Federal Court of Australia

CCU21 v Minister for Immigration and Citizenship [2026] FCA 1351

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) be dismissed.

2.    The Applicant pay the Respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The Applicant seeks an extension of time in which to bring an application for judicial review of a decision of the Minister to refuse to exercise the power under s 501C(4) of the Migration Act 1958 (Cth) (the Act) to revoke the cancellation of the Applicant’s Safe Haven Enterprise Visa (the Decision).

2    The Decision was made on 28 June 2023. Pursuant to s 477A(1) of the Act, the Applicant was required to bring any application for judicial review by 2 August 2023 (being 35 days after the Minister’s decision). The present proceeding, seeking an extension of time under s 477A(2)(b) of the Act, was not brought until 15 April 2026. That is a delay of 987 days, which is two years, eight months and 13 days out of time.

3    On any view, the Applicant’s delay is very long.

4    The background to the Applicant’s case is as follows (noting that a succession of different Ministers made the decisions referred to below):

(1)    On 30 September 2019, the Applicant’s visa was cancelled by the Minister under s 501(3) of the Act. That cancellation arose on the basis that the Applicant did not pass the character test due to an adverse security assessment by the Australian Security Intelligence Organisation (ASIO): s 501(6)(g). That adverse security assessment was issued on 17 September 2019, following an interview between ASIO and the Applicant on 6 June 2019.

(2)    The Applicant challenged the initial, adverse security assessment and requested, pursuant to s 501C of the Act, that the visa cancellation be revoked.

(3)    The Applicant attended a further interview with ASIO on 3 December 2019.

(4)    On 8 July 2020, ASIO issued a “Qualified Security Assessment” in respect of the Applicant. ASIO identified that its concerns regarding the Applicant’s admitted people smuggling were “diminished”. ASIO’s revised assessment was that the Applicant was “unlikely to pose an ongoing serious threat to Australia’s territorial and border integrity”. It considered that the Applicant was “not directly or indirectly a risk to security”.

(5)    On 20 October 2020, the Applicant was invited to comment on whether he did not pass the character test on the basis of a different provision, s 501(6)(c) of the Act. That provision refers to a person’s “past and present criminal conduct” and the person’s “past and present general conduct”.

(6)    On 9 September 2021, the Minister decided not to revoke the cancellation of the Applicant’s visa on the basis that he had not satisfied the Minister that he passed the character test having regard to s 501(6)(c) (the 2021 non-revocation decision).

(7)    The Applicant applied for judicial review of the 2021 non-revocation decision. He failed at first instance, but succeeded on appeal: CCU21 v Minister for Home Affairs (2023) 297 FCR 503; [2023] FCAFC 87 (CCU21 FC). As summarised by the Applicant:

(a)    the people smuggling venture in which the Applicant had played a role involved assisting Sri Lankan nationals to travel from Indonesia to the French department of La Réunion in April 2019; and

(b)    one of the successful arguments on appeal centred on the finding by the Minister that the Applicant had committed a crime by his involvement in a people smuggling operation and her finding that the Applicant’s involvement in people smuggling reflected poorly on his moral character, without considering the particular features of the venture and the Applicant’s role in it.

(8)    On 28 June 2023, the Minister decided, again, not to revoke the cancellation of the Applicant’s visa. The Minister was not satisfied that the Applicant passed the character test, having regard to s 501(6)(c).

(9)    The Applicant, represented by pro bono lawyers, filed an application seeking the issue of a writ of peremptory mandamus. That application was filed on 5 July 2023. The Full Court gave judgment on 6 June 2024 refusing the interlocutory application (CCU21 v Minister for Home Affairs (No 2) (2024) 303 FCR 350; [2024] FCAFC 69).

(10)    The Applicant was granted a bridging visa around August 2024 (BVR).

(11)    In about April 2025, the Applicant received a notice of intention to consider revisiting the protection finding in respect of the Applicant under s 197D(2) of the Act (the Notice).

(12)    This proceeding was commenced on 15 April 2026.

5    If granted leave, the Applicant intends to advance four grounds of judicial review, which are set out in his draft Originating Application (ground 1 of the proposed originating application was not pressed).

6    This Court has the power to extend time if it is satisfied that it is “necessary in the interests of the administration of justice” to do so: s 477A(2)(b). I return below to the relevant authorities concerning time limits and the exercise of the power to extend time.

7    The Applicant relied on two affidavits to explain the reasons for the delay: an affidavit affirmed by the Applicant dated 15 April 2026, and an affidavit of his solicitor, Abdulaziz Mume, employed by Victoria Legal Aid (VLA), dated 7 September 2026.

8    In his affidavit, the Applicant relevantly stated:

(1)    He obtained assistance from Stephen Blanks at SBA Lawyers, who assisted him in successfully challenging the 2021 non-revocation decision. The Applicant stated that he had “sought judicial review” of the 2021 non-revocation decision and was “eventually successful”.

(2)    After the Decision was made, he received further assistance from SBA Lawyers. He recalled that they made an application to the Full Federal Court, but he “only half understood” what his lawyers were telling him due to language barriers.

(3)    When that application failed, the Applicant says he experienced mental distress and depression. Although he again did not fully understand what SBA Lawyers were telling him, he understood that it may be possible to appeal the Full Court’s decision, but he was “so depressed I said to just leave it”. The Applicant deposed that he was frustrated after fighting to get his visa back for over five years, and “had no strength to keep fighting”. He said, “I had given up hope”.

(4)    After being granted a BVR in August 2024, the Applicant understood that, while he was out of detention, the visa was a temporary one, and he could be deported at any time. After his release from detention, the Applicant contacted Mr Blanks of SBA Lawyers and was reassured because he was told that lots of people had received BVR visas and were not being deported. The Applicant also had heard — how is not specified — “about a Court case which said someone who had received a protection visa in the past could not be deported back to the country they had asked for protection from”.

(5)    Due to reporting conditions on his BVR, the Applicant struggled to find any kind of permanent job and could only work casually. He said he also struggled with his mental health in the community, where he no longer had the mental health support available to him in detention.

