Background
The applicant, a Malaysian citizen, arrived in Australia in February 2020 and applied for a Protection (Class XA) (Subclass 866) visa in May 2020. A ministerial delegate refused the visa in January 2021. The Administrative Appeals Tribunal dismissed her subsequent review application because it had been filed late and the Tribunal lacked jurisdiction.
The Federal Circuit and Family Court later dismissed the applicant’s judicial-review challenge, finding no jurisdictional error by the Tribunal. She then sought an extension of time to appeal that decision to the Federal Court. The extension application was filed 142 days after the primary judgment, well beyond the 28-day period prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth).
The Court’s Holding
Justice Banks-Smith refused the extension of time. The applicant, who was unrepresented, did not appear at the hearing or comply with programming orders requiring evidence and submissions.
More importantly, evidence showed that the applicant had left Australia in August 2024, her bridging visa had ceased, and she had no right to return. Because an applicant must be in Australia to be granted a Subclass 866 protection visa under cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth), any appeal could not result in the visa being granted. The requested relief therefore had no utility.
Key Takeaways
- An extension application may be refused where a proposed migration appeal cannot produce practical relief.
- A person outside Australia who cannot return cannot satisfy the in-Australia criterion for a Subclass 866 protection visa.
- The Court ordered the applicant to pay the Minister’s fixed costs of $5,000.
Why It Matters
The decision illustrates that appellate time-limit applications are assessed in their practical context. Even apart from delay and non-compliance with court orders, the Court may refuse an extension where subsequent events mean that success on appeal would be futile.