Federal Court of Australia

NDMS v Minister for Immigration and Citizenship [2026] FCA 1572

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J

A    INTRODUCTION

1    This proceeding concerns an application for an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) (Act) to commence an application for judicial review of a decision of the Administrative Appeals Tribunal, the predecessor of the second respondent (Tribunal), made on 20 October 2022 (with written reasons published on 21 November 2022). That decision affirmed a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa.

2    The application is strikingly out of time. The period fixed by Parliament expired as long ago as November 2022 and this proceeding was not commenced until 29 July 2026. The applicant therefore asks the Court to reopen, after more than three years and eight months, a decision which would ordinarily have acquired finality years before. As I will explain, the question is whether, notwithstanding that delay, the circumstances as a whole make an extension necessary in the interests of the administration of justice.

3    The matter had been allocated a hearing of half a day. Upon examination of the written submissions prior to the hearing, it became apparent that the Minister submitted that, given the length and inadequacy of the explanation for delay, the applicant would need to demonstrate a case of a particular strength before an extension could be justified. The applicant, quite properly, wished to ensure that he could advance everything he relied upon to meet that contention. After discussion, I suggested, and the parties pragmatically agreed upon, a course which allowed that to occur.

4    I explained that I would hear anything the applicant wished to put concerning the strength of the proposed judicial review application and, in particular, proposed Ground 3A (which the parties accepted represented its high-water mark). That course afforded the applicant a full opportunity to meet the Minister’s submission and enabled the merits to be assessed upon an informed basis. It did not, however, transform the hearing into the final determination of the substantive application or practically secure the extension merely because the proposed case had been fully argued. The anterior question remained whether the statutory criterion in s 477A(2) was satisfied. If time were extended and the asserted jurisdictional error could properly be determined on the argument already heard, the substantive application might then be disposed of; if further assistance were required, the matter could be restored for that limited purpose. I return to the significance, and the limits, of this course later in these reasons.

5    Before the statutory discretion can sensibly be exercised, however, it is necessary to know what happened after the Tribunal’s decision. The applicant’s explanation is not so much directly challenged but characterised as incomplete and unpersuasive. Only after relevant factual findings have been made is it possible to assess the adequacy of the explanation proffered.

6    The balance of these reasons proceeds as follows. I begin with the background and then turn to the evidence, giving particular attention to the contemporaneous documents and the findings they warrant concerning the advice provided to the applicant, the receipt of that advice, and the course thereafter taken. I then identify the governing principles, including the breadth of the evaluative judgment required by s 477A(2), the public interest in finality and the possible operation of the overarching purpose. Next, I address the two matters which, given the significant delay (and what I find to be the inadequacy of the explanation), assume particular importance: the consequences for the applicant if time is not extended and the strength of Ground 3A. Finally, all relevant strands are then drawn together in the evaluative conclusion I reach on the extension application.

B    BACKGROUND

7    The applicant is a citizen of Iraq and a Chaldean Christian. He and his family fled their home in 2014 following its occupation by Islamic State in Iraq and the Levant, also referred to as Daesh, travelled first to Kurdistan and later to Turkey, and by January 2015 the applicant, his wife, two sons, his daughter and her husband had been granted refugee status in Turkey (Tribunal Reasons (TR) [8]–[10]). In February 2019, the applicant arrived in Australia with his wife and two sons as the holder of the humanitarian visa (TR [11]).

8    On 22 April 2021, he pleaded guilty to six offences arising from the sexual touching of a 14-year-old girl, including intentionally sexually touching a child under 16 years of age, intentionally inciting a child under 16 years of age to touch him, and sexually touching another person without consent. He was sentenced to an aggregate term of ten months in gaol, with a non-parole period of four months, and made subject to supervision by the Community Corrections Service for two years (TR [19]–[22], [27]). The convictions did not follow a contested trial. Hence, by his pleas of guilty, he admitted the elements of the offences and submitted himself to sentence upon that footing.

9    On 13 May 2021, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act. A solicitor employed by Legal Aid NSW assisted him on 4 June 2021 to request revocation of the cancellation, and on 27 July 2022 the delegate decided that the cancellation should not be revoked.

10    The same solicitor assisted the applicant to lodge an application for review in the Tribunal on 5 August 2022, filed evidence on his behalf on 7 and 28 September 2022, and represented him at the hearing conducted on 4 and 5 October 2022.

11    On 20 October 2022, the Tribunal affirmed the delegate’s decision and gave an oral decision; its written reasons were provided on 21 November 2022. The Tribunal found, among other things, that the applicant had limited insight into his offending, had not accepted responsibility for it, and had blamed the victim or his former lawyer. Those matters bore upon the genuineness of his remorse, his willingness to engage in rehabilitation, and the risk of further offending.

12    The Tribunal also identified difficulties concerning credibility, including differences between information provided to the psychiatrist and evidence given at the hearing, and concluded that the seriousness and nature of the offending, together with the expectations of the Australian community, outweighed the considerations advanced in favour of revocation.

13    In considering the applicant’s claimed fear of return, the Tribunal accepted that he genuinely believed that he would be at risk of harm from Daesh because of his religion and that, although the Iraqi Government had declared victory over Daesh in December 2017, the organisation remained active in Iraq on a reduced scale (TR [13], [75]–[76]).

14    After considering the country information and the circumstances of members of the applicant’s family who remained in Iraq, the Tribunal stated that it could not make a proper assessment of whether Australia’s non-refoulement obligations were engaged and considered it appropriate to defer that issue to any protection-visa process. It did not allocate weight to that consideration (TR [75]–[84]).

15    The Tribunal concluded that the primary considerations concerning the protection and expectations of the Australian community outweighed the matters favouring revocation and that there was not another reason why the cancellation decision should be revoked (TR [109]).

C    THE EVIDENCE AND RELEVANT FINDINGS

C.1    The evidence

16    The applicant relied upon his affidavit affirmed on 30 July 2026 and the affidavit of Ms Annalise Todorovski, a solicitor employed by Legal Aid NSW, affirmed on 29 July 2026. Neither witness was cross-examined. As might already be apparent, the evidentiary parts of the court book, containing the documentary material upon which the parties relied, were tendered and marked Exhibit A.

17    The applicant’s affidavit was pitched at a high level of generality and was, on its face, incomplete. He deposed that he could not read or write, had limited English, and did not understand what was happening with his visa. He recalled joining the Tribunal hearing by video, but remembered little else about it, and said that, while detained, he was depressed, confused, worried and uncomfortable.

18    He said that all he remembered was being informed that he had been unsuccessful and should apply for a protection visa, which he understood to have been said by the Tribunal member when oral reasons were delivered on 20 October 2022. His case, as developed orally, was that this left him with the genuine understanding that a protection visa was the only course open to him; that, having regard to his illiteracy, limited English, depression, confusion and intellectual difficulties, any advice identifying alternatives was not truly understood; and that his later pursuit of a protection visa was therefore not an informed forensic election between that course and judicial review. He did not believe there was anything else he could do, did not know how to challenge the cancellation in this Court, did not remember receiving emails or letters concerning such a challenge, and did not speak to anyone about approaching the Court until 2026.

