Federal Court of Australia

MBJY v Minister for Immigration and Citizenship [2026] FCA 526

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed 14 August 2025 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the amount of $7,500.00.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

FEUTRILL J:

1    I have before me this morning an application for an extension of time to appeal. A party has a right to appeal to this Court from a final judgment or order of the Federal Circuit and Family Court of Australia (Division 2) under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). As in this case, appeals of that nature are usually heard by a single judge of this Court exercising the appellate jurisdiction of the Federal Court under s 25(1AA). A party who wants to appeal must file a notice of appeal under r 36.01 of the Federal Court Rules 2011 (Cth). In most cases, the notice of appeal must be filed within 28 days after the date on which the judgment appealed from was pronounced, or the order was made under r 36.03(a). The Court has power to extend the time of filing a notice of appeal under r 1.39 of the Rules. A party who wants to apply for an extension of time within which to appeal must file an application in accordance with Form 67 under r 36.05(1).

2    The application must be accompanied by the following:

(a)    the judgment or orders from which the appeal is to be brought;

(b)    the reasons for the judgment or orders, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the applicant relies;

(ii)    why the notice of appeal was not filed within time; and

(iii)    a draft notice of appeal that complies with r 36.01(1) and r 36.01(2).

3    In this case, the primary judge pronounced judgment on 6 June 2025. In accordance with the Rules, the applicant was required to file a notice of appeal on or before 4 July 2025. On 14 August 2025, the applicant filed an application for extension of time and the applicable accompanying documents in accordance with r 36.05.

4    The principles applicable to the grant of an extension of time are well established. Applications for an extension of time are not granted unless it is proper to do so because the legislative time limits are not to be ignored. In general, the factors the Court will take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal and any prejudice to the respondent, but absence of prejudice to the respondent is not enough of itself to grant an extension. The authorities for those general propositions are: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; 3 FCR 344 at 348-349 (Wilcox J); Parker v The Queen [2002] FCAFC 133 at [6] (Spender, O’Loughlin and Dowsett JJ); see also SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ).

5    Ignorance of a time limit is not regarded as a satisfactory explanation for delay. However, a less persuasive explanation may be sufficient where the required extension is for a comparatively short period of time: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J). The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case, thus where the delay is short and no injustice will be occasioned to the respondent, the interests of justice would ordinarily require the extension of time to be granted, provided there is sufficient merit in the grounds of appeal to justify the hearing of the appeal: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7] (Lee, Nicholson and Finkelstein JJ); Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [13]-[14] (Bennett J).

6    Consideration of the applicant’s prospects of success does not require the Court to conduct a summary hearing of the appeal: Ward v Repatriation Commission [2004] FCA 1163 at [8] (Lee J). 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’ and, in general, based on the statement of the applicant’s case rather than opposing arguments or any detailed examination of the proofs of the argument: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [9]-[10] (Brennan CJ and McHugh J).

7    As I mentioned, the primary judge pronounced judgment on 6 June 2025 dismissing the applicant’s application for judicial review. Reasons were given ex tempore and published on 16 July 2025. The applicant deposes that he received the written reasons on 16 July 2025 and was told he had 35 days within which to lodge an appeal. He subsequently contacted Legal Aid and was informed that the usual time within which to commence an appeal was 21 days from the date of judgment. After receiving that advice, he prepared the appeal documents as quickly as he could. Upon sending them to the Court, they were evidently not accepted at first, I infer, because at the time of lodgement the applicant required an extension of time. On 14 August 2025 he filed an application for extension of time to appeal and the accompanying documents, as I mentioned earlier.

8    As the notice of appeal was required to be filed by 4 July 2025 and the application was not filed until 14 August 2025, the applicant requires an extension of 41 days. Now, in general, it is difficult to formulate grounds of appeal without written reasons. Therefore, really the applicant had, in fairness, time from 16 July 2025 within which to formulate grounds of appeal, and he attempted to file a notice of appeal within 28 days of receiving the written reasons. In my view, the applicant has given a reasonable and adequate explanation for not filing a notice of appeal within time. The delay itself is also relatively modest, and the Minister accepts there is no prejudice to him arising from a delay of 41 days.

