Federal Court of Australia

Razwantee v Minister for Immigration and Citizenship [2026] FCA 1649

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant is citizen of Mauritius who has, with one brief exception in 2016, lived in Australia since 2007. The applicant arrived in Australia holding a student visa and upon the expiry of that visa, has remained in Australia on a series of bridging visas.

2    In 2022, the applicant was granted a Temporary Graduate (Class VC) (Subclass 485) visa which allowed him to stay in Australia until October 2023.

3    In March 2023, the applicant pleaded guilty in the District Court of Western Australia to using an electronic communication with the intent of exposing a person under the age of 16 years to an indecent matter. The applicant was sentenced to 18 months’ imprisonment, with a non-parole period of nine months.

4    In May 2023, the applicant’s Temporary Graduate visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on character grounds. A delegate of the first respondent (the Minister) subsequently decided not to revoke the cancellation pursuant to s 501CA(4).

5    The applicant applied to the Administrative Appeals Tribunal (as it then was) seeking a review of the non-revocation decision. In February 2024, that Tribunal set aside the delegate’s decision and substituted for that decision, a decision that the mandatory cancellation of the applicant’s visa be revoked pursuant to s 501CA(4) of the Act. Nonetheless, because the applicant’s visa had expired in October 2023, when he was released from prison in September 2024, he was placed directly into immigration detention.

6    In late 2024, the applicant applied for a Visitor (Medical Treatment) (Class UB) visa. Upon making that application, the applicant was granted a bridging visa and in December 2024 was released from immigration detention.

7    However, that bridging visa was cancelled and the applicant was placed back into immigration detention after it was concluded that his application for the Medical Treatment visa was invalid.

8    In January 2025, the applicant applied for the bridging visa the subject of these proceedings (Bridging E visa), and in March 2025, a delegate of the Minister refused that application pursuant to s 501(1) of the Act on character grounds and on the basis of the same offending that grounded the decision to cancel his Temporary Graduate visa pursuant to s 501(3A).

9    The applicant subsequently applied for a review of that decision to the Administrative Review Tribunal. On 19 June 2025, the Tribunal affirmed the delegate’s decision.

10    By a further amended application for an extension of time filed 13 May 2026, the applicant applies for an extension of time within which to file an application for judicial review of the Tribunal’s decision.

11    The application for an extension of time is supported by an amended draft application, dated 13 May 2026, in which the applicant seeks:

(a)    an extension of time within which to file the application for judicial review to 17 November 2025;

(b)    a writ of certiorari quashing the Tribunal’s decision;

(c)    a writ of mandamus requiring the Tribunal to determine the applicant’s application for review according to law; and

(d)    costs.

12    The draft application, in summary, comprises two grounds of review:

(1)    The Tribunal’s assessment of the weight attributable to the “protection of the Australian community” in Ministerial Direction 110 was irrational, illogical and/or unreasonable because the Tribunal failed to assess how the limited time the applicant would be exposed to the community would impact the risk against which protection was required; and

(2)    The Minister was precluded from exercising the power prescribed by s 501(1) of the Act to refuse the applicant’s application for a Bridging E visa, on the basis of the same offending that had previously provided the basis for the mandatory cancellation of the applicant’s Temporary Graduate visa under s 501(3A).

13    It is for the following reasons that the application for an extension of time is refused.

Procedural background

14    After the Tribunal affirmed the delegate’s decision on 19 June 2025, on 24 July 2025, the applicant’s then-solicitor filed an application for judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia, apparently unaware that because the Tribunal’s decision was made under s 500 of the Act, that Court had no jurisdiction to consider such an application.

15    Between 30 July and 17 November 2025, the applicant’s former solicitor attempted to file a notice of appeal and application for an extension of time in this Court, but the documents were rejected on the basis of errors in the relevant forms.