19    As to communications from his former solicitor (and despite the very extensive communications revealed in the evidence referred to below), the applicant’s account was expressed principally by reference to an absence of recollection. He did not remember being advised of his options, receiving emails or letters, or receiving a telephone call concerning an application to this Court; nor did he remember receiving an important letter dated 22 November 2022 (also discussed in detail below). Although he had access to a telephone in detention, he said that he barely used it, never checked his email inbox, and did not know how to open it until another detainee showed him. He said that any correspondence in English received by post or email would have been taken to a lawyer or to his son for explanation.

20    The applicant said he remembered that another Iraqi detainee assisted him to prepare the protection visa application, but remembered little else about the application or its progress. He also referred to his release from detention on 11 November 2024, the death of an uncle, restrictions associated with his temporary visa, contact with police, and the difficulties he experienced after his release.

21    Ms Todorovski’s affidavit addressed the circumstances in which the present proceeding came to be commenced, and the material located on Legal Aid NSW’s electronic file. She deposed that Refugee Advice and Casework Service (RACS) referred the applicant’s matter to Legal Aid on 6 May 2026 and that she first spoke with him on 13 May 2026. Before doing so, she examined the electronic file and identified a letter dated 22 November 2022 from the solicitor who had represented the applicant before the Tribunal. The letter appeared to have been sent to the applicant by email, although she could not locate the transmitting email. She also located a privileged communication generated for the purpose of sending the letter to the detention centre but could not locate an email record or confirmation of postal delivery. Her affidavit further described the steps taken from May 2026 to obtain counsel’s advice and prepare the present application.

22    The Minister also adduced evidence and relied upon the affidavit of Mr Madhav Fisher, an Australian Government Solicitor, affirmed on 2 October 2026. Mr Fisher’s evidence was based upon his own knowledge and his examination of files held by the Australian Government Solicitor and the Department of Home Affairs. The affidavit annexed the protection visa application and a series of forms and communications passing between the applicant’s successive legal representatives and the Department. That material is centrally important because it supplies an objective and tolerably detailed chronology of the course pursued by the applicant from September 2023 until the refusal of the protection visa in November 2024.

23    The material also included the Tribunal’s letter dated 20 October 2022 notifying the applicant of its decision and informing him that an application for review by this Court was ordinarily required to be made within 35 days. The letter was addressed to the applicant care of Legal Aid NSW and specified service by email only. It was also included among the documents later provided by the applicant’s solicitor to the Department in support of the protection visa application. The applicant accepted in oral argument that the Court could find that he received this letter, while submitting that, because he was illiterate, receipt did not establish that he understood its contents unless someone read and explained them to him. His affidavit later recorded that, when he attended RACS, he gave someone there his “paperwork”; the applicant relied upon the absence of the Legal Aid letter of 22 November 2022 from the documents attached to RACS’s later referral as some support for non-receipt of that letter. That evidence does not identify precisely what documents were given to RACS, but it forms part of the material bearing upon the documents available to the applicant and those assisting him.

24    On 1 September 2023, the applicant signed a Form 956 appointing Mr Yonah Bloom of Y Bloom Legal to act for him in connexion with a protection visa application. The form also identified Mr Selva Kina, a solicitor at Y Bloom Legal, as a legal practitioner with whom the Department could discuss the case. On 4 September 2023, the application for a Protection (subclass 866) visa was lodged electronically by Y Bloom Legal. The application identified Y Bloom Legal as the organisation submitting it and supplied an email address for the applicant. Whatever assistance may have been provided by another detainee in its initial preparation, the lodged application was therefore made through a firm of solicitors acting formally on the applicant’s behalf.

25    On 29 September 2023, Mr Kina, then a solicitor at Y Bloom Legal, sent an email to the Department enclosing documents in support of the protection visa application. One attachment was the Tribunal’s letter of 20 October 2022 notifying the applicant of the result of the earlier review. On 3 October 2023, Mr Kina sent a further email to the Department, incorporating an earlier chain of correspondence and providing a list of the documents supplied to that point. The communications demonstrate that, within weeks of the protection visa application being lodged, Mr Kina was communicating directly with the applicant and corresponding with the Department on his behalf.

26    The annexed correspondence plainly records direct communication between the applicant and his solicitor during the period of detention. The applicant was able, whether personally or with assistance, to communicate by email. This evidence provides an objective qualification to his present recollection that he remembers little about the protection visa application or its progress. It establishes that he had retained a solicitor, had means of communicating with the solicitor, and was receiving continuing assistance in pursuing the protection visa course.

27    On 1 February 2024, a further Form 956 appointed Mr Selva Daniel of Selva Daniel Lawyers to act for the applicant. On 2 September 2024, another Form 956 recorded a new appointment of Mr Daniel in relation to the protection visa process. On 24 September 2024, Selva Daniel Lawyers sent a further letter to the Department concerning the protection visa application. The documents thus disclose professional assistance extending from at least September 2023 until September 2024, first through Y Bloom Legal and later through Selva Daniel Lawyers.

28    On 11 November 2024, the Department notified Mr Daniel that the protection visa application had been refused. The documents described above thus disclose a course pursued with continuing professional assistance from September 2023 until November 2024. The notification records refusal under s 501(1) of the Act, but the annexure does not include the enclosed decision record.

C.2    Material findings

29    The findings required in this proceeding are to be made in the same way as findings in any other civil proceeding. The task is therefore to consider the whole of the evidence, including the applicant’s unchallenged affidavit, the affidavits of Ms Todorovski and Mr Fisher, and the contemporaneous documents, and to decide what probably occurred.

30    The absence of cross-examination of the applicant should be considered. It is often remarked that unchallenged evidence that is not inherently incredible ought generally to be accepted by the tribunal of fact (although such evidence may be rejected if it is contradicted by established facts or the particular circumstances point to its rejection: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 (at 370–371 per Gibbs J); Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 347 [77] per Mansfield and Gilmour JJ)). Here, as I have said, the applicant’s evidence is couched in non-recollection, but as to any suggestion of a lack of engagement or a lack of legal assistance, such a suggestion is relevantly contradicted or undermined by established facts emerging from the contemporaneous record.

31    Upon close analysis of the evidence, the real question became whether the applicant’s present inability to remember displaced, or materially weakened, the picture revealed by the detailed documentary record. In answering that question, the contemporaneous records provide the soundest guide to what occurred. Their force is increased, rather than diminished, by the very general character of the applicant’s evidence and his repeated acknowledgement that he remembers little of the relevant period.

