Federal Court of Australia

KZS25 v Minister for Immigration and Citizenship [2026] FCA 949

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First 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    By application lodged for filing on 16 December 2025 (and accepted for filing on 18 December 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 under s 476A of the Migration Act 1958 (Cth) (Migration Act) of a decision made by the Administrative Review Tribunal (Tribunal) on 24 January 2025. By its decision, the Tribunal affirmed a decision of a delegate of the Minister dated 11 November 2024 made under s 501(1) of the Migration Act refusing the applicant’s application for a Return (Residence) (Class BB) visa.

2    The applicant’s delay in seeking review of the Tribunal’s decision is very lengthy. Section 477A of the Migration Act required any application for review of the Tribunal’s decision to be made within 35 days. The present application has been made almost 11 months after the Tribunal’s decision, and more than 9 months after the last date on which it was required to be made.

3    By the draft originating application for review of a migration decision which accompanied the application for an extension of time, the applicant sought orders quashing the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law. The applicant’s amended draft originating application states the following proposed grounds of review of the Tribunal’s decision:

1.    The Tribunal asked itself the wrong question or misconstrued para 8.1(2)(b); 8.1.2, and 8.1.2(b) of Direction no 110 or failed to consider a representation that clearly emerged from the material that the grant of the visa would have a limited effect on any risk to the Australian community.

Particulars

a.     The Tribunal was required to have regard to the risk to the Australian community flowing from the grant of the Return (Residence) (Class BB) visa in considering the risk to the Australian Community under para 8.1(2)(b), para 8.1.2(2), and/or para 8.1.2(b) in Direction no 110.

b.     The Tribunal found the applicant was not likely to be removed from Australia in the foreseeable future and would remain in the Australian community on a Bridging Visa R regardless of the outcome of the review.

c.     The Tribunal gave heavy weight in favour of refusal to the risk to the Australian Community based on there being an unacceptable risk of re-offending.

d.     The Tribunal did not identify what it was about the grant of the substantive visa, as distinct from the applicant's continuing presence in Australia, that gave rise to the unacceptable risk.

e.     Further or alternatively, given the Tribunal's finding that the applicant's removal was not likely in the foreseeable future, a claim or integer clearly arose from the material that the risk to the Australian community from the grant of the Return (Residence) visa was limited and/or limited compared to the risk posed by the Applicant being on a Bridging Visa R.

2.    The Tribunal's conclusion as to the weight to be given to Protection of the Australian Community was affected by irrationality, or illogicality; and/or the Tribunal constructively failed to have regard to the legal consequences of the decision or constructively operated on a misunderstanding of the applicable law in assessing the Protection of the Australian Community.

Particulars

a.     The Tribunal found the applicant was not likely to be removed from Australia in the foreseeable future and would remain in the Australian community on a Bridging Visa R regardless of the outcome of the review.

b.     The Tribunal applied its finding that the applicant would remain in the Australian community regardless of the outcome of the review to other considerations under Direction No 110 but did not apply that finding to its assessment of risk under paragraph 8.1.2(2).

c.     There was no rational basis for that distinction.

d.     The Tribunal's reasoning that the risk was unacceptable and weighed heavily in favour of refusal was not supported by any reasoning as to why that risk flowed from the grant of the visa.

e.     Further or alternatively, having identified the legal consequences of the decision (being that the applicant would remain in the Australian community on a Bridging Visa R regardless of the outcome), the Tribunal did not apply that finding in its assessment of the Protection of the Australian Community and in doing so, the Tribunal either:

i.     failed to consider the legal consequences in relation to that mandatory consideration; and/or

ii.     constructively proceeded on a misunderstanding of the law.

3.    Further or alternatively, the Tribunal's decision was based on a misunderstanding of the applicable law.

Particulars

a.     The Tribunal, in its reasons regarding Protection of the Australian of Community and risk, noted the conditions on the applicant’s Bridging Visa R including that he wear a monitoring device (condition 8621) and comply with a curfew (8620).

b.     The conditions to wear a monitoring device (condition 8621) and comply with a curfew (8620) were and are invalid: EGH19 v Commonwealth of Australia [2026] HCA 7.

c.     If the Tribunal's assessment of risk to the Australian community under paragraph 8.1.2 of Direction No 110 proceeded on the basis that the applicant's presence in the community on a Bridging Visa R posed a reduced risk by reason of conditions and that risk would be increased if he were relieved of those conditions under a Resident Return Visa, the decision was affected by a material misunderstanding of the applicable law.

