Federal Court of Australia

BLX23 v Minister for Immigration and Citizenship [2026] FCA 1209

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be changed to “Administrative Review Tribunal”.

3.    The applications for an extension of time and leave to appeal be dismissed.

4.    The applicants pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    This is an application for extension of time and leave to appeal from orders made by the Federal Circuit and Family Court of Australia on 30 June 2025: BLX23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1041 (McCabe J).

2    The primary judge’s judgment was interlocutory. The applicants therefore require leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). An application for leave to appeal was required to be filed within 14 days after the judgment was pronounced or the order was made: r 35.13(a) of the Federal Court Rules 2011 (Cth). That period expired on 14 July 2025. On 16 July 2025, the applicants lodged a notice of appeal, together with an affidavit completed on 14 July 2025. After the Registry informed them that the appropriate procedure was an application for an extension of time and leave to appeal, a Form 118 application was accepted for filing on 4 August 2025. The applicants therefore require an extension of time under r 35.14 before their application for leave can be determined.

3    The Minister (then known as the Minister for Immigration and Multicultural Affairs, now known as the Minister for Immigration and Citizenship) accepts that the present delay was short and caused little prejudice beyond the public interest in the finality of administrative decision-making. The Minister acknowledges that if the substantive grounds are of sufficient merit, the interests of justice weigh in favour of the grant of an extension of time. The Minister submits, however, that the explanation was inadequate and that the proposed appeal lacks merit.

4    The applicants are citizens of India. The first applicant is a 44-year old and is the husband of the second applicant, who is 41-years old. The applicants have two children who live in India. The applicants left India and arrived together in Melbourne on 12 February 2018. They applied for Protection (subclass 866) visas on 13 March 2018. The first applicant was the principal applicant for protection. The second applicant is a member of the first applicant’s family unit and did not advance a separate claim for protection. This application is concerned with procedural lateness and appellate error, not the substantive protection claims.

5    The second respondent (then known as the Administrative Appeals Tribunal, now known as the Administrative Review Tribunal) filed a submitting notice save as to costs.

6    The applicants appeared in person with the assistance of a Gujarati interpreter. I have considered their written submissions filed on 19 August 2026 and the oral submissions made at the hearing.

ADJOURNMENT APPLICATION

7    At the commencement of the hearing, the applicants sought a 14-day adjournment to obtain legal representation. The first applicant noted that the applicants did not speak English and said that the first applicant had been experiencing depression. Both applicants requested time to obtain advice about an application concerning their two children. The Minister opposed the application.

8    I accept that legal representation may assist the applicants, but its absence does not, without more, require the adjournment of a civil proceeding fixed for hearing. The applicants had known for a substantial period when the application would be heard. Apart from stating generally that they had been unable to obtain suitable representation, they did not identify the steps they had taken to obtain it or explain why those steps had not been taken earlier.

9    No lawyer was identified as willing or potentially willing to act. Nor did the applicants explain why 14 days was required or what steps they proposed to take during that period. There was therefore no demonstrated likelihood that the adjournment would achieve its stated purpose.

10    The issues before the Court are confined to whether time should be extended and leave granted to appeal from the primary judge’s interlocutory decision. The applicants had filed detailed written submissions identifying the matters they wished to advance. The Minister did not oppose the applicants relying upon their written submissions despite their late filing. A Gujarati interpreter was available throughout the hearing, and the applicants had a fair opportunity to present their case.

11    Having regard to the applicants’ opportunity to present their case, the absence of an adequate explanation for not seeking representation earlier and the lack of any demonstrated likelihood that a 14-day adjournment would achieve its purpose, I was not satisfied that the interests of justice required the hearing to be delayed. An adjournment would not promote the just resolution of the proceeding as quickly, inexpensively and efficiently as possible, consistently with the overarching purpose in s 37M of the FCA Act. I therefore refused the application.

BACKGROUND

12    On 20 January 2023, a delegate of the Minister refused to grant the applicants Protection (Class XA) visas. The applicants were notified on that day by email sent to the address nominated in their visa application.

13    On 23 February 2023, the applicants applied to the Tribunal. On 5 May 2023, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. The Tribunal found that r 4.31(2) of the Migration Regulations 1994 (Cth) required an application for review to be made within 28 days of notification of the delegate’s decision. The applicants were taken to have been notified on 20 January 2023 under s 494C of the Migration Act 1958 (Cth). Accordingly, the applicants’ application for review lodged on 23 February 2023 was seven days after the prescribed period had elapsed.