32    The starting point is the Tribunal proceeding. The documentary record establishes that the applicant was assisted by a Legal Aid solicitor from June 2021, that the same solicitor commenced the Tribunal review, filed evidence and professionally prepared submissions on his behalf, and represented him at the substantive hearing conducted on 4 and 5 October 2022. The Tribunal’s reasons record the case advanced for the applicant, the evidence given by him and the matters put on his behalf. They also record that, when the Tribunal reconvened on 20 October 2022, the applicant was present by video link when its decision was announced orally. That is consistent with the solicitor’s later letter, which records a conversation with the applicant on the same day about the available courses following the Tribunal’s decision. Despite the terms of the applicant’s evidence, I find that the applicant attended and participated, with legal representation, in the substantive hearing on 4 and 5 October 2022 and was present when the Tribunal delivered its oral decision on 20 October 2022.

33    As noted at [23] above, the Tribunal’s notification letter identified the 35-day period for applying to this Court, was addressed to the applicant care of Legal Aid NSW and specified service by email only. It was subsequently supplied to the Department by the solicitor acting in the protection visa process. Counsel for the applicant properly accepted in oral submissions that it was likely the applicant received the letter, while maintaining that receipt did not establish that he understood its contents. The applicant’s affirmed evidence, however, was that English correspondence received by post or email would be taken to a lawyer or to his son for explanation. That evidence, together with his existing Legal Aid representation and the oral advice subsequently recorded by his solicitor, supports the inference that the substance of the Tribunal’s notification, including the existence of a limited period for review, was likely explained to him. In any event, the conclusion I later reach does not depend upon treating this letter, standing alone, as having supplied a complete understanding of the available courses.

34    The Tribunal supplied its written reasons on 21 November 2022. On the following day, the applicant’s solicitor prepared a letter to the applicant which recorded the written reasons as an enclosure. That letter is worth setting out in some detail because, apart from providing the written reasons, it was unusually thorough and its terms provide the best contemporaneous account of the advice given by the solicitor to the applicant. On any view, the letter was thoughtful and careful; it explained the nature and limits of judicial review, stated the deadline and the consequence of delay, addressed costs and materiality, assessed the protection-visa course, urged specialist advice, and enclosed forms through which further assistance might be sought.

35    The letter began by recording the two conversations and then stated the alternatives in express terms:

I spoke to you on 20 October and 10 November 2022 about your options after your visa cancellation matter finished at the Administrative Appeals Tribunal (the AAT).

36    The letter then recorded what had occurred during the second conversation: another person had been listening on speakerphone, interrupted after about 20 minutes and was rude and abusive; the solicitor asked that the telephone be returned to the applicant and taken off speakerphone; the advice continued until a further interruption, by which time the solicitor had finished advising the applicant. The solicitor stated:

I advised you of your options on 20 October and 10 November 2022 after the AAT’s decision, which are:

1.    Appeal to the Federal Court of Australia;

2.    Lodge a protection visa; or

3.    Choosing to return to your home country.

37    As to the first course, he wrote:

I have advised you then that you could appeal the AAT’s decision to the Federal Court of Australia (the Federal Court). I explained that the Federal Court is different to the AAT, where the Federal Court will only look at whether there was a legal error in the AAT’s decision, and that they would not look at the specific facts of your case.

The Federal Court cannot give you back your visa, and if you win at the Federal Court, you will return to the AAT for another hearing.

38    The solicitor gave his assessment candidly:

I have read your decision and could not identify any serious legal errors. If there is a serious error, I have concerns that an appeal would still fail because of ‘materiality’, meaning, in other words, that because of the facts in your first hearing, including the nature of your offences, your limited insight and non-acceptance of your offending, you would likely fail in a second hearing.

39    But he did not present that view as closing off further inquiry:

However, I am not a specialist in the Federal Court and I would recommend that you speak to a barrister who can give you more legal advice. You may wish to speak to another solicitor who can connect you with a barrister, or you may wish to speak to the Law Society of NSW. I have enclosed an Application for Pro Bono Assistance.

If you appeal to the Federal Court and you lose, you may have to pay the legal fees of the Department’s lawyers. This is called an ‘adverse costs’ order. This could be around $10,000 or more.

40    The letter identified the time limit in unmistakable terms. The date stated in the letter appears to have been one day early; nothing turns upon that discrepancy:

You have 35 days to appeal the AAT’s decision. Since the AAT made their decision on 20 October 2022, this means your last day is 23 November 2022. If you appeal after this date, you will need to ask for permission from the Federal Court to be able to lodge late. Permission is not always given. Because the AAT did not give reasons for their decision until 21 November 2022, it is possible that you can ask for more time to appeal.

41    As to the second course, the solicitor wrote:

You may choose to apply for a Protection (subclass 866) visa.

42    The solicitor then warned:

However, I do not think you have a strong chance of being granted a protection visa.

If you apply for this visa, processing may take many years and you will remain in immigration detention during this time.

43    And he finally returned to the comparative position:

I do not think you have strong merit in either an appeal to the Federal Court or applying for a protection visa, and this means that I do not think you would be granted legal aid. Despite this, you may still wish to apply for legal aid.

44    It may be possible to quibble with aspects of the solicitor’s subjective assessments, but that would be beside the present point. What the letter reveals is an evidently careful professional attempting to give practical advice about the courses then open to the applicant, while recognising the limits of his own experience and expressly directing the applicant to a barrister, another solicitor or the Law Society of NSW if he wished to obtain further advice about an application to this Court. As the extracts above demonstrate, the advice extended beyond an assessment of prospects to the nature and limits of judicial review, the time limit, the consequences of delay, potential costs and the protection visa alternative.

45    Read with the solicitor’s sustained conduct of the Tribunal matter and the detailed record of the conversations on 20 October and 10 November 2022, the letter strongly supports the conclusion that this advice had been conveyed orally and was then confirmed in writing. The solicitor recorded the circumstances of the second conversation, including the interruptions, and stated that he had finished giving the advice before the call ended. I find that both conversations occurred and that the applicant was told, in substance, of the three available courses, including the possibility of applying to this Court. The written letter subsequently identified the time limit and the possibility of seeking an extension.

46    The letter also reveals a solicitor bringing his retainer to an orderly conclusion. Having advised the applicant twice, awaited the Tribunal’s written reasons, reduced the advice to writing, identified the available courses and the applicable time limit, and enclosed the material by which further assistance might be sought, he plainly considered it appropriate to complete that work before closing his file. There is nothing to criticise in that attempt to discharge his retainer. The critical final document was not an internal draft: it was dated, signed and addressed to the applicant; bore the headings “By email” and “By post”; specified both the applicant’s email address and his address at Villawood Immigration Detention Centre; recorded enclosures; and gave the solicitor’s telephone number and email address. The file also contained the privileged communication prepared for the transmission of material to the detention centre.