(6)    At some point after receiving the Notice on 17 April 2025, the Applicant contacted Refugee Advice and Casework Service (RACS). He spoke with RACS and learned that the Department was going to transfer people who had the same visa as he did to Nauru. The Applicant deposed that no one had told him about Nauru before that, and “I was afraid that I would be sent to Nauru and I knew I had to do something immediately”.

(7)    The Applicant’s affidavit does not say when he contacted RACS, but says that “[i]n July 2025, RACS began assisting me to respond to the Notice”. In November 2025, RACS referred the Applicant to VLA. The Applicant deposed that RACS did not say anything to him about applying for judicial review or how he could do that; they told him to speak to VLA.

(8)    The Applicant first spoke with VLA on 25 November 2025 and they explained he might still be able to apply for judicial review of the Decision. On 26 March 2026, VLA confirmed to the Applicant that they would be able to represent him in an application for judicial review of the Decision.

(9)    The Applicant had been due to attend VLA’s offices on 27 March 2026 to meet his lawyer and sign paperwork to begin his proceeding, but he became very sick and was admitted to hospital. After being discharged, he was required to attend hospital daily for long checkups and needed to rest at home. Because of that, the Applicant says that he was unable to attend VLA’s offices until 15 April 2026.

9    The affidavit of the Applicant’s lawyer from VLA fills in the period between the Applicant’s first presentation to VLA on 21 November 2025 (being the date specified in the solicitor’s affidavit), and the filing of this proceeding on 15 April 2026. The relevant points are:

(1)    The solicitor has a heavy caseload.

(2)    The solicitor was assigned to contact the Applicant by phone on 21 November 2025 and had a brief phone conversation with him. On 3 December 2025, the solicitor was tasked with reviewing the Applicant’s matter and preparing an internal memorandum concerning his judicial review options.

(3)    Between 3 December 2025 and 16 January 2026, the solicitor worked on finalising the memorandum in between handling his heavy caseload involving other clients and matters.

(4)    Due to the complexity of the Applicant’s migration and litigation history, there was more internal work undertaken on the Applicant’s matter than is usual, and this was also “complicated” by staff availability over the Christmas and New Year period.

The power to extend time

10    By enacting s 477A(1) of the Act, Parliament prescribed a time limit of 35 days within which an application to this Court in its original jurisdiction under s 476A(1)(b) or (c) is to be made. Section 477A(2) empowers this Court to extend that period if it is “satisfied that it is necessary in the interests of the administration of justice to make the order [extending time]”.

11    The terms in which the power to extend time is conferred are important. The criterion specified by Parliament is that the extension be “necessary” in the interests of the “administration of justice”. As the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) said in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Katoa) at [12], the focus is “not on the interests of the applicant, but the broader interests of the administration of justice”.

12    While the framing of s 477A(2) allows the Court to look at a myriad of facts and circumstances, including the length of delay, the reasons for the delay, prejudice to the respondent and third parties, and the merits of the underlying application, “[t]he level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: Katoa at [12].

13    The judgment of Gordon, Edelman and Steward JJ in Katoa — who agreed that the application should be dismissed — also reinforced the importance of statutory time limits. The purpose of such time limits is “to control, in the sense of restrict, the exercise of the original jurisdiction of the Federal Court in relation to a migration decision where an applicant has not made their application within 35 days of the date of that decision”: Katoa at [34] (Gordon, Edelman and Steward JJ). Such time limits “[represent] ‘the legislature’s judgment that the welfare of society is best served’ by judicial review applications being instituted within a particular period of time, notwithstanding that the enactment of that period may result in a good ground of review being defeated”: Katoa at [34].

14    The importance of statutory time limits in the functioning of the legal and administrative system for migration has been emphasised in other cases. For example, in KZS25 v Minister for Immigration and Citizenship [2026] FCA 949 (KZS25), O’Bryan J referred to the “significant public interest in public law matters, and particularly migration matters, being resolved in a timely and efficient manner”: at [36]. Similarly, in BQNZ v Minister for Immigration and Citizenship [2026] FCA 857 (BQNZ), Kennett J accepted that s 477A(2) “embodies an important value”, namely that “[t]he administration of the Act in the public interest ought to be able to proceed on the footing that, once the time for seeking review of a decision has passed, the decision will not be disturbed without good reason”: at [32].

15    Section 477A(2) entrusts to the Court a large area of decisional freedom: BQNZ at [24] (Kennett J). Still, the function and purpose of statutory time limits — as they were explained in Katoa — as well as the substance of that which an applicant must satisfy the Court of, must guide the Court’s assessment of whether the Applicant has shown that it is “necessary in the interests of the administration of justice” — not his own personal interests — that time be extended.

16    The tenor of the Applicant’s submissions was that, provided his proposed grounds of review have some merit and a passable explanation for delay has been proffered, an extension of time should be granted. But a submission put at that level is not supported by Katoa. On the contrary, Gordon, Edelman and Steward JJ explicitly recognised that time limits may mean that a “good ground of review” may be defeated: Katoa at [34].

17    Further, in the course of discussing the manner and depth in which assessment of the prospects of the substantive case should be approached, the plurality in Katoa stated that “if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’”, citing a chain of cases in support: at [18]. Those cases were further considered by Kennett J in BQNZ at [26]ff in the course of his Honour’s analysis, leading to the conclusion that (at [30]):

In my view, in order to justify an extension of time where the delay in commencing proceedings is “lengthy and unexplained”, more is needed than a strong case on the merits. A party who has a strong case, but sits on their hands for many months for no good reason, should normally not be entitled to expect an extension of time. The shutting out of claims (even strong claims) in such circumstances is exactly what provisions such as s 477A are designed to achieve. An “exceptional” case in this context should therefore be understood to involve something more than substantive merit: for example, particularly egregious conduct by the respondent, or particularly serious consequences for the applicant if the claim cannot be pursued.

18    In BQNZ, Kennett J considered that the delay (being more than four and a half years) was “not completely unexplained” but the explanation was “far from sufficient to justify an extension of the length required”: at [31]. On that basis, his Honour considered that to grant an extension of time in those circumstances, he would need to be persuaded that the applicant’s substantive case “is clearly very strong, to the extent that an obvious injustice would be perpetuated if the Tribunal decision were not set aside” and/or that “the consequences for the applicant are extraordinary in their seriousness”: at [33].

