Federal Court of Australia

Kozak v Minister for Immigration and Citizenship (No 2) [2026] FCA 1001

ORDERS

THE COURT ORDERS THAT:

1.    The respondent is to be amended to the Minister for Immigration and Citizenship.

2.    The application for relief under s 39B of the Judiciary Act 1903 (Cth) is dismissed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    As I recently explained in Kozak v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 965 (Kozak No 1), the applicant, James Andrew Kozak, seeks relief under s 39B of the Judiciary Act 1903 (Cth) in relation to a 'decision' that was communicated to him by the Department of Home Affairs (Department) on 26 February 2024. By that communication Mr Kozak was informed that the relevant Minister did not have power under either ss 351 or 417 of the Migration Act 1958 (Cth) (Act) to substitute a more favourable decision for the decision made by the Administrative Appeals Tribunal (AAT) on 22 November 2023 that it did not have jurisdiction to deal with an application to review a decision to refuse to grant him a visa.

2    For the following reasons, Mr Kozak's application must be dismissed.

Adjournment applications

3    Mr Kozak filed an originating application for relief under s 39B of the Judiciary Act on 19 April 2024, and then an amended originating application on 14 February 2025 (Application). At the commencement of the hearing of the Application Mr Kozak made an oral adjournment application. During the hearing of the Application Mr Kozak made two further adjournment applications. Before explaining why I refused to grant those applications it is first necessary to refer to some of the procedural history of this matter.

Procedural history

4    On 17 March 2025, these proceedings were held in abeyance with the consent of the parties pending the outcome of an appeal in separate proceedings, NSD 1851 of 2024, which was expected to deal with the same or similar issues raised by the Application.

5    After the Full Court delivered judgment on 12 December 2025 in NSD 1851 of 2024 (ALJ22 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 182; (2025) 313 FCR 516), orders were made on 18 December 2025 to program the Application for hearing, including an order that Mr Kozak file a written outline of submissions by 20 February 2026. After the Court obtained the parties' available dates for a hearing the Application was listed for hearing on 24 April 2026.

6    In early 2026, Mr Kozak then sought non-party access to certain documents filed in NSD 1851 of 2024. It is unnecessary to dwell upon this aspect of the procedural history of this matter. It is sufficient to note that it was in that context that on 23 February 2026 an order was made extending the time allowed for Mr Kozak to file his written outline of submissions to 17 April 2026.

7    At a case management hearing on 20 April 2026, Mr Kozak made an oral application to adjourn the hearing of the Application. In summary, Mr Kozak asserted that he had been admitted to hospital on 9 April 2026 and that, although he was discharged approximately 10 hours later, he had experienced such discomfort due to health issues that he had been unable to prepare the written outline of submissions he had been ordered to file and serve. He also submitted, in effect, that it would be unfair to require him to appear and make submissions in support of the Application on the listed hearing date. In that context it must be noted that Mr Kozak stood throughout the hearing of his application for an adjournment having advised the Court that he could not sit comfortably for any great length of time.

8    In circumstances in which counsel for the respondent, the Minister for Immigration and Citizenship (Minister), informed the Court that she did not wish to test Mr Kozak's assertions about his incapacity to prepare an outline of written submissions and to present his case at the hearing of the Application listed on 24 April 2026, I agreed to grant the adjournment sought. However, I informed Mr Kozak that I was not prepared to adjourn the hearing of the Application indefinitely. In that context, the following exchange with Mr Kozak took place:

HIS HONOUR: But I'm not prepared to allow the matter just to sit in abeyance, awaiting a report from a specialist. What I'm going to do is I'm going to list the matter for hearing on a date in the next month or two and make further orders that require you to file your submissions within that period of time. If it becomes apparent that that date is not suitable, in the sense that it's not - you're going to be prejudiced because of your medical condition, then you will be required to make an application to adjourn that matter, and you're on notice that you will require evidence to support that application. Do you understand that?

MR KOZAK: Yes, I do, your Honour.

HIS HONOUR: All right. So what I'm minded to do is to list your hearing on 28 May, which is over a month away at 10.15 am. Do you have unavailability on that day?

MR KOZAK: Not that I'm aware of.

HIS HONOUR: All right.

MR KOZAK: It's only the medical issue and to be able to participate meaningfully.

HIS HONOUR: So - well, at the moment, I have no evidence of that. I am, as I've said, prepared to adjourn the hearing on the 24th on the basis that I've already explained and having regard to the reasonable - very reasonable attitude taken by Ms Ellis on behalf of the Minister. But I am going to only adjourn it for a short period of time, and as I say, I'm going to list your hearing on 28 May at 10.15 am, and I'm going to make an order that you are to file and serve your written submissions by 4 pm Western Standard Time on 21 May.

MR KOZAK: Did you say 21 May?

HIS HONOUR: 21 May, so one week beforehand. That's sufficient time for you, Ms Ellis, I would have thought?

MS ELLIS: Yes, it is. Thank you.

HIS HONOUR: All right?

MR KOZAK: Yes.