47    Those features bear directly upon whether the letter was sent. When Ms Todorovski examined the electronic file in 2026, she could not locate the transmitting email or confirmation of postal delivery, but that later absence does not establish that neither act occurred. It is to be weighed against the solicitor’s demonstrated care in conducting the matter and closing the file, the final and signed character of the letter, its addressing for despatch by each of the two stated means, the arrangement of the enclosures, and the generation of the detention-centre communication. In those circumstances, it is inherently improbable that the solicitor performed every preceding step and then stopped short of sending the letter. I am satisfied, on the balance of probabilities, that it was sent by email and by ordinary prepaid post on or shortly after 22 November 2022.

48    That finding, which includes the inferred use of ordinary prepaid post, then engages s 160(1) of the Evidence Act 1995 (Cth). The statutory presumption is that a postal article sent by prepaid post to a specified Australian address was received at that address on the seventh working day after posting, unless evidence sufficient to raise doubt about the presumption is adduced. The applicant’s evidence of non-recollection does not raise such a doubt, and there is no evidence that the letter was returned or that delivery failed. Leaving aside the email transmission, I am therefore satisfied that the posted letter was received at Villawood in the ordinary course. Although the presumption concerns receipt at the specified address, rather than personal delivery to the addressee, one would ordinarily expect a letter received at a detention centre and addressed to a particular detainee to be delivered to that detainee. There is no evidence of any failure in the ordinary process of internal delivery. I therefore find it more likely than not that the letter came into the applicant’s hands.

49    The applicant could not read English, but his own evidence was that correspondence in English received by post or email would be taken to a lawyer or to his son for explanation. Having found that the letter probably came into his hands, I also consider it more likely than not that, consistently with that practice, its substance was explained to him. That does not establish that he understood every aspect of the advice, retained it accurately, or appreciated fully the distinction between judicial review and the protection-visa course. Nor is either inference (personal delivery or subsequent explanation) determinative of the adequacy of his explanation for delay. The letter did not stand alone: it confirmed the alternatives which, as I have found, had already been explained orally by the solicitor on 20 October and 10 November 2022, including the possibility of applying to this Court. The conclusion I reach rests upon the evidence as a whole, including those conversations, the Tribunal’s notification, the despatch, receipt and probable explanation of the letter, the applicant’s later pursuit with professional assistance of one of the courses which had been identified, and the absence of a satisfactory account of why judicial review was not pursued within time or for several years thereafter.

50    Even if, contrary to my view, that were not enough, the subsequent objective course is consistent with the findings already made: it tends to show that the applicant adopted one of the three courses which had been the subject of the oral and written advice.

51    The chronology at [24]–[28] demonstrates that the applicant authorised solicitors to pursue the protection visa application and received continuing professional assistance for more than a year. Whatever assistance another detainee provided initially, this was not an application placed into the system and thereafter left unattended.

52    There remains a material gap in the state of the evidence. The applicant, upon whom the onus lay to explain the delay, adduced no evidence from Mr Daniel or any other practitioner who acted in the protection visa process and gave no detailed account of the scope of any retainer, the instructions he gave, the advice he received, or the documents made available to those practitioners. The relevant practitioner files were not produced. The applicant submitted that the Court should infer only that he instructed the solicitor to pursue a protection visa because that was the course in fact taken. That inference may be drawn, but it does not explain whether judicial review was considered, what advice was given about the alternatives, or why a solicitor acting for a client with the disclosed disadvantages proceeded as he did. The Court therefore does not know whether the letter of 22 November 2022 formed part of a later solicitor’s file, whether Mr Daniel or any other practitioner examined the possibility of judicial review before pursuing the protection visa course, or what advice was given upon the available alternatives. It is unnecessary to speculate about those matters or to draw an inference under Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. What is known from the contemporaneous material is sufficient: a representative was formally appointed; an application was lodged in the applicant’s name; documents were gathered and submitted; communications occurred with the Department; appointments were renewed or changed; and further representations were made. At the very least, those documents support the inference that the protection-visa course was pursued with the applicant’s authority and continuing professional assistance.

53    It is unnecessary to find that the applicant made a legally sophisticated assessment of comparative prospects, or that he retained a precise understanding of the distinction between merits review, judicial review and a protection visa. I accept his evidence as to his illiteracy, limited English, detention, depression and dependence upon others. I also take account of the practical difficulty, emphasised in oral submissions, of obtaining specialist advice while detained; the fact that Legal Aid closed its file after recommending that he seek advice from a barrister or another solicitor; and the applicant’s submission that he did not move immediately to judicial review when the protection visa was refused in November 2024, but did so only after RACS referred him to Legal Aid and counsel later identified an arguable case in 2026. Those matters make it unsafe to characterise the course taken as a calculated stratagem of keeping judicial review in reserve. My affirmative finding is narrower. The applicant had been represented throughout the Tribunal process; he participated in the hearing; he received the Tribunal letter and was thereafter advised orally on two occasions of three alternative courses; the advice was confirmed in a letter which was sent and received; and he later pursued, through solicitors, one of those courses. The conclusion I draw from the whole of the evidence is that he was given a proper opportunity to understand that an application to this Court was available and thereafter proceeded with the protection visa application. Whether or not that course should be described as a forensic election, the evidence falls short of explaining satisfactorily why judicial review was not pursued within time or for several years thereafter.

54    It follows from these findings that the applicant has failed to provide a sufficient explanation for the delay of more than three years and eight months between the Tribunal’s decision and the commencement of the present application for an extension of time.

D    RELEVANT LAW

55    Section 477A(2) provides that the Court may extend the prescribed period if satisfied that it is necessary in the interests of the administration of justice to do so. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (at 588–589 [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ), the plurality emphasised that the level of satisfaction required by that language “is not low”: it is insufficient that an extension would merely be desirable, convenient or productive of a fairer opportunity to litigate. The discretion is broad and is not confined by an exhaustive catalogue of considerations, although matters ordinarily bearing upon its exercise include the length of the delay, the explanation for it, any prejudice occasioned by it, the apparent merits of the proposed proceeding, the consequences of refusing an extension, and the circumstances personal to the applicant. Those considerations are neither statutory preconditions nor boxes to be marked off separately; they inform the ultimate evaluative judgment required by the language Parliament chose.

56    The breadth of the discretion does not dilute the statutory criterion. As Kiefel CJ, Gageler, Keane and Gleeson JJ explained in Tu’uta Katoa (at 588–589 [12], 591–592 [18]), the Court must reach the affirmative state of satisfaction expressed in s 477A(2)(b), and the strength required of the proposed case may vary with the other circumstances. Where delay is lengthy and poorly explained, the merits may need to be exceptional before they can justify relief; conversely, an evidently futile proposed proceeding will ordinarily make an extension impossible to justify. A conclusion that a ground is reasonably arguable is therefore relevant and may carry real weight, but it does not itself answer whether the administration of justice requires that a proceeding, which Parliament expected to be commenced within the prescribed period, be permitted to begin years later.

