Federal Court of Australia

CIK23 v Minister for Immigration and Citizenship [2025] FCA 896

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    The application for an extension of time and leave to appeal be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

BROMWICH J

1    This is an application for an extension of time and leave to appeal from the orders of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court): CIK23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 546. On 17 June 2024, the primary judge dismissed an application by the applicant for review of a decision of a registrar of the Federal Circuit Court. On 12 February 2024, that registrar had dismissed an application by the applicant for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (AAT). On 15 September 2023, the AAT had found that it did not have jurisdiction to review the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse the grant of a Protection (Class XA) (Subclass 866) visa to the applicant.

The procedural history

2    On 13 February 2023, the applicant applied to the Minister for the Subclass 866 protection visa. On 25 May 2023, a delegate of the Minister refused this application.

3    On 23 June 2023, the applicant lodged an application for merits review of the delegate’s decision with the AAT. On 14 July 2023, the AAT wrote to the applicant to inform him that his application appeared to be invalid on the basis that it was lodged out of time and invited him to provide comments. He provided comments by email on 15 July 2023 to the effect that he had lost his mobile phone, and by the time he had replaced it, it was too late, and he had submitted the application for review as soon as he could.

4    On 20 September 2023, the AAT wrote to the applicant to inform him of its decision that it lacked jurisdiction to review the application for review. This was on the basis that:

(a)    reg 4.31(2) of the Migration Regulations 1994 (Cth), as it stood at the time, required that an application for a review of the refusal be given to the AAT within 28 days of the day the refusal was notified to the applicant, including the day of notification;

(b)    the AAT was satisfied that the refusal was notified to the applicant on 25 May 2023 under s 494C(5) of the Migration Act 1958 (Cth), being the date the refusal was communicated to the applicant by email;

(c)    as a result, the application for review of the refusal was required to be lodged with the AAT on or before 21 June 2023; and

(d)    consequently, the application for review made on 23 June 2023 failed to comply with the relevant legislative requirements.

5    On 26 September 2023, the applicant applied to the Federal Circuit Court for judicial review of the AAT’s decision.

6    On 12 February 2024, the registrar summarily dismissed the application for judicial review under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Federal Circuit Court Rules), exercising delegated power pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Federal Circuit Court Act) and r 21.01 and table 21.1, Item 58 of the Federal Circuit Court Rules.

7    On 27 February 2024, the applicant applied for review of the registrar’s exercise of delegated power under s 256(1) of the Federal Circuit Court Act. Rule 21.02 of the Federal Circuit Court Rules requires that an application of this kind be filed within seven days of the registrar’s decision, meaning 19 February 2024 in this case. As a result, the review application was made out of time.

8    On 28 February 2024, the primary judge made orders which provided for an oral hearing if sought, or otherwise for the application to be determined on the papers, with the applicant to provide written submissions. The applicant did not seek an oral hearing, nor provide written submissions addressing the basis on which the primary judge might grant an extension of time for the review application pursuant to r 21.02 of the Federal Circuit Court Rules. Nor did the applicant provide any submissions or evidence addressing the substance of the review application, being whether the application for judicial review ought to have been summarily dismissed.

9    Neither party elected for the review application to proceed to an oral hearing. As a result, the proceedings were ultimately determined on the papers. The primary judge concluded (at [29]:

In my view, the applicant has been afforded the opportunity to proceed to hearing of his review application. Having instead elected (by default) to have this review application determined on the papers, and having not availed himself of leave to otherwise address the necessary extension of time and the review application, I am satisfied that the review application should be dismissed as incompetent. I will so order.

10    As a result, the application for review of the registrar’s decision was dismissed with costs.

The present application for an extension of time and leave to appeal

11    The Minister submits that the applicant is required to seek an extension of time and leave to appeal the judgment of the Federal Circuit Court. The applicant apparently does not dispute this, as he filed such an application. Nevertheless, given the applicant is not legally represented and participated in the hearing with the assistance of an interpreter, I consider it appropriate to determine whether it is indeed the case that an extension of time and leave are required.