The Applicant’s explanation for the delay

19    The delay of over two years and eight months is, as I have said, very long.

20    The Applicant contends that his delay, while long, is not unexplained. He submitted that:

(a)    about the first year of delay was accounted for by the failed application to the Full Court for peremptory mandamus;

(b)    the time occupied by that course ought not be held against the Applicant, who was in the hands of his lawyers;

(c)    the delay following late November 2025, when the Applicant first spoke with VLA, has also been explained by a combination of delays within VLA and the Applicant’s illness.

21    In my assessment, the explanation put forward by the Applicant for the very long delay is inadequate in part. By that I mean that, while the evidence put forward explains some periods within the overall delay of over two years and eight months, no adequate explanation has been provided for the remaining periods of delay.

22    Specifically, I accept that the delay between the making of the Decision on 28 June 2023 and the Full Court’s dismissal of the peremptory mandamus application on 6 June 2024 has been explained (although I will return to the significance of delays caused by a person pursuing a course instigated by their lawyers), and the period from late November 2025 to the filing of the present proceeding in mid-April 2026 has been explained by a combination of delays within VLA and the Applicant’s own ill health.

23    However, that still leaves a period of about 12 months (between 6 June 2024 and the time which the Applicant was clearly in contact with RACS in July 2025). In relation to that period, the relevant matters are as follows:

(1)    On 6 June 2024, the Full Court dismissed the Applicant’s peremptory mandamus application. In its short, 12-paragraph reasons, it said (at [9], emphasis added) (Perram, Halley and Goodman JJ):

No basis is shown therefore for the issue of a peremptory writ of mandamus. In fact, all that is disclosed in the present application are in effect arguable grounds of judicial review in respect of the most recent decision. The proper course is for the appellant to commence a fresh judicial review proceeding.

(2)    The Applicant did not say in his affidavit that he was not aware of judicial review as a concept following the making of the Decision, or following the handing down of the Full Court’s decision on the peremptory mandamus application. That much is not surprising given the Applicant had already successfully pursued judicial review in respect of the 2021 non-revocation decision.

(3)    The Applicant also did not say anything in his affidavit to suggest that the very clear and explicit statement by the Full Court that the Applicant should pursue judicial review proceedings was not conveyed to him by his lawyers at the time. Saying that he only “half understood” what his lawyers were telling him — given they spoke to him only in English — and that he only remembered certain things they told him after that application was dismissed, does not suggest that the lawyers failed to convey that critical matter stated in the Full Court’s reasons.

(4)    While the Applicant’s affidavit states generally that when his lawyers informed him that the Full Court peremptory mandamus application had failed he “experienced mental distress and depression” and “was so depressed I said to just leave it”, he has not put on any medical evidence that his mental state during that period was such that he was unable to determine whether or not to take further steps. The Applicant’s affidavit says his depression and exhaustion after fighting to have his visa restored was the reason he told his lawyers to “just leave it” and had given up hope. In short, the Applicant explains that he was depressed, exhausted and decided to stop fighting. All that is understandable, but does not go so far as to provide any basis for considering that he was unable to act in his own interests and pursue further legal steps if he wished to.

(5)    There is no explanation offered by the Applicant about why he did not take any steps after the Full Court dismissed his peremptory mandamus application on 6 June 2024. He deposed to having been issued a BVR in August 2024 and understanding that he could be deported at any time. While the Applicant explains he was reassured to some degree when he spoke with Mr Blanks and was told a lot of people had received BVRs and were not being deported, he was content to remain on the BVR, which he understood was a temporary visa and which exposed him to the risk of deportation.

(6)    It was only when the Applicant received the Notice and learned of the prospect that he might be removed to Nauru that the Applicant decided to take action, but even then he did not act promptly. In that regard, the Applicant’s conduct is similar to that of the applicant in KZS25 in which O’Bryan J, in the course of concluding (in a case involving delay of nine months) that an extension of time should only be granted if the proposed grounds of review are strong, referred to the applicant not applying for review in a timely manner based on a belief that the government would not attempt to remove him to South Sudan, and only taking action when the prospect of removal to Nauru came into view: at [35]–[37].

(7)    The Applicant’s affidavit did not say when, after receiving the Notice on 17 April 2025, he contacted RACS. He did, however, depose that RACS began assisting him to respond to the Notice in July 2025. While I accept that RACS is a busy community legal centre, I consider it unlikely that it would have done nothing to commence assisting the Applicant for months, which would be the necessary position if the Applicant had contacted RACS shortly after receiving the Notice in April 2025 and they only started assisting him in July 2025.

24    I also take into account that the Applicant had access to lawyers, was able to obtain legal advice regarding his immigration issues and he availed himself of that access in consulting with SBA Lawyers. Access to lawyers and a history of having taken legal action were taken into account in assessing an applicant’s explanation for delay in EHQ25 v Minister for Immigration and Citizenship [2026] FCA 1039 (EHQ25) at [43]ff (McElwaine J).

25    The Applicant was not, unlike many others, left to his own devices in attempting to discern what avenues he may have available to challenge adverse administrative decisions and navigate Court processes. The way in which the legal system operates is that litigants who have lawyers acting for them give those lawyers instructions and, in most circumstances, are bound by the way in which their lawyers proceed, even if the lawyers take a step that proves to be unsuccessful.

26    Here, the Applicant had access to lawyers and those lawyers took the course of seeking peremptory mandamus, rather than initiating a conventional judicial review application. The broader public purpose of statutory time limits would be undermined if the Applicant’s decision, albeit under legal advice, to proceed as he did counts for nothing because the application he elected to bring proved to be unsuccessful. Nevertheless, had the Applicant acted promptly after his peremptory mandamus application was dismissed, his delay would not only be much more limited in its duration, but his explanation would be more complete in the sense that the only period of delay would be one that could be explained by the Applicant proceeding on legal advice. In those circumstances, the Applicant would be better able to show that he has not been inactive (or “sat on his hands”) but had diligently, if ultimately fruitlessly, pursued legal remedies. However, in this case, the Applicant did not act with any expedition, or at all, after the Full Court dismissed his peremptory mandamus application.

27    I have found that the Applicant has not given a reasonable explanation for the delay which, even after deducting the time occupied by the ill-fated peremptory mandamus application and delays after VLA became involved, is substantial.