16    Ultimately, on 17 November 2025, the applicant’s former solicitor filed an application for an extension of time in this Court, together with a draft application for judicial review and an affidavit explaining the delay, to which the Tribunal’s reasons (R) were annexed.

17    On 18 November 2025, the applicant’s former solicitor filed an amended application for an extension of time. The purpose of the amended application appears to have been to correct a typographical error.

18    The applicant’s former solicitor subsequently filed a notice of ceasing to act on 3 March 2026. Later that month, a solicitor and counsel accepted a referral from the Registry of this Court for pro bono assistance for the applicant and on 13 May 2026, filed a further amended application for an extension of time.

19    The applicant now seeks to rely on that further amended application and the proposed grounds of review in the accompanying amended draft application for judicial review dated 13 May 2026.

Application for an extension of time

20    The Tribunal’s decision was made on 19 June 2025. The period in which the applicant could bring an application for judicial review of that decision as of right expired 35 days later, being 24 July 2025: s 477A(1) of the Act.

21    The applicant seeks an extension of time within which he is entitled to file the application for judicial review of the Tribunal’s decision to 17 November 2025, the date by which the application was filed. In support of his application, the applicant reads his affidavit sworn on 12 November 2025 in support of the application for an extension of time and the affidavit of his solicitor, Mr Mitchell Simmons, affirmed on 13 May 2026. The application is opposed by the Minister.

22    The relevant principles applying to an application to extend time are not in dispute.

23    Considerations that are relevant to the exercise of the Court’s discretion to grant an extension of time include:

(a)    the length of the delay;

(b)    the explanation for the delay;

(c)    any prejudice to the administration of justice as a result of the delay;

(d)    whether the other party will suffer any prejudice by the extension of time;

(e)    the prejudice to the applicant if time is not extended; and

(f)    whether the proposed grounds of review have sufficient merits to warrant extending time.

See Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [40] (Gordon, Edelman and Steward JJ); WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [28] (Derrington J).

24    As to the merits of the proposed grounds of review, in Katoa, Kiefel CJ, Gageler, Keane and Gleeson JJ held: at [17]-[18]:

17.    … [I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

18.    However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

(Citations omitted)

25    Ultimately, the issue comes down to whether it is in the interests of the administration of justice to make an order extending the time for making an application for review for the purpose of s 477A(2).

Parties’ submissions and consideration

26    The Minister objects to an extension of time based on the length of the delay, the inadequate explanation for the delay, and the merits of the proposed grounds of review.

27    The Minister accepts that no prejudice results if an extension of time were to be granted, save in relation to the orderly and proper administration of the Act. The Minister also accepts that a denial of the application for a time extension would result in the applicant not being able to advance his case.

Length and explanation for the delay

28    In effect, there are two periods of delay. The first period being from the point of the Tribunal’s decision up to 2 September 2025, when the applicant’s application was rejected in this Court (after having been rejected in the FCFCoA), and the second period being from 2 September 2025 up to 17 November 2025, when the applicant filed his application for an extension of time.

29    As to the first period of delay, the applicant submits that fault cannot rest with the applicant personally because it was caused by the applicant’s former solicitor filing the application for judicial review in the wrong court and then making errors in filing the application in this Court.

30    As to the second period of delay, at the hearing, counsel for the applicant conceded the explanation given in the applicant’s affidavit dated 12 November 2025: at [20] lacks detail, referring only to “ongoing matters and personal circumstances beyond my control.” The applicant submitted that this was a period in which the applicant was in immigration detention and was known to be suffering from anxiety and depression.

31    As to the first period of delay, the Minister submits that it is the applicant’s responsibility to make proper enquiries to determine when an application for judicial review is required to be lodged and to ensure compliance with prescribed timeframes: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] (Cowdroy J).

32    Whereas that may be accepted, it is not an inflexible rule and the applicant’s reliance on the advice of a legal practitioner to his detriment may explain some of the delay, such that the applicant should not be punished for the inadvertent mistakes of his legal representation: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [6] (Derrington J).