HIS HONOUR: Do you understand that?

MR KOZAK: I do.

9    An order was then made adjourning the hearing of the Application to 28 May 2026. A further order was made requiring that Mr Kozak file and serve a written outline of submissions by 21 May 2026. However, before the Court adjourned, and after the parties were asked whether there were any other issues that could be dealt with, Mr Kozak said:

I have a few outstanding things that are probably not ripe at this point to be able to raise, but I can give you a small sneak peek at them.

10    As it transpired, the issues that Mr Kozak alluded to concerned a non-party access request he had made to obtain documents on the Court file in NSD 1851 of 2024. According to Mr Kozak, those documents were relevant to the question of whether the Full Court's decision in ALJ22 was distinguishable. It is unnecessary to say anything further about that issue. However, it is relevant to note the following exchange that took place shortly before the Court adjourned:

MR KOZAK: … I believe I'm of the position that the Minister has committed further jurisdictional error subsequent to the filing of my application, my judicial review application. This jurisdictional error has been both prejudicial and has affected the fair and speedy resolution of my own case. So I foreshadow possibly submitting a request to submit, or leave to submit further evidence in support of the admission of that evidence of jurisdictional error. But it's not fully formed yet. That's why I qualified it by saying it's not ripe.

HIS HONOUR: Well, Mr Kozak, I've listed your matter for 28 May. If there are things that you need to have done before then, you need to get on with them now.

MR KOZAK: You are quite correct.

HIS HONOUR: All right? I've already adjourned your hearing once. If there are things that you need to do, that you think you need to do to put your best case forward, you need to get them done now.

MR KOZAK: Very correct.

(emphasis added)

11    On 22 May 2026, Mr Kozak filed an interlocutory application to adjourn the hearing of the Application and to vacate the order requiring him to file and serve a written outline of submissions by 21 May 2026. The interlocutory application was supported by an affidavit affirmed by Mr Kozak on 21 May 2026. In that affidavit Mr Kozak explained that about 48 hours after the Court made orders on 20 April 2026, he was admitted to the Emergency Department of Royal Perth Hospital suffering from what he described were 'urinary retention issues'. According to Mr Kozak he was released from hospital the following morning on 23 April 2026, with a urinary catheter.

12    Mr Kozak also gave evidence that after his release from the hospital he experienced the same symptoms he had previously suffered, but in a 'more acutely painful manner'. He said that later that same day on 23 April 2026, he once again attended the Emergency Department of Royal Perth Hospital. According to Mr Kozak a further catheter was then installed before he was discharged the following day. Mr Kozak then went on to say that the Urology Department was intending to refer him to their clinic for further examination and had given him an appointment at 10.45 am on 21 July 2026. However, Mr Kozak went on to say that he subsequently received an email from the clinic advising that they could give him an earlier appointment on 28 May 2026, the same date the hearing of the Application had been listed.

13    Mr Kozak also said the following in his affidavit:

Since issuance of the 20 April 2026 order, not a day has gone by when I could sit comfortably for any real length of time, without disruption to any task. I have been unable to think clearly, with several prescriptions, antibiotics and attendant maintenance to the urinary catheters installed inside of me. Maybe some persons live active lives with these Urology issues on a permanent basis, but it sure has not been my personal experience. The idea put forth that I am capable of appearing on video conference for the 28 May hearing on this matter only comes from someone who doesn't live my present life. I state under oath that I am unable to prepare my submissions, nor participate meaningfully at final hearing on 28 May 2026 either by video or in person, therefore request the 20 April 2026 order is vacated, so that I am capable of presenting a qualifying medical fitness certificate by my treating physician[.]

14    The hearing of Mr Kozak's adjournment application took place on 26 May 2026. Once again, Mr Kozak stood throughout the hearing having advised the Court that he was still not comfortable enough to sit down. Mr Kozak submitted that the hearing of the Application listed for 28 May 2026 should be adjourned, a new hearing date should not be listed pending the outcome of his medical appointment on 28 May 2026, and the order for him to file and serve submissions should be vacated. As Mr Kozak put it:

I think it takes care of scarce court resources and is in the interests of justice that the determination of a date for submissions and trial be held in some form of suspension until after the 28th, when I can either present my qualifying medical certificate, or I know with a certainty what the treatment dates will be, so we're not back here in yet another time conflict.

15    Counsel for the Minister advised the Court that Mr Kozak's application for an adjournment was not opposed. However, counsel submitted that the evidence only established that Mr Kozak had a medical condition. Counsel submitted that in those circumstances the matter should not be effectively left in abeyance until such time as Mr Kozak was able to provide the Court with updated medical evidence, and that the Court should instead list the Application for hearing.

16    After considering the parties' submissions I decided to adjourn the proceedings for a short time to 29 May 2026, which was the day after Mr Kozak's medical appointment. However, before adjourning the proceedings I told Mr Kozak that it was my expectation that he would appear on 29 May 2026 and be in a position to provide the Court with information about his next medical appointment. I also told Mr Kozak that he should understand that on that date the Court was likely going to make orders requiring him to file and serve a written outline of submissions and that the hearing of the Application would be listed. Mr Kozak indicated that he understood.

