Federal Court of Australia

DRY18 v Minister for Immigration and Citizenship [2026] FCA 1077

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant to 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

NEEDHAM J:

The applicant makes an application for extension of time to appeal

1    The applicant filed an application for an extension of time to appeal from a decision of the primary judge in DRY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 732. That decision was a review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) dated 29 June 2018 to set aside a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa, and to substitute a decision refusing to grant the applicant a Protection (Class XD) visa. The primary judge dismissed the application for review of the Tribunal’s decision (the primary judgment).

2    Orders were made in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 16 August 2024, and the applicant filed his application for an extension of time on 4 March 2025 (accepted for filing on 20 March 2025). He filed an affidavit in support of his application, in which he said that he intended to appeal within the statutory timeframe but “could not obtain legal advise on a timely manner due to financial hardship” (as written), and that he has “now decided to self represent”.

3    The application attached a draft notice of appeal, which has one ground. That ground reads:

Grounds of appeal

1. The primary judge erred by failing to hold that the Tribunal made a jurisdictional error by considering a criterion for the grant of the visa which had not been considered by the delegate.

Particulars:

a)    The only basis for the refusal to grant him the visa was the delegate's finding that the relevant clause of Schedule 2 to the Migration Regulations 1994 (Cth) was not satisfied.

The decisions below

4    There was no issue taken by the applicant with the facts found by either the Tribunal or by the primary judge. Accordingly I will adopt the facts as found by the primary judge (under the heading “Background”), and her Honour’s summary of the Tribunal’s decision (under the heading “The Tribunal’s decision”).

5    The applicant sought review of the Tribunal’s decision on the following grounds:

1.     The Tribunal failed to assess harm based on my claims.

2.     The Tribunal failed to assess the present situation in Bangladesh since I left.

3.     The Tribunal made decision without any verification of my genuine documentary evidences and statement.

6    The Member of the Tribunal identified s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) as the relevant law. She found that the applicant should be refused a Protection (Class XD) visa for reasons of credibility and, in particular, issues with whether documents he provided in support of his application were genuine or not. Those factors informed her determinations of whether he had been subjected to political harm or had fears from the Awami League or the Bangladesh Nationalist Party (BNP). She was unable to find that returnees from Western countries were a particular social group, and there was no evidence that they were at risk or subjected to harm.

7    In dismissing the first ground of review, the primary judge considered, after setting out the adverse credibility findings, that those findings were not “closed to the Tribunal” and were made on rational grounds and on consideration of matters that were logically probative (citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 (McKerracher, Griffiths and Rangiah JJ) at [36]-[44]). In rejecting the second ground, the primary judge noted that the Tribunal did not doubt the country information before it, but instead was unwilling to accept that that information supported the applicant’s claim to fear harm (particularly where the Tribunal had not accepted that he was involved with the BNP). The third ground was dismissed on the basis that the Tribunal was not under any general duty to make inquiries (citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [20], [22], [41] per French CJ and Kiefel J (as her Honour then was)), contrary to the applicant’s contention that the Tribunal should have made its own inquiries as to the factual bases of his claim, including the location of his jewellery shop. Further, the applicant was on notice as to the issue with the credibility and genuineness of his documents from the decisions of the delegate of the Minister, and of the Tribunal.

8    The application for review was dismissed by the primary judge.

The hearing

9    At the hearing, the applicant appeared in person, and an interpreter was provided. The applicant indicated through the interpreter that he had read the Minister’s submissions. While he appeared to have some understanding of English, he was provided with an interpretation of the proceedings as they unfolded.

The applicant’s submissions

10    The applicant made no further submissions although was given the chance to do so, both before and after the Minister’s submissions. Accordingly, from his application for leave and his affidavit, I will treat his position as encompassing the following:

(a)    he should be granted leave to appeal out of time on the basis of his delay not being exceptional;

(b)    the explanation for the delay – that he was not able to afford legal advice and so had to file his application as a litigant in person – is a sufficient explanation for the delay; and

(c)    his proposed ground of appeal – that the delegate of the Minister and the Tribunal determined his application on different criteria – has sufficient merit for the application to be granted.

