Federal Court of Australia

EOQ20 v Minister for Immigration and Multicultural Affairs [2026] FCA 1078

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The application for an extension of time to seek leave to appeal be dismissed.

3.    The applicant pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HORAN J:

1    The applicant seeks an extension of time to apply for leave to appeal from orders of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA), dismissing an application for an extension of time to review the summary dismissal by a Registrar of his application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal decided that it did not have jurisdiction to review a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant.

2    The relevant chronology can be summarised as follows:

(a)    On 21 March 2019, the applicant, who is a citizen of Malaysia, lodged an application for a protection visa.

(b)    On 16 July 2020, a delegate of the Minister refused to grant a protection visa to the applicant. The applicant was notified of the decision by email on the same date.

(c)    On 17 August 2020, the applicant applied to the Tribunal for review of the delegate’s decision. The review application was not filed within the 28-day time limit prescribed by s 412(1) of the Migration Act 1958 (Cth) and reg 4.31 of the Migration Regulations 1994 (Cth).

(d)    On 16 October 2020, the Tribunal notified the applicant that it did not have jurisdiction to review the delegate’s decision because the application for review had been filed outside the prescribed time limit.

(e)    On 23 October 2020, the applicant filed an application for judicial review of the Tribunal’s decision.

(f)    On 12 December 2024, a Registrar ordered that the application for judicial review be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules).

(g)    On 27 December 2024, the applicant filed an application for review of the exercise of power by the Registrar. The application was not made within seven days as required by s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 21.02(1) of the FCFCOA Rules.

(h)    On 25 February 2025, the primary judge refused to extend the time within which an application for review of the Registrar’s exercise of power may be filed: EOQ20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 144 (PJ).

(i)    On 12 March 2025, the applicant filed the present application for an extension of time to seek leave to appeal from the decision made by the primary judge.

3    The procedural history set out above is characterised by repeated failures to observe prescribed time limits on the exercise of rights of review and appeal, albeit that the delay on each occasion has not been protracted. Of most significance was the applicant’s failure to make an application to the Tribunal for review of the delegate’s decision within 28 days after the day on which he was notified of that decision. As a consequence of that delay, the Tribunal decided that it had no jurisdiction to review the delegate’s decision under s 414 of the Migration Act. If the applicant is unable to demonstrate any error in the Tribunal’s decision on jurisdiction, there would be no point in granting an extension of time to seek leave to appeal from the primary judge’s refusal to extend time to seek review of the Registrar’s decision to give summary judgment under r 13.13 of the FCFCOA Rules.

4    For the reasons set out below, the applicant has no reasonable prospects of establishing that the Tribunal failed to exercise its jurisdiction, or that it erred in deciding that it did not have jurisdiction to review the delegate’s decision. In such circumstances, there was no error in the primary judge’s decision to refuse to extend the time to make an application for review of the Registrar’s exercise of power to dismiss the judicial review application.

Background

The Tribunal’s decision

5    On 16 July 2020, notification of the delegate’s decision to refuse to grant a protection visa to the applicant was sent to the email address provided by the applicant in his visa application. I note for completeness that the applicant had not appointed an authorised recipient to receive documents on his behalf in connection with his visa application.

6    An application for review of the delegate’s decision was required to be made to the Tribunal within the period of 28 days commencing on the day the applicant was notified of the decision, namely, by 12 August 2020.

7    The application for review was received by the Tribunal on 17 August 2020. In a letter dated 18 August 2020, the Tribunal acknowledged receipt of the application for review, noting that “the validity of your application has not yet been assessed” and stating that “[y]ou will be advised if it appears that your application may not be valid”.

