Federal Court of Australia

CNN17 v Minister for Immigration and Citizenship [2026] FCA 1017

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an application for an extension of time to file a notice of appeal in relation to an order made by a judge of the Federal Circuit and Family Court (Division 2) dismissing an application by the applicant for judicial review of a decision of the second respondent, the Australian Review Tribunal (formerly, the Administrative Appeals Tribunal) (Tribunal).

2    The applicant appeared in person at the hearing of his application for an extension of time with the assistance of an interpreter arranged by the Court. The applicant did not provide any written submissions and made very brief oral submissions in support of his application.

3    The second respondent, the Tribunal, filed a submitting notice, save as to costs.

4    For the reasons that follow, the application for an extension of time to file a notice of appeal in relation to the “whole of the judgment” of the primary judge must be dismissed. Although the first respondent (Minister) does not claim any prejudice, and the application for as extension of time was only filed three days out of time, no potential error has been identified in the reasoning of the primary judge, and any appeal would have no reasonable prospects of success.

B.    Background

5    The applicant is a citizen of Malaysia who arrived in Australia on 13 April 2016 on an Electronic Travel Authority visa.

6    On 26 August 2016, the applicant applied to the Minister for a XA-866 Protection visa (protection visa). The applicant included a statement in his application for a protection visa which stated that the claims for protection were based on a fear of harm from people in Malaysia to whom he allegedly owed money (written statement).

7    On 23 November 2016, a delegate of the Minister (delegate) refused the application for the protection visa.

8    On 16 December 2016, the applicant applied to the Tribunal for a review of the decision of the delegate.

9    On 15 May 2017, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant, however, did not appear at the hearing before the Tribunal. Following the commencement of judicial review proceedings in the Federal Circuit Court of Australia (as it was then known), on 5 February 2018, the decision of the Tribunal of 15 May 2017 was set aside by consent, and the matter was remitted back to the Tribunal for reconsideration.

10    On 22 August 2018, the applicant attended a hearing before the Tribunal, differently constituted, and was interviewed by the Tribunal. The hearing was conducted with the assistance of a Mandarin interpreter.

11    On 24 August 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa and gave written reasons for its decision (Decision Record or DR).

12    On 25 September 2018, the applicant filed an application for judicial review.

13    On 3 March 2023, the application for judicial review was dismissed by the primary judge: CNN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 140 (primary judgment or PJ).

14    On 3 April 2023, the applicant filed an application for an extension of time to file a notice of appeal from the decision of the primary judge, three days out of time.

C.    Decision of the Tribunal

15    After identifying the relevant criteria for the issue of a protection visa under the Migration Act 1958 (Cth) (Migration Act) and the Migration Regulations 1994 (Cth) at DR [6] to [11], the Tribunal then considered the claims advanced by the applicant and the evidence relied upon by him. The Tribunal set out at DR [15] the following claims made by the applicant in his written statement (as written):

My case takes place in early June 2015, a friend introduced me to know Tamizi, he work in Pahang state government in the management of forest development and he is one of the official, he said he had way and connection to get logging licenses from government department and Tamizi's introduced me to a lot of knowledge about the logging and timber industry.

In one weeks of his recognition, he brought me and few guys that who are interested in logging industry Tamizi bought us together to the relevant government departments and logging side for know the whole operation, in fact, the first day I met him there is doubt after observation I slowly increased trust on this person, because he is really well aware of this line. After a week of meetings we have agreed with each other in a nearby forest Kemaman Pahang development.

Time to early July, Tamizi said that each of us need to pay out as RM120,000 to set up a company to apply for logging licenses, tools, and the cost of hiring workers, and so on. But I

only have about RM60,000 so I claim to be a relatively small shareholders but he refused, he said that if I really could not get those amount he have to find someone else. Then he said to me, he had a friend who work in MARA (MARIS AMANAH RAKYAT) in a high-position, where l can borrow money, such as through him will be able to borrow money. In this case I agreed.

