Federal Court of Australia

SZUPD v Minister for Immigration and Citizenship [2026] FCA 696

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time within which to appeal is dismissed.

3.    The applicant is to 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

PERRY J:

1.    INTRODUCTION

1    The applicant, SZUPD, applies for an extension of time within which to appeal from a decision of the Federal Circuit Court of Australia in SZUPD v Minister for Immigration and Citizenship & Anor [2020] FCCA 2274 delivered on 18 August 2020 (primary judgment or PJ). By that decision, the primary judge dismissed the applicant’s application for judicial review of the decision of the (then) Administrative Appeals Tribunal, which had affirmed a decision of a delegate of the first respondent, the Minister, to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820, or a Partner (Residence) (Class BS) Subclass 801 visa.

2    I note that this matter was part of the backlog of appellate cases created by restrictions on in-person hearings in 2020 and 2021 as a result of the COVID-19 pandemic. This explains the lengthy delay between the filing of the leave application and the listing of the matter for hearing.

3    At the hearing of her application for an extension of time, the applicant appeared with the assistance of a Nepali interpreter. The applicant had not filed any written submissions in advance of the hearing despite being afforded that opportunity by reason of orders I made on 12 March 2026. After hearing from both parties, I made further orders on 30 April 2026 affording the applicant another opportunity to put on written submissions in support of her case. The applicant filed those submissions on 18 May 2026. The Minister put on further submissions in reply on 27 May 2026.

4    For the reasons set out below, the application for an extension of time should be dismissed. Not only is the very lengthy delay in seeking to appeal inadequately explained, but the proposed grounds of appeal have no reasonable prospects of success. It would not therefore be in the interests of justice to grant the extension of time.

2.    BACKGROUND

2.1    The first Tribunal decision

5    The applicant is a citizen of Nepal. She arrived in Australia in March 2013 on a Subclass 456 Business (Short Stay) visa. That visa ceased on 23 April 2013. The applicant applied for a protection visa on 18 April 2013, but this was refused on 11 November 2013. That decision was affirmed by the Refugee Review Tribunal (RRT). The applicant’s application to seek judicial review of the RRT’s decision was unsuccessful.

6    On 3 December 2014, the applicant married her late husband. On 5 December 2014, she applied for two partner visas on the basis of her relationship with her husband, namely:

(1)    Partner (Temporary) (Class UK) Subclass 820; and

(2)    Partner (Residence) (Class BS) Subclass 801.

7    The applicant’s late husband was the sponsor for those applications. The applicant remained on a Bridging visa C (subclass 030), which was granted in association with her applications for the visas.

8    At the time of her application, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of that visa were set out in Part 820 of Sch 2 of the Migration Regulations 1994 (Cth) (the Delegate’s criteria). These criteria include criteria to be met at the time that the application for the visa is made (cl 820.21) and criteria to be met at the time that the decision on the visa application is made (cl 820.22).

9    Almost two years later, on 22 September 2016, a delegate of the Minister refused to grant the visas (Delegate’s decision). A decision by the Tribunal affirming the Delegate’s decision (the first Tribunal decision) was set aside by consent and remitted to the Tribunal for re-determination.

2.2    The second Tribunal decision

10    The applicant’s sponsor passed away in mid-2019. This meant that the criteria in cl 820.22 which the Tribunal was required to apply when it made its second decision were different from those which applied at the time of the Delegate’s decision and the first Tribunal decision. Specifically, as the applicant’s sponsor had passed away, it was necessary for the applicant relevantly to satisfy the criterion in subclause 820.221(2)(c) that she “has developed close business, cultural or personal ties in Australia” (the close ties criterion).

11    On 21 August 2019, the applicant attended a further hearing before the Tribunal. She was represented by her migration agent and was assisted by a Nepali interpreter. The applicant presented her arguments and gave evidence. The applicant’s pastor also gave evidence at the hearing.

12    On 23 August 2019, the Tribunal affirmed the Delegate’s decision (Tribunal’s decision).

13    In its reasons for so finding, the Tribunal “accepted at face value the claims made by the applicant that she was the spouse, as defined in s.5F of the Act, of the sponsoring partner at the time of the application”. Together with the fact that she was sponsored by the sponsoring partner, the Tribunal found that this meant that she would meet the criteria in cl 820.211(2)(a) and (b) of Part 820 of Sch 2 to the Migration Regulations. The Tribunal “further accepted at face value the claim that she was the carer of the sponsor and that he was dependent upon her care during the relationship” and that this would provide “a compelling reason for not applying the Schedule 3 criteria”. As a consequence, the Tribunal also accepted that she would meet the criteria in cl 820.211(2)(d).