8    On 21 August 2020, the Tribunal wrote to the applicant, advising him that “[i]t appears that your application is not a valid application as it was not lodged within the relevant time limit” prescribed by r 4.21(2) of the Regulations. The applicant was invited to provide comments on whether his application was valid. In response to that invitation, the applicant informed the Tribunal:

I am truly sorry for the delay of submission of the Application for Review of Decision (Case number:2012918). This is because the email has gone into the spam folder which I did not realize until I checked my VEVO details of submission for my employee on 15 August 2020. Then I realized my visa will expire on 20 August 2020, therefore I went through my email and found that email on my spam folder and appealed to AAT as soon as possible. Sorry for the inconvenience caused. Thank you.

9    On 16 October 2020, the applicant was notified of the Tribunal’s decision that it did not have jurisdiction to review the delegate’s decision. The Tribunal found that the applicant was taken to have been notified of the delegate’s decision on 16 July 2020, when the letter was dispatched by email, and that the prescribed period to apply for review ended on 12 August 2020. The Tribunal therefore concluded:

As the application for review was not received by the Tribunal until 17 August 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

10    The Tribunal had regard to the applicant’s comments as set out above, stating:

The Tribunal has considered the applicant’s response and acknowledges that email systems can act in the way he describes. However, it is the responsibility of the applicant to monitor his communications. The prescribed time limits in the Act are not discretionary. The Court in DZAFH v MIBP [2017] FCCA 387 held that the words of the legislative scheme were unequivocal. The Tribunal has no power to extend the time limits in which a review application must be lodged.

The Registrar’s decision

11    The grounds on which the applicant sought judicial review of the Tribunal’s decision were reproduced by the primary judge at PJ [15]. Relevantly, the applicant contended that he “was totally unaware about the decision finalising my application without giving me a chance to reinstate my matter”, and that the Tribunal did not consider his concerns nor investigate whether he met the criteria for the grant of a protection visa. The applicant maintained that he had made a valid review application which was required to be considered by the Tribunal, and that he was not given an opportunity to present evidence and submissions in support of his claims. In an unsworn affidavit that accompanied the application, the applicant claimed that the Tribunal’s decision was unfair and that he was seeking to have his application for review reinstated.

12    These complaints largely failed to engage with the basis of the Tribunal’s decision that it did not have jurisdiction to review the delegate’s decision. However, the applicant also contended that:

(7)     THE DECISION IS AFFECTED BY JURISDICTIONAL ERROR OF THE TYPE IDENTIFIED IN DFQ17 V MINISTER FOR IMMIGRATION AND BORDER PROTECTION (2019). IN CIRCUMSTANCES WHERE THE LETTER NOTIFYING THE DECISION DID NOT CLEARLY STATE THE TIME WHICH THE APPLICATION TO THE TRIBUNAL WAS TO BE MADE.

13    On 12 December 2024, following a hearing at which the applicant appeared in person by Microsoft Teams with the assistance of a Mandarin interpreter but declined the invitation to make oral submissions, the Registrar summarily dismissed the application for judicial review: EOQ20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1454. The Registrar was satisfied that the applicant had no reasonable prospects of successfully prosecuting the proceeding: see FCFCOA Rules, r 13.13(a).

14    The Registrar relevantly explained:

The Tribunal was correct to find that the 28-day period began on 16 July 2020. On that day, the applicant was notified of the delegate’s decision in accordance with the relevant legal requirements (s 66(1), 494B(5)(b) and 494C(5) of the Act and reg 2.16 of the Regulations). By law, the applicant is deemed to have received the delegate’s decision and covering letter on 16 July 2020 even if he was not subjectively aware of his receipt of the email attaching those documents on that day (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ). The fact that the email attaching the delegate’s decision and covering letter was found in the applicant’s “spam” folder (CB 89) necessarily means that the email was in fact received by the Gmail address (see, in an analogous context, the comments made by Allsop CJ in DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 at [20] and [23] about an email from the Department that was received by the intended recipient’s email address server but not immediately seen by the intended recipient of the email because the email was filtered into a “junk” folder as opposed to the “inbox” folder), and if an email has been received by the intended recipient it has necessarily also been transmitted by the sender.