33    The Minister submits that although the applicant and his solicitor attempted to file the application within time in the wrong jurisdiction, they failed to act promptly upon being notified of their mistake on 30 July 2025, submitting that the applicant only attempted to lodge the application for an extension of time in early September 2025.

34    As to the second period of delay, the Minister submits that for reasons unknown, the applicant did not file his application until 17 November 2026.

35    The Minister submits further that whereas the applicant provides explanations for the delay, they are inadequate considering the duration of the delay. The Minister refers to the applicant’s evidence that having affidavits witnessed in immigration detention caused a minor delay and that the further delay was simply “attributable to other ongoing matters and personal circumstances beyond [the applicant’s] control”.

36    There is force in the Minister’s submissions.

37    The absence of prejudice to the Minister is a significant factor and the delay is not explained adequately. On the other hand, there is prejudice to the applicant if an extension of time is not granted.

38    The question remaining is whether the merits of the proposed application are such that the interests of justice are likely to be advanced by granting the extension of time.

Merits of the proposed application – ground one

39    The applicant’s first ground relates to the Tribunal’s assessment of the risk posed by the applicant to the Australian community under paragraph 8.1.2 of Direction 110, which addresses the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

40    Paragraph 8.1.2(2)(a)-(c) provides:

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen reoffending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

41    The applicant contends that the degree of risk is a function of several factors, one of which is the duration of exposure to the Australian community and that although the Tribunal went some way to acknowledging this, it failed to analyse how the limited duration in which the applicant would be in the community might have ameliorated the risk he otherwise posed. By failing to make that assessment, the applicant contends that the Tribunal’s overall assessment of the weight attributable to this first primary consideration under Direction 110 was irrational, illogical and/or unreasonable. The applicant also frames the error as being one of a failure to consider a mandatory relevant consideration.

42    In support of that submission, the applicant refers to the reasons of Mortimer J (as her Honour then was) in Tenielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424: at [110] where her Honour explained that a magnitude of a risk was a product of both the nature of the harm that might result from the manifestation of the risk, and the likelihood of that manifestation. Mortimer J explained the latter of the two limbs in greater detail: at [110]:

110    … It is notable that the Minister refers to the “potential risk” and says “should” the applicant reoffend. That is not the language of a decision-maker who has for himself assessed the likelihood of reoffending and reached a conclusion about it. It is the language of a decision-maker who is, at best, speculating about whether a person might reoffend. That is not the task in assessing risk of harm to the Australian community. The task is more concrete than that. It is rooted in an assessment of the characteristics of the particular applicant – not only his or her previous offences, but all aspects of his or her history, and the “dynamic factors” to which I have referred. Consideration of those factors must then be combined with consideration of what kind of offences the applicant might commit in the future – bearing in mind this may or may not be the kind of offences an applicant has committed in the past – with some evidentiary basis being disclosed for that consideration.

43    It is from that point the applicant contends that the assessment of the risk under paragraphs 8.1.2(2)(a) and (b) of Direction 110 depends upon the duration of the individual’s exposure to the Australian community. The applicant submits that paragraph 8.1.2(2)(c) compels a decision-maker, in assessing the risk that may be posed, to consider “whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”

44    In that sense, the applicant advanced the submission that the risk of harm bears a direct relationship to duration in the community.

45    I do not accept that submission, which proceeds on the basis that risk has a linear relationship with duration in the community. Reduced to that simple proposition, the submission is untenable.

46    Further, [8.1.2(2)(c)] does not proceed on the basis that the risk of harm is necessarily conditioned by the duration of the non-citizen’s intended stay.

47    Next, the applicant refers to the evidence he gave to the Tribunal that he sought to obtain the Bridging E visa to get medical treatment and spend “whatever short time he has remaining in Australia living with his wife and daughters before he returned to Mauritius”: R [99]. The applicant submits that the Tribunal, in accepting that evidence, crystalised the factual matrix within which it was required to assess the Direction 110 considerations, which included that the applicant would remain in Australia only for a period of short duration.

