CHE20 v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 25 August 2026
• Neutral Citation: [2026] FCA 1210
• Date: 25 August 2026

Federal Court of Australia

CHE20 v Minister for Immigration and Citizenship [2026] FCA 1210

ORDERS

NSD 669 of 2025
BETWEEN:	CHE20 First Applicant CHG20 Second Applicant CHH20 Third Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE REVIEW 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 application for leave to appeal be dismissed.

3. The first and second 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 leave to appeal from orders made by the Federal Circuit and Family Court of Australia on 10 April 2025: CHE20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 505 (Zipser J).

2 The applicants are a family group and citizens of India. In March 2018, they made a combined application for Protection (Class XA) (subclass 866) visas. The first applicant was the main applicant. The second and third applicants were included as members of his family unit. The third applicant is a child.

3 The first and second applicants arrived in Melbourne on 22 December 2017. The third applicant arrived in Melbourne on 28 February 2018.

4 It is appropriate to record the basis of the protection claim because the applicants’ recurrent complaint is that its merits have not been considered. The first applicant claimed that he had lent money to a person in India who later sought repayment. That person subsequently died by suicide and, according to the first applicant, named him in a suicide note. The first applicant claimed that members of the deceased person’s family attacked him and that criminal charges were brought against him. He also claimed that, when he sought assistance from the police, the police mistreated him rather than protected him. He said that, if returned to India, he would be arrested and mistreated and that the Indian authorities would not protect him.

5 The substance of those claims has not been overlooked. However, for the reasons given below in addressing proposed grounds 1 and 2, the present application for leave does not require, or permit, the Court to determine the merits of the protection claim. The Tribunal’s jurisdiction to conduct merits review was not engaged because the application for review was not made within the prescribed period.

6 The first respondent is the Minister for Immigration and Multicultural Affairs, now known as the Minister for Immigration and Citizenship. The second respondent is the Administrative Review Tribunal. The Tribunal filed a submitting notice save as to costs.

7 The first applicant made oral submissions at the hearing on 24 August 2026 on behalf of all of the applicants. The applicants were assisted by the services of a Gujarati interpreter who was present throughout the hearing. The first applicant confirmed that he had read and understood the Minister’s submissions.

BACKGROUND

8 On 15 October 2019, a delegate of the Minister refused the applications for Protection (Class XA) (subclass 866) visas. On the same day, the Minister emailed the delegate’s decision to the email address nominated by the applicants for correspondence. The covering letter stated that any application for Tribunal review had to be given to the Tribunal within 28 calendar days commencing on the day the applicants were taken to have received the letter.

9 On 25 November 2019, the applicants applied to the Tribunal for review.

10 On 20 December 2019, the Tribunal invited them to comment on its preliminary view that the application had been lodged out of time and was invalid.

11 On 3 January 2020, the first applicant sent the Tribunal a letter dated 21 December 2019. The first applicant acknowledged receiving the delegate’s decision on 15 October 2019 and said that he did not understand the letter because he was not educated in English and spoke and understood only Gujarati. The first applicant also referred to the second applicant’s illness and pregnancy, the care of their young child, as well as the first applicant’s unemployment, depression and financial hardship.

12 On 17 April 2020, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. The Tribunal noted that reg 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 15 October 2019. Accordingly, the applicants’ application for review lodged on 25 November 2019 was two weeks after the prescribed period had elapsed.

13 On 20 May 2020, the applicants applied to the Federal Circuit and Family Court for judicial review of the Tribunal’s decision. Their grounds alleged that the Tribunal had failed to provide a hearing, failed to consider the asserted risk of significant harm and failed to investigate the protection claims.

14 The applicants were given opportunities in 2020, and again before the summary dismissal hearing in February 2025, to amend their application and file submissions or evidence, but filed no further material. On 27 February 2025, a Registrar summarily dismissed the judicial review application under r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on the basis that it had no reasonable prospects of success.

15 On 21 March 2025, the applicants lodged an application for review of the Registrar’s decision. They asserted that the Registrar had not considered legal and factual error in the Tribunal’s decision and should have found that the first applicant met the criteria for a protection visa.

16 The applicants were permitted to file submissions and evidence in support of the review application and the extension application by 3 April 2025, but did not do so.

17 At the hearing on 7 April 2025, the primary judge explained the need to identify jurisdictional error, which the primary judge described was a “significant mistake or error, in the Tribunal’s decision” and explained the main categories of jurisdictional error.

18 The review application was required to be made within seven days of the Registrar’s decision. It was lodged 15 days late and therefore required an extension of time. The primary judge invited the first applicant to give evidence explaining the delay.

19 After an adjournment, the first applicant declined to give evidence about the delay and submitted that the matter should be returned to the Tribunal because he continued to fear for his life if returned to India.

DECISION OF THE PRIMARY JUDGE

20 The primary judge refused to extend the time for seeking a review of the Registrar’s summary dismissal of the applicants’ judicial review application of a decision of the Tribunal’s determination that it lacked jurisdiction to review the delegate’s refusal decision.

21 The primary judge identified the principal considerations governing an extension of time as the length of the delay, the explanation for it, prejudice to the opposing party, and the merits of the underlying application.

22 The primary judge found that, while the delay was 15 days which was not long, the applicants had not provided an explanation despite being given opportunities to do so. The absence of an explanation weighed against extending time.

23 As to the merits, the primary judge treated the Tribunal’s conclusion concerning its jurisdiction as open to judicial examination. The primary judge found that...