28    That is not to say that the existence of such an extensive delay is fatal to the extension of time application; as the Applicant pointed out, extensions of time have been granted in cases with significantly more delay. However, given the extent of the delay for which no adequate explanation has been advanced, I take the approach that the Applicant will need to demonstrate that his proposed substantive application has strong merits if an extension of time were to be granted. Other relevant factors, principally prejudice, also need to be considered.

Prejudice to the Minister and consequences for the Applicant

29    The Minister did not claim that he would be prejudiced by the grant of an extension of time but highlighted the public interest in finality of litigation concerning visa decisions, and the public interest considerations that underlie s 477A itself, including the time limit. The latter consideration has considerable force, as exposed by the decision of Gordon, Edelman and Steward JJ in Katoa, referred to at paragraph 13 above.

30    There is no suggestion of prejudice to third parties.

31    The Applicant submitted that, while the Minister would not be prejudiced by the extension of time, the Applicant would become vulnerable to removal to Nauru on the basis of a decision he contends is affected by jurisdictional error. In oral submissions, the Applicant also raised the possibility of return to Sri Lanka if his protection finding is reversed.

32    In response, the Minister contended that the prospect of removal was speculative and that, in any event, if the Applicant were to be removed from Australia, that would simply reflect the proper operation of the provisions of the Act concerning the removal of unlawful non-citizens.

33    The only evidence the Court has before it is the Applicant’s evidence that he was issued the Notice on 17 April 2025. The Court has no evidence regarding what has occurred since then or of the Department’s practices in relation to the removal of persons in the “NZYQ cohort” (being the cohort of persons released from indefinite immigration detention following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37) who have been issued such notices (a matter raised in oral submissions).

34    Nevertheless, I accept that the Applicant faces the prospect of being removed from Australia against his will.

35    In BQNZ, Kennett J accepted that being removed to Nauru may have “devastating consequences” for the applicant in that case given its health services are “notoriously inferior” to those in Australia, but stressed that removal would be a consequence of s 198 of the Act, which operates without regard to the human consequences of removal. His Honour considered that sympathy for the applicant in relation to the prospect of removal to Nauru did not alter the fact that such removal would be one of the “consequences of the proper administration of the Act”: at [34]–[36]. Accordingly, Kennett J considered that the consequences for the applicant ought not be treated as determinative of the interests of the administration of justice: at [36] (cited with approval by McElwaine J in EHQ25 at [50]).

36    I accept that removal to Nauru would be contrary to the Applicant’s interests, and preferences, but there is no basis upon which to conclude that removal to Nauru would cause hardship to the Applicant over and above the consequences of such removal for all other persons subject to that outcome by virtue of decisions of the Australian Parliament and executive.

37    I consider the prospect of removal back to Sri Lanka to be too speculative to warrant further consideration and also note that, if that were to occur, it would be due to an assessment revoking the Applicant’s protection finding.

38    I do not consider that the consequences for the Applicant if his application for an extension of time is refused are such that they weigh materially in favour of an extension of time. I have taken into account that the Applicant has already had, and taken steps in, a legal proceeding in respect of the Decision (specifically, the application for peremptory mandamus made to the Full Court). The effect of an extension not being granted is that he will not be able to pursue a further proceeding in respect of the Decision, in circumstances where his potential removal to Nauru, while adverse to his interests, has not been shown to expose the Applicant to particular harm.

The legislative scheme and the Minister’s reasons for the Decision

39    It is convenient, first, to set out relevant aspects of the Decision and the legislative context in which they were made.

40    The Decision was made under s 501C(4) of the Act. It was a decision not to revoke the cancellation of the Applicant’s Safe Haven Enterprise Visa.

41    Section 501C(4) provides that:

The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the person satisfies the Minister that the person passes the character test (as defined by section 501).

42    The Full Court has found that this provision does not confer a discretion and the Minister must revoke if the preconditions are met: CCU21 FC at [26].

43    Section 501(6) provides that “a person does not pass the character test if:…” and goes on to specify a number of circumstances, of which paragraphs (c) and (g) are relevant. They are in the following terms:

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

…

(g)     the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

44    After these paragraphs, s 501(6) states “Otherwise, the person passes the character test”.

45    When s 501(6) is read with s 501C(4), the Minister was required to revoke the cancellation decision if the Applicant made representations (which the Minister accepts he did) and if the Applicant satisfied the Minister that he passed the character test by not coming within any of the paragraphs specifying when someone will not pass the character test. It was not suggested that the Applicant had to satisfy the Minister of anything more than that he did not fall within s 501(6)(c)(ii) by reason of his “past and present general conduct”.

46    The Minister’s reasons proceeded as follows:

(1)    The Minister noted s 501(6)(c) was the limb of the character test being considered, and referred to relevant authorities including: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774 at [51] (Lee J) concerning the term “good character” referring to a person’s enduring moral qualities (cited with approval by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10 (Godley FC) at [34]); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 (Tanielu) at [132]–[133] (Mortimer J) regarding the character test in s 501(6)(c) and the role of consideration of protection of the Australian community in character assessment under that section (discussed further below).

(2)    Having referred to those authorities, the Minister said she had had regard to the Applicant’s general conduct and considered whether it was consistent with enduring moral qualities and therefore whether the Applicant was of good character. The Minister said she had “given due consideration to the need to protect the Australian community”.

(3)    The Minister’s reasons then detailed the Applicant’s involvement in people smuggling in 2019. The nature of the role of the Applicant as a “middleman” and his activities in relation to the venture were set out in the Minister’s reasons (including his actions to try to improve the safety of the vessel).

(4)    The Minister assessed what motivated the Applicant — the conclusion being financial gain — and considered that his desire to profit was greater than his desire to protect human lives.

(5)    The Minister’s reasons then included a paragraph about the general nature of people smuggling and people smugglers, including the risks to human lives. The last part of this paragraph then referred to the Applicant specifically and his role as a middleman which the Minister considered was “opportunistic and for his own monetary gain”. She considered that involvement in people smuggling activities is indicative of a poor moral compass and bad character.