14    The Tribunal’s reasons also record that it referred the applicant to the close ties criterion in clause 820.221(2)(c) and invited the applicant to provide any information as to any close business, cultural or personal ties she has in Australia.

15    However, the Tribunal was ultimately not satisfied that the applicant had developed close business, cultural or personal ties. The Tribunal therefore found that the applicant did not meet the close ties criterion in 820.221(2)(c) and affirmed the Delegate’s decision.

2.3    The Circuit Court’s decision

16    On 26 September 2019, the applicant applied to the Circuit Court for judicial review of the Tribunal’s decision and advanced the following ground of review:

1. The Tribunal was wrong to define too strictly the meaning of having very close personal ties in Australia. They expected me to who that am very close to my Australian friends in church, who I see as my family.

Particulars

The Tribunal was wrong because it found that to be close that:

•    I needed to have dependency

•    the other person needed to suffer harm if I were required to leave Australia

•    friendship of itself without biological connection was not enough

•    my view that church members were like my family was not enough because I had no other family in Australia.

17    The primary judge dismissed the application. The primary judge held that the Tribunal did not adopt an erroneous or narrow meaning of the phrase “close personal ties”, nor did his Honour consider that the Tribunal’s reasons were illogical or irrational or lacking an evident and intelligible justification. In so holding, the primary judge found at PJ [35]-[38]:

It was a relevant and permissible consideration by the Tribunal to take into account the absence of any person dependent on the applicant or the applicant not having actual family in Australia. Taking into account those considerations does not support the Tribunal giving an erroneous meaning to the phrase “close personal ties”.

It is apparent that the Tribunal took into account the applicant’s involvement with her church and her normal or daily activities and the evidence that was presented. The applicant was not able to provide any other information of any other activities she participates in with the church or any other cultural or personal groups. The applicant did not provide any further information as to any close ties she had with any cultural group. The Tribunal found that the applicant provided little information as to what if any activities she participates in with, or any dependence, her two close friends from the church and two close friends not from the church, have upon the applicant or any detriment they would face if she were required to depart Australia.

The Tribunal did not identify that the applicant had to have a dependent or that the applicant needed to suffer harm in order to meet the criteria in relation to cl 820.221(2)(c) of the Regulations. The Tribunal was referring to the applicant’s submission in relation to the circumstances of an alleged fear to suffer harm if returned to Nepal. It was in those circumstances a relevant factor for the Tribunal to take into account.

Nor did the Tribunal make a finding that the applicant had to have a biological connection to meet the requirements of the phrase “close personal ties”. The location of the applicant’s actual family was a relevant consideration for the Tribunal to take into account.

3.    THE APPLICATION FOR AN EXTENSION OF TIME

18    On 24 January 2023, the applicant filed an application for an extension of time within which to appeal from the primary judgment.

19    In support of her application, the applicant relies on her affidavit affirmed on 23 January 2023, as well as her written submissions filed on 18 May 2026. The applicant also seeks to rely on a letter dated 5 May 2026 from the pastor at her local church. In that letter, the pastor expressed the view, among other things, that the applicant was a leader within their church community and his concern that she would suffer extreme religious injustice and hardship should she return to Nepal. I do not accept the Minister’s submission that the letter is not relevant to this application. In my view, it is relevant in considering the prejudice which the applicant might suffer if her application for an extension of time is unsuccessful and therefore to a consideration of where the interests of justice best lie. It is not relevant, however, to an assessment of the merits of the proposed grounds of appeal.

20    The applicant’s draft notice of appeal contains the following ground of appeal:

The Administrative Appeals Tribunal as well as His Honour … failed to accept that I met the requirements as a result of long term relationship and information submitted in support of the genuine relationship as well as the fact that I meet the definition of compelling circumstances which was not properly considered by the Tribunal and I rely on the grounds listed in my application as well as my written submission including my involvement with the Church and my normal and daily activities and the fact that my sponsor died and the Department failed to accord me natural justice and fairness.

21    To the extent that the applicant’s draft notice of appeal states that she relies “on the grounds listed in my application as well as my written submissions”, I understand that the applicant wishes to refer to the grounds in her application for judicial review before the primary judge (the terms of which are set out at paragraph 16 above). Further, the applicant states in her written submissions filed on 18 May 2026 that “the Tribunal applied an impermissibly narrow interpretation of close personal ties.” I take this to mean that the applicant wishes to reagitate the same ground expressed in her application before the primary judge that the “Tribunal was wrong to define too strictly the meaning of having very close personal ties in Australia”.