9    Therefore, having regard to the applicable principles mentioned earlier, the discretion to grant an extension of time in this case turns largely on the extent to which there is merit in the applicant’s proposed grounds of appeal. That is, the real question is whether the interests of justice would be served because the applicant would be prejudiced if he were not permitted to have the appeal heard.

10    In this case, the applicant’s draft notice of appeal expresses the grounds of appeal in broad and relatively uninformative terms. A notice of appeal that conforms with the Rules requires, amongst other things, it state briefly but specifically, the grounds relied on in support of the appeal. The draft notice of appeal in this case does not conform with those requirements as it does not specify with sufficient particularity the grounds relied on in support of the appeal. I will come back to the grounds later.

11    The applicant is a litigant in person. It is axiomatic, meaning self-evident, that in the exercise of judicial power, a judge is obliged to accord procedural fairness to litigants appearing before him or her, and the requirements of procedural fairness include the provision of a reasonable opportunity for litigants to present evidence and make submissions: Boensch v Somerville Legal [2021] FCAFC 79; 286 FCR 293 at [85] (Katzmann, Markovic and Abraham JJ) and the authorities there cited.

12    Courts have an overriding duty to ensure that a hearing is fair: Dietrich v R [1992] HCA 57; 177 CLR 298 at 325 (Brennan J), 357 (Toohey J), 362-363 (Gaudron J). This entails ensuring that a hearing is conducted fairly and in accordance with the law: MacPherson v R [1981] HCA 46; 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534 (Mason J), 546-547 (Brennan J). Where, as here, at least one party is a litigant in person, additional considerations apply to the Court’s duty to ensure a fair hearing. There is a general duty to ensure that the litigants do not suffer any disadvantage from exercising their right to be self-represented. While the duty does not extend to the provision of judicial advice, there is an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court so as far as is reasonably practicable for the purpose of ensuring a fair hearing: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]-[57] (Markovic, Derrington and Anastassiou JJ); SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, Allsop CJ and Mortimer J agreeing); and Hamod v New South Wales [2011] NSWCA 375 at [311]-[316] (Beazley JA, Giles and Whealy JJA agreeing).

13    For the purpose of complying with that obligation, on 4 February 2026, I held a case management hearing and explained the procedure of an application for extension of time to appeal and, if granted, an appeal, to the applicant. I also explained that the proposed grounds of appeal were very broad and lacked particulars, so that the nature of his complaint about the Administrative Review Tribunal’s decision could not be identified. I explained that the nature of judicial review is to review the fairness and legality of the process of decision-making, not the correctness of the decision made. I indicated that I understood the proposed grounds to be, in effect, contentions that the primary judge was in error for failing to accept his grounds of judicial review. At that time, the applicant said that he intended to obtain legal representation for the hearing, but he has not.

14    He has also not filed any written submissions in accordance with the pre-hearing directions. The consequences of a failure to appropriately express and particularise a ground of appeal will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure, it is to be expected that the ground would be dismissed without any consideration of whether there may be any underlying merit, however, it will rarely be appropriate to dismiss a ground of appeal in a migration case for lack of particularisation where, as here, the applicant seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal. Also, the Court will be assisted by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the applicant wishes to raise.

15    Further, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt or sufficient doubt or error must reflect the independent judgment of counsel after considering all the materials in the performance of counsel’s paramount duty to the Court: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[10] (Colvin J). Otherwise, it is well established that it is not the role of the Court to examine the reasons of the primary judge or the Tribunal in detail in order to identify potential grounds of appeal. However, in the case of a litigant in person, in particular an unsuccessful applicant for a protection visa, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal. Such an examination does not involve the Court parsing and analysing an administrative decision with a view to identifying a potential argument as a jurisdictional error. In the absence of self-evident error, there is no duty or function of a court to articulate a question of law or identify an error: COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J).

16    The draft notice of appeal has three proposed grounds. The first ground is expressed to be jurisdictional error under s 36(2)(aa) of the Migration Act 1958 (Cth) and is in terms that the Court misapplied the complementary protection test by failing to engage with key evidence and submissions relevant to whether, as a necessary and foreseeable consequence of removal to India, there is a real risk of significant harm. When the applicant was asked to articulate in his own words the nature of the complaint made, it emerged that it was a complaint with respect to the Tribunal’s reasons and, in effect, a failure on the part of the primary judge to accept there had been an error on the part of the Tribunal. The nature of the asserted error related to medical reports about the applicant’s son and his mental health and a need for him, in effect, to remain in Australia to take care of his son.