(6)    The Minister noted the Applicant’s submission that involvement in a single smuggling venture in the past was not of itself indicative of present bad character, but concluded that the Applicant’s involvement in people smuggling was relevant to his character based on past conduct, noting s 501(6)(c) refers to a person’s past and present general conduct.

(7)    The Minister then stated that she had considered the Applicant’s other submissions, which were said to have included a series of points the Minister set out. Those points included ASIO’s more recent assessment that the Applicant was unlikely to pose an ongoing threat to Australia’s territorial and border integrity. The Minister detailed aspects of ASIO’s report including information provided by the Applicant to ASIO about a further people smuggling operation that was being organised.

(8)    The Minister then stated as follows:

25.     I acknowledge that [the Applicant] has stated that he does not intend to engage in people smuggling operations in future, and accept that [the Applicant] has had some change of attitude towards people smuggling. However, I consider that this is not entirely because he is now morally opposed to people smuggling, but largely due to the ramifications of his previous involvement. Overall, I do not accept that [the Applicant] was not motivated by money and that his principal motivation was for the welfare of his family and community members. I consider that if this were the case [the Applicant] would have chosen not to have any involvement in the people smuggling venture, in particular noting the significant risks for individuals being smuggled. Therefore, while I have considered the submissions provided supporting the view that [the Applicant] is of good character, I have placed greater weight on [the Applicant’s] past involvement in people smuggling when considering his character, as this provides insight into his enduring moral compass.

26.     I consider [the Applicant’s] past involvement in people smuggling and motivations is indicative of a lack of moral worth through the choice to engage in ventures which endanger human lives for the purposes of monetary gain and individual benefits.

(9)    The next section of the Minister’s reasons was headed “Misleading comments”. In that section, the Minister detailed that the Applicant had been interviewed by ASIO twice and that ASIO considered the Applicant had made “misleading” comments at his first interview but had largely been truthful in his second interview, although ASIO considered his claim not to have been motivated by making money from people smuggling to be “likely untrue”.

(10)    The Minister considered that the Applicant “provided misleading comments in the first interview” and stated that she considered it “possible that [the Applicant] intentionally provided inaccurate information to prevent ASIO from knowing the complete truth about his involvement in people smuggling”. The Minister further stated:

30.    I consider that a person’s character is measured by a number of factors including their general conduct such as honesty and integrity. Where a person intentionally misleads or provides deceptive information, it reflects poorly on their character. I acknowledge that although [the Applicant] eventually presented the truth to ASIO, I find it concerning that his initial response was to present misleading information, particularly where providing false or misleading information can be considered a serious offence.

(11)    The Minister next addressed “Incidents in detention”, which were described as “minor assaults and physical altercations” on four dates. The Minister accepted that such incidents may have been as a result of provocation or self-defence, considered concerns raised by the Applicant regarding his security in detention, mental health and feeling of being threatened, as well as specifics in relation to some of the incidents.

(12)    On “Behaviour in the community”, the Minister noted that the Applicant had been in the community between 2014 and 2019 and had no criminal convictions in that time, but considered that he had been organising a people smuggling venture in that time, which the Minister characterised as “further evidence that [the Applicant] lacks enduring moral quality and is not of good character”.

(13)    In addressing “Any other matters”, the Minister set out various submissions made by the Applicant. They included: reference to his children in Sri Lanka; his contribution to Australia; the prospect of long-term detention if the cancellation were not revoked; and the expectations of the Australian community given the incidents in detention were minor. The Minister then said, “[t]hese claims do not indicate that the relevant ground for cancelling [the Applicant’s] visa, namely the ground in s501(6)(c) of the Act, does not exist”.

(14)    The Minister’s reasons summarised her views on the Applicant, albeit under the heading “Conclusion on existence of ground for cancellation” before concluding that the Applicant had not satisfied her that he passes the character test, meaning that the power under s 501C(4) of the Act to revoke the original decision was not enlivened.

The Applicant’s prospects on his judicial review grounds

47    The proposed grounds of judicial review advanced by the Applicant are as follows (ground 1 was not pressed):

2.     The Minister erred by asking herself the wrong question in considering the character test, by failing to consider the purpose of the test as a basis for excluding a person from remaining in Australia.

Particulars

a.    The purpose of the character test under s 501 of the Act is to determine whether a person should be excluded from Australian society into the future by reason of their character.

b.    The task in s 501(6)(c)(ii), by reference to the person’s past or present criminal or general conduct, is intended to inform a view as to whether that conduct would make the person’s presence in Australia in the future undesirable.

c.     In considering only past general conduct, without any reference to why that conduct was relevant to the applicant’s future presence in Australia, the Minister misconstrued the character test or asked herself the wrong question.

3.     The Minister misconstrued the test in s 501C(4) of the Act, or failed to consider the applicant’s representations.

Particulars

a.     The Minister was required by s 501C(4) to consider the applicant’s submissions as to why the cancellation decision should be revoked.

b.     The Minister at [43] discarded submissions made by the applicant on the basis that the claims “do not indicate that the relevant ground for cancelling [the applicant’s] visa ... does not exist.”

c.    The applicant’s representations went to the broad question of whether he was a person of good character, including issues of proportionality in relation to his past conduct.

d.     The Minister failed to give proper consideration to those representations consistently with the statutory task.

e.     The Minister applied the wrong test of whether the ground for cancelling the visa existed.

4.     The Minister engaged in irrational reasoning or relied on unfounded assumptions with no basis in the evidence.

Particulars

a.    The Minister based her reasoning on ‘people-smuggling’ as an abstract concept, without reference to the particular acts of the individual applicant in the specific people-smuggling venture to support a conclusion that the applicant’s involvement was indicative of his poor moral compass and bad character.

b.    The Minister’s finding that those involved in any people-smuggling venture “act negligently and place vulnerable individual’s [sic] lives at risk” had no rational basis in the evidence in relation to the applicant’s specific involvement in the relevant venture.

5.     The Minister’s finding of “dishonesty when interviewed by ASIO” was irrational.

Particulars

a.     The Minister’s finding that the applicant had been dishonest when interviewed by ASIO went well beyond the findings of the source on which the Minister relied, namely the ASIO assessment, and was therefore irrational.

b.     The finding of dishonesty was material to the Minister’s conclusion that the applicant was of bad character.

