in Part 1 of Schedule 1 of the Migration Regulations 1994 (Cth) (Migration Regulations) as a form of permanent visa, with subclasses 155 (Five Year Resident Return) and 157 (Three Month Resident Return). The Return (Residence) (Class BB) visa is not, therefore, a “temporary” visa.

17    In contrast, a form of visa called a Resident Return (Temporary) (Class TP) visa was previously listed in Part 2 of Schedule 1 of the Migration Regulations as a form of temporary visa. That form of visa has since been removed.

18    At the hearing, pro bono counsel for the applicant was asked to clarify the references to the “temporary Resident Return Visa application” in the amended draft application, and whether the applicant had applied for more than one visa. After some equivocation, counsel confirmed that the applicant had only applied for the Return (Residence) (Class BB) visa. It follows that the reference to the applicant’s “temporary Resident Return Visa application” in the amended draft application is erroneous, because no such application had been made by the applicant.

19    The particulars to the single ground of review in the amended draft application commence by stating that the applicant “applied for a visa on 4 September 2024”. This must be understood as a reference to the application for a Return (Residence) (Class BB) visa. The particulars then refer to communications sent by Ms Le to the Department seeking that a decision be made on the visa application and advancing submissions about the hardship being experienced by the applicant and his family in Australia.

20    The particulars contain two allegations concerning Departmental policies, as follows:

There is a policy that allows applicants outside of Australia to return while their Resident Return Visa (RRV) application is being assessed.

…

The Applicant believes that there is a further relevant policy, namely that if there are character concerns affecting an RRV applicant who has been living in Australia for a significant period, the character test should be considered in the context of visa cancellation rather than visa refusal, and will be seeking for the Respondent to produce this policy, either by consent or a notice to produce.

21    The particulars continue with the following allegations:

Mrs Le sent a request on 11 December 2024 at 12:08 PM requesting that the "Department can grant this Return visa to Mr Dajti based on the evidence provided to date and if there is any reoffending in the future the Department can revisit the issues especially if the Applicant applies for Citizenship."

The Department did not consider this request.

22    The particulars subsequently allege that the Department had failed to follow its “own policy”.

23    In accordance with the Court’s orders, the applicant filed written submissions addressing the jurisdictional question on 13 February 2026 and the Minister filed responsive submissions on 27 February 2026. The jurisdictional question was heard on 16 March 2026.

Consideration

24    As set out earlier, s 476A(1) of the Migration Act stipulates that, despite any other law, including s 39B of the Judiciary Act and s 8 of the ADJR Act, the Federal Court has original jurisdiction in relation to a migration decision if, and only if, one of sub-paras (a), (b), (c) or (d) of s 476A(1) applies. It is uncontroversial that none of sub-paras (a), (b), (c) or (d) of s 476A(1) applies in this case. It follows that, if the applicant’s amended draft application is “in relation to a migration decision” within the meaning of s 476A(1), the Court does not have jurisdiction to hear the application.

25    There can be no doubt that the delegate’s decision is a “migration decision” within the meaning of s 476A(1) of the Migration Act. The term “migration decision” is defined in s 5 of the Migration Act to mean “a privative clause decision”, “a purported privative clause decision”, “a non-privative clause decision” or “an ART Act migration decision”.

26    The term “privative clause decision” is defined in s 474(2) of the Migration Act to mean:

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).

27    The term “purported privative clause decision” is defined in s 5E of the Migration Act to mean:

a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)     a failure to exercise jurisdiction; or

(b)     an excess of jurisdiction,

in the making of the decision.

28    For the purposes of both definitions, a “decision” includes “a failure or refusal to make a decision”: see ss 474(3) and 5E(2).

29    The delegate’s decision is either a “privative clause decision” or a “purported privative clause decision”: it is a decision of an administrative character made (or purportedly made) under s 501(1) of the Migration Act, and is not a decision of a kind referred to in ss 474(4), (4A) or (5). Even if the delegate’s decision were affected by jurisdictional or other legal error, it would be a “purported privative clause decision”.

30    Although many aspects of the amended draft application lack coherence, it is clear that the application is “in relation to” a migration decision within the meaning of s 476A(1) of the Migration Act.

31    It is now established that the phrase “jurisdiction in relation to a migration decision” in s 476A(1) is confined to applications for public law remedies in the nature of judicial review of migration decisions: DBE17 at [15] (Nettle J); McHugh at [15] (Allsop CJ), [74] (Besanko J), [174] (Mortimer J); FJE20 v Minister for Home Affairs (2022) 293 FCR 14 at [25]-[32]. Those decisions establish that s 476A(1) does not deprive this Court of jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment, even if that claim involves a collateral challenge to a migration decision, or to grant a remedy in the nature of a writ of habeas corpus, because such relief does not involve direct judicial review of a migration decision.

32    In reliance on the above principles, pro bono counsel for the applicant submitted that the amended draft application seeks a remedy in tort. That submission must be rejected. The application does not raise any claim in tort. It seeks public law remedies in the nature of judicial review of the delegate’s decision, being:

(a)    a mandatory injunction and a writ of mandamus compelling the “Commonwealth” to consider the applicant’s visa application, and to do so applying the “Departmental policy” and considering the best interests of the applicant’s children; and

(b)    a declaration that the “Commonwealth” has failed to consider the applicant’s visa application, and/or to apply the “Departmental policy”, and/or to consider the best interests of the applicant’s children, and/or to provide procedural fairness.

33    Pro bono counsel for the applicant also submitted that the applicant was entitled to seek declaratory relief under s 21 of the FCA Act, even if no other relief were sought in the proceeding. The submission confused the conferral of jurisdiction and power on the Court. Section 21 of the FCA Act does not confer jurisdiction on the Court. It confers the power to make binding declarations of right in relation to a matter in which the Court has jurisdiction.

Conclusion

34    In conclusion, the amended draft application is an application in relation to a migration decision within the meaning of s 476A(1) of the Migration Act as it seeks public law remedies in the for an extension of time in which to lodge an application for review of a migration decision must be dismissed as the Court does not have jurisdiction to determine the application for review. An order for costs in favour of the Minister should also be made.

Associate:

Dated:    17 March 2026