48    Whilst the applicant concedes the Tribunal considered properly certain of the Direction 110 considerations against the period of short duration, the applicant submits that when it came to determining the risk that he would pose to the Australian community, the Tribunal’s reasoning was circumspect and devoid of analysis. The applicant refers to the Tribunal’s reasons at R [86]:

86    I have had regard to whether the risk of harm may be affected by the duration and purpose of the applicant's intended stay, noting that he has applied for a bridging visa which is by its nature a temporary visa, and noting the presence of his family in Australia (discussed later in these reasons) suggests there are strong and compassionate reasons for granting a short stay visa.

49    The applicant contends that where the Tribunal finds: at R [86] “there are strong and compassionate reasons for granting a short stay visa”, that is in relation only to the Tribunal’s findings as to the presence of his family in Australia (which the applicant describes as the ‘third limb’ of paragraph 8.1.2(2)(c)), rather than a sweeping conclusion as to the three considerations mentioned: at R [86] taken as a whole i.e.: duration and purpose, type of visa as well as the presence in Australia of the applicant’s family.

50    The applicant submits that R [86] reveals that the Tribunal did not engage in a reasoning process but merely restated the wording in Direction 110, such that it is no more than formulaic reasoning. The applicant submits that the High Court and this Court have held that such an approach results in the decision-maker erring by not discharging their obligation to consider and evaluate the required matter: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [35]-[46] (Griffiths, White and Bromwich JJ) and the cases cited therein.

51    The applicant continues that neither at R [86], nor anywhere else in its reasons, did the Tribunal disclose a process of evaluation of the relationship between the duration of the applicant’s proposed stay and the risk he might pose to the community, as is required by paragraph 8.1.2(2)(c), which directs the decision-maker to consider “… whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay…”. The applicant submits that although the Tribunal: at R [86] stated that it “had regard to” this question, it nonetheless gave no answer.

52    The applicant submits further that it is not open to circumvent the alleged errors by relying upon the principle that a decision-maker is not required to refer to every contention or piece of evidence considered: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ), nor the principle that the reasons of an administrative decision-maker should not be construed with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 286-87 (Neaves, French and Cooper JJ); Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The application submits that is because the assessment required by paragraph 8.1.2(2)(c) was fundamental to a proper understanding of the risk posed by the applicant to the Australian community.

53    The applicant submits that for these reasons, the Tribunal’s decision is illogical and/or irrational in that its reasons do not disclose whether, and if so, how its conclusion, that the likelihood of the applicant reoffending was “between low and moderate”, was impacted by the temporal limitations of the applicant’s proposed stay in Australia.

54    In answer to that submission, the Minister highlights the following factual findings made by the Tribunal in relation to the applicant’s offending and evidence tendered at the Tribunal hearing:

(a)    The applicant pleaded guilty to one charge of “used electronic communication with intent to expose a person under the age of 16 years, to indecent matter”. The indictment alleged that conduct occurred over 4 days, being 12 to 16 June 2022: R [41];

(b)    The applicant’s communications occurred not just on one day but over a period of time, albeit a “relatively short period of time, not months or years”: R [42];

(c)    The offending included the applicant sending sexually explicit images of himself to a child, engaging in other sexualised chat, and requesting that the child do the same: R [58];

(d)    The communications by the applicant were sexual in nature early in the conversation, he made comments regarding the victim sending pictures and the two of them meeting relatively early in their communication: R [60]; and

(e)    The Tribunal found that the risk of harm extended beyond “merely using an electronic communication to transmit indecent material”: R [61] and [88].