22    Doing the best I can, having regard to the draft notice of appeal, the applicant’s written submissions filed on 18 May 2026 and the applicant’s application before the primary judge, I infer that if her application for an extension of time is successful, the applicant wishes to challenge the primary judge’s decision on the grounds that his Honour should have found that:

(1)    the Tribunal erred in failing to find that the applicant met the requirements of a genuine relationship and the criteria for there being compelling circumstances for why that criteria should be waived;

(2)    the applicant was not afforded procedural fairness by the Minister’s department or the Tribunal; and/or

(3)    the Tribunal erred in finding that the applicant did not meet the close ties criterion in clause 820.221(2)(c) of the Migration Regulations. In particular, the Tribunal erred by:

(a)    applying an impermissibly narrow interpretation of close personal ties;

(b)    imposing a condition that the applicant needed to establish an element of dependency in her relationships, or that those persons will suffer harm if the applicant was required to leave Australia;

(c)    finding that friendships without biological connection were not sufficient to satisfy the criteria of close personal ties; and

(d)    failing to have regard to the applicant’s church members who she regarded as family.

4.    RELEVANT PRINCIPLES: APPLICATION FOR AN EXTENSION OF TIME

23    By virtue of r 36.03 of the Federal Court Rules 2011 (Cth) (FCR), an appellant must file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced or the order was made. However, if an appeal is not lodged within time, a party may apply for an extension of time within which to appeal under r 36.05 of the FCR.

24    The discretion to extend time is not confined by express criteria: Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19] (Finn J). However, the merits of the application for leave to appeal are relevant to the question of whether an extension of time should be granted, as well as other considerations including whether the delay is substantial, the adequacy of any explanation for the delay, any prejudice to the applicant if the application is refused, and whether the respondent would suffer any prejudice if the application is granted even though the mere absence of prejudice to the respondent does not suffice: see, for example, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–349 (Wilcox J); and Bechara v Bates [2018] FCA 460 at [17] (Perry J). Further, in considering the merits of the proposed application, the draft grounds of appeal should generally be considered on their face and examined only at a “reasonably impressionistic level”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)). Ultimately, the question of whether to grant an extension of time turns upon what the justice of the case requires in all of the circumstances: Wedesweiller v Cole (1983) 47 ALR 528 at 531 (quoted with approval by Wilcox J in Hunter Valley at 349).

25    Finally, where the delay is very lengthy, as here, and no proper explanation is provided, the Court may refuse the application unless there are exceptional circumstances: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2022) 276 CLR 579 at [60] (Gordon, Edelman and Steward JJ); AHZ21 v Minister for Immigration [2022] FCA 884 at [27] (Farrell J); AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1283 at [37] (Perry J).

5.    LENGTH OF DELAY AND PREJUDICE

26    As the delay in bringing the present application is very lengthy, in general exceptional circumstances must be demonstrated to justify the grant of an extension of time. The 28-day appeal period commenced on 18 August 2020 and expired on 15 September 2020. The applicant lodged her application on 24 January 2023, as a consequence of which it was filed 2 years, 4 months and 12 days after the expiry period. While the Minister accepts that no prejudice would be suffered if the extension of time was granted notwithstanding the delay, this is not sufficient in itself to grant an extension of time and I would give this neutral weight only in the exercise of my discretion: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ).

27    The applicant’s explanation for the delay is threefold. She contends that: (a) she did not receive the written reasons of the primary judge until 12 February 2021; (b) she suffered from depression and anxiety; and (c) she was confused about the legal process.

28    I am not satisfied that the applicant has established that there are exceptional circumstances that warrant the extension of time being granted. First, even if the applicant received the primary judgment on 12 February 2021, this does not explain why she did not file an application until 24 January 2023. Secondly, while I accept that the loss of her husband would have caused her distress and worry, the applicant has not provided any evidence regarding her mental health. In the absence of evidence of this kind, I do not accept that the applicant’s mental health gives rise to an exceptional circumstance such as to justify such a significant delay. Thirdly, ignorance of time limits is not in itself a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9] (Katzmann J).

29    It follows for these reasons that I am not satisfied that an adequate explanation has been given by the applicant to justify her significant delay in bringing the application. In circumstances of such extreme delay, that in itself is sufficient to justify dismissing the applicant’s application for an extension of time. Nonetheless, given the seriousness of the consequences for the applicant of refusing the application, I have considered whether in any event the applicant’s proposed grounds of appeal would have any merit.