Procedures and processes to borrow money is very simple and fast, but the borrowed money will directly go to Tamizi, because everything quickly implement so did not care too much about these details.

Until November, this is our day was scheduled to start logging, Tamizi said that the government suddenly changed the forest become reserve zone, then we have to wait for some time to give us choose a suitable place.

Until December, Tamizi suddenly disappeared, and I have to go for a police report, but there is no news, but some people have found me that I had to borrow money from them, the amount was RM78,000 and they warned me If I fail to settle in a week I will trouble. That reminds me I have go for the MARA loans and turned out to be a hoax.

A week after that is December, when I was ready to leave Kelang they found me and hit me there took my necklace and ring, in the chaos I ran away. February and March 2016 I was hiding in Thailand, after around 1 month I gone back to Kelang again they found me again, this time not only beaten me badly thus shave my hair with knife. This time I went to the police station to make report but then do not have any news, one of the officers told me that pay back the money or leave the country because there are high rank of government officials behind those load shark.

After not much thinking and I leaved the country and arrived to Australia.

16    The Tribunal then identified the following six credibility concerns that it had with the claims made by the applicant.

17    First, in his written statement, the applicant had claimed that he and a “few guys” were involved in discussions with Tamizi – the person who was the alleged proponent of the logging project, the subject of the alleged loan – and in investing in the logging project, but in his evidence before the Tribunal, he stated that he was the only investor in the logging project and the only person who had any discussions with Tamizi.

18    Second, in his written statement, the applicant had stated that Tamizi was a state government official involved in forestry development but in his evidence before the Tribunal, he had no knowledge of Tamizi’s background.

19    Third, in his written statement, the applicant had stated that the loan he had made was facilitated by a friend who worked in MARA (Maris Amanah Rakyat) but in his evidence to the Tribunal, he stated that he had borrowed the money from someone known to Tamizi, who the applicant personally had no knowledge of or dealings with.

20    Fourth, the applicant was not able to provide any details to the Tribunal of the terms of the alleged loan of RM60,000, other than to state he had been asked to pay back RM78,000.

21    Fifth, the applicant claimed that there had never been any documents relating to the alleged logging project or the alleged loan of RM60,000, which the Tribunal considered implausible.

22    Sixth, the applicant had stated in his application form for the protection visa that he had ceased working for a tyre autocare company in October 2024 but in his evidence before the Tribunal, he had stated that he worked for the company right up to until his arrival in Australia in April 2016. The Tribunal considered that while this inconsistency was tangential to the applicant’s principal claims, it suggested that the applicant had not been candid as to his overall circumstances.

23    The Tribunal found that by reason of the cumulative effect of these credibility concerns, it could not accept that the applicant had been a truthful or credible witness (at DR [31]).

24    Given the finding referred to at [23] above, the Tribunal then reasoned at DR [32] to [34]:

The Tribunal is not satisfied that the applicant invested in a logging arrangement on his own, or together with others, at the instigation of Tamizi or otherwise. The Tribunal is not satisfied that the applicant borrowed money from either a loan shark or an authorised lender for this purpose. The Tribunal is not satisfied that the applicant suffered any difficulties from individuals from whom he borrowed money. The Tribunal is not satisfied that the applicant went to the police in relation to these matters. The Tribunal is not satisfied that there are individuals who loaned money to the applicant in Malaysia that have any desire to harm the applicant due to non-repayment of the monies.

Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason set out in s.5J(1) of the Act for the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

25    For these reasons, the Tribunal concluded that the applicant was not a person in respect of whom Australia owed any protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act (at DR [35] – [37]).

D.    Decision of the primary judge

26    The applicant relied on the following grounds in his application for judicial review before the primary judge (as written):

Tribunal made Jurisdictional errors.

