Federal Court of Australia

CHE20 v Minister for Immigration and Citizenship [2026] FCA 1210

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for leave to appeal be dismissed.

3.    The first and second 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 leave to appeal from orders made by the Federal Circuit and Family Court of Australia on 10 April 2025: CHE20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 505 (Zipser J).

2    The applicants are a family group and citizens of India. In March 2018, they made a combined application for Protection (Class XA) (subclass 866) visas. The first applicant was the main applicant. The second and third applicants were included as members of his family unit. The third applicant is a child.

3    The first and second applicants arrived in Melbourne on 22 December 2017. The third applicant arrived in Melbourne on 28 February 2018.

4    It is appropriate to record the basis of the protection claim because the applicants’ recurrent complaint is that its merits have not been considered. The first applicant claimed that he had lent money to a person in India who later sought repayment. That person subsequently died by suicide and, according to the first applicant, named him in a suicide note. The first applicant claimed that members of the deceased person’s family attacked him and that criminal charges were brought against him. He also claimed that, when he sought assistance from the police, the police mistreated him rather than protected him. He said that, if returned to India, he would be arrested and mistreated and that the Indian authorities would not protect him.

5    The substance of those claims has not been overlooked. However, for the reasons given below in addressing proposed grounds 1 and 2, the present application for leave does not require, or permit, the Court to determine the merits of the protection claim. The Tribunal’s jurisdiction to conduct merits review was not engaged because the application for review was not made within the prescribed period.

6    The first respondent is the Minister for Immigration and Multicultural Affairs, now known as the Minister for Immigration and Citizenship. The second respondent is the Administrative Review Tribunal. The Tribunal filed a submitting notice save as to costs.

7    The first applicant made oral submissions at the hearing on 24 August 2026 on behalf of all of the applicants. The applicants were assisted by the services of a Gujarati interpreter who was present throughout the hearing. The first applicant confirmed that he had read and understood the Minister’s submissions.

BACKGROUND

8    On 15 October 2019, a delegate of the Minister refused the applications for Protection (Class XA) (subclass 866) visas. On the same day, the Minister emailed the delegate’s decision to the email address nominated by the applicants for correspondence. The covering letter stated that any application for Tribunal review had to be given to the Tribunal within 28 calendar days commencing on the day the applicants were taken to have received the letter.

9    On 25 November 2019, the applicants applied to the Tribunal for review.

10    On 20 December 2019, the Tribunal invited them to comment on its preliminary view that the application had been lodged out of time and was invalid.

11    On 3 January 2020, the first applicant sent the Tribunal a letter dated 21 December 2019. The first applicant acknowledged receiving the delegate’s decision on 15 October 2019 and said that he did not understand the letter because he was not educated in English and spoke and understood only Gujarati. The first applicant also referred to the second applicant’s illness and pregnancy, the care of their young child, as well as the first applicant’s unemployment, depression and financial hardship.

12    On 17 April 2020, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. The Tribunal noted that reg 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 15 October 2019. Accordingly, the applicants’ application for review lodged on 25 November 2019 was two weeks after the prescribed period had elapsed.

13    On 20 May 2020, the applicants applied to the Federal Circuit and Family Court for judicial review of the Tribunal’s decision. Their grounds alleged that the Tribunal had failed to provide a hearing, failed to consider the asserted risk of significant harm and failed to investigate the protection claims.

14    The applicants were given opportunities in 2020, and again before the summary dismissal hearing in February 2025, to amend their application and file submissions or evidence, but filed no further material. On 27 February 2025, a Registrar summarily dismissed the judicial review application under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on the basis that it had no reasonable prospects of success.

15    On 21 March 2025, the applicants lodged an application for review of the Registrar’s decision. They asserted that the Registrar had not considered legal and factual error in the Tribunal’s decision and should have found that the first applicant met the criteria for a protection visa.

16    The applicants were permitted to file submissions and evidence in support of the review application and the extension application by 3 April 2025, but did not do so.

17    At the hearing on 7 April 2025, the primary judge explained the need to identify jurisdictional error, which the primary judge described was a “significant mistake or error, in the Tribunal’s decision” and explained the main categories of jurisdictional error.

18    The review application was required to be made within seven days of the Registrar’s decision. It was lodged 15 days late and therefore required an extension of time. The primary judge invited the first applicant to give evidence explaining the delay.

19    After an adjournment, the first applicant declined to give evidence about the delay and submitted that the matter should be returned to the Tribunal because he continued to fear for his life if returned to India.

DECISION OF THE PRIMARY JUDGE

20    The primary judge refused to extend the time for seeking a review of the Registrar’s summary dismissal of the applicants’ judicial review application of a decision of the Tribunal’s determination that it lacked jurisdiction to review the delegate’s refusal decision.

21    The primary judge identified the principal considerations governing an extension of time as the length of the delay, the explanation for it, prejudice to the opposing party, and the merits of the underlying application.

22    The primary judge found that, while the delay was 15 days which was not long, the applicants had not provided an explanation despite being given opportunities to do so. The absence of an explanation weighed against extending time.