57    The authorities also reveal a settled concern where a person, aware that an earlier public decision may be challenged, elects to pursue another avenue and seeks to return to the former only after the preferred course has failed. The Full Federal Court discussed that concern in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 (at 526–527 [21]–[24] per Black CJ, Sackville and Sundberg JJ). It has also been treated as capable of weighing heavily against an extension by Wigney J in Tran v Minister for Immigration and Border Protection [2014] FCA 533 (at [36]), Davies J in MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 (at [4]), Griffiths J in NAPF v Minister for Immigration and Border Protection [2017] FCA 117 (at [8]–[10]), and Perry J in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 (at [17]–[18]). Stewart J expressed the principle in ERE18 v Minister for Home Affairs (No 2) [2021] FCA 1346 (at [20]): the public interest in finality will generally outweigh delay in exercising review rights while another course is pursued as “Plan A”, with review held in reserve as “Plan B”.

58    The concern identified in those authorities is an aspect of the public interest in finality. As McHugh J explained in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 (at 495–496 [15]–[17] per McHugh J), there must be an end to litigation concerning the efficacy of acts and decisions of public bodies and officials, and that interest cannot be held hostage to an applicant’s search for favourable legal advice. The absence of demonstrated forensic prejudice to a respondent remains relevant, but is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 (at [6]). It does not explain the delay or exhaust the public interests served by the statutory time limit.

59    In another recent case involving evidence found insufficient to explain a lengthy delay, Kennett J gave, with respect, a particularly helpful account of the authorities governing the place of the proposed proceeding’s prospects of success in the exercise of the discretion: BQNZ v Minister for Immigration and Citizenship [2026] FCA 857 (at [22]–[33]). It would be surplusage for me to retrace the same ground. I respectfully adopt his Honour’s analysis and summarise its effect as follows.

60    First, as explained at [55]–[56], s 477A(2) requires a broad evaluative judgment controlled by the requirement that an extension be necessary in the interests of the administration of justice: Tu’uta Katoa (at 588–589 [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ). The statutory expression sets a standard which is not low. The Court is required to consider the circumstances as a whole rather than apply an inflexible catalogue of conditions or treat any one consideration as conclusive.

61    Secondly, the apparent merits of the proposed proceeding are relevant because it would ordinarily be contrary to the administration of justice to extend time for a proceeding which is bound to fail. But the converse does not follow. The identification of an arguable, or even a strong, ground does not of itself establish that an extension is necessary. Were it otherwise, the statutory limitation period would have little work to do whenever a proposed applicant could disclose a serious question for determination.

62    Thirdly, the degree of examination which the Court should undertake, and the strength of the case which may be required, depend upon the other circumstances. Where the delay is short and satisfactorily explained, it may be enough that the proposed proceeding is reasonably arguable. Where the delay is lengthy and inadequately explained, the applicant may need to demonstrate an exceptional case. That does not convert “exceptional” into a separate statutory test. It describes the practical consequence of weighing the merits against a grave default in complying with the prescribed period.

63    Fourthly, and at the risk of repetition, even strong prospects may not supply what is absent from the explanation for delay. Other circumstances may be required before the administration of justice can be said to make an extension necessary, including the seriousness of the consequences for the applicant, the quality of the explanation, any conduct of the respondent which contributed to the delay, the existence or absence of prejudice, and the public interest in the finality and orderly administration of migration decisions. The weight to be given to each matter is fixed by the facts of the particular case.

64    The only further matter I would add is one I raised during oral submissions. Part VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) applies to civil practice and procedure provisions. Section 37M(4)(b) includes, so far as they apply in relation to civil proceedings, provisions made by or under the FCA Act or another Act with respect to the practice and procedure of the Court. Section 37M(3) requires the Court to exercise powers given by civil practice and procedure provisions in the way that best promotes the overarching purpose. That purpose, stated in s 37M(1), is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

65    I have remarked elsewhere upon the tendency of migration proceedings to be conducted as though they stood apart from the ordinary incidents of civil litigation. In CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936 (at [1]), I said:

There seems to be a deeply entrenched misconception among some practitioners of this Court that migration litigation is some form of Galápagos Island where the ordinary rules do not apply, including the provisions of Pt VB of the Federal Court of Australia Act 1976 (Cth).

66    But migration proceedings invoking the Court’s jurisdiction under the Migration Act 1958 (Cth) remain civil proceedings. They are not separated from the procedural mainland or immune from the principles governing the practice and procedure of this Court in other civil litigation.

67    As I have explained, s 477A(1) requires an application within its scope to be made within 35 days of the date of the migration decision. Under s 477A(2), the Court is provided with a procedural discretion to extend that period where a written application specifies why an extension is considered necessary in the interests of the administration of justice and the Court is satisfied that making the order is necessary in those interests.

68    It seems to me that s 477A of the Act is a “civil practice and procedure provision” within the meaning of s 37M(4) of the FCA Act. It fixes the period within which the Court’s civil jurisdiction may be invoked and confers upon the Court a procedural power to relieve against non-compliance with that period. Neither party, however, was able during oral argument to give considered submissions upon that characterisation. Subject to that qualification, I consider that s 477A should be construed, and the discretion in s 477A(2) exercised, in the way which best promotes the overarching purpose. That consideration does not, of course, displace the express statutory requirement that an extension be necessary in the interests of the administration of justice. It bears upon the content and application of that requirement by directing attention to the just, timely, economical and efficient resolution of disputes.

69    Moving from the broad nature of the statutory task and the considerations which ordinarily bear upon it, one useful aspect of Kennett J’s analysis in BQNZ is that it provides a more focussed way of identifying the matters capable of operating in favour of an extension where the delay is lengthy and no sufficient explanation has been given. His Honour did not treat those matters as exhaustive or as substituting a different test for that stated in s 477A(2). Rather, they directed attention to the countervailing considerations which might still persuade the Court that an extension was necessary in the interests of the administration of justice. In that connexion, Kennett J observed (at [32]–[33]):

The Minister properly did not claim to be prejudiced by the delay. However, quite apart from individual prejudice, s 477A(2) embodies an important value. The 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.

In order to grant an extension of time in these circumstances, therefore, I would need to be persuaded that:

(a)    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

(b)    the consequences for the applicant are extraordinary in their seriousness.

70    For the reasons already explained, the matters identified by Kennett J are not exhaustive conditions superimposed upon s 477A(2). They nevertheless provide a useful focus where, as here, the delay is substantial and inadequately explained. I consider first the consequences for the applicant if the extension is refused.

E    CONSEQUENCES FOR THE APPLICANT

71    Before turning to the applicant’s circumstances, it is important to identify what is meant, in this setting, by the “consequences for the applicant”. Kennett J’s treatment of that matter in BQNZ at [34] and [36] shows that the inquiry is directed to the practical consequences which refusal of an extension will visit upon the particular applicant, assessed by reference to the evidence, and asks whether they are extraordinary in their seriousness. It is one thing for the underlying migration decision to have grave consequences of a kind commonly attending an adverse decision about a person’s entitlement to remain in Australia; it is another thing if there is something in the nature, degree or demonstrated operation of the consequences in the particular case which gives them an exceptional quality capable of bearing the weight required by s 477A(2), notwithstanding a lengthy and inadequately explained delay.