6.    MERITS OF THE APPLICATION

6.1    The limited jurisdiction of the Circuit Court

30    It is helpful to explain the limited jurisdiction of the Circuit Court and this Court. This is because some of the applicant’s proposed grounds of appeal assume that the Court’s jurisdiction extends to a consideration of the merits of her visa application. This is not, however, correct. The Circuit Court was limited to considering whether the Tribunal’s decision was made lawfully under the Migration Act (that is, whether a jurisdictional error exists in the Tribunal’s decision). It did not have the power to decide whether, for example, the applicant met the criteria for the grant of a visa or to grant the visa. That was the task of the Tribunal. As such, if the applicant had been successful in the Circuit Court, the Circuit Court would have remitted her application back to the Tribunal to decide whether to grant her the visa. The same limitations apply to any decision by this Court on an appeal. However, the focus on any appeal from the Circuit Court would be on the question of whether the Circuit Court made an error in dismissing the applicant’s application for review of the Tribunal’s decision.

6.2    Criteria for a genuine relationship and compelling circumstances

31    The applicant contends that the Tribunal failed to find that the applicant met the requirements of a genuine relationship, or that there were compelling circumstances that warranted the schedule 3 criteria being waived.

32    As submitted by the Minister, the applicant did not argue this ground before the primary judge. As such, she would require leave to raise this new ground on any appeal: VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] (Kiefel, Weinberg and Stone JJ). In any event, this ground lacks merit. As I explained above, the Tribunal accepted at face value that the applicant met the Delegate’s criteria (i.e., that she was the spouse of the sponsor at the time of the application and that her relationship with the sponsor was genuine). The Tribunal also accepted at face value the applicant’s claim that she was the sponsor’s carer, and that this would have amounted to a compelling reason not to apply the schedule 3 criteria pursuant to subclause 820.211(2)(d)(ii) of the Migration Regulations. It follows that this proposed ground of appeal would have no reasonable prospects of succeeding if an extension of time were granted (even assuming that leave would have been granted in the course of the appeal to raise the new ground).

6.3    Proposed challenge based on alleged breach of procedural fairness

33    To the extent that the applicant seeks to argue that the Minister’s department failed to afford her procedural fairness, this is a new ground which was not raised on her application for judicial review before the Circuit Court. Again, the applicant would require leave to raise this new ground. In any event, the Delegate’s decision is a primary decision pursuant to s 476(4) of the Migration Act 1958 (Cth) which the Court does not have jurisdiction to review: see s 476(2)(a) of the Migration Act. Thus, this proposed ground of appeal lacks any merit.

34    To the extent that the applicant wishes to contend on an appeal that the Tribunal failed to afford her procedural fairness, this ground also lacks merit. First, as set out at paragraph 14 above, it is clear from the Tribunal’s reasons that the Tribunal discussed the dispositive issues of the applicant’s case and explained that, because the sponsor had passed away, the issues in dispute had changed since the first Tribunal decision. The Tribunal also invited the applicant to provide information and present her arguments in relation to the new issues. Second, as mentioned at paragraph 11 above, the Tribunal’s decision records that the applicant appeared before the Tribunal on 21 August 2019 where she was represented by her migration agent and assisted by a Nepali interpreter. The applicant and the applicant’s pastor gave evidence at the hearing, and the applicant presented her arguments. The applicant also put on evidence from her pastor, and she was represented by her registered migration agent, who also attended the hearing. There is, therefore, no apparent breach of procedural fairness: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47]–[48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

6.4    Proposed grounds relating to the Tribunal’s failure to find that the applicant satisfied the criteria of establishing close personal ties in Australia

35    With respect to the applicant’s proposed ground of appeal that the Tribunal erred by failing to find that the applicant satisfied the close ties criterion, in my view this ground also lacks merit.

36    First, as the Minister contends, the Tribunal was not under any obligation to consider any specific considerations in assessing whether it considered that the applicant had close personal ties in Australia. Nor is there any indication in the Tribunal’s reasons that it adopted an interpretation of “close personal ties” which went beyond the ordinary meaning of the phrase. It follows that there is no apparent error in the primary judge’s finding at PJ [41] that:

[t]he Tribunal did not adopt an erroneous or narrow meaning of the phrase “close personal ties” in cl 820.221(1)(c) of the Regulations. There are no jurisdictional errors made out by ground one.