4    For the reasons that follow, the application for an extension of time will be dismissed.

Background

5    The applicant was born on 15 May 1986 in what is now South Sudan. He first arrived in Australia on 9 April 2004, aged 17, as the holder of a humanitarian visa. That visa ceased on 12 September 2014 after the applicant travelled overseas for a period of two days. On return to Australia on 14 September 2014, the applicant was granted a border visa. That visa ceased on 14 October 2014 and the applicant became an unlawful non-citizen.

6    On 14 May 2020, the applicant applied for the Resident Return visa, which would allow him to reside in Australia permanently.

7    The applicant has been convicted of several offences in Australia. The applicant’s most recent offence is a conviction dated 19 June 2018 in the Queensland Supreme Court for wounding with intent to cause grievous bodily harm – a domestic violence offence, for which the applicant was imprisoned for 7 years. The conviction was declared a conviction for a serious violent offence. Following release on parole on 4 May 2022, the applicant was detained in immigration detention.

8    On 22 March 2024, the Department sent the applicant a notice of intention to consider refusal of his visa application. The applicant provided submissions in response to the notice and to subsequent natural justice letters.

9    On 11 November 2024, a delegate of the Minister refused to grant the applicant the Resident Return visa under s 501(1) of the Migration Act.

10    On 12 November 2024, the applicant applied to the Tribunal for review of the delegate’s decision.

11    It is common ground that, at present, there is no real prospect that the applicant will be removed to his country of origin, being South Sudan. In those circumstances, detention of the applicant is not supported by ss 189 and 196 of the Migration Act: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 (NZYQ).

12    On 18 November 2024, the Assistant Minister for Immigration and Citizenship exercised his power under s 195A of the Migration Act to grant the applicant a Bridging E (Class WE) (Subclass 050) visa and the applicant was released from detention.

13    On 19 December 2024, the Assistant Minister exercised his power under s 195A of the Migration Act to grant the applicant a Bridging R (Class WR) (Removal Pending) (Subclass 070) visa (commonly referred to as a BVR). The BVR gives the applicant permission to remain in Australia. The BVR ceases at the earliest of the following:

(a)    when the Minister gives a written notice to the applicant, by one of the methods specified in section 494B of the Migration Act, stating that the Minister is satisfied that the applicant’s removal from Australia is reasonably practicable;

(b)    when the Minister gives a written notice to the applicant, by one of the methods specified in section 494B of the Migration Act, stating that the applicant has breached a condition to which the visa is subject; or

(c)    when the Minister grants the applicant another Bridging R (Class WR) visa under regulation 2.25AB.

14    Upon grant, the BVR was subject to numerous conditions, including the following:

8303 - No violent or disruptive activities

The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

8513 – Notify residential address

The holder must notify Immigration of his or her residential address within 5 working days of grant.

8514 – No change in circumstances

During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

8541 - Must Assist with Removal

The holder:

(a)     must do everything possible to facilitate his or her removal from Australia; and

(b)     must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

8542 – Report for removal from Australia

The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.

8543 - Facilitate removal from Australia

The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.

…

8552 - Notify change in employment details

The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.

8553 – Must not be involved in activities prejudicial to security

The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

…

8561 – Must attend interview if directed

If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.

…

8564 – Must not engage in criminal conduct

The holder must not engage in criminal conduct.

8614 – Notify travel

The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.

8616 – Notify contact with certain individuals or organisations

(1)     The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.

(2)     Subclause (1) does not apply to:

(a)     contact in the course of attending a therapeutic or rehabilitative service; or

(b)     contact in connection with legal proceedings or legal advice; or

(c)     incidental contact.

8620* – Abide by specified curfew

(1)     The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.

(2)     If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.

(3)     In this clause:

Notified address for a holder for a particular day or days means any of the following:

(a)     Either:

(i)     the address notified by the holder under condition 8513; or

(ii)     if the holder has notified another address under condition 8625 – the last address so notified by the holder.

(b)     an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;

(c)    if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address.

*Your visa is subject to the above condition for a period of 12 months from the date of grant.

8621* – Monitoring device

(1)     The holder must wear a monitoring device at all times.

(2)     The holder must allow an authorised officer to fit, install, repair or remove the following:

(a)     the holder’s monitoring device;

(b)     any related monitoring equipment for the holder’s monitoring device.

(3)     The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:

(a)     the holder’s monitoring device;

(b)     any related monitoring equipment for the holder’s monitoring device.

(4)     if the holder becomes aware that either of the following is not in good working order;

(a)     the holder’s monitoring device;

(b)     any related monitoring equipment for the holder’s monitoring device;

The holder must notify an authorised officer of that as soon as practicable.

*Your visa is subject to the above condition for a period of 12 months from the date of grant.

8624 – Must not contact victim or victim family member

If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.

8625 – Notify changes in personal details

The holder must notify the Minister of any change in the following:

(a)     the holder’s name;

(b)     an address of the holder;

(c)    a phone number of the holder;

(d)     an email address of the holder;

within 2 working days after the change occurs.