72    This distinction matters. Refusal of an extension leaves the impugned decision in place; it does not itself make the removal decision or determine any protection claim. Nor does the seriousness of the consequences dispense with attention to whether they are established on the evidence and whether they differ in kind or degree from those ordinarily produced when a person fails, within time, to challenge an adverse migration decision. Kennett J’s reference to consequences “extraordinary in their seriousness” should not be understood as placing a gloss upon the statutory expression “necessary in the interests of the administration of justice”, or as erecting an additional threshold which must be crossed in every case. It reflects the practical weight which consequences favouring an applicant would need to bear where, as here, the delay is very long, no adequate explanation has been given for it, and the public interest in finality weighs heavily against extension.

73    In the present case, the consequences of refusing the extension are serious. The Tribunal’s decision not to revoke the mandatory cancellation of the applicant’s visa will remain undisturbed. He will not, through this proceeding, regain the humanitarian visa under which he entered Australia; the protection visa course which he later pursued has failed; and he faces continued uncertainty as to his status in Australia and the prospect of removal.

74    Those consequences fall upon a person who is illiterate, speaks limited English, has experienced depression, spent a lengthy period in immigration detention, and depends heavily upon others in dealing with legal and administrative processes. He is a Chaldean Christian from Iraq who has expressed a fear of harm from Daesh. The Tribunal accepted that his fear was genuinely held. The applicant also came to Australia with members of his immediate family, and removal would carry the prospect of separation from those connexions and the disruption which that would entail. I take all of those matters fully into account.

75    Against that background, the evidence does not persuade me that the consequences possess the practical weight which would be required to counterbalance the powerful considerations arising from the length of the delay and the absence of an adequate explanation. To adopt Kennett J’s description, they are not “extraordinary in their seriousness”; but that expression is descriptive of the evaluative conclusion reached in the circumstances, rather than a separate bar which the applicant was required to surmount. The applicant subsequently pursued a protection visa application with legal assistance, but that application was refused on character grounds. That refusal does not establish that his claimed fear of harm was assessed and rejected. His literacy, language, mental health, detention and family circumstances bear upon the human seriousness of his position, but they do not establish that refusal of this extension would produce consequences of a weight sufficient to alter the conclusion otherwise indicated by the evidence. Accordingly, although the consequences weigh in the applicant’s favour, they do not carry sufficient weight, when considered with the other circumstances, to support the grant of an extension.

F    THE STRENGTH OF THE APPLICANT’S SUBSTANTIVE CASE

76    As already stated, both parties proceeded on the basis that proposed Ground 3A represented the high-water mark of the applicant’s substantive case. It is therefore appropriate to concentrate upon that ground, while addressing briefly the related contention in proposed Ground 3. Ground 3 alleged that, in considering the extent of the impediments the applicant would face if removed to Iraq, the Tribunal failed to consider whether it should proceed upon the assumption contemplated by para 9.1(6) of Direction 90: namely, that, where there is no accepted finding that Australia owes non-refoulement obligations and the person relies upon a fear of harm upon return, the threatened harm should be assumed to occur for the purpose of assessing the extent of the impediments. The applicant submitted that the contention had been raised squarely in his statement of facts, issues and contentions, but was not addressed in the Tribunal’s reasons.

77    This contention has force, but it does not materially strengthen the case for an extension beyond Ground 3A. Ground 3 depends upon the construction and application of para 9.1(6), including whether the circumstances in which the Direction required the asserted assumption were engaged and whether, reading the reasons as a whole, the Tribunal’s consideration of the applicant’s experiences, the contemporary country information, the circumstances of his family and the impediments to removal answered the substance of the contention. Ground 3A raises the broader and logically anterior question whether, having deferred the determination of non-refoulement obligations, the Tribunal failed to evaluate the applicant’s accepted subjective fear and the asserted objective risk as matters bearing independently upon whether there was another reason to revoke the cancellation.

78    If Ground 3A is assessed as having strong prospects, Ground 3 does not add materially to the weight carried by the proposed substantive case; if Ground 3A ultimately fails because the reasons disclose that the fear and risk were evaluated, much of the factual foundation for Ground 3 would require reconsideration in that light. I have therefore considered Ground 3 independently, but do not regard it as altering the assessment of the strength of the proposed proceeding or the evaluative conclusion under s 477A(2).

79    I have also considered Ground 1 in its narrowed form, which challenges the Tribunal’s findings concerning earlier alleged conduct and its reasoning concerning escalation and the risk of reoffending. Without finally determining that ground, I do not regard it as strengthening the case for an extension beyond Ground 3A. It does not alter the evaluative conclusion reached below.

80    Returning to Ground 3A, the applicant’s written submissions begin with the principle stated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (at 605 [39] per Kiefel CJ, Keane, Gordon and Steward JJ). Although a decision-maker may defer the determination of Australia’s non-refoulement obligations to a protection-visa process, it does not follow that the facts alleged in support of the protection claim may also be put to one side. Where those facts are advanced as supporting another reason for revocation, the decision-maker must evaluate the representation in that distinct connexion.

81    The applicant relied particularly upon Owens J’s decision in ZKDP v Minister for Immigration and Citizenship [2026] FCA 502 (at [24]–[25], [27]–[29] and [35]–[36]). The applicant in that case was an Afghan Hazara who had represented that, if returned to Afghanistan, he would be tortured and killed by the Taliban. The Tribunal deferred consideration of Australia’s non-refoulement obligations to a protection-visa process. Owens J explained that the permissibility of that course did not dispose of the separate question presented by the factual claims underlying the protection claim. The applicant could not reasonably be understood as relying only upon the existence of an earlier protection assessment or upon the proposition that Australia owed him non-refoulement obligations. He was also asserting that the facts which had caused him and his family to flee Afghanistan continued to exist, that he feared death at the hands of the Taliban, and that the hardship and danger he would face upon return were matters bearing upon the extent of the impediments to his removal. Those factual claims therefore had to be assessed independently of the deferred non-refoulement question and, if accepted, weighed in the balance required by s 501CA(4). Owens J held that the Tribunal’s failure to perform that distinct task constituted jurisdictional error.