17    When proceedings resumed on 29 May 2026 Mr Kozak again sought and was granted leave to stand throughout the proceedings. In his submissions, Mr Kozak said the following:

Setting aside all of the arguments I've intended to present, including the two medical documents that were generated yesterday but setting these aside in their significance, I'm of the position that the only way I can protect my procedural fairness rights in this current logjam that we're at is if the court was of a mind - I did present this to my colleague. If the court was of a mind to issue a date for submissions no less than 60 days from present and no less than 75 days from present for a trial date for the following reasons.

18    One of the reasons Mr Kozak gave for seeking those programming orders was that he wished to obtain the documents he had previously sought in a non-party access request he had made in NSD 1851 of 2024. The other reason Mr Kozak gave was expressed in the following way:

[A] matter I raised with your Honour about two or three hearings ago, where I remarked towards the end of the hearing that I had some significant evidence that I intend to properly enter of further jurisdictional error subsequent to the filing of my judicial review application, jurisdictional error of the Minister, and I was certainly told quite resolutely to gather that now, as I recall.

(emphasis added)

19    When Mr Kozak was asked to identify the 'significant evidence' to which he had referred the following exchange took place:

HIS HONOUR: What evidence do you need to gather?

MR KOZAK: I'm sorry, your Honour?

HIS HONOUR: What evidence do you need to gather?

MR KOZAK: In that ALJ22 case, it is likely to be my position in the - give me a second - 10-page submissions that I will seek to distinguish my case from that of the ALJ22, which the Minister appears to rely upon for its argument. And without trying all that, the privileged documents - I don't care about the stuff that ought to be properly redacted. I don't care about the person's address, or their business, or anything like that. But what strikes at the heart of it is their central contention on ministerial intervention was the decision made. And so I am of a different position than what the ALJ22 case seems to say on the surface. And I would like to be able to develop and record my arguments in those submissions. So those - - -

HIS HONOUR: The question I asked you, though, is what evidence do you need to gather? Because you told me that you want a delay, a period of time, to gather evidence. That was the first thing you said to me. And the second thing you said to me was that you want to deal with the privilege claim made by someone - I'm not sure who that is. So I'm asking you now: what evidence do you say that you need to gather? Put aside the privilege claim. What evidence do you say you need to gather?

MR KOZAK: Sure. It's going to be my position that the Minister is committed to a pattern of jurisdictional error, inclusive of the issuance to me of a 30-day visa, which would have put an effective end to my judicial review application. Which would have, were I to have complied with that order, which I believe was outside of their jurisdiction, placed me outside of the migration zone and effectively ended my application. But we all know that that has been dealt with, because I've subsequently been issued a visa that allows me to be here in person for my hearing. But I believe that's - - -

HIS HONOUR: Sir, this is the third time I've asked you. What evidence do you need to gather?

MR KOZAK: I seek to get the case notes in the record. I'm not going to use the exact terms, because I'm not sure what they use for their internal documents, but the report that - I only know her by her first name, Maria, the case officer in the status resolution office, who, basically, when I showed up for that hearing, the fix was in, and she was not interested in hearing anything I had to say. She had predetermined the outcome of the interview, intending to issue me a 30-day visa, at the end of which I was to leave Australia, with full knowledge that I had a case before this court on a judicial review. And although it's not for me to enforce the court's jurisdiction, I believe that was an absolute affront to justice, what the Minister's delegate had done in that circumstance, and I believe that that evidence is probative of a pattern of jurisdictional error.

And including, as an adjunct to that, at that same hearing where Maria, I will call her since I don't have her employee number with me - she took my spouse aside, who was in the waiting room, and without going into all the details of what unfolded on that day, I believe she was attempting to interfere in my judicial application through intimidation and threats towards my spouse as to what its certain outcome was to be and that she was intending to intimidate my spouse into withdrawing her support - the material support my spouse gives for my judicial review application. So I'm trying to - - -

HIS HONOUR: What has - - -

MR KOZAK: - - - develop it in front of you standing on my feet.

HIS HONOUR: What has this got to do with your claim that the Minister, in making a decision on 26 February 2024, fell into jurisdictional error?

MR KOZAK: That the Minister not only conducted jurisdictional error on that day for the reasons that I'll be expanding into my submissions, that - it will be my position that there was, in fact, a decision - a qualifying decision made by the AAT - I know it has changed since then. That there was, in fact, a qualifying decision made where ministerial intervention was open to the Minister to make. So not only was jurisdictional error committed then but that the Minister committed further jurisdictional error.

HIS HONOUR: Well, the only grounds in your application or your originating application concerned a decision made by the Minister on 26 February 2024.

MR KOZAK: Correct. You are absolutely correct in that one, which is why I was remiss in not adding this because I'm trying to make this the world's shortest hearing, is that it will be my intention to apply for leave to introduce further evidence to properly enter the evidence, I believe, that supports my claim.