15    The Tribunal held a hearing on 20 January 2025. The applicant was self-represented. On 24 January 2025, the Tribunal affirmed the decision under review and published written reasons for its decision. In exercising its review powers, the Tribunal was required to take into account the considerations identified in sections 8 and 9 of Ministerial Direction 110, made under s 499 of the Migration Act. In making its determination, the Tribunal made the following findings with respect to those considerations:

(a)    With respect to protection of the Australian community (para 8.1), the Tribunal gave weight to the range and length of the applicant’s criminal record, to its increasing severity, and to his lack of response to more lenient community based court outcomes. The Tribunal also identified his record as including an instance of very serious offending. The Tribunal also found there to be a real risk of reoffending, and that this risk is unacceptable. The Tribunal concluded that this primary consideration weighs heavily in favour of refusal ([41]-[42]).

(b)    With respect to family violence committed by the applicant (para 8.2), the Tribunal found that, while infrequent, the family violence engaged in by the applicant exhibits a serious increase in severity. The Tribunal put considerable weight on the fact that the applicant had been exposed to family violence issues through an intervention order and that he breached that order. The Tribunal also considered that the applicant demonstrates extremely limited insight into his very serious offending, which reflects limited relevant rehabilitation. The Tribunal found that this consideration weighs heavily in favour of refusal ([46]-[47]).

(c)    With respect to strength, nature and duration of ties to Australia (para 8.3), the Tribunal afforded some weight to this consideration as there is supporting evidence from family members and because of the applicant’s relationship with his cousin. However, because the applicant is not presently facing removal, overall the Tribunal assigned only limited weight to this consideration (at [51]). Later in its reasons, the Tribunal re-phrased its assessment of this consideration by stating that it weighs moderately against refusal (at [71]).

(d)    With respect to the best interests of minor children in Australia (para 8.4), the Tribunal took into account the applicant’s evidence of his relationship with twin minor children of his cousin. The Tribunal found that this consideration weighed neutrally because the applicant does not fulfil a parental role in respect of those children and the applicant is unlikely to be separated from them by removal in the event of a refusal decision ([54]–[55]).

(e)    With respect to the expectations of the Australian community (para 8.5), the Tribunal found that the consideration is enlivened due to the nature of the applicant’s offending (acts of family violence and serious violence against women). The Tribunal found that this consideration weighs heavily in favour of refusal ([58]).

(f)    With respect to the legal consequences of the decision (para 9.1), the Tribunal found that the most relevant and immediate legal consequence of refusal are that the applicant will continue to be subject to strict conditions on his BVR and faces imprisonment for their breach, and the BVR has no specified end date. Further, a real degree of uncertainty arises about what outcomes might emerge for the applicant over time. The Tribunal found that this consideration weighs moderately in favour of granting the visa ([65] - [66]).

(g)    With respect to the extent of impediments if removed (para 9.2), the Tribunal found that there are a number of unresolved and indeed, unexplored, dimensions to this consideration. The Tribunal concluded that, in circumstances where removal is not likely in the foreseeable future, this consideration weighs neutrally ([70]).

16    The Tribunal concluded its assessment as follows (at [73]-[75]):

73.     The Direction provides that the primary consideration Protection of the Australian community should generally be given greater weight than other primary considerations, and the Principles recognise public safety as the highest priority for the Government. The Principles also note the importance of matters raising serious character concerns, which I have found are engaged in this matter. I do not consider [the applicant] has lived in Australia from a very young age, and he therefore does not attract any higher level of tolerance that might otherwise be afforded under the Direction.

74.     I consider that [the applicant’s] past behaviour alone is a matter of serious concern, but also that there is a real risk of further reoffending. I have not identified any particular countervailing considerations about his offending or circumstances to justify grant of his visa, and in any event, the impact of any countervailing considerations would be substantially reduced by his family violence conduct.

75.     Accordingly, I find that the correct or preferable decision is to refuse to grant [the applicant] a Return (Residence) (Class BB) visa.

17    In EGH19 v Commonwealth of Australia [2026] HCA 7; 100 ALJR 400 (a judgment delivered on 18 March 2026), the High Court determined that condition 8620 (curfew) and 8621 (monitoring device) were invalid because they exceeded the power conferred by s 504 of the Migration Act when that power is construed subject to Ch III of the Constitution.

Consideration of the application for an extension of time

Applicable principles

18    The Court has jurisdiction to review the Tribunal’s decision under s 476A(1)(b) of the Migration Act. Section 477A imposes a time limit on making such applications. It provides as follows:

(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.