48    I note that, based on Katoa at [54], it is a matter for the Court to determine the depth in which prospects are to be assessed, having regard to the circumstances of the case.

49    In my view the Applicant has moderate prospects of success on ground 2 and one element of ground 3, but poor prospects on grounds 4 and 5.

Ground 2

50    The Applicant’s case on ground 2 involved the following key contentions:

(1)    The purpose of s 501(6)(c) is protective. The past and present conduct of the Applicant is to be assessed with a view to considering how he might behave in the future, and therefore the risk posed to the Australian community if he were to be permitted to remain in Australia. That is said to be supported by the judgment of Mortimer J in Tanielu in which her Honour said (at [132]) “[e]ven in such circumstances, the established test to be applied involves a determination, in the totality of a person’s circumstances, of how the person might conduct herself or himself in the Australian community if permitted to enter or remain”. The Applicant also relied on Tanielu at [133] where her Honour, it is submitted, emphasised that s 501(6) “requires a positive finding by the decision-maker that there is the requisite kind of difficulty with how an individual might behave in Australia sufficient to enliven the discretion to refuse or cancel a visa”.

(2)    In the present case, the Minister’s reasons “gave no consideration at all to the conduct the applicant might engage in in the future, whether by reference to his past conduct or otherwise, let alone the extent to which it was necessary to protect the Australian community [from] the risk of such conduct occurring”.

(3)    The approach of the Minister was to judge the Applicant’s “moral character” exclusively by reference to his past conduct. This was said to involve a misconstruction of s 501(6)(c).

51    In response, the Minister emphasised the terms of the relevant provisions of the Act, which do not require consideration of the person’s future conduct in Australia and the risk posed by the person to the Australian community if permitted to remain. The Minister submitted that the language of s 501(6)(c) does not contemplate, expressly or impliedly, an assessment of future risk to the Australian community. He submitted that if that matter is to be taken into account, that may occur at the point of considering whether to exercise a statutory discretion to cancel or refuse to grant a visa. The language, the Minister submitted, is different from some other constituent paragraphs in s 501(6), which do expressly refer to the risk posed by a person, specifically s 501(6)(d), (g) and (h).

52    The Minister submitted that, in any event, the terms of the Minister’s reasons do not establish that she failed to take into account protection of, and the risk of harm posed by the Applicant to, the Australian community in the future if the Applicant were permitted to remain in Australia.

53    In relation to Tanielu, the Minister submitted that it should not be followed for several reasons. First, what was said by Mortimer J about the construction of s 501(6)(c) was obiter dicta as the issue determined by Tanielu was whether, in the exercise of the discretion under s 501(2), the Minister was required to consider the risk of harm posed by the applicant to the Australian community. Tanielu concerned a ministerial power under a different section from that involved in the present case — s 501(2) and not s 501C(4) — and it was not necessary in Tanielu for the Court to determine the proper construction of s 501(6)(c).

54    Secondly, it was submitted that real doubt persists as to the correctness of Tanielu and there is an unresolved tension between the majority view in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; [2015] FCAFC 54 (Moana), in which Rangiah J (with whom North J agreed) endorsed Mortimer J’s observations in Tanielu, and the observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256.

55    Thirdly, although, in discussing the operation of s 501(6)(c) of the Act Mortimer J referred to “the authorities” and “the established test” to be applied in relation to that aspect of the character test, no authorities were cited except for Godley FC and Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD 10; [2009] FCAFC 149, neither of which bears out the proposition that that subsection requires a decision-maker to conduct an assessment of how a person might conduct themselves in the Australian community in future if permitted to enter or remain.

56    The Minister submitted that, in any event, the reference to “protection” in Tanielu needs to be understood as having a broader meaning than merely a risk of physical or psychological harm to the Australian community. The Minister notes that Mortimer J in Tanielu referred to there being some kind of “unacceptable or undesirable consequence” arising from allowing a person to enter or remain in Australia (at [133]). Properly understood, the Minister submitted, that statement does not require that a decision-maker must, for the purposes of s 501(6)(c), conduct a form of risk assessment into a person. The Minister submitted that it is simply a recognition of the fact that permitting a person to enter or remain in Australia who is not of good character will necessarily be an unacceptable or undesirable consequence.

57    In my view, the Applicant has moderate prospects of success in relation to ground 2. The terms in which the statutory power being exercised by the Minister is cast required the Applicant to satisfy the Minister that he passed the character test, and the relevant element of the character test at issue was not one that embedded, overtly, the risk posed to the Australian community.

58    In this regard, the terms of s 501(6)(c) differ from the terms of some other paragraphs, which do explicitly refer to the risk the person would pose if allowed to enter or remain in Australia. For example, s 501(6)(d) provides that a person will fail the character test if, in the event that the person were allowed to enter or remain in Australia “there is a risk that the person might: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or [the provision goes on to specify various other specific actions and dangers that may arise]”. By contrast, s 501(6)(c)(ii) requires consideration only of whether, having regard to the person’s past and present general conduct, the person is “not of good character”.

59    It may be accepted that in providing that the Minister may not revoke a cancellation decision unless satisfied that the person passes the character test, and in providing that a person “not of good character” will not pass the character test, the legislature sought to protect the Australian community from the potentially adverse consequences of the presence of such people in the community. In that sense, there is no difficulty in accepting that the character test serves a protective function. However, that is not to say that the section requires that the Minister, in considering whether the Applicant satisfied her that he passed the character test, which is the statutory criterion specified by s 501C(4), was required to consider what conduct the Applicant might engage in in the future, given his past and present general conduct.

60    Unless it could be said that the authorities, particularly Tanielu and Moana, stand as authorities that the Minister was required to engage in that sort of predictive risk assessment, the Applicant’s prospects on this ground would be poor because the submission finds no foothold in the terms of s 501(6)(c) or s 501C(4). Moreover, because s 501(6)(c)(ii) refers to “past and present general conduct”, it does not lend itself to a decision-maker conducting the kind of risk assessment as to future behaviour that may more readily be engaged in in respect of other components of the character test, for example involving criminal conduct, whether in Australia or elsewhere.

61    As to Tanielu and Moana, it is not in issue that the observations made by Mortimer J regarding s 501(6)(c) were obiter dicta; the Applicant did not contend otherwise. Nevertheless, they are observations of a single judge, now the Chief Justice of this Court, which were approved by two other judges, sitting on a Full Court in Moana.