This means that the last day on which the applicant could apply to the Tribunal for review of the delegate’s decision was 12 August 2020 (DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [45]-[46] per Judge Jarrett, upheld on appeal by Davies J in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984, Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [24]; (2016) 70 AAR 503 at 509 per Charlesworth J).

The applicant did not file his Tribunal application until 17 August 2020 (CB 68). The 28-day application period had ended by then, which means that the Tribunal had no jurisdiction to review the delegate’s decision.

15    The Registrar rejected the applicant’s complaints to the effect that the Tribunal should have reviewed the delegate’s decision, noting that the Tribunal had no jurisdiction or power to do so. The Registrar rejected the applicant’s complaints that he had been unfairly denied a chance to present his arguments at a hearing, noting that the Tribunal had given the applicant an opportunity to be heard on the jurisdictional issue. The Registrar stated that the Tribunal did not fail to conduct an investigation, and that it “clearly did investigate the only issue that mattered, which was whether the Tribunal had jurisdiction to review the delegate’s decision”.

16    In relation to the ground set out in paragraph 18 above, relying on the decision in DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492, the Registrar stated:

By ground seven, the applicant says that the covering letter is affected by the issue discussed in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; (2019) 270 FCR 492. Subsequent cases have established that the notification letter the applicant received was not affected by that issue, and I am satisfied that the covering letter that was transmitted to the applicant contained all the information required by law (Judge Kendall reached the same conclusion in relation to this notification letter template in BDO22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 65 at [76]-[81] and CBZ23 [v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199] at [93]).

The primary judge’s decision

17    Although an application for review of an exercise of a power by a Registrar involves a hearing de novo (see r 21.04 of the FCFCOA Rules), the application before the primary judge was one for an extension of time to apply for such a review: see PJ [41].

18    The primary judge found that there was no proper or credible explanation of the applicant’s delay in filing the application for review: PJ [41]. While the Minister did not seek to identify any real prejudice arising from the grant of an extension of time, the primary judge referred to the general prejudice of delay in the administrative process, the general prejudice to other litigants, and the significant public interest in the timely and effective disposal of public law litigation: PJ [42].

19    Notwithstanding that the primary judge was dealing with an application for an extension of time, his Honour directly addressed the prospects of success of the application for judicial review of the Tribunal’s decision, which would be relevant to the substantive merits on any review of the Registrar’s decision in which the question of summary dismissal was considered afresh.

20    In the hearing before the primary judge, the applicant had not been able to identify any jurisdictional error in the Tribunal’s decision, nor any reason why the Tribunal erred in finding that it did not have jurisdiction to review the delegate’s decision: PJ [43].

21    The primary judge found that the grounds set out in the application for judicial review were not reasonably arguable and had no reasonable prospects of success: PJ [44]–[49]. The Tribunal had no jurisdiction in circumstances where the application for review was not made within the prescribed period. The Tribunal had invited the applicant to make submissions on the jurisdictional issue, and had not denied procedural fairness or failed to provide a fair hearing in the circumstances.

22    The primary judge was satisfied that there was no error of the kind identified in DFQ17, and found that “[t]he Refusal letter sets out in proper form the requirements of s 66(2) of the [Migration] Act and correctly identified the time within which the applicant was required to seek review by the Tribunal”: PJ [44], [48].

23    The primary judge concluded (PJ [50]):

In the circumstances, it would not be appropriate to grant an extension of time to bring the Review Application because there is no merit in the substantive application for judicial review. A hearing de novo of the summary dismissal application would reach the same result because the applicant’s substantive application for judicial review has no reasonable prospects of success. The applicant has filed no new evidence or raised any new matter that persuades this Court that there is merit in the application for judicial review and that it should proceed to a final hearing. The application for an extension of time to bring the Review Application is dismissed. The decision of the Registrar on 12 December 2024 was correct. This Court has reached the same conclusion that the applicant’s application for judicial review has no reasonable prospects of success. Therefore, the merits of the Review Application do no [sic] warrant granting an extension of time and the orders of the Registrar will not be set aside or altered. The Review Application is dismissed.