19    The Court has a discretion under s 477A(2) to extend the 35-day period by such period as it considers appropriate if two conditions are satisfied. The first is that an application for an extension has been made in writing to the Court, which is satisfied in this case. The second is that the Court is satisfied that an extension is necessary in the interests of the administration of justice.

20    The discretionary power to extend time under s 477A was considered by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579. The following principles emerge from that decision:

(a)    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) (at [11] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [35] per Gordon, Edelman and Steward JJ).

(b)    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 Migration Act (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [39] per Gordon, Edelman and Steward JJ).

(c)    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 (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [40] per Gordon, Edelman and Steward JJ).

(d)    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 (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ).

(e)    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 (at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [54] per Gordon, Edelman and Steward JJ).

Submissions of the parties

21    In the present case, the applicant submitted that the extension should be granted for two reasons: first, the applicant would suffer prejudice if the extension were not granted by reason of his potential removal from Australia to Nauru and the consequential separation from his newborn son; second, the application has merit.

22    The Minister opposed the extension of time for the following reasons. First, the applicant’s delay in seeking review of the Tribunal’s decision is very lengthy. The applicant requires an extension over the usual time limit for bringing an application for review of more than 9 months. An extension of that length has been described by the High Court as exceptional: see Plaintiff M27/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 40; 99 ALJR 1495 at [31] (Gageler CJ, Gordon and Beech-Jones JJ) and the cases cited therein. Second, the applicant’s explanation for the delay is unsatisfactory. Third, there is a significant public interest in public law matters being resolved in a timely and efficient manner: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 [89]; Iyer v Minister for Immigration and Multicultural Affairs 2001] FCA 929; 192 ALR 71 [62]. Fourth, the proposed grounds of review are insufficiently meritorious to justify the length of extension sought.

Explanation for the delay

23    The applicant accepted that the application has been brought after a lengthy delay.

24    The applicant relied upon three affidavits that were read at the hearing to explain the delay in bringing the application.

25    By affidavit made on 17 November 2025, the applicant deposed that he was released from immigration detention on 18 November 2024. The applicant represented himself before the Tribunal. The applicant deposed that, at the time of the Tribunal decision:

(a)    He did not have stable accommodation (he was living temporarily in a hotel provided by the Department) or a job, and he was unable to afford a private lawyer. His mental health was very poor at this time as a result of the stress in trying to find accommodation and employment.

(b)    He did not know that there was a 35-day time limit to lodge an application for review to the Court.

26    The second affidavit was made by Eloise Cox on 4 May 2026. Ms Cox is an associate lawyer at the Asylum Seeker Resource Centre (ASRC) and the prior lawyer for the applicant in this proceeding. Ms Cox assisted the applicant to lodge the application for an extension of time to the Court. Ms Cox deposed that:

(a)    The ASRC had advised the applicant during 2024 in relation to his application for the Resident Return visa, and assisted the applicant in filing his application for review to the Tribunal in November 2024. However, the ASRC did not have capacity to offer representation to the applicant at the Tribunal hearing and referred the applicant to Victoria Legal Aid.

(b)    On 20 December 2024, the applicant contacted the ASRC seeking assistance in relation to the BVR and the conditions attaching to that visa.

(c)    Significantly, in January 2025, the applicant told the ASRC that he had not yet contacted Victoria Legal Aid regarding his Tribunal hearing because it was too hard for him. The ASRC told the applicant to contact Victoria Legal Aid and to contact the ASRC if he received an unfavourable Tribunal decision. Despite that advice, the applicant did not speak to the ASRC about the Tribunal decision until 16 September 2025.

(d)    From late February 2025, the ASRC represented the applicant with respect to the conditions attached to his BVR. From February to September 2025, the applicant did not seek, and the ASRC did not provide, advice concerning the Tribunal decision.

(e)    On 11 September 2025, Ms Cox attempted to contact the applicant in relation to the status of his Tribunal matter, after the Australian Government entered into a new arrangement with Nauru to facilitate the removal of the ‘NZYQ cohort’. There was no answer and Ms Cox left messages for the applicant.

(f)    On 16 September 2025, Ms Cox spoke to the applicant over the phone and he instructed that the Tribunal had affirmed the Department’s refusal decision, and that he had not appealed the decision to the Court because he did not know that he had this option. Ms Cox provided preliminary advice on the applicant’s potential option to lodge an application for an extension of time for review of the Tribunal decision, and the applicant said that he wished to lodge that application.

(g)    On 1 October 2025, Ms Cox met with the applicant for an appointment in person at the ASRC’s office. Ms Cox provided the applicant with Court documents to sign. The applicant’s instructions changed and he instructed that he did not wish to lodge an application to the Court because he did not want to use a pseudonym. He said that he felt that the Court was suppressing his identity, and that this was very important to him. Ms Cox recommended that the applicant lodge under a pseudonym. The applicant said that he wanted to think about it further.