1.    Tribunal asked me misleading questions.

2.    Tribunal considered irrelevant facts.

3.    Tribunal considered my case with bias.

27    After summarising the procedural background, the decision of the Tribunal, the submission made by the applicant, who appeared in person, with the assistance of a Mandarin interpreter, and the submissions made by the Minister, the primary judge then addressed and rejected each of the three grounds advanced by the applicant.

28    As to ground 1, the primary judge noted that the applicant had not identified any questions that he claimed were misleading or how they were misleading. His Honour was satisfied that there was nothing to suggest that the subject matter of the content of the questions asked by the Tribunal that gave rise to the six credibility concerns was misleading, and that the questions were both relevant and necessary to enable the Tribunal to undertake its task in assessing whether the applicant had satisfied the criteria for the issue of a protection visa (at PJ [54] –[62]).

29    As to ground 2, the primary judge accepted a submission from the Minister that the applicant had not provided any particulars of irrelevant facts that the Tribunal had taken into account or how any consideration of such facts was sufficient to constitute jurisdictional error. The primary judge observed that if the applicant's complaint was that the facts the Tribunal focused on when considering his application, and when questioning him at the hearing, were irrelevant to his application, his Honour disagreed. The primary judge was satisfied that the areas of questioning of the applicant undertaken by the Tribunal, as recorded in the Decision Record, were both relevant and necessary to enable the Tribunal to undertake its statutory task (at PJ [63] – [69]).

30    As to ground 3, the primary judge observed that the applicant had provided no explanation as to why he alleged that the Tribunal had considered his case with bias. His Honour concluded in the absence of any particularisation of the applicant’s claim of bias and of any transcript or audio recording of the hearing before the Tribunal, and considering his Honor’s findings as to the relevance and necessity of the questioning undertaken by the Tribunal, there was nothing to suggest that the investigation by the Tribunal of the facts of the applicant’s case was not reasonable or appropriate (at PJ [70] – [76]).

E.    Extension of time

31    Pursuant to r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (Rules), an appellant must file a notice of appeal within 28 days of the date on which the judgment appealed from was pronounced or the order was made.

32    Rule 36.05 of the Rules provides:

Extension of time to file notice of appeal

(1)    A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2)    The application may be made during or after the period mentioned in rule 36.03.

(3)     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 application relies; and

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

(d)     a draft notice of appeal that complies with rules 36.01(1) and (2).

33    An application for an extension of time in which to file a notice of appeal generally requires an applicant to explain the delay, establish that there was a reasonable basis to argue that the relevant decision was erroneous, and establish that they would suffer substantial injustice if an extension of time were not granted: CUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 53 at [18] – [19] (Rares J).

34    In the present case, the explanation provided by the applicant for his delay is that he did not know about the procedure to file an appeal and misunderstood the relevant time limit. Ignorance of time limits or court processes, without any further justification, however, is generally not a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38] (Foster J).

35    It is next necessary to consider the merits of the proposed appeal. In assessing whether there is an arguable case for error, the proposed grounds of appeal should be considered at a “reasonably impressionistic level”, and the court should not descend into a fuller consideration of the arguments for and against each ground, in order to determine if the proposed grounds of appeal might variously be characterised as “arguable”, “reasonably arguable”, “sufficiently arguable” or have “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62] – [63] (Mortimer J).

F.    Grounds of appeal

36    The following three proposed grounds of appeal are advanced in the draft notice of appeal (as written):

There exit jurisdictional errors.

1.    Tribunal did not properly consider the appellant’s claims.

2.    Some unfavourable findings were made wrongly.

3.    Some claims in favour of the appellant were ignored by the judge.

F.1.    The applicant also requires leave to raise new grounds of appeal

37    The applicant would require leave to rely on proposed grounds 1 and 2, as neither was raised before the primary judge. It is generally inconsistent with the interests of justice for claims of jurisdictional error to be raised for the first time in the course of the Court exercising its appellate jurisdiction: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 at [14] (Perram J). Permitting the prosecuting party to advance fresh grounds on an appeal in a matter of this kind results in this Court becoming “the initial supervisory court in relation to the Tribunal’s decision, contrary to the express intention of the Migration Act”: Minister for Immigration and Border Protection v Aulakh (2018) 265 FCR 143; [2018] FCAFC 91 at [107] (Mortimer J).