The Minister’s submissions

11    The respondent contended that the application should be dismissed on a number of grounds. They are:

(a)    unexplained delay;

(b)    prejudice to the Minister; and

(c)    lack of merit of the proposed ground of appeal.

12    These considerations are relevant to an application of this kind: see FPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 723 (Banks-Smith J) at [12].

Delay

13    The Minister noted that any appeal from the primary judge’s orders needed to be brought, pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), within 28 days after the order was made; thus, by 13 September 2024. The applicant was some 172 days out of time (using the date of lodgment, rather than date of acceptance for filing, but nothing turns on that period of time).

14    The Minister characterised the delay as “significant”, and relied on Wigney J’s statement in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] in relation to an 18-month delay (see [32]) that:

The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

Prejudice

15    The Minister did not contend that there is any specific prejudice; however, he relied on the prejudice to the “orderly and proper administration of the [Migration] Act, which goes to the public interest in the finality of administrative decision-making”. The Minister submitted that a mere absence of specific prejudice is not sufficient to justify the extension of time, but contended that here, the delay is such that in itself it causes a prejudice to the orderly workings of the Court.

Lack of merit

16    The Minister noted that the sole ground of appeal was that there was, the applicant contended, a different determinative element in each of the Tribunal’s and the primary judge’s decision. However, the delegate and the primary judge each considered s 36(2) of the Migration Act, which was the appropriate provision for such consideration. That section requires the applicant to fall within one of the heads of being owed protection obligations by Australia: that he satisfies the refugee criterion, the complementary protection criterion, or is a member of a family unit of a person who does meet those criteria. The Minister submitted that each of the delegate and the primary judge was not satisfied that the applicant met those criteria, and so the real basis of the draft grounds of appeal is a disagreement with the result.

17    Additionally, the Minister submitted that the applicant, if successful, would need to seek leave to argue this ground as it had not been raised before the primary judge.

18    The test for consideration of the merits of a proposed ground of appeal is that it “has a level of rationality and a basis in the material … sufficient for the Court to be satisfied it is appropriate to hear full argument”: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6] (Mortimer J).

Consideration

Delay and prejudice

19    I consider that the delay, combined with the prejudice to the orderly conduct of the Court’s work, is of itself sufficient to dismiss the application. Even though the applicant’s first language is not English, and the Court should not expect a litigant in person to be able to develop his material in a well-reasoned way (cf CAL15 v Minister at [6]), nothing was raised in these proceedings which attempted to explain the delay, other than the brief but non-specific justification in the applicant’s affidavit that he could not obtain legal advice in a timely manner due to his financial hardship. The application for leave itself as filed by the applicant contains, under the heading “Accompanying documents”, the following requirement:

This application must be accompanied by:

1.     an affidavit stating:

(a)     briefly but specifically, the facts on which the application relies;

(b)     why the application (or notice of appeal / cross-appeal) was not filed within time; and

(c)     (for an application made under rule 34.25), the nature of the appeal and the questions involved;

…

20    This requirement reflects the provisions of r 36.05(3)(c) of the Rules, which provides that an application for extension of time to file a notice of appeal must be accompanied by an affidavit stating:

(a)    briefly but specifically, the facts on which the application relies; and

(b)    why the notice of appeal was not filed within time.

21    The application and its accompanying affidavit do not comply with this rule, as there was no indication as to the facts upon which the application relied in relation to the ground of appeal set out above at [3]; and the affidavit merely sets out without any supporting evidence or documentation the applicant’s difficulties with finding representation and then deciding to “self represent”.

22    The delay here is just under six months. There is no magic number at which a delay becomes a bar to the grant of leave. However, as Derrington J noted in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [29], the usual circumstances of delay are “relatively minor, being in the nature of days, a few weeks or, perhaps, a month”. The applicant’s is a significant delay. The question is whether the delay has been properly and adequately explained.