(h)    On 15 October 2025, Ms Cox emailed the applicant to ask if he had decided whether he wished to proceed. The applicant did not reply to the email. Ms Cox emailed the applicant again on 20 October 2025, requesting a response by 22 October 2025. Ms Cox called the applicant on 22 October 2025 and 24 October 2025 and there was no answer.

(i)    On 27 October 2025, Ms Cox spoke to the applicant on the phone. The applicant said that he was not sure that he wanted to lodge the application and that he wanted more time to think about it. The applicant said that he did not believe that the Australian Government would remove him to Nauru, because he had arrived in Australia legally on a Global Special Humanitarian visa, had lived in Australia for twenty years, paid taxes, had served his prison sentence and was expecting a baby with his partner who is an Australian citizen. The applicant said that because he felt he would not be removed, it was not necessary to make the application, and if he did make the application there would be costs ordered against him. Ms Cox advised that those factors would not prevent the Australian Government from cancelling his BVR and applying for a Nauruan visa.

(j)    On 29 October 2025, Ms Cox called the applicant and he did not answer the phone.

(k)    On 6 November 2025, the applicant was granted a new BVR with ankle monitoring conditions. A lawyer at the ASRC, Caitlin Caldwell, called the applicant to discuss the new BVR grant. Ms Caldwell spoke to the applicant about filing the application for an extension of time, and the applicant said he wanted further time to think.

(l)    On 12 November 2025, Ms Cox spoke to the applicant on the phone and he instructed that he wished to lodge the application for an extension of time.

(m)    On 17 November 2025, Ms Cox met with the applicant. The applicant signed the application for an extension of time and the application for a fee exemption and swore his affidavit.

27    In her affidavit, Ms Cox does not provide any clear explanation for the delay in filing the application from 17 November 2025 until 16 December 2025 (when the documents were lodged for filing), itself a delay of 29 days.

28    By affidavit made on 20 April 2026, the applicant gave further evidence about the reasons for the delay in making his application. The applicant deposed that:

(a)    After the Tribunal decision, the applicant was in very difficult personal circumstances. He had recently been released from a long period in detention and was trying to establish himself in the community with very little support. He was under significant stress and his mental health was poor. He found it very difficult to focus on anything beyond his immediate situation.

(b)    At the time of the Tribunal decision, the applicant was living in temporary motel accommodation provided by the Department of Home Affairs. In around February 2025, he was told that he could no longer stay in the motel and had to find his own accommodation. He moved out on or around 10 February 2025. After leaving the motel, he moved between temporary and insecure accommodation provided by friends from the South Sudanese community. It was not until approximately January 2026 that he found more stable accommodation, where he currently lives.

(c)    The applicant did not apply for judicial review of the Tribunal decision within time because he was not legally represented at the time of the Tribunal decision. He did not understand that he could apply to the Federal Court for judicial review of the Tribunal’s decision, or what that process involved. After the decision, the applicant was not able to focus on his legal situation. He was overwhelmed by the outcome of the Tribunal hearing, the need to find accommodation, and the difficulty of living in the community under the conditions of his BVR. He did not have any money. Without a lawyer, he did not know where to start.

(d)    At that time, the applicant did not believe that he was at risk of removal from Australia. He knew that Australia had international obligations which meant that they could not return him to South Sudan, and that is why he was released from detention. He did not know anything about Nauru.

(e)    In around March 2025, the applicant found out that his partner was pregnant. This was a very significant event in his life. The prospect of becoming a father made the applicant think much more seriously about his future in Australia and what would happen to his child if he were removed. The applicant’s son was born on 23 December 2025. The knowledge that the applicant was going to be a father made him determined to do everything he could to remain in Australia.

(f)    In around September 2025, the applicant was advised by the ASRC of the risk that he could be removed from Australia to Nauru.

(g)    The applicant was prompted to take action to seek review of the Tribunal decision as a result of the impending birth of his son and the risk of removal to Nauru.

29    In his affidavit, the applicant also referred to an error made by the Tribunal in notifying the applicant about the time limit for bringing an application to the Federal Court seeking review of the Tribunal decision. On 24 January 2025, the Tribunal wrote to the applicant advising that the Tribunal had affirmed the delegate’s decision. The letter included the following paragraph:

If you think the Tribunal has made an error of law, you may be able to appeal to the Federal Court of Australia. An appeal to the Federal Court must be made no later than 28 days after you receive the Tribunal's statement of reasons. A fee must usually be paid when lodging an appeal in the Federal Court, and other fees or costs might be payable by you. If you are considering an appeal, you should obtain legal advice without delay.