HIS HONOUR: What evidence?

MR KOZAK: The case notes and the documents that Maria generated on that interview, that compulsory interview, that she used as a - that she weaponised, not only to intimidate me to drop my case but that she weaponised to intimidate my spouse.

HIS HONOUR: What date was that meeting?

MR KOZAK: I'm sorry, your Honour. I may not be able to - it was - it could have been a year ago. If I was given some time, I would be - - -

HIS HONOUR: No, I want to know from you - you're talking about the evidence that you want to gather that you've told me about are some case notes of a meeting with somebody called Maria. Is that right?

MR KOZAK: Correct.

HIS HONOUR: That's it?

MR KOZAK: That and the case notes that not only pertain to her interview with me but to the - basically the intimidation that she put on with two of her colleagues that escorted my spouse from the waiting room.

HIS HONOUR: What on earth does this have to do with a decision made by a delegate of the Minister on 26 February 2024?

MR KOZAK: It's part of a pattern of conduct by the Minister to - who doesn't properly understand not only the Migration Act but properly doesn't understand the jurisdiction of - and the limitations of what she may do with respect to my application before this court.

HIS HONOUR: Let's assume you're right, and there's a pattern of behaviour by the Minister, as you say. How does that affect the lawfulness of the decision made by the Minister on 26 February 2024?

MR KOZAK: I would say, as I'm standing on my feet here in the - is I think it's probative of the Minister's understanding of the relevant and prevailing laws that pertain to this judicial review application. And I would like - - -

HIS HONOUR: Why does the Minister's understanding of the law have anything to do with this case?

MR KOZAK: Because I believe if the Minister had looked at the available evidence, with respect to my underlying application for their refusal to bring ministerial intervention, if it was properly constructed, that I believe that it would have been open to them to have considered it. But instead, the Minister is relying on a no jurisdiction position. And I think it's probative of the Minister's lack of understanding.

HIS HONOUR: So what other evidence do you wish to gather?

MR KOZAK: Okay. So I mentioned that. I will say that the ambush that Maria put on myself and my spouse was an earlier appointment, the dates of which I have recorded on my phone, which is my computer. That it was from an earlier compulsory appointment I had. She scheduled me for a further one, maybe two months later, I can't say exactly, which is at the one where she issued to me the 30-day visa. So those are two different interviews. Both of them, I had to take the position in declining to answer much of her questions, because I believe much of what her case notes will record, hopefully - - -

HIS HONOUR: Mr Kozak, I just asked you what evidence do you wish to gather? I don't want to have a whole explanation?--- - - -

MR KOZAK: The case notes.

HIS HONOUR: The case notes?

MR KOZAK: On the two different meetings. And the privileged documents that the registrar declined to release to me, which I respect, which I believe I may not have properly identified two of those documents as being privileged. That I misidentified them as being open to release to me. So I need to reformulate my application for those. And I will request from this court, in between that time, not only leave to introduce this further evidence, which I will be requesting from the Minister - and I have to do some research to make sure I'm going about it the proper way - in order to have those case notes, interview notes that Maria and her colleagues recorded.

(emphasis added)

20    It may be seen that although Mr Kozak submitted that the programming orders were necessary because the medical issues he had experienced had inhibited his ability to marshal the evidence he required and to otherwise prepare his case in support of the Application, he did not suggest that those medical issues were continuing to impact on his ability to prepare for and appear at the hearing of the Application.

21    Ultimately, Mr Kozak said:

I've, essentially, put out my arguments that the medical thing, I believe, from this standpoint, I can manage that under a framework of the 60/75-day proposal I've put forward.

22    It is unnecessary to refer to the submissions that were made on behalf of the Minister in response to the programming orders sought by Mr Kozak. Considering the Court's availability, it was convenient to list the hearing of the Application on 24 July 2026. That gave Mr Kozak 56 days, or eight weeks, to marshal any evidence upon which he wished to rely and to otherwise prepare for the hearing. In circumstances in which the Minister had already filed and served a written outline of submissions, an order was made requiring Mr Kozak to file and serve an outline of his written submissions by no later than 22 July 2026.

23    As I explained in Kozak No 1, Mr Kozak then sought interlocutory orders for discovery and production of certain documents. Mr Kozak's interlocutory application was lodged for filing on 9 July 2026. By that application, Mr Kozak sought orders to enable him to gain access to the evidence he had first alluded to on 20 April 2026 and then identified to the Court on 29 May 2026. That application was heard on 21 July 2026. An order was made later that same day dismissing the application.

First adjournment application

24    It is against this procedural background that Mr Kozak made his first oral application to adjourn the proceedings at the commencement of the hearing of the Application on 24 July 2026. After hearing submissions from both Mr Kozak and from counsel for the Minister, I refused to grant the adjournment sought and indicated that I would give my reasons later.