23    In SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [9], Katzmann J noted that an unrepresented applicant’s understanding that he would receive a separate notification from the Federal Magistrate’s Court (as the FCFCOA then was) as to the relevant time limits for appeal as the explanation for delay was “understandable but… does not in my view amount to a special reason within the meaning of the rule”. Her Honour said (at [8]) that “I doubt that ignorance of the time limit would pass for a special reason”. Her Honour was not satisfied that a special reason existed in the context of the applicant in that case being some 19 days late. While under the former Rules a “special reason” was required, that is not so different from the requirement that where there is a significant delay, the basis for the extension of time needs to be “exceptional” (see the review of High Court authority to this effect in WQRJ v Minister at [30] per Derrington J; see also Gibson v Minister for Home Affairs [2020] HCATrans 46 at 1190-1197 where Edelman J found “a compelling and cogent explanation” for most of the delay).

24    The applicant clearly knew of the time limit for filing an appeal from the primary judge; his affidavit states at paragraph 5 that “I intended to apply a notice of appeal within the statutory time frame”. At paragraph 6 he said that “I have now decided to self represent …” (emphasis added). That appears to indicate that he was aware of the requirement of 28 days, but it was not until “now” (ie, the time at which he did file, early March 2025) that he decided to make an application for an extension of time.

25    He did not describe the process of seeking representation, his efforts between September 2024 (when the period expired) until March 2025 (when he eventually filed) to obtain legal advice, or whether in fact he did make any such efforts in the meantime.

26    I consider that the applicant has failed to explain his delay, and that to allow the application to be brought after a significant delay, without a proper explanation, is a prejudice to “the orderly and proper administration of the [Migration] Act” (see WQRJ v Minister at [44] per Derrington J).

Merits of the appeal

27    In any event, I am also persuaded that the merits of the proposed ground do not warrant a grant of leave. The ground appears to arise out of the fact that the delegate considered the applicant’s protection visa application as a Class XA application, whereas the Tribunal was required to consider it as a Class XD application (by operation of s 45AA of the Migration Act and reg 2.08F of the Regulations). Both the delegate and the Tribunal considered, and applied, the criteria in ss 36(2)(a), (aa), (b), and (c) of the Migration Act. Further, the criteria that were required to be satisfied at the time of the delegate’s decision (as prescribed by cl 866.221 of Sch 2 of the Regulations) were, as submitted by the Minister, materially identical to the criteria required to be satisfied at the time of the Tribunal’s decision (cl 785.221 of Sch 2 of the Regulations). Both those provisions required the applicant to satisfy one of the criteria mentioned in ss 36(2)(a), (aa), (b) or (c) of the Migration Act.

28    Accordingly, the criteria against which the applicant’s visa was considered were the correct, and materially identical, criteria.

29    The applicant did not raise the alleged jurisdictional error before the primary judge. Merit alone is not enough for the grant of leave: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (Kiefel, Weinberg and Stone JJ) at [46] where the Full Court said that “[l]eave ... should only be granted if it is expedient in the interests of justice to do so”. In considering this passage, Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [15] said that “the weaker the point [sought to be the subject of leave], the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party”. Here, there was no explanation as to why the point was not taken below.

Consideration of any other error in the Tribunal’s decision

30    For completeness, and because the applicant does not have a lawyer, I have considered whether there is any obvious error in the Tribunal’s decision or in the primary judge’s decision: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). I am satisfied that there is no obvious error in either decision.

31    In all the circumstances, I am not persuaded that the merit of the proposed ground is such that it should overcome the unexplained delay and prejudice, and the failure to explain why it was not taken below.

Determination

32    The application should be dismissed with costs.

33    The Minister seeks a fixed costs order for $5,000. The Minister submitted that this amount is appropriate because it is less than the amount that can be claimed in a Short Form Bill for an application involving a migration decision dismissed after hearing (see Item 15.2 of Schedule 3 of the Rules), and the amount sought is reasonable and proportionate to the nature, including the complexity, of the case (see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 (Kenny J) at [18]). The Minister also noted that this amount is less than his party-to-party costs of the proceeding.

34    I am satisfied that the costs are reasonable and proportionate, and that such an order is appropriate.

Associate:

Dated:    6 August 2026