30    The foregoing statement was erroneous. While Part 7 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) stipulates that a party to a proceeding in the Tribunal may appeal to the Federal Court on a question of law within 28 days of the decision, s 474AA of the Migration Act (which commenced on 14 October 2024) stipulates that Part 7 of the ART Act does not apply to an application in relation to a proceeding for the review of a privative clause decision (as defined in s 474 of the Migration Act). The delegate’s decision that was the subject of review by the Tribunal in the present matter was a privative clause decision. Accordingly, no appeal to the Federal Court was available under Part 7 of the ART Act. Rather, s 476A of the Migration Act permits applications for judicial review of such decisions to be made under s 38B of the Judiciary Act 1903 (Cth). Section 477A stipulates that any such application must be made within 35 days of the date of the decision.

31    On 5 November 2025, the Tribunal wrote to the applicant again, enclosing a letter that purported to correct the letter dated 24 January 2025. The enclosed letter relevantly stated:

Can I appeal this decision?

If you think the decision is wrong, you can appeal to the Federal Court of Australia. The review is limited to legal errors and does not apply to errors of fact. The Federal Court will decide if we have made a legal error in reaching our decision.

If you are considering an appeal, you should seek legal advice without delay. An appeal to the Federal Court must be lodged within 35 days of the day the Tribunal decision was made.

Usually, a filing fee must be paid to lodge an application in the Court. Other fees may be payable during the course of the application. Some people are exempt from paying fees.

The Court may also exempt a person from paying fees in cases of financial hardship. If your application is unsuccessful, you are likely to be ordered to pay the court fees and legal costs of the other party (as well as any court fees and legal costs of your own). Legal costs include the amount that a person pays a lawyer for legal advice and representation.

32    The foregoing statements were also incorrect in so far as reference is made to a right to “appeal” to the Federal Court. As already noted, there is no right to appeal to the Federal Court from privative clause decisions; there is a right to bring an application for judicial review. However, the letter did refer to a time limit of 35 days which is the time limit stipulated by s 477A of the Migration Act.

33    The applicant sought to cast some blame on the Tribunal’s letters for the delay in making his application. I do not accept that aspect of the applicant’s evidence. Although the letters contained legal errors, they at least served the purpose of informing the applicant that there were legal avenues available to him to challenge the Tribunal’s decision, and also notified him that those avenues were subject to a time limit. Despite that notification, the applicant did not seek advice from the ASRC about the options available to him, even though the ASRC had invited him to do so.

34    In general terms, it is not difficult to accept that a person in the position of the applicant, having recently been released from immigration detention, having impermanent accommodation and no employment, and having learned that the Tribunal had dismissed his application for review, may have been unable to focus on the possibility of a further challenge to the Tribunal’s decision. However, the applicant’s failure to make any enquiry about challenging the Tribunal’s decision is difficult to understand in circumstances where:

(a)    in January 2025, prior to the Tribunal hearing, the ASRC had advised the applicant to contact them if he received an adverse decision;

(b)    on 24 January 2025, when advising the applicant of the adverse decision, the Tribunal had written to the applicant about the possibility of an “appeal”;

(c)    from late February 2025, the applicant was obtaining advice from the ASRC in relation to the BVR; and

(d)    in around March 2025, the applicant found out that his partner was pregnant, which caused him to think much more seriously about his future in Australia and what would happen to his child if he were removed.

35    Assessing the applicant’s evidence as a whole, it appears that the principal reason that the applicant did not seek judicial review of the Tribunal’s decision in a timely manner was the applicant’s belief that the Australian Government would not attempt to remove him from Australia because of the ongoing conflict in South Sudan. The applicant also appeared to be concerned about the prospect of an adverse costs order being made against him. It was only when the applicant learned that there was a prospect of being removed to Nauru that he began to consider an application for review more seriously. Even then, it took the applicant a further three months to bring his application (from 16 September until 16 December 2025).

36    Taking the evidence as a whole, I consider that the explanation given by the applicant for the delay in making the application to review the Tribunal’s decision is unsatisfactory. I accept the Minister’s submission that there is a significant public interest in public law matters, and particularly migration matters, being resolved in a timely and efficient manner. It is not in the interests of the administration of justice for applications for review to be delayed by more than 9 months.

37    In those circumstances, I consider that an extension of time should only be granted if the applicant is able to demonstrate that his proposed grounds of review are strong. The proposed grounds of review are considered in the next section of the reasons.

Proposed grounds of review

Ground 1

38    By proposed ground 1, the applicant contends that the Tribunal asked itself the wrong question, or misconstrued para 8.1(2)(b), 8.1.2 and 8.1.2(b) of Direction no 110, or failed to consider a representation that clearly emerged from the material that the grant of the Resident Return visa would have a limited effect on any risk to the Australian community. The gravamen of this contention is that the Tribunal erred in concluding that the protection of the Australian community weighed in favour of refusing the grant of the Resident Return visa (at [42]) because the applicant would remain within the Australian community (on a BVR) whether or not the Resident Return visa was granted.