17    Ground 2 is expressed to be a failure to consider a clearly raised claim/material consideration. The applicant asserts the Court failed to consider or failed to properly consider a claim that was clearly raised on the materials concerning risk from private moneylenders and associated factors. Again, it emerged that the nature of the complaint is that the Tribunal made that error and the primary judge was in error for failing to accept the Tribunal had made such an error. The applicant’s explanation of this ground related largely to evidence that his mother had given to the Tribunal, which the Tribunal had not accepted, and the applicant, when invited to identify paragraphs of the Tribunal’s reasons where the error was said to be manifested, drew the Court’s attention to paragraphs of the Tribunal’s reasons where, on the face of those paragraphs, it in fact was considering the applicant’s mother’s evidence.

18    The third proposed ground is legal unreasonableness and the asserted error is that the conclusion reached was legally unreasonable because it did not grapple with critical evidence, including the timely nature of threats and thereby resulted in an outcome outside the range of lawful outcomes. When asked to particularise that ground, the applicant identified that it was a complaint that the Tribunal had not considered, in effect, adequately, his evidence about ‘gangsters’ which I take to mean his claim that he would be harmed by moneylenders if he were to return to India. He identified a paragraph in the Tribunal’s reasons at which some of that evidence or part of that claim was considered and referred the Court to the materials before the Tribunal in the court book where evidence of harm to people who have borrowed money from moneylenders in India was identified.

19    Where the time of filing a notice of appeal has expired without a party commencing an appeal, the successful party before the primary judge has a vested right to retain the judgment. Here, that is a vested right to the dismissal of the applicant’s application for judicial review of the Tribunal’s decision. Therefore, to grant an extension of time puts that vested right at risk. Where, as here, the delay is relatively short, there is an adequate and reasonable explanation for delay and little or no prejudice to the respondent, as I have said earlier, the interests of justice would normally favour granting an extension of time because the prejudice to the applicant of loss of the right of appeal would outweigh the prejudice to the respondent of loss of the vested right to retain judgment. And, prejudice to an unsuccessful applicant for a protection visa is all the more acute given that there is a very real human dimension to the loss of a right of appeal. Nonetheless, an order for extension of time involves the exercise of a discretion.

20    An extension is not merely granted because the Court has power to do so, the delay is short and explained and there would be no evident prejudice to the respondent. Where a proposed appeal appears flimsy or weak, even on a rough and ready basis, the Court would be justified in refusing an extension of time and that is because even in circumstances of refusal of a protection visa, the prejudice to the applicant in losing a right of appeal is more apparent than real. And, in my view, in this case, the applicant’s proposed grounds of appeal fall into that category.

21    Proposed ground 1 of the grounds of appeal, as particularised this morning, does not disclose a reasonably arguable ground of appeal. Before the primary judge, a similar ground of review was articulated: PJ [69]. The applicant confirmed that ground 1 of the ground of appeal was equivalent to that ground of judicial review. The primary judge dismissed that ground in substance because he considered it to be misconceived. The reason for that is because s 36(2)(aa) of the Migration Act requires the decision-maker to reach a state of satisfaction with respect to the relevant protection criteria. It does not involve the exercise of a discretion and this is explained in the primary judge’s reasons: PJ [70]-[80]. The primary judge concluded that the Tribunal took into account the medical and living circumstances for JS: PJ [81]. JS is a reference to the applicant’s son in India and the impact that they may have on the applicant and his claim to the extent that was required of the Tribunal. I have reviewed the primary judge’s reasons in this regard, the legal authorities upon which he relied and I can detect no reasonable ground for considering that the primary judge’s reasoning was wrong.

22    Proposed grounds 2 and 3 are similar and whether characterised as a failure to consider or be legally unreasonable, the substance of the complaint is that the Tribunal failed to consider a substantial and clearly articulated claim. These grounds were also considered by the primary judge: PJ [82] and [99].