82    The applicant submitted that his case fell within the same category. His case before the Tribunal was not confined to an assertion that Australia owed him non-refoulement obligations. He had represented that, as a Chaldean Christian, he genuinely feared that he would be harmed or killed by Daesh if returned to Iraq; that he had witnessed Daesh behead three men; that he and his family had received threats requiring conversion to Islam, payment of a tax or death; and that Daesh remained active in Iraq. The Tribunal accepted that his fear was genuinely held and that, although the Iraqi Government had declared victory over Daesh in December 2017, the organisation remained active in Iraq on a reduced scale and continued to kill and abduct civilians. It concluded, however, that it could not make a proper assessment of whether Australia’s non-refoulement obligations were engaged, deferred that question to any protection-visa process, and allocated no weight to that consideration. The applicant contended that, as in ZKDP, the permissibility of deferring the non-refoulement question did not answer whether the factual substratum of the claim, his accepted subjective fear, the continuing activity of Daesh, his religion, and the asserted risk of death or serious harm, was itself a matter to be assessed and weighed as another reason favouring revocation, including as an impediment he would face upon removal.

83    The Minister disputed that characterisation of the reasons. He accepted that the applicant had represented that, as a Chaldean Christian, he feared and was at risk of harm, including death, from Daesh if returned to Iraq, and that the Tribunal was required to consider those representations. Ground 3A therefore turned, in the Minister’s submission, upon the factual question whether the Tribunal took account of the alleged facts underpinning the claim: Plaintiff M1/2021 (at 605 [39] per Kiefel CJ, Keane, Gordon and Steward JJ). The reasons were not to be read with an eye attuned to the perception of error and, read fairly, the Tribunal did not treat the factual substratum as having disappeared with the deferral of the non-refoulement question.

84    The Tribunal accepted at TR [75] that the applicant genuinely feared persecution, but observed that his fear seemed to be rooted in the situation which had existed in Iraq in 2014. It then examined the present position: the Iraqi Government’s declaration of victory over Daesh in December 2017; the reduced size and activity of that organisation, notwithstanding its continuing attacks and abductions; country information concerning the position of Christians; the ability of the applicant’s mother and brothers, all practising Chaldean Christians, to attend a publicly identifiable church without threat or attack since 2014; and the absence from his wife’s evidence of any expressed fear of Daesh or terrorists.

85    At TR [81], the Tribunal concluded, albeit somewhat tentatively, that the position of Chaldean Christians might have changed for the better since the applicant fled. The Minister submitted that the premise of this reasoning was that the applicant’s experiences in Daesh-occupied Iraq in 2014 did not establish that, in 2022, he faced a substantial risk of death or serious harm from Daesh upon return.

86    The Minister further relied upon the Tribunal’s treatment of the impediments to removal at TR [89]–[102]. It did not there identify harm from Daesh as an impediment and found at TR [100] that the applicant would have his mother and brothers around him and would be able to attend church. That reasoning was said to be consistent with the earlier assessment that the applicant’s life in Iraq would resemble that of family members who practised their religion openly without recent threat or attack. Although the Minister had conceded before the Tribunal that the applicant’s fear was relevant to the impediments he might face, the Minister submitted that the Tribunal did not overlook that fear; it accepted, at TR [13] and [75], that the fear was genuinely held, but did not accept that it rested upon a present substantial risk. The Minister also contended that TR [84], where the Tribunal said it could not make a proper assessment of non-refoulement obligations, was principally directed to the additional and undeveloped claims recorded at TR [82] concerning the political climate and the applicant’s flight from Iraq, rather than to the separately examined Daesh claim.

87    The applicant joined issue with each step of that analysis. He submitted that the tentative language at TR [81] could not properly be converted into a finding that the risk from Daesh was insubstantial. The Tribunal had accepted both that his fear was genuine and that Daesh remained active and continued to kill and abduct civilians. Its statement at TR [84] was, on the applicant’s reading, directed to the whole body of material concerning the objective risk, rather than only to the additional claims mentioned at TR [82]. The conclusion that no weight would be allocated to “this consideration” was said to disclose that, once the non-refoulement inquiry was deferred, neither the objective risk nor the accepted subjective fear was separately placed in the balance as another reason for revocation.

88    As to subjective fear in particular, the applicant submitted that it was not open to doubt that the Tribunal accepted the fear as genuine. The contest was therefore not whether that mental state existed, but whether it was independently evaluated for its practical effect upon the applicant if removed. His submissions before the Tribunal had clearly articulated that fear, the Minister had conceded its relevance to impediments, and ZKDP (at [34]–[35]) illustrated that an accepted subjective fear may itself bear upon the hardship or impediments associated with return, even where the objective risk remains to be determined. The applicant submitted that the Tribunal’s discussion of his family’s circumstances and ability to attend church might bear upon objective risk, but did not answer what weight, if any, was given to his own accepted fear. Nor, he contended, could the Court supply the missing evaluative step by inferring that the Tribunal regarded the fear as immaterial because it considered the objective risk insubstantial.

89    For completeness, it should also be noted that the Minister disputed materiality, relying upon the Tribunal’s assessment of the present risk, the seriousness of the offending, its reservations concerning insight and rehabilitation, and the weight attributed to the protection and expectations of the Australian community. The applicant answered that the asserted error concerned a condition governing the Tribunal’s process of reasoning under s 501CA(4); if accepted, it was not for the Court to reconstruct the balance which the Tribunal might have struck had the accepted fear and asserted risk been treated as separate considerations. The omission of matters capable of bearing upon hardship and impediments left a realistic possibility of a different evaluative outcome.

90    These competing submissions show both the force of Ground 3A and the nature of the contest upon which its ultimate success depends.

91    This is an application for an extension of time, rather than the final hearing of the proposed judicial review application. The approach to the merits must reflect that distinction. In BHRR v Minister for Immigration and Citizenship (No 2) [2026] FCA 250 (at [59]–[60]), Wheelahan J explained that the prospects of success will often be assessed at a relatively “impressionistic level”, although the nature of a proposed ground and its connexion with the other considerations bearing upon the statutory discretion may warrant examination in some detail. The extent of that examination depends upon the circumstances. The essential requirement is that the assessment remain directed to the statutory question whether an extension is necessary in the interests of the administration of justice. That approach accords with Kennett J’s observation in BQNZ that the assessment of merits at this stage is necessarily abbreviated, and it informs the degree of attention I have given to Ground 3A.

92    Where the merits are reasonably arguable, or fuller consideration is required before a concluded view can be formed, the Court may hear the extension application and the proposed substantive application together and, where appropriate, grant the extension and determine the substantive application in the same disposition. As explained at [3]–[4], I heard full argument upon Ground 3A to enable its strength to be assessed on an informed basis.

93    That course did not alter the anterior statutory question. Full argument upon the proposed ground informed the assessment of its merits; it did not relieve the applicant of establishing that an extension was necessary in the interests of the administration of justice.

94    Upon that footing, and without finally deciding the proposed ground, I am prepared to characterise Ground 3A as strong. The applicant identifies a real distinction between deferring the determination of non-refoulement obligations and considering the alleged facts underpinning the claim as part of the “another reason” inquiry. The Tribunal’s acceptance that the applicant’s fear was genuine, its acknowledgment that Daesh remained active and continued to kill and abduct civilians, and its ultimate statement that it could not make a proper assessment of non-refoulement obligations and would allocate no weight to that consideration provide a substantial foundation for the contention that the separate evaluative task was not performed. The point concerning subjective fear has some force because of the position adopted by the Minister below as to its relevance and the fact that the existence of that fear was accepted.