25    The power to adjourn proceedings is discretionary. In deciding whether to grant an adjournment application, a court is required to have regard to all of the relevant circumstances. Ultimately, whether an adjournment should be granted falls to be determined by reference to the dictates of justice. In that context I note that in Sales Pond Pty Ltd v Telegate Pty Ltd [2020] NSWSC 1579 at [64], Walton J explained, citing Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 at [44], that the concept of injustice broadly involves a situation where there is a risk the determination of the proceedings will not involve a full hearing of all relevant considerations, and the prejudicial consequences of granting an adjournment do not outweigh that risk. The power of this Court to adjourn a hearing must be exercised in the way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936 at [19]; Lu v University of New South Wales (No 2) [2022] FCA 1010 at [72].

26    Although Mr Kozak also appeared to contend that he had not been afforded procedural fairness when I refused to make discovery and production orders in Kozak No 1, his first application to adjourn was made on two grounds.

27    The first ground on which Mr Kozak relied was that he wished to make further amendments to his amended originating application. As Mr Kozak explained, he wanted to make those amendments so that he could then allege that interviews he says the Department conducted with him on 22 May 2024 and on 10 September 2025 (Interviews) were infected by jurisdictional error. As I have already noted, Mr Kozak first alluded to the Interviews on 20 April 2026 and then identified them in more detail to the Court on 29 May 2026. Documents relating to the Interviews were then the subject of Mr Kozak's unsuccessful application for discovery and production in Kozak No 1.

28    It became clear that by seeking an adjournment to amend his originating application what Mr Kozak in fact sought to do was circumvent my decision to dismiss his application for discovery and production of documents in Kozak No 1. Specifically, in circumstances in which I had held that the documents that he sought be discovered and produced were not relevant to the issues to be determined in the Application, what Mr Kozak sought to do by amending his originating application was to make those documents relevant so that he could then deploy them as he originally intended. That is an approach that cannot be condoned. To accede to Mr Kozak's application would, in all of the circumstances, have been inconsistent with the basic purpose of the discretion to grant an adjournment and with the overarching purpose in s 37M of the FCA Act. For those reasons I rejected the first ground on which Mr Kozak sought to adjourn the hearing of the Application.

29    The second ground on which Mr Kozak relied was a contention that he was not physically or mentally capable of properly presenting his case in support of the Application. Mr Kozak gave oral evidence in support of this ground. Relevantly, Mr Kozak said in his evidence that he had been trying to cope with the medical conditions that he had been operating under and that he was not getting any further medical care from Royal Perth Hospital at present. Mr Kozak said that there had been some issue about the costs associated with certain medical procedures which, according to him, would determine definitively why he is suffering from the health issues he is currently experiencing. Mr Kozak suggested that his health was deteriorating and said that this was supported by evidence of a 'PSA test' that he had previously disclosed to the Court. According to Mr Kozak this test revealed a certain protein level that was 'dangerously high', suggesting a more 'dire medical condition', although he accepted that he was not a doctor and could not interpret the results of the test.

30    Mr Kozak also said that whether future medical treatment would ultimately allow him to sit down like any normal person is a 'complete unknown question mark'. He said that it raises questions about whether it is more important for him to be forced to abandon the Application in order to get appropriate medical treatment and whether he was going to be physically fit to be able to 'appear at trial'. Mr Kozak also suggested that there was a need for 'reciprocity' with the indulgences afforded to the Minister in these proceedings so that he could appear in a physical condition that would do justice to his claims.

31    I accepted that Mr Kozak had been and was continuing to experience the effects of a medical condition or conditions and that, as a result, he felt more comfortable when standing than when he was sitting down. However, while Mr Kozak's evidence was not challenged by counsel for the Minister in cross-examination, what he said in his evidence about the effect those conditions had on his physical and mental capacity to present his case in support of the Application was vague and conclusionary. Further, although Mr Kozak was on notice that any application to adjourn the hearing would need to be supported by evidence, the Court did not have the benefit of any expert evidence about the extent Mr Kozak's physical, or mental capacity may have been relevantly affected by his medical conditions. In those circumstances I was far from persuaded that Mr Kozak's ability to adequately present his case was compromised to such an extent that it would have been unfair to proceed with the hearing. In fact, I formed the view, based on the way in which Mr Kozak had conducted himself while giving evidence and during his submissions in support of his application to adjourn, that he was more than capable of adequately presenting his case.

Second adjournment application

32    Shortly before the Court would otherwise have adjourned for a lunch break, Mr Kozak made a second adjournment application. By that application Mr Kozak sought to have the hearing adjourned part-heard to the following week. He submitted, in effect, that he was tiring, and that an adjournment would allow him to recuperate and to thereby improve the quality of his oral submissions. I refused to grant the adjournment. I formed the view that as it was obvious that Mr Kozak was nearing the end of his oral submissions in any event, the adjournment sought would not promote the overarching purpose in s 37M of the FCA Act. However, I adjourned for a longer than usual lunch break to give Mr Kozak the opportunity to recover and to collect his thoughts before making the balance of his submissions.