23    The proposed grounds of appeal are not identical, but upon the applicant’s submission this morning and reviewing the reasons of the primary judge together with the proposed grounds of appeal, there is sufficient overlap to satisfy me that the proposed grounds of appeal would involve largely a re-agitation of the same arguments that were before the primary judge. If the Tribunal had failed to consider a substantial and clearly articulated claim it could amount, subject to materiality, to jurisdictional error. However, there is a distinction between a failure to read, understand, identify and evaluate a claim and the quality of the consideration of a claim.

24    Sometimes, the decision-maker’s reasons may reveal that the way in which the claim was considered reveals a misunderstanding or a failure to identify and evaluate the real claim. In this case, the applicant was not able to identify any arguable failure of that kind. The Tribunal’s reasons reveal that it considered the applicant’s claims but rejected them because the decision-maker did not find the applicant’s evidence credible, or that of his mother or brother credible, and it gave reasons for reaching that conclusion. That is, quintessentially, a function of the decision-maker. The primary judge dealt with this largely in the reasons for decision: at [100]-[111]. The primary judge described the Tribunal’s reasons for his consideration of those reasons and concluded at [109] and [110]:

109    I do not accept the applicant's submission that the Tribunal ignored key parts of his story, including how the threats happened and how badly they affected him and his son and how his return to India will affect his son and the harm that might flow on them to the applicant. In my assessment, as I have already explained, I think the Tribunal had regard to these matters, made a thorough assessment of them, and I am unable to accept that the Tribunal ignored key parts of the applicant's claims.

110    Even noting that the Tribunal is not under an obligation to refer to every piece of evidence, in my view, the Tribunal's reasons are comprehensive and detailed in their analysis of the applicant's claims, and I do not discern there to be any areas where key parts of the applicant's story or evidence were not taken into account or was ignored by the Tribunal.

25    I have read the Tribunal’s reasons and the primary judge’s reasons, and I cannot discern a reasonable argument that the primary judge’s assessment of the Tribunal’s reasons was incorrect.

26    The applicant also, and this appears to be partly reflected in proposed ground 3, contended before the primary judge that the decision was legally unreasonable. Although the way in which it appears to have been particularised before the primary judge is somewhat different to the way it was expressed in oral submissions today, the primary judge identified the applicant’s claim to be that the Tribunal’s conclusion that he does not face a real risk of significant harm was not fair or reasonable. This was expanded to include a general pleading of legal unreasonableness with respect to the Tribunal’s findings. That appears to be similar to ground 3 and the applicant’s contention that the rejection of his evidence by the Tribunal was unreasonable.

27    The primary judge dealt with that ground for judicial review: PJ [83]-[98]. It included an explanation of the general principles relating to legal unreasonableness (at [86]) and the nature of illogical or irrational decision-making drawn from the Full Court’s decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33]-[35] (Allsop CJ, Besanko and O’Callaghan JJ). No error in respect of the legal principles has been identified in the ground of appeal.

28    The primary judge identified the applicant’s submissions to allege that the Tribunal did not take threats from an organisation referred to as LBCO and the targets on his family seriously or did not give them proper weight: PJ [88]-[89]. As the primary judge observed, these claims were rejected by the Tribunal and the applicant taking issue with the way in which the Tribunal considered the evidence, the degree of weight to be given to the evidence, is a factual question for the decision-maker alone and the primary judge correctly observed that the Tribunal is not required to accept uncritically any or all claims made by an applicant, and nor does the Tribunal have to have rebutting evidence before it concludes that a particular assertion has not been made out.

29    The primary judge again examined the Tribunal’s reasoning and process of reasoning (at [90]-[96]) and concluded (at [97]) that his Honour did not accept the applicant’s submission that the Tribunal’s findings or its relevant state of satisfaction met the threshold of legal unreasonableness. Again, I have considered the Tribunal’s reasons for decision and the primary judge’s reasons, and I cannot discern any reasonably arguable ground of appeal by which the primary judge could have been in error for failing to dismiss the ground of review based on legal unreasonableness.

30    In short, after that relatively long explanation, the applicant has not been able to identify or articulate a potentially viable ground for judicial review of the Tribunal’s decision. As such, there is no potential ‘error’ on the part of the primary judge for failing to conclude that the Tribunal made a jurisdictional error. In these circumstances, it is not in the interest of the administration of justice to grant the extension of time requested. Accordingly, the application shall be dismissed with costs.

Associate:

Dated:    28 April 2026