14    Prior to making its decision, on 17 April 2023, the Tribunal invited the applicants to comment by 1 May 2023 on the apparent lateness of their application. No response was received.

15    On 29 May 2023, the applicants applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal’s decision. A Registrar summarily dismissed that application on 26 March 2025 under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules).

16    On 14 April 2025, 12 days after the prescribed period had elapsed, the applicants filed their application for review of the Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).

17    On 30 June 2025, the primary judge delivered ex tempore reasons.

18    An application for leave to appeal from the primary judge’s judgment was required to be filed within 14 days after the judgment was pronounced and the order was made: r 35.13(a) of the Rules. Accordingly, the time to appeal expired on 14 July 2025.

19    On 16 July 2025, the applicants filed a Form 121 Notice of Appeal. On 23 July 2025, the Registry informed the applicants that the primary judge’s decision was interlocutory and that a Form 118 Application for Extension of Time and Leave to Appeal was required. The applicants’ Form 118 Application for Extension of Time and Leave to Appeal was accepted for filing on 4 August 2025.

DECISION OF THE PRIMARY JUDGE

20    On 30 June 2025, the primary judge dismissed an application to extend the time for filing an application for review of a Registrar’s decision, affirming the Registrar’s summary dismissal of the applicants’ application for judicial review of the Tribunal’s determination that it lacked jurisdiction to review the delegate’s refusal of the applicants’ protection visa applications: PJ[16]-[18].

21    The primary judge held that the Tribunal application was out of time, that the Tribunal lacked jurisdiction and that it had no discretion to extend time: PJ[16].

22    The primary judge found that the delegate’s decision was sent by email to the nominated address and that the notification explained the applicants’ review rights: PJ[9], [14]-[15]. The notification stated that an application for merits review had to be made within 28 calendar days commencing on the day the applicants were taken to have received it, and that the prescribed time could not be extended: PJ[14]-[15].

23    The primary judge accepted that refusal might prejudice the applicants by denying them an opportunity to present their case, but considered that the extent of that prejudice depended on the merits of the case: PJ[7]. The primary judge concluded that the proposed judicial review application had no prospects of success and refused the application for an extension of time: PJ[17]-[18].

APPLICABLE PRINCIPLES

24    In determining whether to extend time under r 35.14 of the Rules, the Court considers the length of the delay, the explanation for it, any prejudice caused by the delay and the merits of the proposed appeal. The discretion is broad and must be exercised having regard to the circumstances as a whole: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ).

25    The judgment below was interlocutory. Leave to appeal is therefore required by s 24(1A) of the FCA Act. Leave will ordinarily be granted only where the decision is attended by sufficient doubt to warrant appellate reconsideration and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ); Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] (Ryan, Stone and Jagot JJ).

26    The decision whether to extend time involved the exercise of a judicial discretion. It is not enough that this Court might have exercised the discretion differently. The applicants must identify an error of the kind described in House v The King [1936] HCA 40; 55 CLR 499, including that the primary judge acted on a wrong principle, took account of an irrelevant consideration, failed to take account of a material consideration, mistook the facts, or reached a result from which error may be inferred.

27    The proposed grounds are to be read fairly, having regard to the fact that the applicants are litigants in person. That approach does not relieve them of the need to identify an arguable error in the primary judge’s decision.

CONSIDERATION

28    The applicants require both an extension of time in this Court and leave to appeal. I will first consider whether the proposed grounds disclose an arguable error in the primary judge’s decision. I will then determine whether, having regard to the merits and the other relevant circumstances, time should be extended for the application for leave.

Proposed ground 1: Treatment of the explanation for delay

29    The applicants submit, and I accept, that an appreciation that legal proceedings involve deadlines is not the same as knowledge that an application under s 256 of the FCFCOA Act to review a Registrar’s decision must be filed within the particular seven-day prescribed by r 21.02 of the FCFCOA Rules.

30    That does not establish an error affecting the exercise of the discretion. The immediate application before the primary judge concerned the applicants’ failure to seek review of the Registrar’s decision within the seven-day period. The application was filed 12 days after that period expired. The primary judge considered each element of the explanation actually advanced, namely that the applicants were seeking advice, had limited English and were unfamiliar with the applicable procedure. The primary judge treated the absence of a satisfactory explanation as weighing against an extension, but “not heavily”. More importantly, the primary judge’s decision ultimately rested on the conclusion that the underlying judicial review proceeding had no prospects of success.