Third adjournment application

33    Upon resumption of the hearing after the lunch break Mr Kozak made a third adjournment application. Mr Kozak informed the Court that the hearing should be adjourned because he may be an important witness in a criminal prosecution and that he may therefore be granted a criminal justice visa, apparently under the provisions in Pt 2 Div 4 of the Act.

34    I refused this application. Mr Kozak did not provide a coherent explanation as to why an adjournment of the hearing of the Application should be granted based on the speculative possibility that he might be granted a criminal justice visa. Having regard to:

(1)    the nature of the adjournment application;

(2)    the procedural history of this matter; and

(3)    the stage at which the application was made, including the fact that it was made following two other unsuccessful last minute adjournment applications, I formed the view that it would have been positively inconsistent with the interests of justice and with the overarching purpose for such an adjournment to be granted.

35    Having dealt with those preliminary issues, I will now turn to deal with the substance of Mr Kozak's application for relief under s 39B of the Judiciary Act.

Background

36    On 10 January 2023, a delegated decision maker refused to grant to Mr Kozak, a Visitor (Class FA) Visitor (Tourist) (Subclass 600) visa (Visa) under s 65 of the Act. That decision was a 'Part 5-reviewable decision' for the purposes of the now amended s 338 of the Act. In short, this is because the decision satisfied the conditions in s 338(2) and none of the exclusions provided for in s 338 applied.

37    After he received notification of that decision, Mr Kozak lodged a review application with the AAT. Mr Kozak was required by s 347(1)(b) of the Act and by reg 4.10 of the Migration Regulations 1994 (Cth) to give that application to the AAT within 21 days of being notified of the decision. However, Mr Kozak did not give his application to the AAT until 6 September 2023.

38    On 22 November 2023, the AAT concluded that as it did not receive Mr Kozak's application for review within the prescribed time 'the application for review was not made in accordance with the relevant legislation and the [AAT] has no jurisdiction in this matter'.

39    Mr Kozak then wrote to the Department on 19 January 2024 and requested information about how to seek 'Ministerial Intervention' regarding the AAT's decision. He then submitted an enquiry through the Department website on 23 February 2024. In that enquiry, Mr Kozak requested 'Ministerial Intervention' under the now repealed s 417 of the Act and provided materials in support of that request.

40    In correspondence dated 26 February 2024, the Department wrote to Mr Kozak and advised him in the following terms that the Minister had no power to intervene:

Sections 351 and 417 of the Migration Act 1958 (the Act) provides the Minister with the power to substitute a decision of the Administrative Appeals Tribunal (the Tribunal) with a more favourable decision if the Minister thinks it is in the public interest to do so.

The Minister's powers are only available if the Tribunal has made a decision under section 349 or section 415 of the Act. The Tribunal has not made a decision under these sections in your case.

As there has been no decision of the Tribunal under section 349 or section 415 of the Act, the Minister's powers are not available in your case.

41    It is this 'decision' that is the subject of the Application. In his Application, Mr Kozak contends that a delegate of the relevant Minister fell into jurisdictional error in making that decision and seeks orders, in effect, quashing the decision and directing a re-determination of his request to substitute the decision made by the AAT with a more favourable decision under s 351 of the Act.

Relevant legislative provisions

42    As I have already noted, the original decision that was the subject of Mr Kozak's review application to the AAT was a 'Part 5-reviewable decision'. However, when on 23 February 2024 Mr Kozak requested 'Ministerial Intervention' in relation to the AAT's conclusion that it did not have jurisdiction to deal with the review application, he sought to invoke the Minister's power in the now repealed s 417 of the Act. At the relevant time that power was only available to be exercised in relation a decision of the AAT that was a 'Part 7-reviewable decision', as was then defined in s 411 of the Act. Broadly speaking, a 'Part 7-reviewable decision' was a decision that concerned refugees and protection visas.

43    Nevertheless, as the Department's correspondence of 26 February 2024 demonstrates, Mr Kozak's request for ministerial intervention was also considered on the basis that he sought substitution of a more favourable decision by invoking the power conferred by s 351. As will be seen that provision conferred on the Minister a power in relevantly identical terms to the one conferred by s 417, but a power to substitute a more favourable decision for a decision made by the AAT on the review of a 'Part 5-reviewable decision'.

44    At the relevant time, an application for review of a Part 5-reviewable decision was required to be made in accordance with s 347 of the Act, which was in the following relevant terms:

347    Application for review of Part 5‑reviewable decisions

(1)     An application for review of a Part 5‑reviewable decision must:

(a)     be made in the approved form; and

(b)     be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)     if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - 28 days after the notification of the decision; or

(ii)     if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or

(iii)    if the Part 5‑reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c)     be accompanied by the prescribed fee (if any).

…

(5)     Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

45    It is not in issue in these proceedings that Mr Kozak's application for review of the decision that was made on 10 January 2023 to refuse to grant him the Visa was not given to the AAT within the prescribed period, as required by s 347(1)(b).

46    The AAT was required by s 348(1) of the Act to review a Part 5‑reviewable decision if an application was 'properly made under section 347':

348     Tribunal to review Part 5‑reviewable decisions

(1)    Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.

