Federal Court of Australia

CRT22 v Minister for Immigration and Citizenship [2026] FCA 1211

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 application for leave to appeal be dismissed.

4.    The applicant 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 (FCFCOA) on 23 May 2025: CRT22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 902 (Humphreys J).

2    The applicant is a citizen of China. The applicant arrived in Sydney on 11 November 2019.

3    On 19 December 2019, the applicant applied for a Protection (Class XA) (subclass 866) visa. The applicant claimed to fear harm because they practised Falun Gong. The applicant claimed that, if returned to China, they would again be apprehended and persecuted by police and that they would not be free to practise their faith, that the Chinese authorities would be responsible for the fear of harm, and that the Chinese authorities could not protect them because the government and police had previously harmed them.

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

5    The applicant appeared in person with the assistance of a Mandarin interpreter. The applicant did not take up the opportunity to make oral submissions. I have construed the proposed grounds cognisant of the fact the applicant is a litigant appearing in person, while recognising that the Court must identify an appellable error in the decision under challenge.

BACKGROUND

6    On 2 November 2021, a delegate of the Minister refused the application for a Protection (Class XA) (subclass 866) visa. On the same day, the Minister emailed the delegate’s decision to the email address nominated by the applicant 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 applicant is taken to have received the letter.

7    On 17 March 2022, the applicant applied to the Tribunal for review.

8    On 23 March 2022, the Tribunal invited the applicant to comment on its preliminary view that the application had been lodged out of time and was invalid. The applicant did not respond to that invitation.

9    On 9 June 2022, the Tribunal determined that it lacked 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 2 November 2021, that the period prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) expired on 29 November 2021, and that the review application lodged on 17 March 2022 was out of time.

10    On 12 July 2022, the applicant applied to the FCFCOA for judicial review of the Tribunal’s decision.

11    On 16 April 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) (FCFCOA Rules).

12    On 19 May 2025, the applicant lodged an application for review of the Registrar’s decision. That application was filed outside the seven-day period in r 21.02 of the FCFCOA Rules.

13    At the hearing on 23 May 2025, the primary judge refused to extend time and delivered ex tempore reasons. Written reasons were published on 10 June 2025.

14    On 27 May 2025, the applicant filed the present application for leave to appeal.

DECISION OF THE PRIMARY JUDGE

15    The application before the primary judge sought review of the Registrar’s summary dismissal of the judicial review proceeding. Because the application for review was filed 26 days outside the seven-day period prescribed by r 21.02, the immediate question was whether time should be extended. The primary judge approached the application for review, if it were to be entertained, as a hearing de novo.

16    The primary judge considered the length of and explanation for the delay, prejudice, and the merits of the underlying judicial review application. The primary judge found the explanation for the delay unsatisfactory, treated prejudice as neutral, and concluded that the underlying application had no merit. That conclusion rested on findings that the delegate’s decision had been validly notified, the Tribunal review application had been lodged outside the prescribed period, the Tribunal had no power to extend that period, and the Court lacked jurisdiction to review the delegate’s decision. The primary judge therefore refused to extend time and dismissed the application.

APPLICABLE PRINCIPLES

17    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).

18    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.

19    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

20    The proposed grounds do not identify an arguable error in the primary judge’s exercise of discretion. Nor has the applicant advanced any other arguable basis on which the decision could be disturbed. I first address the proposed grounds and then apply the criteria governing leave.

Proposed ground 1

21    Proposed ground 1 alleges that the applicant’s claims and evidence were treated with “Wednesbury unreasonableness” by the Minister, the Tribunal and the FCFCOA. Read fairly, the proposed ground does not identify any error in the primary judge’s decision to refuse an extension of time. It does not contend that the primary judge applied a wrong principle, relied on an irrelevant consideration, overlooked a material consideration, made a material factual error, or reached a result that was not reasonably open.

22    The primary judge addressed the explanation for the delay, prejudice, and the merits of the underlying judicial review proceeding. The primary judge also dealt with both grounds advanced in that proceeding and explained why neither disclosed an arguable jurisdictional error. Proposed ground 1 therefore identifies no arguable basis for appellate intervention in the exercise of discretion.

Proposed ground 2

23    Proposed ground 2 in the application for leave alleges that s 65 of the Migration Act 1958 (Cth) was not properly applied. The draft notice of appeal also refers to s 494C in this proposed ground. Neither formulation identifies an error in the decision of the primary judge. Section 65 governed the delegate’s determination of the visa application. It did not confer jurisdiction on the Tribunal to entertain a review application lodged outside the period prescribed by reg 4.31(2) of the Migration Regulations.

24    The reference to s 494C raises the question whether and when the applicant was taken to have received notification of the delegate’s decision. The notification letter was sent on 2 November 2021 to the email address nominated by the applicant for electronic communications. The letter stated that a Tribunal review application had to be lodged within 28 calendar days commencing on the day on which the applicant was taken to have received the letter. On the materials before the primary judge, the applicant was taken to have been notified at the end of 2 November 2021 and the review period expired on 29 November 2021. The Tribunal application lodged on 17 March 2022 was therefore out of time.

25    Proposed ground 2 identifies no arguable error in the primary judge’s conclusion that the underlying judicial review application lacked merit, or in the discretionary refusal to extend time.

Leave to appeal

26    Neither proposed ground identifies an arguable error in the primary judge’s exercise of discretion. The decision is not attended by sufficient doubt to warrant appellate reconsideration.

27    Nor is there a demonstrated prospect of substantial injustice if leave is refused, if the decision below was wrong. The applicant has not identified an arguable basis on which the Tribunal could have exercised jurisdiction over the review application lodged after the prescribed period. In those circumstances, the proposed appeal lacks utility in that it could not produce a practical outcome that would be favourable to the applicant. The application for leave should therefore be refused.

CONCLUSION

28    For these reasons, the application for leave to appeal will be dismissed. There is no reason why costs should not follow the event. The applicant must pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    25 August 2026