BLX23 v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 25 August 2026
• Neutral Citation: [2026] FCA 1209
• Date: 25 August 2026

Federal Court of Australia

BLX23 v Minister for Immigration and Citizenship [2026] FCA 1209

ORDERS

NSD 1339 of 2025
BETWEEN:	BLX23 First Applicant BLZ23 Second Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	CHEESEMAN J
DATE OF ORDER:	25 August 2026

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

2. The name of the second respondent be changed to “Administrative Review Tribunal”.

3. The applications for an extension of time and leave to appeal be dismissed.

4. The applicants pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1 This is an application for extension of time and leave to appeal from orders made by the Federal Circuit and Family Court of Australia on 30 June 2025: BLX23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1041 (McCabe J).

2 The primary judge’s judgment was interlocutory. The applicants therefore require leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). An application for leave to appeal was required to be filed within 14 days after the judgment was pronounced or the order was made: r 35.13(a) of the Federal Court Rules 2011 (Cth). That period expired on 14 July 2025. On 16 July 2025, the applicants lodged a notice of appeal, together with an affidavit completed on 14 July 2025. After the Registry informed them that the appropriate procedure was an application for an extension of time and leave to appeal, a Form 118 application was accepted for filing on 4 August 2025. The applicants therefore require an extension of time under r 35.14 before their application for leave can be determined.

3 The Minister (then known as the Minister for Immigration and Multicultural Affairs, now known as the Minister for Immigration and Citizenship) accepts that the present delay was short and caused little prejudice beyond the public interest in the finality of administrative decision-making. The Minister acknowledges that if the substantive grounds are of sufficient merit, the interests of justice weigh in favour of the grant of an extension of time. The Minister submits, however, that the explanation was inadequate and that the proposed appeal lacks merit.

4 The applicants are citizens of India. The first applicant is a 44-year old and is the husband of the second applicant, who is 41-years old. The applicants have two children who live in India. The applicants left India and arrived together in Melbourne on 12 February 2018. They applied for Protection (subclass 866) visas on 13 March 2018. The first applicant was the principal applicant for protection. The second applicant is a member of the first applicant’s family unit and did not advance a separate claim for protection. This application is concerned with procedural lateness and appellate error, not the substantive protection claims.

5 The second respondent (then known as the Administrative Appeals Tribunal, now known as the Administrative Review Tribunal) filed a submitting notice save as to costs.

6 The applicants appeared in person with the assistance of a Gujarati interpreter. I have considered their written submissions filed on 19 August 2026 and the oral submissions made at the hearing.

ADJOURNMENT APPLICATION

7 At the commencement of the hearing, the applicants sought a 14-day adjournment to obtain legal representation. The first applicant noted that the applicants did not speak English and said that the first applicant had been experiencing depression. Both applicants requested time to obtain advice about an application concerning their two children. The Minister opposed the application.

8 I accept that legal representation may assist the applicants, but its absence does not, without more, require the adjournment of a civil proceeding fixed for hearing. The applicants had known for a substantial period when the application would be heard. Apart from stating generally that they had been unable to obtain suitable representation, they did not identify the steps they had taken to obtain it or explain why those steps had not been taken earlier.

9 No lawyer was identified as willing or potentially willing to act. Nor did the applicants explain why 14 days was required or what steps they proposed to take during that period. There was therefore no demonstrated likelihood that the adjournment would achieve its stated purpose.

10 The issues before the Court are confined to whether time should be extended and leave granted to appeal from the primary judge’s interlocutory decision. The applicants had filed detailed written submissions identifying the matters they wished to advance. The Minister did not oppose the applicants relying upon their written submissions despite their late filing. A Gujarati interpreter was available throughout the hearing, and the applicants had a fair opportunity to present their case.

11 Having regard to the applicants’ opportunity to present their case, the absence of an adequate explanation for not seeking representation earlier and the lack of any demonstrated likelihood that a 14-day adjournment would achieve its purpose, I was not satisfied that the interests of justice required the hearing to be delayed. An adjournment would not promote the just resolution of the proceeding as quickly, inexpensively and efficiently as possible, consistently with the overarching purpose in s 37M of the FCA Act. I therefore refused the application.

BACKGROUND

12 On 20 January 2023, a delegate of the Minister refused to grant the applicants Protection (Class XA) visas. The applicants were notified on that day by email sent to the address nominated in their visa application.

13 On 23 February 2023, the applicants applied to the Tribunal. On 5 May 2023, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. The Tribunal found that r 4.31(2) of the Migration Regulations 1994 (Cth) required an application for review to be made within 28 days of notification of the delegate’s decision. The applicants were taken to have been notified on 20 January 2023 under s 494C of the Migration Act 1958 (Cth). Accordingly, the applicants’ application for review lodged on 23 February 2023 was seven days after the prescribed period had elapsed.

14 Prior to making its decision, on 17 April 2023, the Tribunal invited the applicants to comment by 1 May 2023 on the apparent lateness of their application. No response was received.

15 On 29 May 2023, the applicants applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal’s decision. A Registrar summarily dismissed that application on 26 March 2025 under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules).

16 On 14 April 2025, 12 days after the prescribed period had elapsed, the applicants filed their application for review of the Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).

17 On 30 June 2025, the primary judge delivered ex tempore reasons.

18 An application for leave to appeal from the primary judge’s judgment was required to be filed within 14 days after the judgment was pronounced and the order was made: r 35.13(a) of the Rules. Accordingly, the time to appeal expired on 14 July 2025.

19 On 16 July 2025, the applicants filed a Form 121 Notice of Appeal. On 23 July 2025, the Registry informed the applicants that the primary judge’s decision was interlocutory and that a Form 118 Application for Extension of Time and Leave to Appeal was required. The applicants’ Form 118 Application for Extension of Time and Leave to Appeal was accepted for filing on 4 August 2025.

DECISION OF THE PRIMARY JUDGE

20 On 30 June 2025, the primary judge dismissed an application to extend the time for filing an application for review of a Registrar’s decision, affirming the Registrar’s summary dismissal of the applicants’ application for judicial review of the Tribunal’s determination that it lacked jurisdiction to review the delegate’s refusal of the applicants’ protection visa applications: PJ[16]-[18].

21 The primary judge held that the Tribunal application was out of time, that the Tribunal lacked jurisdiction and that it had no discretion to extend time: PJ[16].

22 The primary judge found that the delegate’s decision was sent by email to the nominated address and that the notification explained the applicants’ review rights: PJ[9], [14]-[15]. The notification stated that an application for merits review had to be made within 28...