(emphasis added)

47    The powers of the AAT on review of a Part 5-reviewable decision were set out in s 349 of the Act:

349     Tribunal powers on review of Part 5‑reviewable decisions

(1)     The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)     The Tribunal may:

(a)     affirm the decision; or

(b)     vary the decision; or

(c)     if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)     set the decision aside and substitute a new decision; or

(e)     if the applicant fails to appear - exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

(3)     If the Tribunal:

(a)     varies the decision; or

(b)     sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)     To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

48    Under s 351, the Minister had the power to substitute a decision made by the AAT under s 349 with a more favourable decision:

351     Minister may substitute more favourable decision

(1)     If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2)     In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3)     The power under subsection (1) may only be exercised by the Minister personally.

…

(7)     The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

(emphasis added)

Why Mr Kozak's application must be dismissed

49    In ALJ22, the Full Court held that the Minister did not have the power to substitute a more favourable decision under s 417 in respect of a decision by the AAT that it lacked jurisdiction to review a Part 7-reviewable decision because an application for review had been made after the expiry of the application period set by s 412(1)(b). The Full Court arrived at this conclusion based on what it considered to be the proper construction of the relevant provisions of the Act, as revealed by the text used in those provisions, the relevant statutory context and its purpose: ALJ22 at [22] to [23]. It is convenient to set out the Full Court's reasoning at [24] to [34] as to the proper construction of those provisions in full:

The Minister's power in s 417(1)

The power in s 417(1) was enlivened where the Tribunal had made a 'decision … under section 415' (emphasis added). The word 'under' is generally used to mean 'pursuant to' or 'by virtue of': Pearce, Statutory Interpretation in Australia (10th ed, 2024) at [12.15] (Pearce), referring to Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249. As Wilcox J said in Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576 at 592, 'the word "under" usually imports a direct connection between the relevant act and the instrument': referred to in Pearce at [12.15]. Accordingly, the text of s 417(1) imports a direct connection between the Tribunal's decision and s 415. It follows in our view that, in order to enliven the Minister's power in s 417(1), the decision must have been one that found its statutory source in s 415.

Section 415(1) in its statutory context

At the relevant time, Pts 5 and 7 of the Migration Act dealt with the review by the Tribunal of, respectively, Part 5-reviewable decisions and Part 7-reviewable decisions. Each Part contained relevantly similar provisions for the application to, and review by, the Tribunal of those decisions. Section 415(1) took its place in Pt 7 of the Migration Act and must be understood within the scheme established by that Part for the review of Part 7-reviewable decisions.

Relevantly to this appeal, s 411 defined the classes of decisions that were (s 411(1)) and were not (s 411(2)) 'Part 7-reviewable decisions'. There was no dispute in this case that the visa refusal decision was a Part 7-reviewable decision.

Section 412 identified various conditions to be satisfied for '[a]n application for review of a Part 7-reviewable decision'. Relevantly, s 412(1)(b) provided that a Part 7-reviewable decision 'must … be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision'. By virtue of reg 4.31(2) of the Migration Regulations, the time for giving the review application to the Tribunal was 28 days. It is not in dispute that the appellants failed to satisfy that requirement.

Section 414(1) provided that the Tribunal 'must review' a Part 7-reviewable decision 'if a valid application is made under section 412' (emphasis added). There are three significant matters relating to the operation of s 414(1) for the purposes of this proceeding.

First, for the reasons set out at [24] above, the use of the words 'valid application' and 'under' imported a direct connection between the application and the conditions set out in s 412, so that an application would only be 'valid' if the conditions in s 412 were satisfied. It follows that a precondition to a valid application was that the review application was given within the prescribed time.

Secondly, s 414(1) operated to impose an obligation on the Tribunal to review a Part 7-reviewable decision and to define the authority or jurisdiction of the Tribunal to undertake that review. The obligation to undertake the review was subject only to the express exclusion in s 414(2) for a 'decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)'. In our view, s 414 exhaustively defined the jurisdiction of the Tribunal to review a Part 7-reviewable decision: if a valid application was made and the relevant decision did not fall within the exclusion in s 414(2), then there was an obligation on the Tribunal to review the decision; however, if a valid application was made and the relevant decision did fall within that exclusion, then there was an obligation on the Tribunal not to review the decision. In either case, the obligation on the Tribunal was conditioned on the existence of a valid application.

Thirdly, on a correct construction of the provisions, the Tribunal had authority or jurisdiction to review a Part 7-reviewable decision only where there had been a 'valid application … made under section 412': see also SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [30] (Black CJ and Allsop J). Contrary to what was argued by counsel for the appellants in oral submissions, we do not accept that there is another category of invalid applications relating to Part 7-reviewable decisions for which the Tribunal had authority or jurisdiction to entertain, but in relation to which it could make a determination under s 415 that it had no jurisdiction. With respect, that is not a plausible construction of the provisions. No provision was identified as conferring authority on the Tribunal to entertain such applications. The appellants' submissions in this respect fail to differentiate between, on the one hand, the conferral on the Tribunal of review authority or jurisdiction and, on the other hand, the powers that were conferred on the Tribunal upon the exercise of that review authority or jurisdiction.

