Federal Court of Australia

FZA18 v Minister for Immigration and Citizenship [2026] FCA 1132

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time filed on 10 April 2025 be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the amount of $4,500.

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

REASONS FOR JUDGMENT

YOUNAN J:

APPLICATION FOR AN EXTENSION OF TIME

1    On 10 April 2025, the applicant filed an application for an extension of time from the decision of the primary judge in FZA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1396, given on 17 December 2024 (primary judgment or PJ).

2    The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was), which affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Tribunal decision or T).

3    The applicant is a citizen of Bangladesh and first entered Australia on a temporary work subclass GA 400 visa on 7 February 2015. The applicant applied for a protection visa on 29 September 2015, which was refused by a delegate of the Minister on 20 May 2016.

4    The applicant appeared in person at the hearing of the application, and at the hearing before the primary judge. In both instances, the applicant had the assistance of an interpreter in the Bengali language (PJ [19]).

FACTUAL BACKGROUND

5    A brief factual background is summarised in the Tribunal decision at paragraphs [2]–[3]. The application for judicial review is summarised in the primary judgment at paragraphs [15]–[16]. I rely on those summaries, which are not in contention.

EXERCISE OF DISCRETION

6    The decision to grant an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) is a discretionary one: BUD17 v Minister for Home Affairs [2018] FCAFC 140; 264 FCR 134 at [82] per Robertson, Steward and Thawley JJ. The Court will determine the appropriate exercise of the discretion based on its view of what the interests of the administration of justice require: AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178 at [14] per Mortimer J.

7    Other than the interests of the administration of justice, there are no mandatory relevant considerations: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

Relevant legal principles

8    The principles applicable to the exercise of the Court’s discretion are set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-9 per Wilcox J (adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6] per Spender, O’Loughlin and Dowsett JJ). Those considerations, which guide the Court’s discretion, are:

(1)    the length of and explanation for the delay;

(2)    any prejudice to any other party; and

(3)    the merits of the substantive application.

9    On consideration of those factors, I have decided to dismiss the application for an extension of time for the following reasons.

Delay

10    The applicant seeks an extension of time under r 31.23 of the Rules to lodge an application for the review of a migration decision. This is in error. The draft notice of appeal provided by the applicant on 23 March 2025 makes clear that the application is with a view to appealing the decision of the primary judge, in which case r 36.05 of the Rules is the relevant provision.

11    The decision of the primary judge was delivered on 17 December 2024. Under r 36.03 of the Rules, the applicant was required to file a notice of appeal in this Court within 28 days of the date that the judgment was pronounced or the order made. As the Minister explains, the combined effect of r 1.61(1) and (5) is that if the time fixed for doing an act or thing prescribed by the Rules includes a day between 24 December and 14 January, the day is not to be counted: see DBF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1496 at [11] per Anastassiou J. This means that the 21 days between those dates did not count, and the appeal was therefore due to be filed by 28 January 2025. However, as the application was not lodged until 25 March 2025, it was still filed 55 days late and the applicant therefore requires an extension of time in accordance with rule 36.05 of the Rules.

12    The application for an extension of time, and the affidavit in support, were filed on 10 April 2025 (i.e., 114 days after the date of the primary judgment), although the date of lodgment is recorded as 25 March 2025.

13    In the accompanying affidavit, the applicant states that the extension of time is requested on the following basis:

2.    I sent my application Notice of Appeal to the Federal Court of Australia on 8 January 2025 by Express Post no 0201016843807006040994. Australia Post records that the documents were delivered on 9 January 2025 at 8.32am.

3.    I contacted the Federal Court on Monday 3 March 2025 to find out about progress of my application and I was told that they have no record of receiving it.

14    In written submissions, the applicant recites the same information and explains that he has “never been late in submitting my application”.

15    I do not accept that the application was not filed (or submitted) late. As the Minister points out, the applicant has not provided any supporting evidence of his alleged efforts, such as a copy of the Australia Post record that he says indicates that the documents were delivered “on 9 January 2025 at 8.32am”.

16    Further, if delay is accepted, then the applicant has failed to provide an adequate explanation for it. If, as claimed by the applicant, he was notified on 3 March 2025 that the Court did not have a record of his “application Notice of Appeal”, then it is not evident why:

(i)    he waited until 3 March 2025 to contact the Court to find out about the progress of his application; and

(ii)    he waited (further) until 25 March 2025 to lodge that application (which he says he sent on 8 January 2025).

17    At the hearing of the application on 10 August 2025, the applicant attempted to provide further evidence to explain this delay, including that he communicated with the Court on several occasions. That evidence was not provided in the affidavit supporting his application. Even if I were to accept that these several communications took place, they do not explain why he could not have filed his application earlier.

18    While I do not consider the extent of the delay to be significant, the applicant has failed to provide an adequate explanation for it.

Prejudice

19    The Minister acknowledges that no specific prejudice would be caused by the grant of the application. While the appeal to finality is warranted in a case of delay (BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [37] per Colvin J), it does not loom large in this case. In any event, as submitted by the Minister, the absence of specific prejudice is not a sufficient reason to grant an extension of time: Hunter Valley Developments at 349.