12    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) states that an appeal from an interlocutory judgment of the Federal Circuit Court shall not be brought without leave. Under s 24(1D)(ca), this includes judgments of the Federal Circuit Court under s 17A of the “Federal Circuit Court of Australia Act 1999”. I note that this Act was repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth). However, I am assisted by the reasons of Feutrill J in EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341 at [31]:

Section 24(1D)(b) of the Federal Court Act provides that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A). Section 24(1D)(ca) is to the same effect with respect to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) which was in substantially the same terms as section 31A of the Federal Court Act. There is no equivalent deeming provision with respect to s 143 of the Federal Circuit Court Act (2021). Prior to the enactment of s 24(1D) of the Federal Court Act there had been a degree of conflicting authority and uncertainty as to whether an order for summary judgment under s 31A was a final or interlocutory order. However, that question was settled in favour of an interlocutory order in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [42]-[43] (Spender, Graham and Gilmour JJ) citing Luck v University of Southern Queensland [2009] FCAFC 73; 176 FCR 268 at [101] (Rares J, Graham J agreeing). In my view, the reasoning in Kowalski and Luck apply equally to a decision under r 13.13 of the Federal Circuit Court Rules such that an order dismissing a proceeding or claim for relief under that order on the ground that the applicant has no reasonable prospects of successfully prosecuting the proceeding or claim is interlocutory.

13    On this basis, I am satisfied that the decision of the registrar to summarily dismiss the proceedings was interlocutory in nature. As a result, if the primary judge had upheld the registrar’s decision following a de novo re-hearing under s 256 of the Federal Circuit Court Act and r 21.04 of the Federal Circuit Court Rules, it is clear that her Honour’s decision would also have been interlocutory.

14    However, based on the reasons for judgment published by the Federal Circuit Court, I do not consider that the primary judge took this course. Rather, the judgment indicates that the primary judge dismissed the review application on the basis that it was made out of time under r 21.02 of the Federal Circuit Court Rules.

15    Regardless, the Minister submitted orally, and I agree, that the orders of the primary judge were nevertheless interlocutory in nature, given that they dealt with an application for review of orders which were themselves interlocutory.

16    On this basis, I am satisfied that the applicant was required to seek leave to appeal.

17    Given that this is the case, r 35.13 of the Federal Court Rules 2011 (Cth) required that an application for leave to appeal be brought within 14 days after the date of judgment. The primary judge delivered judgment on 17 June 2024, and as such, an application for leave to appeal was required to be brought by 1 July 2024. As no application was brought in this time, the applicant is also required to seek an extension of time in which to bring the application for leave to appeal.

18    As such, I am satisfied that the applicant was required to apply to the Court for an extension of time and leave to appeal, as he did by his application filed 10 July 2024.

Consideration of the application for an extension of time

19    The application is made on the following grounds:

[1]    My Application dismissed from the federal circuit court of Australia on 17 June 2024, I have made application but I have received email that Your lodgement has been rejected for the following reason. Registry message: Wrong form has been used. If you wish to appeal the final judgment, you may file within 14 days from the date of judgment as order has been made on 17/6/2024 extension of time is needed therefore Form 118 (Application for extension of time and leave to appeal). You can use the same affidavit form and attach DRAFT form 121 back of the affidavit form.

[2]    I have made my application self, it’s not happened intensely. [apparently meant to be “intentionally”]

[3]    So please consider my application and give me extension of time because I am unemployed and too much stress about all these things.

20    The principles to be applied by the court when considering an application for an extension of time are well established. They were set out by Banks-Smith J in ESK18 v Minister for Home Affairs [2019] FCA 935 as follows (at [11]):

In considering whether to grant an extension of time to seek leave to appeal under r 35.14 of the Federal Court Rules 2011 (Cth), the Court will be guided by the principles governing an extension of time under r 36.05: Mehmood v Attorney-General (Cth) [2013] FCA 406. The Court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

21    See also the summary of principles in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan and O’Bryan JJ) at [33], reproduced in Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 (Perram, Burley and Downes JJ) at [25]. In particular, at [33(e)] in BQQ15, the following was stated:

The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

22    The application is accompanied by an affidavit of the applicant affirmed on 8 July 2024, and a draft notice of appeal dated 10 July 2024. The grounds of application listed in the draft notice of appeal state the following:

[1]    The Hon. Federal circuit Court Judge erred in dismissing an application for judicial review without giving consideration of fact presented at the AAT hearing

[2]    The Hon. Federal circuit Court Judge made legal error in his judgement by not properly applying provision of s.36 of The Migration Act 1958

[3]    The Administrative Appeals Tribunal (AAT) erred in its judgement by not applying cl.s65 of the Migration Act-1958

23    The applicant additionally deposes at [9] of his affidavit affirmed on 8 July 2024 that:

I request Honourable Federal Court of Australia to consider my circumstance and mistake made by the Federal Circuit Court Registrar and Administrative Appeals Tribunal and allow my appeal to be heard and make decision in my favour.