Once the operation of s 414(1) is properly understood, it is clear from the text of s 415(1) that the powers and discretions conferred by that section were vested in the Tribunal 'for the purposes of the review of a Part 7-reviewable decision'. It was only if the preconditions to a valid application were satisfied, thereby enlivening the authority of the Tribunal under s 414(1), that the powers and discretions under s 415 were exercisable. That conclusion is consistent with the terms of ss 430(1)(a) and (b) which provided that, where the Tribunal 'makes its decision on a review', the Tribunal must by written statement set out its decision 'on the review' and the reasons for the decision.

In summary, it follows from the above analysis of the text and statutory context of the relevant provisions that, if a review application was not given to the Tribunal within time:

(1)     A precondition in s 412(1) was not satisfied for an application for review of a Part 7-reviewable decision;

(2)     There was no 'valid application … made under section 412' for the purposes of s 414(1);

(3)     The Tribunal had no authority to review the Part 7-reviewable decision under s 414(1); and

(4)     The powers and discretions in s 415 were not exercisable.

It is thereby clear from the statutory scheme that a determination by the Tribunal that it did not have authority to review a Part 7-reviewable decision, on the basis that the application was given to the Tribunal out of time, was not one sourced in s 415. As already explained, s 415 conferred powers and discretions on the Tribunal which were exercisable only if the Tribunal had authority to review a Part 7-reviewable decision. Where the review application had been made to the Tribunal out of time, the Tribunal had no such review authority.

(original emphasis)

50    The Full Court also concluded that its construction of the statutory scheme based on its text and context was supported by other considerations, including that it was not displaced by the relevant legislative history.

51    The decision in ALJ22 was specifically concerned with the question of whether the Minister had power under s 417 of the Act to substitute a more favourable decision where the AAT concluded that it lacked jurisdiction to review a Part 7-reviewable decision because the relevant application for review had been made out of time. However, the reasoning employed, and the conclusions reached by the Full Court apply with equal force in answering the question that arises in this case, namely, whether the Minister had the relevant power under s 351 of the Act where the AAT lacked jurisdiction to review a Part 5-reviewable decision because the application for review was made out of time. As the Full Court said at [11]:

[E]quivalent provisions (now repealed) for the review of Part 5-reviewable decisions were included in Pt 5 of the Migration Act: s 338 (definition of Part 5-reviewable decision); s 347 (application or review of Part 5-reviewable decisions); s 348 (Tribunal to review Part 5-reviewable decisions); s 349 (Tribunal powers on review of Part 5-reviewable decisions); and s 351 (Minister may substitute more favourable decision).

(emphasis added)

52    However, although it is correct to say that the provisions for the review of Part 5-reviewable decisions are 'equivalent', it must be noted that whereas s 414(1) provided that 'if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision' (emphasis added), s 348(1) used slightly different language. Specifically, s 348(1) provided that 'if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision' (emphasis added).

53    Nevertheless, this difference in the language used in s 348(1) does not relevantly affect the applicability of the reasoning adopted in ALJ22 to the statutory scheme that applied to the review of Part 5-reviewable decisions. Consistently with the reasoning in ALJ22 at [24], the Minister's power in s 351(1) was enlivened where the AAT had made a 'decision … under section 349' (emphasis added). For the AAT's decision to have been made 'under section 349' there must have been 'an application … properly made under section 347' (emphasis added): s 348(1). An application would only ever be 'properly made' if the conditions in s 347 were satisfied. One of those conditions was that the review application was given to the AAT within the prescribed time: s 347(1)(b).

54    Accordingly, and adopting what was said in ALJ22 at [33]:

(1)    A precondition in s 347(1) for an application for review of a Part 5-reviewable decision was not satisfied in the circumstances of this case. Specifically, Mr Kozak's application for review of the decision that was made on 10 January 2023 to refuse to grant him the Visa was not given to the AAT within the prescribed period as required by s 347(1)(b).

(2)    Mr Kozak therefore did not make an application that was 'properly made under section 347 for review of a Part 5-reviewable decision' as required by s 348(1).

(3)    The AAT therefore had no authority to review the Part 5-reviewable decision that was made on 10 January 2023 under s 348(1).

(4)    The Minister therefore did not have the power under s 351(1) to substitute for a decision of the AAT another decision, being a decision that was more favourable to Mr Kozak.

55    Mr Kozak's contention that the Minister fell into jurisdictional error in deciding that there was no power to make a decision under s 351(1) of the Act must be rejected and the Application must therefore be dismissed.

56    I will hear from the parties as to any costs orders that should be made. I will also hear from the parties as to any other costs orders that should be made consequent upon my decision to dismiss Mr Kozak's interlocutory application in Kozak No 1.

Associate:

Dated:    28 July 2026