Consideration

24    As the judgment below was interlocutory, leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1)(d), (1A); CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [12]–[16] (Bromwich J). An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth), r 35.13. An application for an extension of time to seek leave to appeal may be made during or after that period: r 35.14.

25    In the present case, an application for leave to appeal was required to be filed by 11 March 2025. The application was not made until the following day, 12 March 2025. Accordingly, the applicant requires an extension of time to seek leave to appeal from the decision of the primary judge.

26    The factors relevant to the exercise of the discretion to extend time to seek leave to appeal under r 35.14 include the length of the delay; the reasons or explanation for the delay; any resulting prejudice to the respondent or third parties, or to the administration of justice; and the merits or prospects of success of the underlying application and the strength or weakness of the case sought to be advanced: see CIK23 at [20]–[21] (Bromwich J); ESK18 v Minister for Home Affairs [2019] FCA 935 at [11] (Banks-Smith J); Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [40] (Gordon, Edelman and Steward JJ); see also Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ).

27    In particular, an extension of time may be refused if the application for leave to appeal or the proposed appeal would have no real prospect of success, even if the delay is short and there is little or no prejudice to the respondent or any other persons.

28    The applicant relies on the following grounds in support of his application for an extension of time and leave to appeal.

1.     I did not know I need to make an application for leave to appeal in 14 days.

2.    I filed an appeal on 10 March 2025, but I used wrong form instead.

3.    The primary judge erred in decision by failing to grant an extension of time to bring the Review Application.

4.    The primary judge made error in its judgment by failing to consider on the ground one that the Tribunal didn’t make it finding whether the delegate’s decision should be served by email or post.

29    Although ignorance is not generally a satisfactory explanation for failing to file an application within the prescribed time limit (see SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38] (Foster J)), the delay in the present case was short and the Minister does not contend that it has given rise to any prejudice.

30    There is no evidence before the Court to substantiate the applicant’s contention that he filed an appeal on 10 March 2025 using the wrong form. The application for an extension of time and leave to appeal was accompanied by the applicant’s affidavit affirmed on 5 March 2025, but this did no more than annex a copy of the judgment below. It is conceivable that the applicant might have attempted to file a notice of appeal that was not accepted for filing by the Registry on the basis that he was required to seek leave to appeal. In the circumstances, nothing turns on this question. The Minister does not submit that an extension of time should be refused due to the length of the delay or because there is no satisfactory explanation for the delay.

31    The Minister principally contends that it is not in the interests of the administration of justice to grant an extension of time because the proposed application for leave to appeal would have no reasonable prospects of success.

32    The applicant’s proposed appeal raises two grounds, which are reproduced in grounds 3 and 4 of the application for an extension of time and leave to appeal (as set out above)

(a)    First, the applicant contends that the primary judge erred in failing to grant an extension of time under r 21.02(1) of the FCFCOA Rules to review the Registrar’s decision.

(b)    Second, the applicant contends that the primary judge erred “by failing to consider on the ground one that the Tribunal didn’t make it [sic] finding whether the delegate’s decision should be served by email or post”.

33    In order to obtain leave to appeal, the applicant would be required to establish that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal, and that substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 (Sheppard, Burchett and Heerey JJ); Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 at [5] (Ryan, Stone and Jagot JJ).

34    In relation to the first proposed ground of appeal, the contention that the primary judge erred by failing to grant an extension of time may be taken as incorporating the matters that were raised by the applicant in the court below. Nevertheless, it must be kept in mind that any appeal against the exercise of discretion by the primary judge would be subject to the principles articulated in House v The King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ). Accordingly, it would be necessary for the applicant to establish that the primary judge acted upon a wrong principle, failed to take into account some material consideration, was guided by extraneous or irrelevant matters, mistook the facts, or reached an outcome that was unreasonable or plainly unjust.