38    Nevertheless, if the proposed grounds of appeal have sufficient merit, it may be in the interests of justice that leave be granted to raise new grounds on appeal, particularly given the adverse consequences for the applicant in this case if leave is not granted.

F.2.    Ground 1: There was no discernible failure to consider properly the applicant’s claims

39    The applicant did not provide any particulars in his application for leave to appeal and draft notice of appeal of any claims that he claims the Tribunal failed to consider properly. When asked at the hearing in what way did he contend that that Tribunal had not properly considered his claims, the applicant responded, “I don’t know what to say”, and when pressed further, the applicant responded, “I want to – I want to extend my stay”.

40    The claims made by the applicant were identified by the Tribunal and rejected in their entirety, not by reference to an objectively minor fact but rather as a result of the six credibility concerns identified at [17] – [22] above, five of which were with respect to matters central to those claims. Those concerns were based on conflicting accounts, implausible absences of recollection and the absence of any corroborative documentation. The only consideration not central to the claims was the sixth concern – the applicant’s accounts of his employment history – but, as the primary judge found at PJ [46], that was a tangential matter that was not dispositive in itself and simply added to the cumulative concerns of the Tribunal.

41    No relevant error in the manner in which the Tribunal considered the applicant’s claims is discernible, and I am satisfied that this proposed ground of appeal has no reasonable prospects of success.

F.3.    Ground 2: No unfavourable findings were made wrongly

42    The applicant did not provide any particulars in his application for an extension of time to file a notice of appeal or in his draft notice of appeal of any unfavourable findings that he claims the Tribunal made wrongly. When asked at the hearing to identify which unfavourable findings were made wrongly by the Tribunal, the applicant responded, “I can’t remember”.

43    As explained at [40] above, the Tribunal rejected all of the applicant’s claims on the basis of its credibility concerns, which cumulatively caused the Tribunal to conclude that the applicant was not a truthful or credible witness. That finding was open to the Tribunal, given five of the six credibility concerns related to matters central to the applicant’s claims. They were not concerns about objectively minor facts.

44    No relevant error in the manner in which the Tribunal made unfavourable findings is discernible, and I am satisfied that this proposed ground of appeal has no reasonable prospects of success.

F.4.    Ground 3: No claims in favour of the applicant were ignored

45    The applicant did not provide any particulars in his application for an extension of time to file a notice of appeal or in his draft notice of appeal of any claims in his favour that were ignored by the primary judge. When asked at the hearing to identify which claims in favour of the applicant were ignored by the primary judge, the applicant responded “I can’t remember. It has been a long time”.

46    Notwithstanding the technical and legal flaws in the manner in which the grounds were expressed in the applicant’s application for judicial review, I am satisfied that the primary judge substantially considered the grounds of review advanced by the applicant at PJ [54] to [76] and, in doing so, addressed the claims advanced by the applicant before the Tribunal for the purpose of determining whether any ground of judicial review had been established.

47    No relevant error in the approach of the primary judge is discernible, and I am satisfied that this proposed ground of appeal has no reasonable prospects of success.

G.    an extension of Time should not be granted

48    I acknowledge that the refusal of the applicant’s application for an extension of time to file a notice of appeal will have significant adverse consequences for the applicant but, given my findings that none of the proposed grounds of appeal has any reasonable prospects of success, and that there is no apparent reason to otherwise doubt the correctness of the primary judge’s decision, the application for an extension of time to file a notice of appeal must be dismissed.

49    It is therefore otherwise unnecessary to address whether the applicant should be granted leave to raise proposed grounds 1 and 2.

H.    Disposition

50    The application for an extension of time to file a notice of appeal is to be dismissed, and the applicant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    31 July 2026