Merits

20    The examination of the merits must be approached with some caution in the context of an application for the extension of time: Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138 at [30] per Greenwood J. An application for an extension of time may be refused where, for example, a draft notice of appeal does not disclose “viable” grounds (Stewart v Grauby [2012] FCA 703 at [27] per Yates J), or the grounds on their face are “plainly hopeless” (AIC16 at [16], citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]–[63] per Mortimer J).

21    The applicant proposes one ground in the draft notice of appeal:

Grounds of appeal

1.    I respect His Honour's judgment but believe that the Court failed to accept that the Tribunal took into consideration the information provided and that I am a well known person to the authorities in Bangladesh and that my life is at risk and that relocation is not possible in Bangladesh.

22    The proposed ground is plainly hopeless. The Minister submits that it is nonsensical. This is referable to the complaint that the (primary judge failed to accept that) Tribunal “took into consideration the information provided…”. On a beneficial construction, I will read the complaint as the failure of the Tribunal to consider information provided to it.

23    Even on that beneficial construction, the proposed ground does not identify the “information provided” that is said to be overlooked by the Tribunal.

24    In written submissions, the applicant claims that the Tribunal and primary judge “overlooked” (or “ignored”) the applicant’s statutory declaration of 7 August 2018 (which was filed in the Tribunal); the photographs and articles that were annexed to the statutory declaration; and the applicant’s statement dated 29 September 2015 (which was annexed to his protection visa application) (2015 Statement).

25    At the hearing on 10 August 2026, after the Minister outlined his submissions as to why the application should be refused, the applicant was provided with an opportunity to respond to those submissions in support of his application; to explain the proposed ground of the draft notice of appeal submitted with his application; and to identify any error in the Tribunal decision or the primary judgment. It became apparent that the applicant’s claim that the Tribunal “overlooked” information provided by the applicant was another way of saying that the Tribunal did not consider the matter from the applicant’s point of view; that the Tribunal did not accept the applicant’s claims; and that the applicant disagreed with the Tribunal’s findings.

26    In any event, as the Minister’s representative submitted, it is apparent from the Tribunal’s reasons that this material (including the claims contained in the two statements) was addressed by the Tribunal: T [25]–[29]. The applicant draws especial attention to “point 10” of the applicant’s 2015 Statement, which is specifically addressed by the Tribunal: T [16].

27    In the proceeding below, and in written submissions before this Court, the applicant claimed that the Tribunal did not consider his paperwork, including a purported police report. However, the primary judge found that the Tribunal considered the documents provided by the applicant to the Tribunal, including the purported police report: PJ [24(a)]. The applicant does not demonstrate any error in that finding. He states simply that he is “not personally persuaded that the Judge failed to consider at least genuinely the police report and other documents and failed to recognise me as a person of high profile”.

28    The proposed ground of appeal otherwise cavils with the merits of the Tribunal decision. That is, it takes issue with the Tribunal’s finding that the applicant was not a “high profile” photojournalist, as claimed, facing a real risk of harm in Bangladesh, as claimed.

29    Furthermore, the proposed ground takes issue with a finding that the Tribunal did not (and did not have cause to) make regarding the possibility of relocation in Bangladesh.

30    The applicant’s outline of written submissions does not take the matter any further. The outline advances a number of unparticularised and unsubstantiated claims. The generic nature of these claims is not a (proper) substitute for the identification of error in the primary judgment. As the Minister submitted, it is not possible to answer a claim that unidentified information was “overlooked”. The onus does not lie on the Minister to positively demonstrate the obverse proposition that all information was addressed. The applicant has not demonstrated that any information was overlooked by the Tribunal or the primary judge.

31    The applicant’s written submissions otherwise cavil with the merits of the decision. This is especially evident when the applicant reasons that because the Tribunal did not accept aspects of his evidence, this means that the tribunal “failed to consider the evidence in the Court Book and in this case”. As the primary judge explained at PJ [24(b)], that the applicant may not agree with the finding of the Tribunal does not mean that the finding is wrong, let alone infected by jurisdictional error. The applicant does not demonstrate any error in the primary judgment.

32    Some of the applicant’s written submissions are nonsensical, for example, claiming that “the Judge failed to identify any arguable and appealable error”. It is not evident what to make of this submission.

CONCLUSION

33    The absence of merit in the proposed ground of appeal is sufficient reason not to grant an extension of time to appeal the decision of the primary judge. The failure to provide an adequate basis for the delay provides an additional reason.

34    Accordingly, the application for an extension of time will be dismissed, with costs.

Costs in a fixed amount

35    The Minister seeks costs fixed in the amount of $4,500 on the basis that the amount sought is reasonable and proportionate to the nature of the case, including its complexity. While the Minister did not file any affidavit in support of this submission, I observe that the amount sought is less than the amount awarded by the primary judge, and well below the maximum amount that may be claimed in a migration matter where the application is dismissed after the hearing: item 15.2 of Schedule 3 of the Rules.

36    The applicant did not say anything in opposition to the Minister’s application for lump sum costs, save as to his reduced financial circumstances. There is no evidence before the Court that the applicant cannot meet any such order.

37    Therefore, in exercising my discretion to award costs in accordance with the overarching purpose under s 37M of the Federal Court Act 1976 (Cth) (FCA Act), I consider it appropriate to order costs in a lump sum pursuant to s 43(3)(d) of the FCA Act and r 40.02(b) of the Rules, and that the amount sought by the Minister is reasonable.

Associate:

Dated:    14 August 2026