39    In my view, ground 1 has poor prospects of success. Contentions to similar effect have been rejected in recent decisions of this Court.

40    In XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539 (XKTK), the Full Court concluded that the Minister’s finding, that cancellation of the applicant’s visa would promote the protection of the Australian community, was not irrational even though the applicant would remain in Australia on a BVR. Wheelahan J observed (at [30]-[31]) that there were two features of a BVR that differed from the visa being cancelled: first, the BVR was susceptible to immediate cessation upon the Minister giving notice of his satisfaction that the appellant’s removal from Australia is reasonably practicable; second, the BVR was liable to be subject to conditions that included some that were specifically directed to the risk of reoffending. Given those differences, it was not irrational for the Minister to conclude that cancellation of the visa would promote the protection of the Australian community (at [51]). Stewart and Needham JJ similarly concluded that the Minister’s finding was rationally based having regard to the different characteristics of a BVR, specifically the imposition of conditions which would offer greater protection to the Australian community (at [84]). Referring to the recent judgment of the High Court in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; 99 ALJR 1378, their Honours observed that (at [113]):

… there was no illogicality or “inconsistency” in cancelling a visa that granted the non-citizen the right to remain in Australia in circumstances where the non-citizen will still remain in Australia but on a visa that is designed to facilitate their removal when practicable.

41    The Full Court reached the same conclusion in Minister for Immigration and Multicultural Affairs v SSVJ (2026) 315 FCR 435 (SSVJ), reasoning (at [28]-[29]):

28    The conclusion that protection of the community weighed “heavily in support of cancellation in this case in the national interest” must therefore be taken to have been reached in the light of what, as exposed in the Minister’s reasons as a whole, the Minister expected to be the consequences if the respondent’s visa was cancelled. Those consequences did not include detention and removal, at least in the foreseeable future. However, they did include … the grant of some other visa to the respondent which would be subject to conditions the subject of a future decision. That future decision would, obviously, take into account the respondent’s criminal record. The consequences also included … restrictions on the classes of visa for which the respondent could apply in the future.

29    Read as a whole, therefore, the Minister’s reasons reveal a rational foundation for the understanding … that cancelling the respondent’s visa would provide some protection for the community against further criminal conduct on his part.

42    The same reasoning applies in this case. It is clear that the Tribunal was aware that the applicant had been granted a BVR and was aware of the conditions attaching to the BVR. Those matters were expressly referred to in the reasons (including at [6], [29] and [63]-[65]) and the BVR and its conditions were in evidence before the Tribunal. I consider it to be implicit in the Tribunal’s reasons that the Tribunal’s assessment of the protection of the Australian community was informed by the fact that the Resident Return visa confers permanent residency, whereas the BVR is a temporary visa which makes the holder liable to removal from Australia if and when removal becomes practicable. In assessing the risk to the Australian community from the applicant’s reoffending, the Tribunal also expressly had regard to the conditions under which the BVR was granted, the general monitoring framework that applies to the BVR and the fact that breaches of the conditions are offences under the Migration Act (at [29]). Although the Tribunal’s reasoning was expressed with brevity, it is tolerably clear that the Tribunal assessed that the grant of the Resident Return visa, as compared with the BVR, would increase the risk to the Australian community and therefore weighed against the grant. There is no error in that reasoning.

43    The applicant placed reliance on the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ (2026) 316 FCR 273, which is another appellate decision concerning similar issues. In that case, the Full Court dismissed the appeal and thereby confirmed that the Minister had erred in failing to explain why protection of the Australian community weighed heavily in favour of cancellation of the applicant’s visa in circumstances where the applicant could not be detained or removed from Australia (by reason of Australia’s non-refoulement obligations). However, the decision turned on its own facts. In particular, at the time of decision, the applicant had not been issued a BVR and the Minister failed to address the question of what type of visa was likely to be issued following cancellation and the legal consequences of the visa. KFTJ does not alter my assessment of the applicant’s prospects in the present case.