55    As to the first primary consideration, the Minister submits that the Tribunal considered the applicant’s offending as very serious: at R [53]; that the offending involved a crime of a sexual nature against a child: at R [58]; that there is a significant risk of harm to members of the Australian community extending beyond the type of offending in relation to that of which he was convicted: at R [61]; and that the applicant’s likelihood of reoffending “lies between low and moderate”: at R [87]. The Minister points specifically to R [86] where the Tribunal stated that it had regard to paragraph 8.1.2(2)(c).

56    The Minister submits further that:

(a)    the applicant’s offending and harm was caused by the sending of instantaneous online communications of a sexual nature;

(b)    the Tribunal framed the index offending as having taken place over a period of four days: at R [41]; and

(c)    the risk of harm posed by the applicant extended beyond merely using electronic communications to transmit indecent material.

57    As to the applicant demonstrating illogicality or irrationality on the part of the Tribunal, the Minister submits that the applicant must show that the relevant decision was one that no other logical or rational decision-maker could come to, such that it was not a decision contemplated by the provision in question: Minister for Immigration & Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52] (Wigney J); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ).

58    I accept the Minister’s submissions and I do not accept the applicant’s submissions.

59    I have observed earlier in these reasons that there is not a linear relationship between time in the community and the risk of offending. Further, it is clear that the Tribunal engaged in more than formulaic reasoning by the qualitative conclusion that there are strong and compassionate reasons for granting a short stay visa. That is a matter which was in the applicant’s favour.

60    Still further, the applicant has not shown that the Tribunal’s decision was one that no other logical or rational decision-maker could come to, such that ground one fails.

Merits of the proposed application – ground two

61    The applicant advances the second ground on a formal basis. He contends it was not open to the Minister to exercise the discretion permitted under s 501(1) of the Act to refuse to grant the Bridging E visa based on the same offending which had previously provided the basis for the mandatory cancellation of the applicant’s Temporary Graduate visa under s 501(3A).

62    The applicant submits that where a cancellation or refusal power is exercised under s 501 of the Act on a specific factual basis, and where that decision is subsequently quashed or revoked, the Minister is then unable to use that same factual basis as a trigger for the exercise of a further cancellation or refusal power under s 501.

63    That submission relies on a characterisation of s 501 of the Act as a single, unitary scheme. That is, ss 501(1)-(3A) inclusive is, in effect, the same power that may be exercised to refuse or cancel a visa on character grounds.

64    In support of that submission, the applicant relies on s 48(1)(b)(i) of the Act (among other provisions of the Act) which the applicant says treats s 501 as a distinct, unitary power by its reference to “a refusal under s 501, 501A or 501B …”.

65    The applicant, however, accepts that this construction of s 501 of the Act is contrary to the decision of the Full Court of this Court in Chetcuti v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; (2021) 288 FCR 657: at [19]-[23] which held that s 501 does not prescribe a unitary scheme, but instead provides for numerous cancellation powers “separate and distinct” from one another, as explained by Mortimer J (as her Honour then was) in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200: at [93]-[95].

66    I am bound by the Full Court’s decision in Chetcuti. Accordingly, the second ground must fail.

Materiality

67    Since the applicant has failed to establish either of the two grounds advanced, the question of materiality does not arise.

Conclusion

68    There is no merit in the proposed grounds of review.

69    Further, whereas the applicant has proffered some explanation for the delay in filing and I am satisfied that the applicant should not be prejudiced by the failings of his former solicitor in attempting to file the application on the last day of the relevant time period, but in the wrong Court, nonetheless, that does not explain why the proceedings in this Court were not filed until 17 November 2025, some four months later. To the extent there was an explanation: at [20] of the applicant’s affidavit sworn on 12 November 2025, counsel for the applicant conceded that explanation lacked detail. That concession was made properly.

70    Against the issue of delay, is the fact that the Minister does not contend any prejudice, whereas, I accept the applicant will suffer prejudice if an extension of time is not granted.

71    Balancing all those factors, the lack of any merit in the proposed application for review of a migration decision carries significant weight, such that the further amended application for an extension of time is refused.

Associate:

Dated:    3 November 2026