62    Section 501(2) of the Act, being the provision at issue in both Tanielu and Moana, confers a discretion on the Minister to cancel a visa if certain threshold conditions are met: the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test. This provision is treated as conferring a discretion on the Minister, enlivened when the conditions are met: Moana at [40] (Rangiah J).

63    The appeal in Moana concerned the Minister’s exercise of the discretion and whether the Minister was required to consider any risk of harm to the Australian community “in the exercise of the discretion”: Moana at [14]. The Minister submitted, correctly, that Tanielu was concerned with the role of the risk of harm in the exercise of the discretion, rather than establishing that the very consideration of whether or not s 501(6)(c) results in a conclusion that the person is not of good character requires consideration of the risk posed to the Australian community if the person were permitted to enter or remain. It was accepted, in Moana, that the appellant did not pass the character test pursuant to s 501(6)(a) and s 501(7) due to his criminal record: Moana at [18].

64    As Tanielu was explained in Moana, the point was that Mortimer J considered that the various elements of the character test served a protective function, which supported the conclusion that the exercise of the discretion under s 501(2) was required to have regard to the risk posed to the Australian community by the continued presence of the visa holder: Moana at [43]ff. In other words, the protective nature of the components of the character test was harnessed to support the conclusion as to the matters the Minister was required to consider in exercising the discretion under s 501(2) once the triggering conditions had been satisfied.

65    To say that the assessment and determination of whether a person passes the character test by reference to s 501(6)(c) is undertaken “with a view to” the protection of the Australian community (Moana at [54]) is not to say that, in order to conclude that a person is “not of good character” by reason of their past and present general conduct, the decision-maker is required to engage in some forward-looking predictive exercise regarding the way in which that person may behave if permitted to enter or remain in Australia.

66    For these reasons, I do not consider that Tanielu and Moana go as far as the Applicant’s argument on ground 2 supposed them to. Nevertheless, I would not describe the Applicant’s prospects as poor given there is some complexity and room for argument on the effect of those authorities (including some further comments in Moana at [58] that were not relied on by the Applicant).

Ground 3

67    The Applicant’s argument on this ground involved the following key contentions:

(1)    The Minister was required to consider his representations.

(2)    The Applicant had submitted that he was unlikely to pose any future risk to Australia’s territorial and border integrity and there had been no suggestion that he posed a risk to the Australian community in any other way. Beyond addressing the territorial integrity point, the Minister did not address the Applicant’s submissions that he did not pose a risk to the Australian community, and this was a jurisdictional error because the submission that was ignored was one that was central to the question facing the Minister.

(3)    Although the Minister referred to the Applicant’s submission — made pre-NZYQ — as to indefinite detention, and his submission that the incidents in detention were minor, the Minister dismissed the submission saying that the claims “do not indicate that the relevant ground for cancelling [the Applicant’s] visa … does not exist”.

(4)    This was said to involve three distinct errors.

(a)    It was submitted that the Minister erroneously considered she was dealing with a visa cancellation case.

(b)    The Minister was wrong to state that the relevant ground for cancelling the visa was s 501(6)(c) when the visa had been cancelled pursuant to the s 501(6)(g) aspect of the character test.

(c)    The Minister was wrong to disregard certain submissions of the Applicant as irrelevant to the assessment of good character in any case. The Applicant submitted that the task of assessing whether the Applicant was not of good character is “amorphous and … necessarily comparative and relative”. The Applicant here relied on Godley FC at [34], in which the Full Court quoted with approval parts of the primary judge’s reasons, including a passage in which the primary judge requires the Minister to address the “totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone”. Accordingly, the Minister was required to address the Applicant’s submissions on proportionality.

68    I do not consider that the Applicant has strong prospects in relation to the first error for which the Applicant contends, being that referred to at paragraph 67(2) above. To the extent that it assumes success on ground 2, I do not consider that the Applicant has better than moderate prospects. In any event, as the Minister submitted, the Minister did refer to and consider the information provided regarding the Applicant’s apparent change of view in relation to people smuggling, albeit that the Minister considered there had been “some change” of attitude, but did not accept that the Applicant was now morally opposed to people smuggling, and rather had shifted his view given the ramifications of his previous involvement. The Minister stated that she placed greater weight on his past conduct in assessing his character. While this analysis was not framed in terms of the “risk” posed by the Applicant to Australia’s border integrity or the community, the Minister clearly took into account the extent to which the Applicant had changed his support for people smuggling.

69    As to the passage of the Minister’s reasons said to give rise to the three errors referred to in paragraph 67(4) above, and the Minister’s reference to the relevant ground for cancelling the Applicant’s visa not having been shown not to exist, it is plain that the reference to visa cancellation was infelicitous. The Minister’s reasons as a whole make it abundantly clear that she was aware she was considering whether to revoke the cancellation of the Applicant’s visa. Similarly, and relatedly, the reference to s 501(6)(c) in [43] of the Minister’s reasons is, read fairly, a reference to whether the Applicant did not pass the character test by reference to that section. It was not a reference to the section pursuant to which the Applicant’s visa had previously been cancelled. These elements of ground 3 have poor prospects.

70    In relation to the final aspect of ground 3, the Minister did consider the circumstances of the Applicant’s conduct in detention in some detail, but did so in another part of her reasons. I also do not accept that it was incumbent on the Minister to consider the prospect of indefinite detention (pre-NZYQ) as a matter that bore on whether or not the Applicant satisfied her that he passed the character test. Such a matter would have an obvious role in relation to the exercise of a discretion, but the determination of whether or not a person, by reason of their past and present general conduct, is not of good character does not involve consideration of the adverse consequences to the person. The Applicant’s prospects of success on these elements of ground 3 are also poor. The Minister referred to the matters raised and concluded that they did not mean that the adverse assessment against s 501(6)(c) was altered. That did not involve any misunderstanding of the statutory task or ignoring the Applicant’s submissions.

71    Overall, other than the first element of ground 3 which has moderate prospects (tied to the moderate prospects of ground 2), ground 3 has poor prospects.