31    The merits conclusion concerned a different period and performed a different function in the primary judge’s reasoning. The applicants’ application to the Tribunal was required to be made within 28 days after notification of the delegate’s decision. The primary judge found that the applicants were validly notified on 20 January 2023, that the application lodged on 23 February 2023 was outside the prescribed period and that the Tribunal had no power to extend that period.

32    Critically, the applicants do not challenge the effective notification of the delegate’s decision, the calculation of the Tribunal period or the absence of any power in the Tribunal to extend that period. Nor do they advance an argument that the notification was defective. It follows that, even if the explanation for the later 12-day delay in seeking review of the Registrar’s decision were treated more favourably, the underlying judicial review proceeding would remain without reasonable prospects of success. More favourable treatment of the explanation could not give utility to an extension of the seven-day period.

33    Proposed ground 1 therefore discloses no arguable error. Even if the applicants’ explanation of the 12-day delay were treated more favourably, the underlying judicial review proceeding had no reasonable prospects of success because the application was lodged outside the separate 28-day period.

Proposed ground 2: Registrar’s decision said to have been treated as effectively unreviewable

34    By proposed ground 2, the applicants contend that the primary judge misapplied relevant legal principles by treating the Registrar’s summary dismissal as effectively unreviewable.

35    The proposed ground confuses the availability of review with the refusal to extend the time within which review had to be sought. The primary judge recognised that review under s 256(1) of the FCFCOA Act was de novo and that r 21.02(2)(b) of the FCFCOA Rules permitted time to be extended. The primary judge refused the extension because the underlying judicial review proceeding had no reasonable prospects of success, having regard to the accepted operation of the separate 28-day Tribunal review period. The primary judge did not treat the Registrar’s decision as immune from review.

36    Proposed ground 2 does not identify an error in that reasoning.

Proposed ground 3: Procedural fairness

37    By proposed ground 3, the applicants contend that they did not receive procedural fairness in the handling of the application to review the Registrar’s decision as self-represented litigants.

38    The first applicant’s affidavit states that he did not receive meaningful assistance from court staff and did not fully understand the importance of time limits because of language and education barriers. The first applicant appears to have been represented at the hearing before the primary judge.

39    Those matters do not identify a denial of procedural fairness by the primary judge. The applicants had been directed to file supporting material before the hearing but did not do so. Despite that non-compliance, the primary judge received and considered the explanation advanced on their behalf at the hearing. The applicants have not identified any submission they were prevented from making, any material they were prevented from presenting, or any procedure adopted without notice that deprived them of a fair opportunity to be heard.

40    Proposed ground 3 therefore does not establish sufficient doubt about the primary judge’s decision.

EXTENSION OF TIME IN THIS COURT

41    The delay attendant on the commencement of this proceeding must be distinguished from the earlier delay in seeking review of the Registrar’s decision. The applicants completed their supporting affidavit on the last day permitted under r 35.13 of the Rules and lodged a notice of appeal two days later. They subsequently filed the required Form 118 after the Registry informed them that the judgment was interlocutory. The delay was short, the applicants maintained an intention to challenge the judgment, and the Minister identifies little prejudice beyond the public interest in finality.

42    Those matters favour an extension. In the circumstances of this case, those considerations are outweighed by the absence of an arguable ground of appeal. In particular, more favourable treatment of the explanation for missing the seven-day period would not overcome the absence of prospects in the underlying judicial review proceeding, given the operation of the separate 28-day Tribunal review period. None of the proposed grounds identifies an arguable error affecting the primary judge’s discretion. Extending time would therefore serve no useful purpose.

CONCLUSION

43    The proposed grounds do not identify an arguable error affecting the primary judge’s discretionary decision. The applicants’ knowledge that deadlines were important generally did not necessarily establish knowledge of the particular seven-day period for seeking review of the Registrar’s decision. However, the primary judge considered the explanation actually advanced, treated its inadequacy as carrying limited adverse weight and rested his decision principally on the absence of merit in the underlying judicial review proceeding.

44    That merits conclusion concerned the separate 28-day period for seeking Tribunal review. The applicants accept that their Tribunal application was lodged outside that period, that the Tribunal had no power to extend it and do not dispute notification. It follows that more favourable treatment of their explanation for the later 12-day delay could not give the underlying judicial review proceeding reasonable prospects of success.

45    The application for an extension of time and the application for leave to appeal will therefore be dismissed. There is no reason why costs should not follow the event. The applicants must pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    25 August 2026