35    The applicant has not identified any such error in the primary judge’s exercise of discretion to refuse to extend time under r 35.14 of the Rules. The primary judge applied the principles that govern the exercise of that discretion. His Honour’s decision to dismiss the application was ultimately based on the conclusion that the Registrar’s decision was correct. In effect, the primary judge considered the substantive merits of the application for review of the Registrar’s decision, which in turn rested on the substantive merits of the application for judicial review of the Tribunal’s decision.

36    For similar reasons, I cannot see any arguable error in the Tribunal’s decision that the application for review was not filed within the prescribed time and that the Tribunal did not have jurisdiction to review the delegate’s decision.

(a)    The applicant was notified of the delegate’s decision to refuse his application for a protection visa in accordance with s 66 of the Migration Act. The notification specified the criterion for the visa that was not satisfied by the applicant, gave written reasons why that criterion was not satisfied, and set out the applicant’s right to have the decision reviewed by the Tribunal, including the time in which any such application for review could be made.

(b)    The refusal letter was transmitted by email to the last email address provided to the Minister for the purposes of receiving documents, and was taken to have been received by the applicant at the end of the day on which the document was transmitted: Migration Act, ss 494B(5)(b), 494C(5); Regulations, r 2.16(3). Accordingly, the applicant was notified of the delegate’s decision on 16 July 2020.

(c)    The application for review was required to be given to the Tribunal within a period of 28 days commencing on the day the applicant was notified of the decision: Migration Act, s 412(1)(b); Regulations, r 4.31(2). This was a mandatory pre-requisite to the jurisdiction of the Tribunal, which did not have any discretion to extend the time within which an application for review was required to be made: see, e.g., Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 580 at [13] (O’Connor, Tamberlin and Mansfield JJ); Calimoso v Minister for Immigration and Border Protection (2016) 70 AAR 503 at [29] (Charlesworth J); COD17 v Minister for Immigration and Border Protection [2018] FCA 835 at [20] (Perry J); Xie v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 172 at [19] (Spender, Kiefel and Dowsett JJ). In the present case, the 28-day period commenced on 16 July 2020, and ended on 12 August 2020: see Acts Interpretation Act 1901 (Cth), s 36(1), item 2. The application for review was not given to the Tribunal until 17 August 2020.

37    There was evidence before the Court below in relation to the transmission of the email to the applicant’s email address, including a screenshot from the Department’s “Enterprise Correspondence” system: cf. DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 at [18] (Allsop CJ). Further, the applicant stated in his application to the Tribunal that he had received the refusal decision on 16 July 2020. The applicant subsequently told the Tribunal that he found the email in his “spam folder”, and he has consistently maintained that explanation in his submissions before the FCFCOA and in this Court. The fact that the email was filtered into a “spam” or “junk mail” folder does not prevent a finding that it was sent to and received by the applicant at his email address: compare DZE17 at [19], [23] (Allsop CJ). In my view, it was open to the Registrar and the primary judge to proceed on the basis that the refusal decision was transmitted to the applicant’s nominated email address on 16 July 2020.

38    The present case can be distinguished from DFQ17, in which the notification letter had failed to “state” in a clear manner the time within which a review application must be made. Justice Perram (with whom Rares and Farrell JJ agreed) concluded that, although the letter disclosed the date by which the review application had to be made if it were “[c]arefully read by a person skilled in reading Commonwealth regulations”, the manner in which that information was conveyed was “piecemeal, entirely obscure and essentially incomprehensible”: DFQ17 at [18], [52], [59]–[62].