24    I am prepared to proceed upon the basis of the merits of the application for an extension of time and leave to appeal, assuming, but not deciding, that there has been a sufficient explanation for the delay in seeking to challenge the decision of the primary judge, as set out in the grounds of application reproduced above (at [19]). That is because in this case the merits of the proposed appeal are determinative and untangling the reasons for the late filing is therefore not necessary.

25    The applicant did not furnish any written submissions, and did not make any meaningful oral submissions. He said that he wanted an extension of time (and I infer, leave to appeal) because he wanted to stay here, had no relatives in India, and it was not safe for him to return there.

26    In his written submissions, the Minister responded to each of the above proposed grounds of appeal by characterising them as without merit, as follows:

[27]    Ground one contends that the primary judge erred in dismissing the application for judicial review “without giving consideration of fact presented at the AAT hearing.” This ground was not raised before the primary judge so the applicant would need leave to raise it on any appeal. It does not enjoy any merit so as to warrant leave to appeal being granted. The applicant does not state what ‘fact’ the primary judge has ignored, nor did he attend a hearing before the Tribunal to ‘present’ any facts. In any event, it is plain that the primary judge considered the Tribunal’s process and decision: TB 67-68, [5]-[10]. Her Honour was satisfied that the applicant was properly notified of the delegate’s decision on 25 May 2023 and was therefore required to lodge any application with the Tribunal by 21 June 2023. As he did not do so, the only decision open to the Tribunal was to find it did not have jurisdiction: TB 72, [24].

[28]    Ground two contends that the primary judge erred by not applying s 36 of the Act. Again, no ground was raised before the primary judge in relation to s 36 of the Act and the applicant faces the additional hurdle of requiring leave to raise such a contention on any appeal. The contention does not enjoy any merit because the applicant misunderstands the Tribunal’s decision and primary judge’s reasons. Where the applicant lodged his application to the Tribunal out of time, the only decision open to the Tribunal was to find that it lacked jurisdiction. The Tribunal, and likewise the primary judge, were thus not required to undertake an assessment of whether the applicant satisfied the requirements for the visa.

[29]    Ground three similarly contends that the Tribunal erred in not applying “cl.s65” of the Act. Again, this ground was not raised before the primary judge and s 65 of the Act was not a relevant consideration for the Tribunal or the primary judge in circumstances where the applicant lodged his application for review out of time. The first question for the Tribunal’s consideration was whether its jurisdiction had been properly invoked; answering that question correctly in the negative meant that that was the only question required to be considered.

27    It was confirmed by my associate the day before the hearing that the applicant had received the Minister’s written submissions. He confirmed that at the hearing. He did not make any submissions in response to them after I had heard from the Minister.

28    The Minister’s characterisation of the primary judge’s reasons in relation to proposed ground 1 is correct. In particular, the primary judge plainly considered the facts that were before the AAT. It is also plain that the AAT correctly concluded that it did not have jurisdiction to consider the merits review application since it was made out of time. There is no arguable error on the part of the primary judge identified in this proposed ground of appeal.

29    I also agree with the substance of the Minister’s submission to the effect that grounds 2 and 3 are misconceived. The AAT found that it did not have jurisdiction to entertain the merits review application because it was out of time. There was no occasion nor obligation for the AAT to consider the merits of that application, whether that was by reference to s 36 or s 65 of the Migration Act. It follows again that there is no arguable error on the part of the primary judge identified by either of these proposed grounds of appeal.

30    All three proposed grounds of appeal meet the description of being devoid of merit, clearly failing, hopeless and unarguable, to paraphrase the Full Court in BQQ15 at [33(e)], reproduced above.

31    It follows that granting either an extension of time or leave to appeal would be futile and that the application for an extension of time must be dismissed. There is no reason why costs should not follow the event.

32    The Minister sought costs in the sum of $5,000, and submitted that this was an appropriate amount given that it was less than the short form sum of $8,323 provided for by [15.2] of Sch 3 to the Federal Court Rules. I have decided to make orders for that sum.

Associate:

Dated:    5 August 2025