Ground 4

72    The Applicant contended, by ground 4, that the Minister engaged in irrational reasoning or relied on unfounded assumptions with no basis in the evidence. That is said to have been done because the Minister based her reasoning on people smuggling as an abstract concept, without reference to the acts of the Applicant. The particulars further contend that the Minister’s finding that those involved in people smuggling “act negligently and place vulnerable individual’s [sic] lives at risk” had no rational basis in the evidence.

73    The Applicant’s submissions in support of this ground focused on the successful appeal in respect of the 2021 non-revocation decision. The principal objection seems to be a combination of two points: first, that the Minister continued to reason generally about people smuggling, without having regard to the Applicant’s own involvement and role; and secondly, that people smuggling is not necessarily immoral, picking up on the Full Court’s reference to the example of Oskar Schindler in the Second World War: CCU21 FC at [98].

74    In oral submissions, the Applicant sought to illustrate that many parts of the Minister’s reasoning that were impugned by the Full Court in CCU21 FC remained in the Minister’s reasons in support of the Decision. I do not consider that that goes anywhere. The reasons presently impugned must be read as a whole. They either betray legal error on the basis asserted, or they do not. The analysis is not assisted by conducting some kind of “version compare” exercise and then seeking to map the Full Court’s previous reasons against the revised reasons.

75    I consider that ground 4 has poor prospects. The Minister did not approach the Applicant’s previous involvement in a people smuggling venture — which was past “general conduct” — in a wholly abstract manner. The Minister specifically considered the particular role taken by the Applicant in the 2019 people smuggling venture in which he was involved, and his motivations. As to the latter, the Minister concluded that the Applicant participated due to a desire for monetary gain, and that his desire to profit was greater than his desire to protect human lives (noting that the Applicant did take steps to improve safety on board the vessel). The Minister expressly did not accept that the Applicant was not motivated by money, but was motivated by concern for the welfare of his family and community members.

76    To the extent that the Minister’s reasons referred to people smuggling in general, the reasoning did not, for the most part, go beyond the findings that had been made about the Applicant’s involvement in the 2019 people smuggling venture specifically. Those observations are to be read in the context of the balance of the Minister’s reasoning on the Applicant’s involvement in people smuggling. The Applicant focuses, particularly, on the Minister’s statement that “I consider that where a person has been involved in people smuggling activities it is indicative of a poor moral compass and bad character”, but that observation was surrounded by, and linked to, conclusions about the Applicant and the 2019 people smuggling venture specifically. Those conclusions included that the Applicant’s involvement was as a middleman, was opportunistic and for his own financial gain and that the Applicant’s actions demonstrated an awareness of the risk posed by the venture to the passengers’ lives, yet he still proceeded with the venture.

77    For these reasons, I consider the Applicant’s prospects in relation to ground 4 to be poor.

Ground 5

78    Ground 5 contends that the Minister’s finding of “dishonesty” when the Applicant was interviewed by ASIO was “irrational”. The irrationality was said, by the particulars, to arise because the finding went “well beyond” the findings of ASIO, on which the Minister was relying.

79    As set out above (see paragraphs 46(9)–46(10)) the Minister referred to ASIO’s assessment that the Applicant had made “misleading” comments at his first interview, and gave information at the second interview that “contradicted information provided at the first interview”. The Minister also referred to ASIO’s assessment that the Applicant’s claims not to have been motivated by making money were “likely untrue”. The Minister then applied her own reasoning to that material. She considered it likely that the Applicant was aware that an adverse outcome from an ASIO assessment could have implications on his visa status and considered that the Applicant had provided misleading information in the first interview and that it was “possible that [the Applicant] intentionally provided inaccurate information to prevent ASIO from knowing the complete truth about his involvement in people smuggling”.

80    The Applicant submitted that there was nothing in the 2020 ASIO assessment to indicate that the Applicant intentionally misled or provided deceptive information “as opposed to a lack of completeness”. The 2020 ASIO assessment was not limited to pointing out a “lack of completeness” in the information provided. On the contrary, ASIO’s Statement of Grounds stated explicitly that the Applicant had made “misleading comments” at his first interview and had changed his account in the second interview. ASIO also stated that the Applicant “made a number of admissions” in his second interview that “contradicted information provided at the first [interview]” and went on to record, in detail, the admissions made at the second interview. The Minister referred to this aspect of the ASIO Statement of Grounds in her reasons.

81    Although ASIO did not directly proffer a view on the Applicant’s mental state at the first interview, in light of the contradictory information provided in the second interview, it was open to the Minister to form a view that the Applicant had been dishonest in the first interview. It was a rational conclusion to draw. The Applicant’s contention that the Minister’s findings of dishonesty were made without a rational basis cannot be accepted.

82    For these reasons, ground 5 has poor prospects of success.

Conclusion on the application for an extension of time

83    I have concluded that the Applicant has not advanced a reasonable explanation for a significant part of the overall delay between the making of the Decision and the initiation of these proceedings. I have also concluded that the Applicant does not have strong prospects in relation to the grounds of judicial review he seeks to advance. Rather, his prospects are only moderate in respect of ground 2 and part of ground 3, and are otherwise poor.

84    I am not satisfied that it is necessary in the interests of the administration of justice to order that the 35-day period specified by s 477A(1) of the Act be extended.

85    The Applicant urged that, even if I were not satisfied that he should succeed on his grounds of judicial review, the Court should still order that time be extended, which would preserve the Applicant’s appeal rights (in the sense of being able to appeal a final order, and not requiring leave to bring an appeal against an interlocutory decision). I am not acceding to that suggestion. In the circumstances of this case, where the merits of the grounds of judicial review do not support the extension of time, it would in my view be perverse to grant the extension despite finding that it is not necessary in the interests of the administration of justice. I do not consider that the judgment of the High Court in Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs (2025) 425 ALR 79; [2025] HCA 36 at [6]–[7] (Gageler CJ, Edelman and Jagot JJ) requires, or even supports, the outcome for which the Applicant contended in this case. There, the High Court rejected a submission that an extension of time should only be granted if the Court accepted the grounds of judicial review had been made out, and determined to grant an extension of time, referring to the specific circumstances of the plaintiff and the modest length of the delay. It was a combination of factors that stood behind the grant of the extension.

Associate:

Dated:    15 September 2026