95    Even so, the Minister’s answer is not unarguable. The Tribunal did not ignore the Daesh claim. It examined the applicant’s experiences, the contemporary country information and the circumstances of his family, and its later discussion of impediments is capable of being read with that earlier analysis. Whether TR [81] amounted to a finding that the present objective risk was insubstantial, whether TR [84] was confined principally to the undeveloped claims at TR [82], and whether the accepted subjective fear was implicitly evaluated or instead omitted from the balance are contestable questions arising from a fair reading of the reasons as a whole. The applicant’s response exposes potential difficulties in the Minister’s contention, but it is neither necessary nor appropriate to resolve those matters (and any issue as to materiality) finally.

96    Accordingly, for the purposes of the extension application, I proceed on the basis that Ground 3A has strong prospects of establishing jurisdictional error. That assessment extends to materiality. If the Tribunal failed to evaluate the applicant’s accepted subjective fear and the asserted objective risk as matters bearing independently upon whether there was another reason to revoke the cancellation, there is a realistic possibility that the performance of the required evaluative task could have produced a different result. This conclusion remains an impressionistic assessment of prospects made for the purpose of s 477A(2), rather than a final determination of Ground 3A.

G    EVALUATIVE CONSIDERATION

97    The conclusions which bear upon the exercise of the discretion may be shortly gathered together.

98    First, the inadequately explained delay exceeds three years and eight months. This is not a case in which an applicant, through ignorance and disadvantage, remained wholly unaware of an available avenue of review. The applicant was represented, participated in the Tribunal process, received oral and written advice identifying the course of review in this Court and the applicable time limit, and then, with further professional assistance, pursued the alternative course of seeking a protection visa. The chronology is important. There was no satisfactory explanation for the period between the expiry of the prescribed time in November 2022 and the lodgement of the protection visa application in September 2023. The pursuit of that application with professional assistance between September 2023 and its refusal in November 2024 does not explain why judicial review was not considered or commenced during that period. More tellingly, once the protection visa application had been refused, a further period of approximately eighteen months elapsed before RACS referred the matter to Legal Aid NSW on 6 May 2026. The evidence concerning the applicant’s release from detention, the death of his uncle, the restrictions associated with his temporary visa, his contact with police and the difficulties he experienced after release has been taken into account, but does not explain why he did not seek advice concerning judicial review during that further period. By contrast, I do not regard the interval between the referral to Legal Aid NSW on 6 May 2026 and the commencement of this proceeding on 29 July 2026 as operating against the applicant. Ms Todorovski’s evidence makes clear that the advice of junior counsel was obtained before Legal Aid NSW acted in this proceeding. From the time she became involved, she acted promptly and responsibly in obtaining that advice and thereafter in preparing and commencing the proceeding.

99    Secondly, in exercising the procedural discretion conferred by s 477A(2), I must act in the way which best promotes the overarching purpose. The timely and efficient resolution of migration disputes gives practical content to the public interest in the finality of administrative decisions once the period fixed by Parliament has passed. To grant an extension after a delay of this magnitude, in the absence of an adequate explanation and after the applicant pursued another statutory course with legal assistance, would be inimical to that purpose.

100    But, before moving on, I should make plain that the ultimate result does not depend upon that conclusion concerning Part VB. If facilitating the overarching purpose were left entirely out of account, the public interest in finality identified by McHugh J in Re Commonwealth; Ex parte Marks, together with the length and inadequacy of the explanation for the delay, the applicant’s pursuit, after receiving advice, of another statutory course, and the other considerations addressed below, would lead to the same result. The characterisation of s 477A as a civil practice and procedure provision therefore reinforces, but is not necessary to, the conclusion I have reached.

101    Thirdly, I take fully into account the serious consequences identified at [73]–[75]. For the reasons given there, however, they do not carry sufficient weight to counterbalance the considerations against extension.

102    Fourthly, the strength of Ground 3A, assessed above, carries considerable weight in favour of an extension. It does not compel that result, but must be weighed with the other circumstances under s 477A(2).

103    In having regard to the strength of the case, the Minister initially invited me to adopt the approach in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 (at [18]–[19]). Perry J found (at [18]) that the lengthy delay was inadequately explained and stated (at [19]) that, in those circumstances, it was unnecessary to consider whether the proposed appeal lacked sufficient merit to warrant leave (although her Honour proceeded to address the merits). If that passage were understood to mean that an inadequate explanation is necessarily dispositive, I would respectfully be unable to adopt it. I do not understand Perry J to have intended to state such a rule. Section 477A(2) calls for a broad evaluative judgment; as explained in Tu’uta Katoa (at 588–589 [12], 591–592 [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ), the Court must consider what is necessary in the interests of the administration of justice in the circumstances as a whole, and the matters bearing upon that inquiry are not statutory preconditions to be applied sequentially or conclusively.

104    The absence of an adequate explanation is therefore not treated as ending the inquiry. I have weighed it with the very long delay, the applicant’s opportunity, after receiving advice, to invoke this Court’s jurisdiction, his pursuit of the protection visa course with legal assistance, the public interest in finality, the overarching purpose, the serious though not extraordinary consequences for him, and the strength of the proposed substantive case. The absence of forensic prejudice to the Minister has also been taken into account.

105    Viewed as a whole, the considerations against an extension remain compelling. The delay is lengthy; substantial parts of it are unexplained despite the applicant having received advice identifying judicial review and the applicable time limit, and despite his access to professional assistance while pursuing the protection-visa course. The statutory period had expired before that course was commenced, remained unaddressed while it was pursued, and was followed by a further period of approximately eighteen months after its failure during which no advice concerning judicial review was sought. Those matters engage the public interest in finality with considerable force. That interest is not exhausted by the absence of prejudice to the Minister, and the discretion cannot be exercised upon the footing that a decision which has acquired finality may ordinarily be reopened years later whenever a proposed ground is subsequently assessed as having strong prospects.

106    To repeat, I have given substantial weight to the strong prospects of Ground 3A, including on materiality, the serious consequences for the applicant, his personal disadvantages and the absence of demonstrated forensic prejudice. The strength of the proposed ground carries substantial weight, but it does not displace the combined force of the extraordinary delay, the absence of a satisfactory explanation for its material periods, the advice and legal assistance which were available to the applicant, and the public interest in the finality of administrative decisions. Having weighed all of those matters together, I am not affirmatively satisfied that an extension is necessary in the interests of the administration of justice.

H    CONCLUSION

107    The application for an extension of time must therefore be dismissed. There is no reason why costs ought not to follow the event and the applicant must pay the Minister’s costs.

Associate:

Dated: 22 October 2026