39    In contrast to DFQ17, the refusal letter in the present case clearly stated the time within which an application for review was required to be made to the Tribunal, namely “within the period of 28 calendar days, commencing on the day you are taken to have received this letter”, being the end of the day on which the email was transmitted. The letter also stated that this time period was “prescribed by law and cannot be extended”. This information was contained in a discrete section of the letter under the heading “Review Rights”, and was both accurate and readily comprehensible: compare BMY18 v Minister for Home Affairs (2019) 271 FCR 517 at [17]–[20], [36]–[37] (Reeves, Perram and Charlesworth JJ); Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10]–[15], [23] (Thawley J, with whom Flick and Bromwich JJ agreed); cf. Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at [41]–[42] (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ); Minister for Immigration, Citizenship and Multicultural Affairs v Park (2024) 305 FCR 317 at [28]–[32], [39] (Perram, Perry and Feutrill JJ).

40    The second proposed ground of appeal was not raised before either the Registrar or the primary judge. Strictly speaking, the applicant would need to demonstrate that it was expedient and in the interests of justice to grant leave to rely on this new ground on any appeal: see, e.g., VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]–[48] (Kiefel, Weinberg and Stone JJ); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [13]–[15] (Derrington J), [110]–[112] (O’Bryan J); DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 25 at [28]–[30] (S C Derrington, Goodman and Raper JJ). In the context of judicial review of migration decisions, it may be relevant to take into account the legislative scheme under Part 8 of the Migration Act, including the limited original jurisdiction of this Court under s 476A: see AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [14] (Perram J); Minister for Immigration and Border Protection v Aulakh (2018) 265 FCR 143 at [101]–[111] (Mortimer J). Nevertheless, the Court has power to allow a fresh ground or a new argument to be raised in the exercise of its appellate jurisdiction, where it is in the interests of justice to do so.

41    The proposed second ground is rather opaque. The applicant contends that the primary judge erred by failing to consider that the Tribunal did not make a finding as to whether the notification of the delegate’s decision should be given by email or by (prepaid) post. For the following reasons, this ground is hopeless and would be doomed to fail.

42    Regulation 2.16(3), in conjunction with s 66(1) of the Migration Act, required the Minister to notify an applicant of a decision to refuse to grant a visa “by one of the methods specified in section 494B of the Act”. Those methods included dispatching the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents, or transmitting the document by fax, email or other electronic means to the last fax number, email address or other electronic address provided to the Minister for the purposes of receiving documents: s 494B(4), (5).

43    It was a matter for the Minister to select one of the available methods specified in s 494B for the purposes of notifying the applicant of the decision to refuse to grant a protection visa: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [34] (Jagot J); Haque v Minister for Immigration and Citizenship (2010) 221 FCR 289 at [64] (Gilmour J); Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494 at [28], [34]–[43] (Buchanan J); Radzi v Minister for Immigration and Border Protection (2014) 143 ALD 124 at [35] (Rangiah J). This was an administrative act which was not subject to the requirements of procedural fairness: Pathania v Minister for Immigration and Border Protection (2015) 240 FCR 254 at [18]–[21] (Gilmour J).

44    In his protection visa application (which was submitted online), the applicant provided his email address for the purposes of receiving communications, and agreed that the Department could communicate with him electronically at that email address. In such circumstances, it was open to the Minister to notify the applicant of the visa refusal decision by email, notwithstanding that he had also provided his residential and postal address. compare Dzhakhanhirova v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 894 at [19]–[22] (Rares J).

45    Accordingly, I consider that the proposed grounds of appeal from the decision of the primary judge would have no prospect of success, and that it would therefore be futile to extend time or to grant leave to appeal. The application for an extension of time under r 35.14 of the Rules is dismissed with costs. As this involves an exercise of appellate jurisdiction, it is not amenable to an appeal to the Full Court, nor does any appeal lie to the High Court: Federal Court Act, ss 24(1)(a), 25(2)(a), (b), 33(4B)(a), (d)(iv); Bechara v Bates (2021) 286 FCR 166 at [109]–[112] (Allsop CJ, Markovic and Colvin JJ); see also Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431–432 (Bowen CJ, Lockhart and Sheppard JJ).

Associate:

Dated:    6 August 2026