23    As to the merits, the primary judge treated the Tribunal’s conclusion concerning its jurisdiction as open to judicial examination. The primary judge found that the delegate’s decision and information about review rights were emailed to the applicants’ nominated address on 15 October 2019, and that the first applicant had acknowledged receipt on that date. The prescribed period expired on 11 November 2019, but the Tribunal application was not lodged until 25 November 2019. The primary judge was therefore satisfied that the Tribunal lacked jurisdiction, and further that the Tribunal had no power to extend time.

24    It followed that the Tribunal had no obligation or power to hold a hearing, consider the asserted risk of significant harm or investigate the protection claims. The primary judge concluded that the judicial review grounds had no reasonable prospects of success. Having regard to that conclusion and the absence of any explanation for the 15-day delay, the primary judge refused to extend time.

APPLICABLE LEGAL PRINCIPLES

25    The judgment below was interlocutory. Leave to appeal is therefore required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 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 immediate decision under challenge is the primary judge’s discretionary refusal to extend the time for seeking review of the Registrar’s decision. The applicants must therefore identify an arguable error affecting that exercise of discretion. It is not sufficient merely to repeat complaints directed to the Tribunal’s treatment of the substantive protection claims. For the reasons that follow, neither proposed ground identifies such an error.

29    The applicants sought review of the Registrar’s decision 15 days after the seven-day period expired. The primary judge expressly invited the first applicant to give evidence explaining the delay and adjourned the hearing to allow the first applicant to consider doing so. The first applicant declined to give evidence about the delay.

30    The primary judge accepted that 15 days was not a long delay but treated the absence of any explanation as weighing against an extension. Neither proposed ground challenges that finding, identifies an explanation that the primary judge failed to consider or otherwise shows error in treating the unexplained delay as an adverse consideration.

Proposed Ground 1

31    By proposed ground 1, the applicants contend that the primary judge failed to consider that the Tribunal acted in a manifestly unreasonable way by ignoring persecution and harm under s 91R of the Migration Act 1958 (Cth), and that the Tribunal thereby breached a statutory obligation.

32    The proposed ground assumes that the Tribunal was required to consider the merits of the applicants’ protection claims. That assumption is incorrect. As the primary judge found, the Tribunal application was lodged after the prescribed period and the Tribunal had no power to extend time. Its jurisdiction was therefore not engaged.

33    It follows that the Tribunal had neither power nor obligation to consider the substance of the applicants’ protection claims. In oral submissions, the first applicant maintained that the applicants had a genuine case which had not been properly heard or considered. However, those submissions do not address the question whether the Tribunal had jurisdiction to consider the merits of the protection claims. The complaint that the Tribunal acted unreasonably by failing to consider persecution or harm therefore does not identify an arguable jurisdictional error.

34    The primary judge did not overlook that complaint. The primary judge addressed it and correctly concluded that it could not give the underlying judicial review proceeding reasonable prospects of success. The applicants’ oral submissions did not identify any error in that reasoning. Proposed ground 1 does not identify arguable error in that reasoning or in the resulting exercise of discretion.

Proposed Ground 2

35    By proposed ground 2, the applicants contend that the primary judge dismissed the application without considering legal and factual errors in the Tribunal’s decision. The proposed ground does not identify those errors or explain how they disclose error in the primary judge’s reasoning. It is therefore insufficiently particularised to establish sufficient doubt about the judgment.

36    In any event, the primary judge examined the legally material question. The primary judge considered the date and effectiveness of notification, the prescribed period, the date on which review was sought and the Tribunal’s inability to extend time. The proposed ground does not identify error in any of those conclusions. After the Minister addressed those matters in oral submissions, the first applicant’s reply was confined in substance to repeating the contention that no one had listened to the application properly. He did not respond to the Minister’s submissions concerning the Tribunal’s jurisdiction, the statutory time limit, receipt of the delegate’s decision or the proposed grounds of appeal.

37    To the extent that the asserted errors concern the substantive merits of the protection claims, they could not affect the Tribunal’s conclusion that it lacked jurisdiction. Proposed ground 2 therefore does not identify arguable error in the primary judge’s merits assessment or exercise of discretion.

Utility

38    Neither proposed ground challenges the findings that the applicants were notified on 15 October 2019, that the Tribunal review period expired on 11 November 2019, or that the application lodged on 25 November 2019 was out of time. Nor do the applicants identify any power by which the Tribunal could extend that period.

39    It follows that remittal could not realistically produce a different outcome. Even if error were shown in the primary judge’s treatment of the extension application, the underlying judicial review application would remain without reasonable prospects because the Tribunal’s jurisdiction was not engaged.

CONCLUSION

40    Neither proposed ground identifies arguable error in the primary judge’s discretionary decision. The unexplained delay weighed against an extension, and the underlying judicial review application lacked reasonable prospects because the Tribunal’s jurisdiction had not been engaged. Remittal could not realistically produce a different outcome.

41    The primary judge’s decision is not attended by sufficient doubt to warrant appellate reconsideration. Nor would substantial injustice result from refusing leave. The application for leave to appeal will therefore be dismissed. There is no reason why costs should not follow the event. The first and second applicants must pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    25 August 2026