37    Secondly, to read the Tribunal’s decision as imposing a condition that the applicant establish dependency in her relationships (or detriment if she were to leave Australia) is not a fair reading of those reasons. No such condition was imposed. Rather, the Tribunal considered the degree of dependency of the applicant’s friends (or any detriment they would face if she were to leave Australia) as part of assessing whether the applicant’s purported personal ties in Australia were close. The applicant’s contention is not a fair reading of the Tribunal’s decision. It follows that no error is apparent in the findings of the primary judge at PJ [35]–[37] that:

It was a relevant and permissible consideration by the Tribunal to take into account the absence of any person dependent on the applicant or the applicant not having actual family in Australia. Taking into account those considerations does not support the Tribunal giving an erroneous meaning to the phrase “close personal ties”.

It is apparent that the Tribunal took into account the applicant’s involvement with her church and her normal or daily activities and the evidence that was presented. The applicant was not able to provide any other information of any other activities she participates in with the church or any other cultural or personal groups. The applicant did not provide any further information as to any close ties she had with any cultural group. The Tribunal found that the applicant provided little information as to what if any activities she participates in with, or any dependence, her two close friends from the church and two close friends not from the church, have upon the applicant or any detriment they would face if she were required to depart Australia.

The Tribunal did not identify that the applicant had to have a dependent or that the applicant needed to suffer harm in order to meet the criteria in relation to cl 820.221(2)(c) of the Regulations. The Tribunal was referring to the applicant’s submission in relation to the circumstances of an alleged fear to suffer harm if returned to Nepal. It was in those circumstances a relevant factor for the Tribunal to take into account.

38    Thirdly, there is no apparent merit in the applicant’s allegation that the Tribunal reasoned that friendships without a biological connection were insufficient to satisfy the close ties criterion. The Tribunal did not make any finding to this effect. The applicant’s contention is not a fair reading of the Tribunal’s reasons and thus has no reasonable prospects of success. It follows that there is no apparent error in the finding of the primary judge at PJ [38] where his Honour held:

Nor did the Tribunal make a finding that the applicant had to have a biological connection to meet the requirements of the phrase “close personal ties”. The location of the applicant’s actual family was a relevant consideration for the Tribunal to take into account.

39    Fourthly, the applicant’s contention that the Tribunal failed to have regard to the applicant’s evidence that she considered church members as family also lacks any reasonable prospects of success. The Tribunal’s reasons plainly demonstrate that the Tribunal did have regard to the applicant’s evidence on this point but ultimately decided that there was a lack of evidence in support of her claim. It is well established that the weight given by the Tribunal to particular evidence is a matter for the Tribunal to assess as part of its fact-finding function: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ). Thus, the applicant’s contention ultimately rises no higher than an expression of disagreement with the Tribunal’s finding and as a result seeks a review of the merits of the Tribunal’s decision which this Court and the Circuit Court do not have jurisdiction to consider: Abraham v Minister for Immigration and Citizenship [2026] FCA 100 at [44] (Perry J); see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

40    Fifthly, to the extent that the applicant contends that the primary judge did not take into account her submissions and evidence, this ground also lacks apparent merit. This ground would appear to be directed towards challenging the primary judge’s finding at PJ [29]-[31] that:

After the adjournment application, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood the nature of the hearing as explained by the Court.

The applicant had provided with the written submissions a recent letter from her pastor going to her claims. The letter from the pastor is not capable of establishing judicial error by the Tribunal and it was marked MFI-1. This is because the letter was not relevant to the issues before the Court in the application for judicial review.

The applicant orally asked that the Court give her justice and said that her church is her family. The applicant’s oral submissions, in substance, invite impermissible merits review. This Court has no power to determine the matter on discretionary or compassionate grounds. Accordingly, nothing said by the applicant orally identified any jurisdictional error.

41    In finding that the letter from the pastor was not relevant, no error is apparent in the primary judge’s reasons. The applicant apparently sought to rely upon the letter in support of her contention that she met the criteria for the visa. However, the Circuit Court did not have jurisdiction to decide for itself whether the applicant met the criteria for the grant of a visa, as I have earlier explained.

42    Finally, to the extent the applicant contends that the primary judge failed to consider her involvement with the church, this submission wrongly assumes that the primary judge ought to have considered the merits of her visa application: Abraham at [44]; Wu Shan Liang at 272.

7.    CONCLUSION

43    For these reasons set out above, I do not consider that it is in the interests of justice to grant the extension of time within which to appeal. Not only is there extreme delay with no adequate explanation for the delay, but in my view the proposed appeal would lack any reasonable prospects of succeeding if an extension of time were granted. It follows that the application for an extension of time within which to appeal must be dismissed. As the applicant has been wholly unsuccessful in her application, the applicant should also pay the Minister’s costs of and associated with the application.

Associate:

Dated:    5 June 2026