44    After judgment was reserved, the applicant also brought to the Court’s attention the decision in Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 (decided on 27 May 2026), which is another appellate decision concerning similar issues. Again, the Full Court dismissed the Minister’s appeal and thereby confirmed that the Tribunal had erred in failing to explain why protection of the Australian community weighed heavily in favour of cancellation of the applicant’s visa in circumstances where the applicant could not be detained or removed from Australia. Again, however, the decision turned on its own facts. The applicant had presented evidence and arguments that the grant of a protection visa would provide the applicant with benefits which would ultimately reduce his risk of re-offending and, as a consequence, the grant of a protection visa would better protect the Australian community from the risk of the applicant reoffending in comparison to refusal of the visa and the resulting grant of a BVR. The Full Court concluded that the Tribunal erred in failing to consider the risk to the Australian community if the applicant remained on the BVR, and thereby failed to consider if the risk was lessened by refusing to grant the protection visa. The decision turned on the evidence and arguments presented to the Tribunal and the Tribunal’s consideration of the evidence and arguments. DVRL does not alter my assessment of the applicant’s prospects in the present case.

Ground 2

45    By proposed ground 2, the applicant contends that the Tribunal's conclusion as to the weight to be given to the protection of the Australian community was affected by irrationality or illogicality; and/or the Tribunal constructively failed to have regard to the legal consequences of the decision or constructively operated on a misunderstanding of the applicable law in assessing the protection of the Australian community. The gravamen of this contention is materially the same as for proposed ground 1.

46    As developed, the applicant’s argument under this ground had two strands.

47    The first strand was that the Tribunal did not expressly set out its reasoning for concluding that the protection of the Australian community weighed in favour of refusing the grant of the Resident Return visa in circumstances where the applicant would remain within the Australian community whether or not the visa was granted. For the reasons stated earlier, it is tolerably clear that the Tribunal assessed that the grant of the Resident Return visa, as compared with the BVR, would increase the risk to the Australian community and therefore weighed against the grant. I consider that the applicant has poor prospects of success on the first strand of the argument.

48    The second strand of the applicant’s argument was that the Tribunal acted inconsistently with respect to the fact that, if the Resident Return visa was refused, the applicant would remain in Australia on a BVR. The applicant noted that, in respect of the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children and the extent of impediments if removed, the Tribunal took into account the fact that removal of the applicant from Australia was not likely in the foreseeable future and therefore those factors weighed less strongly in favour of the grant of the Resident Return visa. However, the Tribunal did not take into account the fact that removal of the applicant from Australia was not likely in the foreseeable future when assessing the risk to the Australian community. Again, I consider that the applicant has poor prospects of success on that argument. The fact that the Tribunal took into account, on certain mandatory considerations, that the applicant was likely to remain in Australia for the foreseeable future (on a BVR) does not render the Tribunal’s assessment of the risk to the Australian community irrational. For the reasons explained in both XKTK and SSVJ, the Tribunal’s assessment on the question of the risk to the Australian community was rational having regard to the differences between a Resident Return visa and a BVR.

Ground 3

49    By proposed ground 3, the applicant contends that the Tribunal’s decision was based on a misunderstanding of the applicable law. Specifically, the applicant contends that, in assessing the protection of the Australian community, the Tribunal had regard to the conditions on the applicant’s BVR that he wear a monitoring device (condition 8621) and comply with a curfew (8620), but those conditions were subsequently held to be invalid by the High Court in EGH19 v Commonwealth of Australia [2026] HCA 7(2026); 100 ALJR 400.

50    In my view, proposed ground 3 has little if any prospect of success.

51    The passage of the Tribunal’s reasons relied upon by the applicant (at [29]) occurs in a section of the reasons that assesses the applicant’s risk of reoffending. In that section, the Tribunal considers a range of matters that the Tribunal considers bears upon that consideration. At [29], the Tribunal notes the following matters:

(a)    The applicant demonstrated in his evidence and submissions a high level of awareness of the conditions under which his BVR has been granted.

(b)    The applicant is aware of his monitoring by an ankle bracelet and of the curfew and general monitoring framework that applies to his BVR.

(c)    By the terms of the BVR, breaches of numerous specified conditions are offences under the Migration Act.

52    The Tribunal does not draw any express conclusion from those matters. Nevertheless, the implication is that the risks of the applicant reoffending are reduced by reason of the conditions attaching to the BVR, in comparison to the risks if the applicant were not subject to such conditions. Whilst the Tribunal refers to monitoring by an ankle bracelet and the curfew, the reasoning of the Tribunal is directed to the BVR regime as a whole. The Tribunal’s reasons do not suggest that the Tribunal placed reliance on those specific conditions; the essential reasoning process of the Tribunal was at a higher level of generality concerning the BVR framework as a whole. In my view, those specific conditions were not essential or material to the Tribunal’s reasoning process, and the Tribunal’s reference to those conditions does not constitute jurisdictional error.

Conclusion

53    In conclusion, the applicant’s explanation for the delay in making the application to review the Tribunal’s decision is unsatisfactory, and the applicant’s proposed grounds of review have poor prospects of success. In those circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time. The application will therefore be dismissed with costs.

Associate:

Dated:    21 July 2026